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Interpretation and Domestic Law:
The Prosecution of Rape at the
International Criminal Tribunal for
the former Yugoslavia
Daniel Peat*

In the late spring of 1992, the Secretary-General of the UN delivered a report to the
Security Council that captured the attention of the international community. Yugoslavia
– from which Croatia and Slovenia had declared independence less than a year before –
had fallen into a pitched civil war fuelled by bitter ethnic tensions between Serb, Croat,
and Muslim communities. Nestled in the centre of the former unified state, the nascent
republic of Bosnia-Herzegovina became the scene of atrocities not seen since the Second
World War. The gravity of such acts led to the creation of the International Criminal
Tribunal for the former Yugoslavia (“ICTY”), which was intended to facilitate the
restoration of peace and stability by providing a forum in which those guilty of grave
breaches of international humanitarian law could be brought to justice. However, faced
with a vague statute and little precedent to draw upon, the judges of the ICTY were
left with little choice but to innovate in order to adjudicate upon such crimes. One of
the ways that they bridged the gap between vague rules and concrete application was
by using domestic law to interpret international crimes and rules of procedure and
evidence. Yet despite the frequency with which the Tribunal adopted this technique, it
remains “the most varied and unexplained” use of any interpretive aid by the Tribunal.
This article aims to address some of those unanswered questions.

*

Associate Legal Officer, International Court of Justice. This article is
based on a lecture that I delivered at Thompson Rivers University on 21
March 2016. I would especially like to thank Professors Lorne Neudorf
and Robert Diab for their assistance in organizing my visit and for
their hospitality throughout my stay. I would also like to thank Jennifer
Cavenagh and Giulia Pinzauti for their comments on previous drafts of
this article.

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I.

Introduction

II.

A Brief History of the ICTY

III.

Interpreting Rape

IV.

V.

I.

I

A.

The Historic Evolution of the Crime of Rape

B.

Interpretation of Rape within the ICTR/ICTY

C.

The Legacy of the ICTY Approach

Evaluating the Tribunal’s Use of Domestic Law
A.

An Affront to the Principle of Legality?

B.

Methodological Critiques

C.

Understanding the Tribunal’s Reasoning

Conclusion

Introduction

n the late spring of 1992, the Secretary-General of the UN delivered
a report to the Security Council that captured the attention of the
international community. Yugoslavia – from which Croatia and Slovenia
had declared independence less than a year before – had fallen into a
pitched civil war fuelled by bitter ethnic tensions between Serb, Croat,
and Muslim communities. Nestled in the centre of the former unified
state, the nascent republic of Bosnia-Herzegovina became the scene of
atrocities not seen since the Second World War.1 The Serbs of BosniaHerzegovina, the Secretary-General reported, were making a “concerted
effort … to create ‘ethnically pure’ regions” in the Republic,2 employing
tactics that “were as brutal as they were effective”.3 Reports on the
situation documented the grim scene: the killing or displacement of 2.1
1.

2.
3.

At the time of the reference on independence, the Bosnian population
consisted of 43% Slavic Muslims, 31% Serbs and 17% Croats: Virginia
Morris & Michael P Scharf, An Insider’s Guide to the International
Criminal Tribunal for The Former Yugoslavia (Ardsley, NY: Transnational
Publishers, 1995) vol 1 at 19.
Further Report of the Secretary-General pursuant to Security Council
Resolution 749 (1992), UNSCOR, 1992, UN Doc S/23900 at para 5.
Morris & Scharf, supra note 1 at 22.

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million Bosnians by the summer of 1993,4 the systematic rape of women
and girls, and the operation of 715 detention centres in which rape,
torture, and execution was commonplace.5
The gravity of such acts led to the creation of the International
Criminal Tribunal for the former Yugoslavia (“ICTY” or the “Tribunal”),6
which came into existence on 25 May 1993.7 It was hoped that the
Tribunal would facilitate the restoration of peace and stability in the
area, providing a forum in which those guilty of grave breaches of
international humanitarian law could be brought to justice.8 As the first
international criminal tribunal to be established since the Nuremberg
and Tokyo international military tribunals in the wake of the Second

4.
5.

6.
7.

8.

Ibid.
Final Report of the Commission of Experts Established Pursuant to Security
Council Resolution 780 (1992), UNSCOR, 1994, UN Doc S/1994/674 at
paras 216-53 [Final Report pursuant to Res 780].
See Theodor Meron, “Rape as a Crime under International Humanitarian
Law” (1993) 87 American Journal of International Law 424.
Resolution 827 (1993), SC Res 827, UNSCOR, 48th Sess, UN Doc S/
Res/827 (1993) [Resolution 827]. On the appropriateness of establishing
the ad hoc tribunals by Security Council resolution, as opposed to
convention or resolution of the UN General Assembly, see Morris &
Scharf, supra note 1 at 40-48; Mahmoud Cherif Bassiouni, The Law of
the International Criminal Tribunal for the Former Yugoslavia (Ardsley,
NY: Transnational Publishers, 1996) at 220; Report of the SecretaryGeneral pursuant to Paragraph 2 of Security Council Resolution 808 (1993),
UNSCOR, 1993, UN Doc S/25704 at paras 19-29 [Report pursuant to SC
Res 808]; Mia Swart, Judges and Lawmaking at the International Criminal
Tribunals for the former Yugoslavia and Rwanda (PhD Thesis, University of
Leiden, 2006) [unpublished] at 43-49.
Resolution 808 (1993), SC Res 808, UNSCOR, 1993, UN Doc S/
RES/808; Resolution 827, ibid.

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World War,9 the ICTY was faced with a statute that contained “not much
more than the skeletons of crimes” within its jurisdiction,10 as well as
procedural rules that had scant precedent to draw on.11 By establishing an
international tribunal “on the basis of a laconic statute, a brief preparatory
report and a few pages of debates, the Security Council left the judges
with little choice but to innovate”.12
In an attempt to bridge the gap between vague rules and concrete
application, the Tribunal had frequent recourse to domestic law in the
interpretation of its Statute and Rules of Procedure and Evidence (“RPE”).13
This article examines one such use – the Tribunal’s use of domestic law
to interpret the crime of rape in the cases of Furundžija and Kunarac
– demonstrating the indelible effect that this reasoning has had on the
jurisprudence of the ad hoc tribunals and on international criminal law
more generally.
This article is divided into three Parts following the Introduction.
9.

10.
11.

12.

13.

The International Military Tribunal at Nuremberg was established in
August 1945 by virtue of a conventional agreement, Agreement for the
Prosecution and Punishment of Major War Criminals of the European Axis
(The London Agreement), 8 August 1945, 82 UNTS 279 (entered into
force 8 August 1945). The International Military Tribunal for the Far
East, on the other hand, was established by military order in January
1946: Special Proclamation by the Supreme Commander for the Allied
Powers at Tokyo, 19 January 1946, 4 Bevans 20.
Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals
(Oxford: Oxford University Press, 2005) at 5.
Prosecutor v Dusko Tadic, IT-94-1, Decision on the Prosecutor’s Motion
Requesting Protective Measures for Victims and Witnesses (10 August
1995) at para 20.
William A Schabas, “Interpreting the Statutes of the Ad Hoc Tribunals”
in Lal Chand Vohrah et al, eds, Man’s Inhumanity to Man: Essays on
International Law in Honour of Antonio Cassese (The Hague: Kluwer Law
International, 2003) 847 at 848.
“Letter Dated 13 April 1993 from the Permanent Representative of
Canada to the United Nations Addressed to the Secretary-General”
UNSCOR, UN Doc S/25594 (1993) at para 11. Interestingly, in the
process of the drafting of the Report of the Secretary-General on the
ICTY, Canada suggested explicitly that reference could be made to
appropriate national law, if necessary, for interpretive purposes.

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In Part II, the historical and legal background of the ICTY is described.
Part III details the use of domestic law by the trial and appeals chambers
of the ICTY to interpret the crime of rape in the cases of Furundžija
and Kunarac, highlighting the importance of these judgments to
contemporary international criminal law. Part IV asks whether the main
principled argument against the Tribunal’s judgments – based on the
principle of legality – has any purchase, before questioning the validity
of methodological critiques that have been levelled at the Tribunal. It
concludes by suggesting that domestic law was used as the interpretative
aid of last resort, which allowed the Tribunal to adjudicate upon crimes
within its subject-matter jurisdiction in the absence of all other relevant
material.
The jurisprudence of the ICTY provides a rich repository of instances
in which domestic law has been invoked to interpret international crimes
or rules of procedure.14 Yet despite the frequency with which the Tribunal
adopted this technique, it remains “the most varied and unexplained” use
of any interpretive aid by the Tribunal.15 This article aims to address some
of those unanswered questions.

II.

A Brief History of the ICTY

In the wake of the Secretary-General’s Report regarding the situation
in the former Yugoslavia, the Security Council formed a Commission
of Experts tasked with investigating potential grave breaches of
14.

15.

Prosecutor v Dusko Tadic, supra note 11 at paras 38-42, 47-48, 60-71;
Prosecutor v Kupreskic, IT-95-16-A, Appeals Chamber Judgment (23
October 2001) at paras 34-41 (when reliance on visual identification of
the perpetrator is unsafe (art 21)); Prosecutor v Limaj et al, IT-03-66-T,
Trial Chamber Judgment (30 November 2005) at para 17 (when reliance
on visual identification of the perpetrator is unsafe (art 21)); Prosecutor
v Naletilic, IT-98-34-A, Appeals Chamber Judgment (3 May 2006) at n
465 (the extent to which defendants have a right to confront witnesses
under art 21(4)(e)); Prosecutor v Strugar, IT-01-42-A, Appeals Chamber
Judgment (17 July 2008) at paras 52-54 (on the requirement to be fit to
stand trial “implicit in Articles 20 and 21 of the Statute”).
Lena Grover, Interpreting Crimes in the Rome Statute of the International
Criminal Court (Cambridge: Cambridge University Press, 2014) at 65.

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international humanitarian law.16 The Commission documented and
collated information relevant to the purported breaches which ultimately
totalled over 65,000 pages.17 The Interim Report of the Commission also
noted the possibility of establishing an international tribunal, adding to
an increasing number of voices that had made similar recommendations
in late 1992 and early 1993.18 On the same day that the Commission’s
Interim Report was released, the Conference on Security and Cooperation in Europe circulated a report examining the possibility of
establishing an international tribunal at a meeting of the UN Human
Rights Commission in Geneva,19 with France and Italy making their own

16.

17.
18.

19.

Resolution 780 (1992), SC Res 780, UNSCOR, 1992, UN Doc S/
RES/780. The Commission of Experts was formed, inter alia, on the
recommendation of the newly appointed Special Rapporteur for the
Human Rights Commission: Report on the situation of human rights in
the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki,
Special Rapporteur of the Commission on Human Rights, pursuant to
paragraph 14 of the Commission Resolution 1992/S-1/1, UNSCOR, 1992,
Annex, UN Doc S/24516 at para 70.
Final Report pursuant to Res 780, supra note 5 at para 20.
Interim Report of the Commission of Experts Established Pursuant to Security
Council Resolution 780 (1992), UNSCOR, 1993, Annex I, UN Doc
S/25274 at para 74. “The Commission was led to discuss the idea of the
establishment of an ad hoc international tribunal … The Commission
observes that such a decision would be consistent with the direction of
its work”; See also Report on the situation of human rights in the territory
of the former Yugoslavia prepared by Mr. Tadeusz Mazowiecki, Special
Rapporteur of the Commission on Human Rights, pursuant to paragraph 15
of the Commission Resolution 1992/S-1/1 and Economic and Social Council
decision 1992/305 annexed to The situation of human rights in the territory
of the former Yugoslavia – Note by the Secretary-General, UNSCOR,
1992, UN Doc A/47/666 at para 140; Report of the Secretary-General
on the Activities of the International Conference on the former Yugoslavia,
UNSCOR, 1993, UN Doc S/25221 at para 9.
Morris & Scharf, vol 2, supra note 1 at 211-310.

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proposals for an international tribunal shortly thereafter.20
As the impetus for the creation of an international tribunal amongst
UN member states and civil society mounted, the Security Council
passed Resolution 808 on 22 February 1993, which provided that “an
international tribunal shall be established for the prosecution of persons
responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia”, as well as formally
requesting the Secretary-General of the UN to submit a report on
“all aspects of this matter, including specific proposals [regarding the
Tribunal]”. Taking into account suggestions from member states, the
Report of the Secretary-General proposed a statute for an ad hoc tribunal
in May 1993, which was unanimously approved by the Security Council
in Resolution 827 (1993).21 The ICTY was created as a subsidiary body of
the Security Council under the authority vested in the Security Council
by Chapter VII of the UN Charter.22
Of particular importance is paragraph 29 of the Report of the
Secretary-General, which stated that:
[i]t should be pointed out that, in assigning to the International Tribunal the
task of prosecuting persons responsible for serious violations of international
20.

21.
22.

“Letter Dated 10 February 1993 from the Permanent Representative
of France to the United Nations Addressed to the Secretary-General”
UNSCOR, UN Doc S/25266 (1993); “Letter Dated 18 February
1993 from the Permanent Representative of Italy to the United
Nations Addressed to the Secretary-General” UNSCOR, UN Doc
S/25300 (1993). In the following four months, a further 13 proposals
for an international tribunal were circulated by states, international
organizations and non-governmental organizations; for a full list including
reproductions of the proposals, see Morris & Scharf, vol 2, ibid at 209480.
Report pursuant to SC Res 808, supra note 7; Resolution 827, supra note 7.
Report Pursuant to SC Res 808, ibid at para 28 [emphasis added]. By
determining that this situation [the conflict in the former Yugoslavia]
continues to constitute a threat to international peace and security, the
Security Council framed the situation so that it came within its primary
responsibility under art 24(1) of the Charter of the United Nations, 26
June 1945, Can TS 1945 No 7 (entered into force 24 October 1945) and
enabled measures to be taken under Chapter VII; Resolution 827, ibid.

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humanitarian law, the Security Council would not be creating or purporting
to “legislate” that law. Rather, the International Tribunal would have the task
of applying existing international humanitarian law.23

The applicable law of the Tribunal was hence that which was “beyond
any doubt part of customary law”.24 Such an approach was necessary, in
the view of the Report, to accord with the principle of nullum crimen sine
lege25 – also referred to by some commentators as the “principle of legality”
– whereby actions cannot be criminalised unless a clear and specific
criminal prohibition existed at the time of the alleged violation.26 The
Report recommended that the Tribunal have subject-matter jurisdiction
over grave breaches of the Geneva Conventions of 1949 which constituted
“the core of customary international law applicable in international
armed conflicts”;27 violations of the law or customs of war, as reflected in
the 1907 Hague Convention (IV) and annexed regulations;28 genocide, as
codified in the 1948 Genocide Convention;29 and crimes against humanity,
encompassing murder, torture, and rape.30 Jurisdiction over these matters
was enshrined in Articles 2 to 5 of the Statute of the International Criminal
Tribunal of the former Yugoslavia (“Statute of the ICTY”). In the Statute
23.

24.
25.

26.
27.
28.
29.
30.

Report pursuant to SC Res 808, ibid. See also Prosecutor v Hadžihasanović,
IT-01-47-AR72, Decision on Interlocutory Appeal Challenging
Jurisdiction in Relation to Command Responsibility (16 July 2003)
at para 55. Matters of personal, territorial, temporal and concurrent
jurisdiction are not pertinent for the subject matter of this article, and will
not be outlined here. For more information, see Morris & Scharf, supra
note 1 at 89-136.
Report pursuant to SC Res 808, ibid at para 34.
Ibid. The limitation of the law applicable by the Tribunal to customary
law was “so that the problem of adherence of some but not all States to
specific conventions does not arise”; the Secretary-General did, however,
consider that “some of the major conventional humanitarian law has
become part of customary international law” at paras 33-35.
See Antonio Cassese et al, Cassese’s International Criminal Law, 3d
(Oxford: Oxford University Press, 2013) at 22 et seq.
Report pursuant to SC Res 808, supra note 7 at para 37.
Ibid at paras 41-44.
Ibid at paras 45-46.
Ibid at paras 47-49.

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of the ICTY, domestic law is only mentioned explicitly in relation to
sentencing and is only applicable insofar as it constitutes “general practice
regarding prison sentences in the courts of the former Yugoslavia”.31
Aside from contextualising the cases that will be examined in
the following pages, this brief detour into the history of the ICTY
demonstrates one important point. The subject-matter jurisdiction of
the ICTY was based on what the Secretary-General considered to be
extant and partially codified rules of customary international law.32 These
rules may have been, and ultimately proved to be, insufficiently defined
for application. However, that does not detract from the fact that the
normative authority of the legal rules had been recognised,33 obviating
the need to establish the legal proposition as a formally valid rule of
international law prior to its application. This supports the view (which is
31.

32.

33.

Updated Statute of the International Criminal Tribunal for the former
Yugoslavia, (September 2009), art 24(1) [Statute of the ICTY]. Cf. the
proposals by the Conference on Security and Co-operation in Europe,
Amnesty International, and Slovenia, which all permitted – to a greater or
lesser extent – application of domestic law; Morris & Scharf, supra note
1 at 369-70. A similar demarche led to the creation of the International
Criminal Tribunal for Rwanda eighteen months later, the Statute of which
is largely based on the Statute of the ICTY with only minor modifications;
Report of the Secretary-General Pursuant to Paragraph 5 of Security Council
Resolution 955 (1994), UNSCOR, 1995, UN Doc S/1995/134 at para 9;
Virginia Morris & Michael P Scharf, The International Criminal Tribunal
for Rwanda (Ardsley, NY: Transnational Publishers, 1998) vol 1 at n 466;
William A Schabas, The UN International Criminal Tribunals: The Former
Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University
Press, 2006) at 30.
In the case of art 3 of the Statute of the ICTY, ibid, “Violations of the
laws or customs of war”, the Statute enumerates a non-exhaustive list of
prohibited acts, leaving the door open for the ICTY to ascertain novel
custom. A similar non-exhaustive list is included in the Statute of the
International Criminal Tribunal for Rwanda, UNSCOR 49th Sess, UN
Doc S/Res/955 (1994) art 4.
See UNSCOR, 1993, 3217th Mtg, UN Doc S/PV.3217 [provisional],
statement by the representatives of the United Kingdom, New Zealand
and Brazil to the Security Council, reiterating that the ICTY is limited to
applying extant legal norms [UNSCOR 3217th Mtg].

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also borne out by case law) that when the Tribunal defined or substantiated
the legal concepts examined below – whether an international crime or a
procedural rule – it was interpreting the rule, as opposed to enquiring as
to its validity. These are two qualitatively different processes. Domestic
laws may form the basis of the validity of legal propositions if the laws
either demonstrate the opinio juris of that state in the case of customary
law,34 or if the laws manifest a general principle of law.35 In the cases
examined, however, domestic law played neither of these roles. Instead,
it is drawn on in a stage of reasoning when the question of legal validity
has already been settled.

III.

Interpreting Rape

A.

The Historic Evolution of the Crime of Rape

One of the most controversial uses of domestic law by the ICTY is the
interpretation of the crime of rape under Article 3 of the Statute of the
ICTY. The earliest legal prohibitions of rape in times of war can be
traced back to the fourteenth and fifteenth century war ordinances of
Richard II (1385) and Henry V (1419),36 although its modern form is
normally traced to the US Lieber Code of 1863, which provided that “all
rape, wounding, maiming, or killing of such inhabitants are prohibited
34.

35.

36.

See Jurisdictional Immunities of the State (Germany v Italy: Greece
Intervening), [2012] ICJ Rep 99 at paras 70-78; the International Court
of Justice examined domestic laws to assess whether a customary rule of
immunity for state officials’ tortious acts in other states existed.
Procès-Verbaux of the Proceedings of the Committee of Jurists, June 16th - July
24th 1920 with Annexes at 335; The Corfu Channel Case (Albania v UK),
[1949] ICJ Rep 4 at 18.
These ordinances are reprinted in Travers Twiss, The Black Book of the
Admiralty (Cambridge: Cambridge University Press, 1871) vol 1 at 468; it
was also mentioned in Alberico Gentili, De Iure Belli Libri Tres, translated
by John C Rolfe (Oxford: Clarendon Press, 1933) at section 421:
“[T]o violate the honour of women will always be held to be unjust”. See
generally, Theodor Meron, Henry’s Wars and Shakespeare’s Laws: Perspectives
on the Law of War in the Later Middle Ages (Oxford: Clarendon Press,
1994) ch 6 and 8.

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under the penalty of death …”.37 After the Second World War, rape was
successfully prosecuted at the Tokyo War Crimes Tribunal38 and was
included as a crime against humanity in Council Control Law No 10,
which regulated the Occupying Powers’ individual war crimes courts
operating in Germany.39 Despite numerous conventional provisions
prohibiting rape in times of war – notably, Article 27 of the fourth
Geneva Convention of 1949, and Articles 76(1) and 4(2)(e) of Additional
Protocols I and II of 1977, respectively40 – doubts persisted in the latter
half of the twentieth century as to whether rape constituted a “grave
breach” of the Geneva Conventions capable of giving rise to individual
criminal responsibility.41
However, by the time of the Yugoslav conflict, any hesitation to
37.

38.
39.

40.

41.

Instructions for the Government of Armies of the United States in the Field,
USC art 44 (Government Printing Office 1898) online: <avalon.law.yale.
edu/19th_century/lieber.asp#sec2>.
Meron, supra note 6 at 426.
Council Control Law No 10, (1946), art 2(1)(c). Rape was not, however,
included in the subject-matter jurisdiction of the Nuremberg Tribunal:
Procès des Grands Criminels de Guerre Devant Le Tribunal Militaire
International Tome 1: Documents Officiels (Secretariat of the International
Military Tribunal, 1947).
Geneva Convention Relative to the Protection of Civilian Persons in Time
of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 art
27 (entered into force 21 October 1950) [Geneva Convention]; Protocol
Additional to the Geneva Convention of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Protocol I), 12
December 1977, 1125 UNTS 3 art 76(1) (entered into force 7 December
1978) [Geneva Convention Protocol I]; Protocol Additional to the Geneva
Convention of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS
609 art 4(2)(e) (entered into force 7 December 1978).
Geneva Convention, ibid, art 147; Geneva Convention Protocol I, ibid, arts
11, 85. Rape was not explicitly included in the “grave breaches” provisions
of the Conventions; Niamh Hayes, “Creating a Definition of Rape in
International Law: The Contribution of the International Criminal
Tribunals” in Shane Darcy & Joseph Powderly, eds, Judicial Creativity at
the International Criminal Tribunals (Oxford: Oxford University Press,
2010) 129 at 130.

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recognize rape as a war crime or a grave breach of the Geneva Conventions
had started to dissipate.42 In late 1992, the International Committee of
the Red Cross stated that rape constituted a grave breach under the fourth
Geneva Convention, a sentiment that was echoed shortly after by the
United States, which considered that “the legal basis for prosecuting troops
for rape is well established under the Geneva Conventions and customary
international law”.43 In early 1993, during negotiations regarding the
formation of the ICTY, the widespread and systematic nature of rape and
sexual assault in the former Yugoslavia became apparent.44 The concern of
the international community was reflected in the proposals for the statute
of the Tribunal that were advanced: proposals from the United States and
France both classified rape as a grave breach of the Geneva Conventions,
whereas the proposals of Italy, the Netherlands, the Organization of the
Islamic Conference and the Secretary-General re-affirmed rape as a crime
against humanity.45 At the suggestion of the Secretary-General,46 rape was
explicitly included in the list of crimes against humanity over which the
ICTY has jurisdiction.47 As a reflection of the fact that these crimes can
also be committed in non-international armed conflicts, the Statute of the
International Criminal Tribunal for Rwanda explicitly classifies rape as a
crime against humanity, as well as recognising that rape may constitute a
42.

43.
44.

45.

46.
47.

Meron, supra note 6 at 426; see further Grace Harbour, “International
Concern Regarding Conflict-related Sexual Violence in the Lead-up to
the ICTY’s Establishment” in Serge Brammertz & Michelle Jarvis, eds,
Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford: Oxford
University Press, 2016) 19.
Cited in Meron, ibid at n 22.
UNSCOR 3217th Mtg, supra note 33: “We must ensure that the
voices of the groups most victimized are heard by the Tribunal. I refer
particularly to the detention and systematic rape of women and girls,
often followed by cold-blooded murder” – statement of the Permanent
Representative of the United States of America.
Morris & Scharf, supra note 1 at 379-83. The report of the Commission
of Experts, as well as proposals by the National Alliance for Women’s
Organizations, Amnesty International, and the Lawyers Committee for
Human Rights also considered rape as a crime against humanity.
Report pursuant to SC Res 808, supra note 7 at para 48.
Statute of the ICTY, supra note 31, art 5(g).

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serious violation of Common Article 3 and the Additional Protocol I of
the Geneva Conventions.

B.

Interpretation of Rape within the ICTR/ICTY

Whilst the prohibition on rape had been indubitably recognised as a
rule of international criminal law, the question of which acts constituted
rape had neither been defined in conventional nor customary law, nor in
judicial practice. The first judgment to address the issue was Akayesu,48
delivered by the Trial Chamber of the ICTR in September 1998.
Akayesu was bourgemestre of a commune in Rwanda, charged with
“the performance of executive functions and maintenance of public order
within his commune”.49 In 1994, hundreds of Tutsi civilians sought refuge
in the bureau communal of Akayesu’s commune, only to be subjected to
beatings, sexual assault, rape and murder at the hands of local militia and
the police.50 The Prosecutor of the ICTR charged Akayesu inter alia with
rape as a crime against humanity, and as a violation of Common Article
3 and the Second Additional Protocol of the Geneva Conventions.51 The
Trial Chamber acknowledged that:
there is no commonly accepted definition of [rape] in international law. While
rape has been defined in certain national jurisdictions as non-consensual
intercourse, variations on the act of rape may include acts which involve the
insertion of objects and/or the use of bodily orifices not considered to be
intrinsically sexual.52

Moving away from the more traditional approaches to defining rape
commonly found in domestic law, which specify actus reus and mens
48.

49.
50.
51.

52.

Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber Judgment,
(2 September 1998) (International Criminal Tribunal for Rwanda)
[Akayesu].
Ibid at para 4.
Ibid at para 12A.
Navanethem Pillay, “Equal Justice for Women: A Personal Journey”
(2008) 50 Arizona Law Review 657 at 665-66. The charge of rape was
included on an amended indictment which was modified following
questioning from the Bench brought to light evidence of rape and sexual
assault.
Akayesu, supra note 48 at para 596.

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rea requirements,53 the Trial Chamber opted for a broad conception of
rape that defined the crime as “a physical invasion of a sexual nature,
committed on a person under circumstances which are coercive”.54
This definition has been widely praised for shifting the focus to “the
overwhelming [coercive] circumstances which are knowingly exploited
by the perpetrator, rather than [restricting] the context and criminality
of the act to the internal acquiescence of the victim”.55 The conceptual
definition enunciated in Akayesu was followed two months later in the
Celebici case,56 the first case involving rape to be heard by the ICTY. In
addition to being the first ICTY chamber to adopt the Akayesu definition
of rape, the Celebici case broke new ground in other respects. Of particular
note is the Trial Chamber’s determination that rape in situations of armed
conflict may constitute torture, a position that was followed by chambers
in subsequent cases.57
Just one month after the Celebici judgment, the ICTY was again
53.

See Sexual Offences Act 2003 (UK) c 42. For example, s 1 defining rape as
follows:
1.

54.
55.

56.
57.

A person (A) commits an offence if:
(a) he intentionally penetrates the vagina, anus or mouth of another
person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

Akayesu, supra note 48 para 598.
Hayes, supra note 41 at 134; See also Pillay, supra note 51 at 666-67.
Pillay, herself one of the judges in the Trial Chamber in Akayesu, stated
that, “I must say that the testimony of one of the witnesses motivated
me to reexamine traditional definitions of rape. Witness ‘JJ’ was being
asked by the prosecutor, in respect of each of the multiple rapes she
endured, whether there was penetration: ‘I am sorry to keep on asking
you each time – did your attacker penetrate you with his penis’? Her
answer was: ‘That was not the only thing they did to me; they were young
boys and I am a mother and yet they did this to me. It’s the things they
said to me that I cannot forget’”. See also Phillip Weiner, “The Evolving
Jurisprudence of the Crime of Rape in International Criminal Law”
(2013) 54 Boston College Law Review 1207 at 1210.
Prosecutor v Delalic (“Celebici case”), IT-96-21-T, Trial Chamber Judgment
(16 November 1998) at para 478.
Ibid at para 496.

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required to interpret the crime of rape in the case of Furundžija.58 The
reasoning of the Trial Chamber in Furundžija is one of the clearest
examples of recourse to domestic law that exists in international case
law. In that case, the defendant was leader of the Jokers, a special unit
within the armed forces of the Croatian Community of Herzeg-Bosna,
who raped and tortured a female Bosnian Muslim civilian.59 The Trial
Chamber dismissed the Akayesu definition for want of specificity,60 and,
stating that “no definition of rape can be found in international law”,61
reasoned that:
[to] arrive at an accurate definition of rape based on the criminal law principle
of specificity (Bestimmtheitgrundsatz, also referred to by the maxim “nullum
crimen sine lege stricta”), it is necessary to look for principles of criminal law
common to the major legal systems of the world. These principles may be
derived, with all due caution, from national laws.62

This reliance was subject to two caveats: first, that reference should not
be made solely to jurisdictions belonging to one “legal family”, such as
common or civil law; and second, that account must be taken of the
“specificity of international criminal proceedings when utilising national
law notions”.63 The Chamber surveyed the definition of rape in 18 legal
systems,64 noting that “most legal systems in the common and civil law
worlds consider rape to be the forcible sexual penetration of the human
body by the penis or the forcible insertion of any other object into either

58.
59.
60.
61.
62.
63.
64.

Prosecutor v Furundžija, IT-95-17/1-T, Trial Chamber Judgment (10
December 1998) [Furundžija Trial Chamber].
Ibid at paras 121-130.
Ibid at para 177.
Ibid at para 175.
Ibid at para 177.
Ibid at para 178.
Ibid at nn 207-14. The comparative survey examined Chile, China,
Germany, Japan, the Socialist Federal Republic of Yugoslavia, Zambia,
Austria, France, Italy, Argentina, Pakistan, India, South Africa, Uganda,
New South Wales, the Netherlands, England and Wales, and Bosnia and
Herzegovina.

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the vagina or the anus”.65 Although the Tribunal did not find a universal
definition of rape in criminal systems throughout the world – indeed,
it explicitly acknowledged significant divergence between jurisdictions
regarding whether forced oral sex constituted rape – it recognised that
rape attached “to a growing category of sexual offences, provided of course
they meet certain requirements, chiefly that of forced penetration”.66
Drawing from this conclusion, the Chamber defined rape as:
(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim
by the penis of the perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion
or force or threat of force against the victim or a third person.67

Both the first sentence of the actus reus (that rape covers vaginal and anal
penetration with a penis or any other object) and the second limb of the
test (the requirement of coercion or threat or use of force) are drawn from
the Chamber’s examination of the laws of rape in domestic jurisdictions.
Whilst the Furundžija definition of the crime of rape was affirmed on
appeal,68 the ICTR subsequently re-affirmed the Akayesu definition,
which in its view “clearly encompasse[d] all the conduct described in the
definition of rape set forth in Furundžija”.69 In light of the continued
divergence between the “conceptual” Akayesu and the more “mechanistic”
Furundžija definitions of rape, the issue was raised again in the case of
65.

66.
67.
68.
69.

Ibid at paras 181, 183. Domestic laws did not, however, agree as to
whether forced oral penetration constituted rape. The Chamber adopted
a teleological approach with regard to this point, stating that the raison
d’être of international humanitarian law is to protect dignity, and forced
oral penetration constituted “a most humiliating and degrading attack
upon human dignity”. As such, it was to be included within the definition
of rape.
Ibid at para 179.
Ibid at para 185.
Prosecutor v Furundžija, IT-95-17/1-A, Appeals Chamber Judgment (21
July 2000) at paras 211-12.
Prosecutor v Musema, ICTR-96-13-T, Judgment and Sentence at para
227 (27 January 2000) (International Criminal Tribunal for Rwanda,
Trial Chamber). As Hayes notes, this adherence to the Akayesu definition
was unsurprising “given that the Trial Chamber contained the same three
judges as in Akayesu”; Hayes, supra note 41 at 140.

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Kunarac70 before the ICTY.
In that case, the three accused – members of the Bosnian Serb military
accused of participating in the Foča “Rape Camps”71 – were charged with
rape as a crime against humanity and as a breach of the laws or customs
of war. The Trial Chamber acknowledged that the Furundžija definition
provided the actus reus element of the crime of rape in international law
but that “in the circumstances of the present case the Trial Chamber
considers that it is necessary to clarify its understanding of the element in
paragraph (ii) of the Furundžija definition”.72 The Chamber continued:
[i]n stating that the relevant act of sexual penetration will constitute rape only
if accompanied by coercion or force or threat of force against the victim or a
third person, the Furundzija definition does not refer to other factors which
would render an act of sexual penetration non-consensual or non-voluntary
on the part of the victim, which … is in the opinion of this Trial Chamber the
accurate scope of this aspect of the definition in international law.73

As in Furundžija, the Trial Chamber turned to explain why reference to
domestic laws could aid the interpretation of the crime of rape:
the value of these sources is that they may disclose “general concepts and legal
institutions” which, if common to a broad spectrum of national legal systems,
disclose an international approach to a legal question which may be considered
as an appropriate indicator of the international law on the subject.74

The Chamber considered that the “common denominator” of rape, as

70.
71.

72.
73.
74.

Prosecutor v Kunarac, IT-96-23-T & IT-96-23/1-T, Trial Chamber
Judgement (22 February 2001) [Kunarac Trial Chamber].
For more information on the Foča “Rape Camps”, see Matteo Fiori,
“The Foča ‘Rape Camps’: A Dark Page Read Through the ICTY’s
Jurisprudence” (2007) 2 Hague Justice Journal 9.
Kunarac Trial Chamber, supra note 70 at para 438.
Ibid [footnotes omitted].
Ibid at para 439.

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found in the domestic laws of 38 jurisdictions,75 was wider than the
requirement of force, threat of force or coercion proposed by the Trial
Chamber in Furundžija. In the opinion of the Trial Chamber, the true
common denominator of the surveyed jurisdictions was that “serious
violations of sexual autonomy are to be penalised”.76 Thus, whilst accepting
the actus reus limb of the Furundžija definition, the Trial Chamber
considered that the “coercion or force or threat of force” requirement
should be expanded to criminalise the specified sexual acts “where such
sexual penetration occurs without the consent of the victim. Consent for
this purpose must be consent given voluntarily as a result of the victim’s
free will, assessed in the context of the surrounding circumstances”.77
On appeal, the ICTY Appeals Chamber elaborated on whether
true consent was ever possible when the victim was a detainee in an
armed conflict. It examined domestic laws that criminalise sexual acts
between prisoners and inmates as crimes of strict liability, or which
carry a presumption of non-consent.78 The Chamber interpreted rape in
international criminal law in accordance with these laws, recognizing the
possibility that there could be circumstances that “were so coercive as to
negate any possibility of consent”.79

75.

76.
77.
78.

79.

Ibid at paras 443-45, 447-52, 453-56. The comparative study surveyed
the laws of Bosnia and Herzegovina, Germany, South Korea, China,
Norway, Austria, Spain, Brazil, United States (New York, Maryland,
Massachusetts, California), Switzerland, Portugal, France, Italy, Denmark,
Sweden, Finland, Estonia, Japan, Argentina, Costa Rica, Uruguay,
Philippines, England and Wales, Canada, New Zealand, Australia (New
South Wales, Victoria, ACT, Western Australia, South Australia), India,
Bangladesh, South Africa, Zambia and Belgium.
Ibid at para 457.
Ibid at para 460.
Prosecutor v Kunarac, IT-96-23 & IT-96-23/1-A, Appeals Chamber
Judgment (12 June 2002) at para 131 citing laws from Germany and the
United States (California, New Jersey, the District of Columbia).
Ibid at para 132.

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115

The Legacy of the ICTY Approach

The interpretation of the crime of rape in Kunarac has become “the most
widely used definition in the ICTY, ICTR and Special Court for Sierra
Leone”,80 and the antecedent upon which it is based, Furundžija, forms
the basis for the definition of rape in the Elements of Crimes of the
International Criminal Court (“ICC”).81 At the time of the Trial Chamber
judgment in Furundžija, it was clear that a conventional definition of
80.

81.

Valerie Oosterveld, “The Influence of Domestic Legal Traditions on The
Gender Jurisprudence of International Criminal Tribunals” (2013) 2
Cambridge Journal of International and Comparative Law 825 at 831;
Maria Eriksson, Defining Rape: Emerging Obligations for States under
International Law? (Leiden: Martinus Nijhoff Publishers, 2011) at 407,
424; see Prosecutor v Kvocka, IT-98-30/1-T, Judgment (2 November
2001) at paras 177-79 (International Criminal Tribunal for the former
Yugoslavia, Trial Chamber); Prosecutor v Semanza, ICTR-97-20-T,
Judgement (15 May 2003) at paras 344-46 (International Criminal
Tribunal for Rwanda, Trial Chamber); Prosecutor v Kajelijeli, ICTR-9844A-T, Judgment and Sentence (1 December 2003) at paras 910-15
(International Criminal Tribunal for Rwanda, Trial Chamber); Prosecutor
v Kamuhanda, ICTR-95-54A-T, Judgment and Sentence (22 January
2004) at paras 705-709 (International Criminal Tribunal for Rwanda,
Trial Chamber); Prosecutor v Taylor, SCSL-03-01-T, Judgment (18 May
2012) at para 415 (Special Court for Sierra Leone, Trial Chamber). Cf.
Prosecutor v Niyitegeka, ICTR-96-14-T, Judgment and Sentence (16
May 2003) at para 456 (International Criminal Tribunal for Rwanda,
Trial Chamber); The ICTR Trial Chamber in Muhimana effectively held
the Kunarac definition to be an elaboration of the Akayesu definition;
Prosecutor v Muhimana, ICTR-95-1B-T, Judgment and Sentence (28
April 2005) at paras 550-51 (International Criminal Tribunal for
Rwanda, Trial Chamber); (Subsequently, the ICTR Appeals Chamber
in Gacumbitsi followed the Kunarac definition), Prosecutor v Gacumbitsi,
ICTR-2001-64-A, Judgment (7 July 2006) at paras 151-52 (International
Criminal Tribunal for Rwanda, Appeals Chamber).
Weiner, supra note 55 at 1217. See Rome Statute of the International
Criminal Court, 17 July 1998, 2187 UNTS 90 art 7(1)(g) (entered into
force 1 July 2002) [Rome Statute]; Official Records of the Assembly of States
Parties to the Rome Statute of the International Criminal Court, ICC, 1st
Sess, ICC Doc ASP/1/3 (2002).

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rape in international criminal law was unlikely to come to fruition. The
case was decided just a few months after conclusion of the Rome Statute of
the International Criminal Court (“Rome Statute”), which failed to define
the crime due to the fundamentally different philosophical, legal, and
cultural approaches of the delegates to sexual offences, and to rape in
particular.82
However, where the delegates to the Rome conference failed, the
Preparatory Committee for the ICC Elements of Crime succeeded,
elaborating a definition of rape that was confirmed by the first Assembly
of States Parties in 2002.83 This definition drew upon the jurisprudence
of the ICTY and ICTR, giving most weight to the definition expounded
by the Trial Chamber in Furundžija. This was thought to be “particularly
persuasive because its definition of rape was based on a survey of municipal
rape law and thus came with the authority of timeliness and neutrality”.84
Indeed, as Kristen Boon notes, the influence of the Furundžija definition
is demonstrated by the fact that the proposal for the definition of rape
put forward by Costa Rica, Hungary, and Switzerland mirrored word-

82.

83.

84.

Rome Statute, ibid; William A Schabas, An Introduction to the International
Criminal Court, 4d (Cambridge: Cambridge University Press, 2011)
at 117. Note that a definition of rape was originally considered in the
1996 Preparatory Committee for the Rome Statute, which defined rape
as “causing a person to engage in or submit to a sexual act by force or
threat of force”: Mahmoud Cherif Bassiouni, The Legislative History of the
International Criminal Court: An Article-by-Article Evolution of the Statute
from 1994-1998 (Netherlands: Transnational Publishers, 2005) vol 2 at
53. See also, Kristen Boon, “Rape and Forced Pregnancy under the ICC
Statute: Human Dignity, Autonomy, and Consent” (2001) 32 Columbia
Human Rights Law Review 625 at 644.
Pursuant to art 9 of the Rome Statute, ibid, the Elements of Crimes is a
document that assists the Court in the interpretation and application of
arts 6, 7, and 8 of the Statute. The document must be passed by a twothirds majority of States Parties.
Boon, supra note 82 at 646.

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for-word the definition laid down by the Trial Chamber.85 Refusal by
the ICTY to elaborate a definition of the crime of rape would have put
the Preparatory Commission of the Elements of Crime back to the
position of paralysis in which the states parties to the Rome Statute found
themselves. In March 2016, the ICC delivered its first conviction for
rape as a war crime and a crime against humanity in the Bemba case,86
sentencing the defendant to 18 years of imprisonment. In its verdict, the
Trial Chamber adopted the gender-neutral definition of rape contained
in the Elements of Crimes, citing the Trial Chamber judgment in
Furundžija as authority for the proposition that forced oral sex may also
constitute rape. The judgments of the tribunals, and in particular that
of the Furundžija Trial Chamber, have enabled international criminal
law to move past the social, cultural and moral divides that stymied a
conventional definition of rape.
Yet despite the influence of the ICTY’s jurisprudence, there remain
questions regarding some elements of the definition of rape, in particular
regarding the role of consent. Formally, the absence of consent is not a
requirement in the definition of rape in the Elements of Crimes, a fact
that was recognised by the Bemba Trial Chamber, which noted that “the
victim’s lack of consent is not a legal element of the crime of rape under
the Statute”.87 However, echoing the Kunarac Appeal Chamber judgment,
the Trial Chamber also held that when the perpetrator took advantage of
85.

86.

87.

Preparatory Commission for the International Criminal Court, Working
Group on Elements of Crimes, 2nd Sess, Proposal Submitted by Costa Rica,
Hungary and Switzerland on Certain Provisions of Article 8 para 2(b) of the
Rome Statute of the International Criminal Court: (viii), (x), (xiii), (xiv),
(xv), (xvi), (xxi), (xxii), (xxvi), PCNICC/1999/WGEC/DP.8 (1999);
Boon, ibid at n 95.
The Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Judgment
pursuant to Article 74 of the Statute (21 March 2016) (International
Criminal Court, Trial Chamber) [Bemba]. The Court did address
the question of rape in the Katanga case, in which the defendant was
acquitted of sexual violence charges; The Prosecutor v Germain Katanga,
ICC-01/04-01/07-3436, Judgment pursuant to Article 74 of the Statute
(7 March 2014) (International Criminal Court, Trial Chamber).
Bemba, ibid at para 105.

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a “coercive environment” to commit rape the prosecution does not need
to prove the victim’s lack of consent.88 These two positions give rise to
some conceptual problems: whilst formally not part of the definition of
rape, the importance placed on the existence of coercive circumstances
is based on the fact that there could be, in the words of the Kunarac
Appeals Chamber, “circumstances that were so coercive as to negate
any possibility of consent”.89 In other words, coercive circumstances are
only important insofar as they allow chambers to induce the absence
of consent from circumstantial evidence. It seems therefore that despite
protestations to the contrary, the absence of consent remains the sine qua
non of the crime of rape – the relevant question is how that absence of
consent may be evidenced.

IV.

Evaluating the Tribunal’s Use of Domestic Law

Despite their considerable legacy, arguments have still been levelled at
the reasoning of the ICTY in Furundžija and Kunarac and against the
use of domestic law in particular. This Part examines the main principled
argument, based on the principle of legality, that could be brought
against the use of domestic law,90 and methodological critiques that have
been levelled at the reasoning of the Tribunal, before moving to explicate
the Tribunal’s approach.

88.

89.

90.

Ibid at para 106. See also rule 70, Rules of Procedure and Evidence,
Assembly of States Parties to the Rome Statute of the International
Criminal Court, lst Sess, New York, 3-10 September 2002, ICC-ASP/1/3.
Prosecutor v Kunarac, IT-96-23& IT-96-23/1-A, Judgment (12 June 2002)
at para 132 (International Criminal Tribunal for the former Yugoslavia,
Appeals Chamber).
See e.g. Jessica Corsi, Legal Fictions: Creating the Crimes of Rape and
Sexual Violence under International Law (PhD Dissertation, University of
Cambridge, Faculty of Law, 2016) [unpublished].

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A.

119

An Affront to the Principle of Legality?

Although the principle of legality has various iterations,91 here it is
understood to mean “no crime without law”, or nullum crimen sine
lege.92 This was arguably breached in two ways in the abovementioned
jurisprudence: first, in Furundžija, the Trial Chamber included forced
oral sex in the definition of rape; and, second, in Kunarac, the Appeal
Chamber expanded the requirement of “coercion or threat or use of force”
to the absence of consent “assessed in the context of the surrounding
circumstances”. These two interpretations criminalised conduct that
would not have fallen within the definition of the crime of rape under the
penal law of Bosnia and Herzegovina in force at the time, which covered
only forcible sexual intercourse and required force or threat of force to the
victim or someone “close to her”. 93 The argument could hence be made
that the ICTY in effect retroactively criminalised conduct, breaching
nullum crimen sine lege. In both cases, however, the argument has fatal
flaws.
In Furundžija, it was clearly not the case that the use of domestic
law constituted a breach the principle of legality. As noted above, the
expansive interpretation which bought oral sex under the definition of
rape did not result from the survey of domestic law; in fact, the Trial
Chamber explicitly noted that “a major discrepancy may, however, be
discerned in the criminalization of forced oral penetration” in domestic
systems.94 Instead, the Chamber brought oral sex within the definition
91.

92.

93.

94.

For other variants of the principle of legality, see Kenneth S Gallant, The
Principle of Legality in International and Comparative Law (Cambridge:
Cambridge University Press, 2009) at 11-14.
Theodor Meron, “Remarks on the Principle of Legality in International
Criminal Law” (2009) 103 Proceedings of the Annual Meeting (American
Society of International Law) 107 at 107.
Furundžija Trial Chamber, supra note 58, n 214 (The Penal Code of
Bosnia and Herzegovina (1988) Chapter XI states that “[w]hoever coerces
a female person with whom he is not married to, into sexual intercourse
by force of threat to endanger her life or body or that of someone close to
her will be sentenced to between one to ten years in prison”).
Ibid at para 182.

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of the crime of rape using a purely teleological methodology. It reasoned
that forced oral sex constitutes “a most humiliating and degrading attack
on human dignity”; that the very purpose of international humanitarian
and human rights law was to protect human dignity; and, therefore, “it
is consonant with this principle that such an extremely serious sexual
outrage as forced oral penetration should be classified as rape”.95 Whilst
this expansive interpretation might be critiqued, such criticism cannot be
placed at the foot of the Trial Chamber’s use of domestic law.96
The argument has slightly more purchase with regards to the
reasoning of Trial Chamber in Kunarac. Recall that the Chamber used
domestic law to reason that absence of voluntary consent, and not just
coercion or the threat or use of force, constituted the second limb of the
definition of rape.97 This departed from both the Furundžija definition
of rape and the crime under the penal law of Bosnia and Herzegovina in
force at the time. This question was pertinent because one victim, “DB”,
had initiated sexual intercourse with Kunarac without coercion or the
threat or use of force on his part.98 However, evidence was presented that
another soldier, “Gaga”, had threatened the victim with death if she did
not have intercourse with Kunarac. The defendant himself had therefore
not used or threatened to use force or coerced the victim to have sexual
intercourse with him, and his actions thus fell outside the Furundžija
definition of rape.
However, to argue that this use of domestic law breached the
principle of legality is erroneous. Neither was a strict principle of legality
recognised as a rule of international law in the pertinent period, nor was
the application of such a principle acknowledged in the practice of the
95.
96.

97.
98.

Ibid at para 183.
Ibid at para 184. The Trial Chamber went on to pre-empt the criticism
that its teleological reasoning breached the principle of legality by arguing
that the acts would in any case have been considered as sexual assault
under the domestic law of Bosnia and Herzegovina. As long as the
defendant was sentenced on this basis, the Chamber was of the opinion
that the categorization of the act was unimportant.
Kunarac Trial Chamber, supra note 70 at para 460.
See especially ibid at paras 219, 647.

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ad hoc tribunals. From Nuremberg up until the inclusion of a strong
principle of legality in the Rome Statute,99 the principle has been treated
“as a flexible principle of justice that can yield to competing imperatives
… the condemnation of brutal acts, ensuring victim accountability,
victim satisfaction and rehabilitation, the preservation of world order,
and deterrence”.100 As international criminal law has developed, what has
been considered as protected by the principle of legality has evolved. This
is best captured by characterising the change as a move from legality
in law ascertainment in the Statute of the ICTY to legality in content
determination in the Rome Statute.101 The former encompasses nonretroactivity in the creation of crimes, as evidenced by the limitation of
the subject-matter jurisdiction of the ICTY to “rules of international
humanitarian law which are beyond any doubt part of customary
law”.102 The latter, on the other hand, reflects the stricter principle that
crimes must be interpreted strictly, not by analogy, and in favour of the
defendant.103 The principle of legality at the time of the ad hoc tribunals
99.
100.

101.

102.

103.

Rome Statute, supra note 81, arts 11, 22, 23, 24.
Beth Van Schaack, “The Principle of Legality & International Criminal
Law” (2009) 103:1 Proceedings of the Annual Meeting (American Society
of International Law) 101 at 102; See also, Antonio Cassese, International
Criminal Law (New York: Oxford University Press, 2003) at 72. Cf.
Theodor Meron, War Crimes Law Comes of Age: Essays (New York: Oxford
University Press, 1999) at 244.
Larisa van den Herik, “Interpretation in International Law: The Object,
the Players, the Rules and the Strategies” in János György Drienyovszki
& Martin Clark, eds, Event Report: Temple Garden Seminar Series in
International Adjudication (London: British Institute of International
and Comparative Law, 2015), online: <www.biicl.org/documents/715_
report_tgc_interpretation_in_international_law_140515.pdf>. Van den
Herik draws the law ascertainment/content determination distinction
from Jean d’Aspremont, “The Multidimensional Process of Interpretation:
Content-Determination and Law-Ascertainment Distinguished” in
Andrea Bianchi, Daniel Peat & Mathew Windsor, eds, Interpretation in
International Law (New York: Oxford University Press, 2015) 111.
Report of the Secretary-General pursuant to Paragraph 2 of Security Council
Resolution 808, UNSC, 48th Sess, UN Doc S/25704 (1993) at para 34
[emphasis added].
Rome Statute, supra note 81, art 22(2).

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was clearly understood in the former sense.104 This was reflected in the
practice of the tribunals, which took “a relatively relaxed approach, much
in the spirit of their predecessors at Nuremberg”.105
To sum, the principle of legality has been viewed as a malleable
principle that has changed shape with the development of the legal regime.
As noted above, “much like the beginning of criminal law jurisprudence in
common law jurisdictions, legality was originally conceived of as a flexible
concept to allow for critical legal developments, even if they occurred
retroactively”.106 Whilst one might claim that a strict conception of the
principle has reached the status of custom in contemporary international
criminal law,107 to claim that was the case for the ad hoc tribunals is a
different – and quite unsustainable – proposition.108

104.

105.
106.
107.
108.

See e.g. Prosecutor v Hadzihasanovic, IT-01-47-AR72, Decision on
Interlocutory Appeal Challenging Jurisdiction with respect to Command
Responsibility (16 July 2003) at para 34 (International Criminal Tribunal
for the former Yugoslavia, Appeals Chamber), (recognizing that the
accused must have understood “that the conduct is criminal in the sense
generally understood, without reference to any specific provision”);
Prosecutor v Delalic and others, IT-96-21-T, Judgment (16 November
1998) at para 403 (International Criminal Tribunal for the former
Yugoslavia, Trial Chamber). See also Prosecutor v Karemera and others,
ICTR-98-44-T, Decision on the Preliminary Motions by the Defense of
Joseph Nzirorera, Édouard Karemera André Rwamakuba and Mathieu
Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal
Enterprise (11 May 2004) at para 43 (International Criminal Tribunal for
Rwanda, Trial Chamber). See also, Meron, ‘Remarks’, supra note 92 at
108.
Schabas, supra note 31 at 63.
Grover, supra note 15 at 188. See also, Van Schaack, supra note 100 at
102; Gallant, supra note 91 at 405.
Gallant, ibid at 352-404.
For an interesting view on legality, tracing the differences in conceptions
of the principle back to the division between international lawyers and
criminal lawyers, see Dov Jacobs, “International Criminal Law” in Jörg
Kammerhofer & Jean d’Aspremont, eds, International Legal Positivism in a
Post-Modern World (New York: Cambridge University Press, 2014) 451 at
471-73.

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Strict adherence to the principle of legality has not, then, been
mandated as a rule of international law, nor did it feature in the practice
of the ad hoc tribunals. One could nevertheless maintain that the Tribunal
should have narrowly interpreted the crimes within their subject-matter
jurisdiction. However, to do so would be an avowedly normative
argument. Such an argument would be based on the idea that the value
of a strict interpretation of the principle of legality is in itself sufficiently
important to override countervailing considerations of substantive
justice, condemnation, and deterrence, amongst others. It would have to
counter the claim that “by subordinating the principle of [nullum crimen
sine lege] to a vision of substantive justice, tribunals have determined that
the former injustice is less problematic than the other”.109
What values does the principle of legality uphold that might override
these considerations? On the domestic plane, four purposes of the
principle have been identified: the protection of human rights of the
would-be accused, increased legitimacy of the criminal system, respect
for the separation of powers between the legislature and judiciary, and
effective pursuance of the purposes of criminalisation.110 However, none
of these purposes inherently outweigh the countervailing considerations:
breaching the human rights of the accused is not inherently worse than
letting a breach of the victim’s human rights go unpunished, nor is it
clear that the legitimacy of the international criminal system would be
augmented by adherence to the principle of legality instead of advancing
the battle against impunity. The separation of powers argument posits
that it is for the legislature as the democratically elected lawmaker to
determine criminal conduct in a society, not the judiciary. However, on
the international plane, the concept of the separation of powers is notably
different to that within domestic law. Indeed, it could even be argued
that the Security Council in effect delegated the task of defining certain
109.

110.

Beth Van Schaack, “Crimen Sine Lege: Judicial Lawmaking at the
Intersection of Law and Morals” (2008) 97 Georgetown Law Journal 119
at 140. See also Grover, supra note 15 at 152-54. See also Furundžija Trial
Chamber, supra note 58, para 184.
Gallant, supra note 91 at 20-30. See also Grover, ibid at 137-51.

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crimes to the ICTY by including those crimes within its subject-matter
jurisdiction.111 With regard to the final justification of the principle of
legality, the purposes of criminalising conduct are myriad, including
considerations of accountability, restorative justice, and reconciliation.
Each of these purposes, it might be argued, could be fulfilled not by
adherence to a strict principle of legality, but rather by judicial flexibility
that permitted the extension of crimes to acts that were known to be
wrong (malum in se)112 or to which the accused was put on notice
regarding potential future criminalisation.113
To conclude, the argument that the use of domestic law breached
the principle of legality holds no weight with regard to the classification
of oral sex as rape by the Trial Chamber in Furundžija. In relation to the
extension of the crime by the Trial Chamber in Kunarac, one cannot
make the argument that the use of domestic law violated the principle
of legality insofar as it existed as a rule of international law, nor was
the reasoning of the Chamber incongruent with the general approach
to legality taken by the ad hoc tribunals. To critique the use of domestic
law would have to be based on an argument of moral values, not law, the
strength of which is unclear at best.

B.

Methodological Critiques

Another strand of criticism that has been levelled at the Tribunal is based
on purported methodological flaws in the reasoning of chambers. These
critiques can be gathered in two broad categories: those that criticize with
the breadth and depth of the Tribunal’s comparative survey and those
that take issue with using domestic law on the international plane more
generally.
The first group of critics argues that the Tribunal should have
surveyed the law of more countries and taken account of contextual
111.

112.
113.

For a similar argument, see Tom Ginsburg, “International Judicial
Lawmaking” (2005) University of Illinois College of Law Working Paper
No LE05-006 at 13-14.
Gallant, supra note 91 at 41.
Van Schaack, supra note 109 at 167.

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differences that might affect the operation of the law in practice. Jaye
Ellis, for example, argues that the Furundžija Trial Chamber “took a
far too narrow approach, paying no attention to questions of culture,
legal or otherwise”, as well as criticizing the Tribunal for not conducting
a sufficiently extensive comparative survey.114 However, others, such
as Fabian Raimondo, have defended the reasoning of the Tribunal,
claiming that “[t]he choice of legal systems it made was appropriate for
demonstrating the universality of the general principle of law thus found,
as they were representative of the different legal families and regions of
the world”.115
In my view, this methodological critique holds little weight, although
not for the reasons Raimondo claims. The argument presupposes a certain
vision of the appropriate method transposed from the scholarly realm,
in which it is the job of comparative law to present a representative,
comprehensive, contextualised survey of the legal approaches taken in
different systems. This presupposes too much. Methodological concerns
have a place in an examination of the judicial use of extra-systemic law,
but these concerns must be tailored to the justification for recourse to that
law advanced (or presupposed) by the court. Ellis’ critique, for example,
is based on the assumption that the Tribunal attempted to induce a
general principle of law from its comparative surveys, which would be
applicable by virtue of Article 31(3)(c) of the Vienna Convention on the
Law of Treaties116 (“VCLT”). However, none of the chambers noted above
114.

115.

116.

Jaye Ellis, “General Principles and Comparative Law” (2011) 22
European Journal of International Law 949 at 968; Cf. Basil Markesinis,
“National Self-Sufficiency or Intellectual Arrogance? The Current Attitude
of American Courts Towards Foreign Law” (2006) 65 Cambridge Law
Journal 301 at 306 (arguing that “it is thus one of the primary functions
of the comparatist to warn national lawyers against the danger of thinking
that they can understand foreign law simply because they have mastered
a foreign language. The exegesis of foreign law is an art that has to be
learned …”).
Fabián O Raimondo, General Principles of Law in the Decisions of
International Criminal Courts and Tribunals (Leiden: Martinus Nijhoff
Publishers, 2008) at 114.
23 May 1969, UN Doc A/Conf 39/27.

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justified their recourse to comparative law on the basis that it allowed
them to induce general principles of law. The closest one gets to such
an assertion is by the Trial Chamber in Furundžija, however neither
did it mention “general principles of law” specifically nor did it note
the relevance of such principles under Article 31(3)(c).117 To hold the
Tribunal to the methodological yardstick of a general principle of law is
therefore wrong.
The second strand of criticism is based on the purported impropriety
of transposing domestic law concepts to the international level.
International lawyers will be familiar with Lord McNair’s admonition
that domestic law concepts cannot be transposed “lock, stock and
barrel” to the international sphere,118 but instead must be tailored to the
peculiarities of international law. Within the ICTY, this argument has
been most forcefully put in some of the opinions and judgments of the
Tribunal itself.119 For example, in the Erdemović case, Judge Cassese, in
a discussion entitled “The Notion of a Guilty Plea (or: The Extent to
which an International Criminal Court can rely upon National Law for
the Interpretation of International Provisions)”, argued that domestic
law could only be drawn upon if the international instrument expressly
stated that such recourse was permissible, or if reference to domestic laws
was necessarily implied by the “very nature and content of the concept”
(such as determination of nationality for the purposes of diplomatic
protection).120 His main contention was that prima facie similar concepts
in international criminal law were hardly ever identical to those in
domestic criminal law: international criminal law had a different focus
117.
118.
119.

120.

Furundžija, Trial Chamber supra note 58 at para 177.
International Status of South-West Africa, Advisory Opinion, [1950] ICJ
Rep 28 at 148 (separate opinion of Lord McNair).
See also, Frédéric Mégret, “Beyond ‘Fairness’: Understanding the
Determinants of International Criminal Procedure” (2009) 14 UCLA
Journal of International Law and Foreign Affairs 37. Cf. ibid.
Prosecutor v Erdemović, IT-96-22-A, Separate and Dissenting Opinion
of Judge Cassese (7 October 1997) at para 3 (International Criminal
Tribunal for the former Yugoslavia, Appeals Chamber) [Erdemović – Judge
Cassese].

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and applicability, was a fusion of civil and common law systems, and faced
challenges and issues specific to a supra-national criminal tribunal.121
Those that used domestic laws to interpret the provisions of the Statute
of the ICTY or RPE too readily, he argued, were not cognizant of these
potential incongruities.122 Similarly, in Blaškić, the Appeals Chamber
– presided by Cassese – reprimanded the Trial Chamber for the use of
“domestic analogy”:
[t]he Appeals Chamber wishes to emphasise at the outset that the Prosecutor’s
reasoning, adopted by the Trial Chamber in its Subpoena Decision, is
clearly based on what could be called “the domestic analogy” … The setting
is totally different in the international community … the transposition
onto the international community of legal institutions, constructs or
approaches prevailing in national law may be a source of great confusion and
misapprehension. In addition to causing opposition among States, it could end
up blurring the distinctive features of international courts.123

There is, however, reason to think that the distinction between domestic
and international law is to some extent overstated. This is aptly
demonstrated by the abovementioned Erdemović case in which the
majority, having surveyed the domestic law of Canada, the United States,
Malaysia, and England and Wales, concluded that a valid guilty plea must
meet three criteria: it must be voluntary, informed, and unequivocal.124
These domestic laws were relevant because the concept of a guilty plea
had been imported into international criminal procedure from common
law systems and as a result:
we may have regard to national common law authorities for guidance as to
121.
122.

123.

124.

Ibid at paras 3-5.
For a defence of this view, see Harmen van der Wilt, “Commentary” in
André Klip & Göran Sluiter, eds, Annotated Leading Cases of International
Criminal Tribunals (Oxford: Hart Publishing, 1999) vol 1 654.
Prosecutor v Blaškić, IT-95-14, Judgement on the Request of the Republic
of Croatia for Review of the Decision of Trial Chamber II of 18 July 1996
(29 October 1997) at para 40 (International Criminal Tribunal for the
former Yugoslavia, Appeals Chamber) [Blaškić Appeals Chamber].
Prosecutor v Erdemović, IT-96-22-A, Joint Separate Opinion of
Judge McDonald and Judge Vohrah (7 October 1997) at paras 6-8
(International Criminal Tribunal for the former Yugoslavia, Appeals
Chamber) [Erdemović – Judges McDonald and Vohrah].

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the true meaning of the guilty plea and as to the safeguards for its acceptance.
The expressions “enter a plea” and “enter a plea of guilty or not guilty”,
appearing in the Statute and the Rules which form the infrastructure for our
international criminal trials imply necessarily, in our view, a reference to the
national jurisdictions from which the notion of the guilty plea was derived.125

Instead of recourse to domestic law, Cassese was of the view that
interpretation must be based on the object and purpose that provision
served within the context of international criminal law.126 However,
having reflected on the object and purpose of the guilty plea, he was of the
view that the same three criteria identified by the majority in Erdemović
were applicable “by virtue of a contemplation of the unique object and
purpose of an international criminal court and the constraints to which
such a court is subject [namely, to respect the rights of the accused under
Article 21 of the Statute], rather than by reference to national criminal
courts and their case law”.127 In this case, at least, the specificity of the
international criminal justice system did not call for a different solution
than that adopted by domestic systems. The claim of “exceptionalism” of
the ICTY therefore seems overstated.
In relation to rape, one could argue that the definition of the crime
in domestic law embodies the values of a particular circumscribed
society that cannot simply be transposed to international law. Indeed,
the difficulties that states parties to the Rome Statute encountered when
trying to settle upon a statutory definition of rape certainly gives weight
this idea. However, this does not suggest that, as a matter of principle,
domestic laws cannot be used to inform the Tribunal’s definition of
the crime of rape, but rather that domestic law should be drawn on by
the Court when it accords with the values that underpin international
criminal law. Indeed, such a limitation was acknowledged by Judges
McDonald and Vohrah in Erdemović. In their view:
[i]n the event that international authority is entirely lacking or is insufficient,
recourse may then be had to national law to assist in the interpretation of
terms and concepts used in the Statute and the Rules. We would stress again
125.
126.
127.

Ibid at para 6 [emphasis added].
Erdemović – Judge Cassese, supra note 120 at para 8; Blaškić Appeals
Chamber, supra note 123 at para 47.
Erdemović – Judge Cassese, ibid at para 10.

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that no credence may be given to such national law authorities if they do not
comport with the spirit, object and purpose of the Statute and the Rules …
In our observation, there is no stricture in international law which prevents us
from making reference to national law for guidance as to the true meaning of
concepts and terms used in the Statute and the Rules.128

The judgments of the Trial and Appeals Chambers in Furundžija
and Kunarac could certainly have made the link between the values
underpinning the definition of rape in domestic jurisdictions and
international criminal law more explicit. If they did so, it would be
significantly harder to argue that it was inappropriate to draw on domestic
law concepts to inform their understanding of international criminal law.
The methodology of the ICTY may certainly be criticized for its
incompleteness, brevity, or acontextuality, and justifiably so.129 As a
nascent tribunal that was initially underfunded and understaffed, the
inability of the bench to carry out exhaustive comparative research
is unsurprising.130 More extensive, representative, and thorough
comparative surveys of domestic law would have been ideal. However,
in my view, this does not necessarily undermine the Tribunal’s reasoning.
Instead, the methodological flaws must be balanced against the values
that the use of domestic law furthered and the significant legacy that the
judgments in the Furundžija and Kunarac cases left.

C.

Understanding the Tribunal’s Reasoning

How then are we to judge the ICTY’s use of domestic law? The Tribunal’s
use of domestic law should be seen as a way to reconcile competing
values that were at tension in the early days of its operation. On the one
hand, there was the clear desire amongst members of the international
community to punish those that had committed war crimes in the former
Yugoslavia. On the other hand, there was recognition that this should be
128.
129.
130.

Erdemović – Judges McDonald and Vohrah, supra note 124 at para 5.
See Ellis, supra note 114 at 968.
In a private conversation, the person charged with carrying out
comparative research for the case of Erdemović stated that the 18
jurisdictions surveyed was the totality of the domestic criminal law books
in the ICTY library at the time.

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achieved via legal, not political, means. Several statements made before
the UN Security Council in the debates leading up to the creation of the
ICTY give voice perfectly to these competing values. In the lead up to the
adoption of Security Council Resolution 808 (1993), for example, the
Spanish representative to the Security Council stated that:
the establishment of an international criminal tribunal … fulfils its dual
objective of meting out justice and discouraging such grave violations in the
future, we believe that this undertaking is so important and so sensitive that it is
necessary to ensure the maximum respect for legal rigour in its functioning.131

The desire for “legal rigour”, in the words of the Spanish Representative,
was, however, quite impossible considering the nascent state of
international criminal law in 1993. As noted in Part I, above, not only
was the Statute of the ICTY laconic, but it also had little to draw on
in terms of precedent from its predecessors, notably the international
military tribunals in Nuremberg and Tokyo. Once these competing
values are acknowledged, the use of domestic law is comprehensible.
Faced with an insufficiently defined rule, but still required to mete out
justice as a court of law, the ICTY used the only external material that
was available to it which was relevant to the provisions being interpreted:
domestic law. This allowed the judges to ground their reasoning in an
external source, demonstrating that the interpretation was not a simple
transposition of their own moral values.132 Domestic laws were used as a
tool of last resort that allowed the tribunal to thread a via media between
indeterminacy and the radical subjectivity that loomed without recourse

131.

132.

UNSC, 48th year, 3175th Mtg, UN Doc S/PV.3175 (1993) [provisional],
reprinted in Morris & Scharf, supra note 1 at 173. See also the statements
of the representative of the United States, the United Kingdom and New
Zealand. See also the statements by the representatives of Japan, Morocco,
New Zealand, and Russia in the debates leading up to the adoption of
Resolution 827 (1993), UNSCOR 3217th Mtg, supra note 33 at 179.
Cf. Van Schaak, supra note 109 at 167 (arguing that the ICTY considered
domestic law as “sufficiently robust to provide notice to the defendant of a
novel construction of ICL”).

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to external material.133

V.

Conclusion

The use of domestic law in interpretation is a phenomenon that has
until now been largely ignored. This article has shown that the use of
domestic law as an interpretive aid has had an indelible impact on the
jurisprudence of the ICTY and on contemporary international criminal
law more generally. Without drawing on domestic law, the Tribunal
would have been left struggling to fill the laconic statute that was drawn
up by the UN Secretary-General in 1993. It provided the only means
by which the Tribunal could apply the crimes within its subject-matter
jurisdiction given the absence of relevant international case law or
analogous international definitions. Whilst one might have qualms with
the methodology adopted by the Tribunal, its approach is at the very least
comprehensible.
The Tribunal’s use of domestic law raises numerous questions of
interest for scholars of international law, including broader questions
regarding interpretation that have not been addressed in this article.
In particular, the fact that recourse to domestic law does not fit within
the framework of the VCLT provisions on interpretation makes us
reconsider the centrality of those provisions to how we think about
and evaluate interpretation in international law. I have addressed these
issues elsewhere;134 suffice to say, however, that the use of domestic law
demonstrates that interpretation is still full of theoretical and practical
problems that will continue to tax the mind of scholars and practitioners
of international law alike.

133.

134.

This is supported by the justification given for the use of domestic law by
the majority of the Appeals Chamber in Erdemović – Judges McDonald
and Vohrah, supra note 124 at para 3.
Daniel Peat, Legitimate Interpretation: Comparative Reasoning in
International Courts and Tribunals (PhD Thesis, University of Cambridge,
2015) [Monograph forthcoming].