That Someone Guilty Be Punished - International Center for ...

tional judges and prosecutors are not necessarily “real experts” in international humanitarian
law. 854 Similar concerns have routinely arisen in respect of other hybrid tribunals, highlighting
the importance of reviewing recruitment practices to enhance the possibility of appointing
highly qualified jurists. 855
c. Guidance in case law
But while the presence of judges with prior ICTY experience has doubtless facilitated the
BWCC’s knowledgeable application of international humanitarian law in the cases before
it, the Hague Tribunal’s contribution in this regard is not limited to cases in which a former
ICTY judge or prosecutor participated. 856 As the fledgling Bosnian War Crimes Chamber first
confronted complex issues of international humanitarian law, it found guidance for many of
these issues in the jurisprudence of the ICTY. 857
As discussed earlier, among the ICTY’s most widely-noted achievements is its contribution,
along with that of the ICTR, in developing case law recognizing that crimes of sexual
violence are war crimes, crimes against humanity, and/or acts of genocide when other elements
of these crimes are present. For example, in a breakthrough judgment in 2001, the
ICTY convicted two defendants of the crime against humanity of enslavement for treating two
women as sexual slaves—the first time this charge had been found applicable to gender-based
violence. 858
Less obvious is how these legal milestones have affected the thousands of victims of
wartime violence across the globe. Through its case law, the BWCC has filled in a small part
of the picture: In its first judgment in an 11 bis case, the BWCC convicted the defendant of
crimes against humanity, resting in part on its finding that he committed the crime against
humanity of enslavement, for crimes of sexual violence. 859 In this and other judgments the
court in Sarajevo has stood on the shoulders of the ICTY, ensuring that crimes of sexual violence
receive the legal opprobrium they deserve. 860 Reflecting on this development early in
the BWCC’s work, University of Sarajevo Professor Jasna Bakšić Muftić told us that, while
it was difficult at that point to predict whether rape would be prosecuted more often as an
international crime in Bosnia, “what is important is that it is now part of our jurisprudence.
… This is really important.” 861
Yet just as the ICTY has been faulted for its failure to bring charges of sexual violence
in particularly egregious cases where the evidence warrants, the Court of BiH has been criticized
for under-prosecuting crimes of sexual violence. 862 According to Amnesty International,
moreover, “The majority of cases related to war crimes of sexual violence in which the WCC
has delivered a final judgment were either cases which had been directly transferred to the
BiH judiciary from the ICTY under Rule 11 bis or cases which relied on the investigative work
which had already been done by the ICTY.” 863 Even so, a substantial number of cases brought
before the BWCC have involved convictions for charges of sexual violence. 864
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