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

Daniel Peat

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Abstract

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.