Law-making effect of decisions of international tribunal (on the basis of decisions of the international criminal tribunal for the former Yugoslavia)

About the authors:

Sergei Yu. Marochkin,
Galina A. Nelaeva,

Abstract:

International tribunals established in the 1990s by the UN Security Council (International Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)) made a significant contribution in the development of international criminal law. For instance, one of their important achievements is prosecution of rape and sexual assaults. These crimes were codified in the international law as crimes against women’s chastity or family honor and only because of the case-law of the tribunals (mostly, ICTY) they began to be viewed as crimes against sexual autonomy of an individual and as not less serious than a murder. The article focuses on the case-law of the ICTY where rape and sexual violence were tried as falling under the category of war crimes (namely, cruel treatment, outrages upon personal dignity and torture) even though the explicit prohibition of the crime was included only in Article 5 (“crimes against humanity”) of the ICTY Statute. Decisions of the tribunals have served as a basis for provisions of the Rome Statute of the International Criminal Court (ICC) and as an example of formation of new international law norms by means of judicial decisions in particular cases.

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