The Validation of Suffering:
Justice for the Bosnian Muslim Women through the Evolution of Rape into a Crime Against Humanity
Sara K. Graham

 
Rape: Not Only a Crime Against Women but Also a Crime Against Humanity

"Ines Sabalic has expressed fear that the female experience with war may repeat itself in Croatia and Bosnia in that the war crimes against women could go unpunished despite the widespread publicity the mass rapes have received" (Seifert 68).

Ms. Sabalic made this statement in 1994, at the beginning of the UN inquiries into the devastation wrought upon Muslim women during the war in the former Yugoslavia. Her fears may be quelled, as on 22 February 2001, Judge Florence Mumba of Zambia announced a verdict indicting three Serbian soldiers on charges of rape and sexual enslavement. This alone represents an unprecedented decision by an International Court, one that sets in stone, once and for all, the validation of the pain and suffering thousands of women have endured in wartime. The International Criminal Tribunal for the Former Yugoslavia proclaimed that male soldiers used rape as an instrument of terror and as such, it was finally considered to be a crime against humanity. This places rape, as a war tool, into the same category as those crimes considered to be the most heinous violations of human dignity, such as genocide and torture. Not only has rape been given a higher status under the law but it has also finally earned credible media attention. This gives courage and hope to the women ravaged during wartime. They know they may safely be heard and taken seriously. However, these women must still be encouraged to step forth and tell their story. To do so, they will make it known to soldiers that it is no longer a "spoil of war" to "take" a woman; it is a punishable crime. Added to their voices is the voice of a reputable and righteous court; a voice allocating a tangible punishment and an intangible statement to the soldiers of the world; the voice of Judge Mumba, proclaiming that "[I]n time of peace as much as in time of war, men of substance do not abuse women" (Trial Chamber II, 3).

            While rape has occurred in wartime for centuries, only within the last fifty years have the victims' voices been heard. Within the last few years, Japanese comfort women as well as women in Rwanda and East Timor have been receiving attention for the harm done to them, reparations for their suffering, and a satisfaction of seeing justice done to their abusers. This paper will focus on the plight of the most recognized group of victims; those Bosnian Muslim women held and detained in camps where they were raped and forced into sexual enslavement during the war in the former Yugoslavia. It will also discuss the historical context of rape, why rape is used during wartime, the evolution of the international mechanisms developed to punish perpetrators of rape, and the personal stories of the victims, which justify the evolution of rape into a crime against humanity and a weapon of terror. The stories of these women echo those told by women of the past, but this time, their stories fall on ears willing to listen and minds ready to see justice done.
 
Discussion of Rape in the Contexts of History and War, and of the Changes in Social Attitudes Toward Rape

"The changes in our understanding of rape reflect changes in beliefs about women, inequality, and criminal behaviours as well as changes in legal and social practices" (Roberts 32).

Women have not always been able to legally fight rapes that have occurred during wartime, but they have always been victims of it. This dehumanizing act was, at one time, considered a "spoil of war"; something conquering soldiers were entitled to. As Roberts points out, this has changed as women's rights have become more widely recognized and as laws have progressed to allow for prosecution of rape as a war crime. To trace this evolution, we must first look at the historical documentation of rape during conflict, which truly shows the antiquity of this crime. Secondly, we will look at why soldiers rape, as explained by Ruth Seifert's "5 Theses of Rape during Wartime." Thirdly, we will discuss the evolution of attitudes that have brought about an acceptance and justification of these women's voices.

Rape in a Historical Context

In the past, a conqueror rarely had a thought as to whether it was morally right to "take" the women of his captives, and he never would have dreamed that he could be punished for such an act. In fact, after a long conflict, these spoils were above and beyond the ones already received from conquest. Paradoxically, however, is the fact that in some historical accounts of the ancient Greeks and Romans, the rape and abduction of a woman were cause enough for a war, or at least a sure way to instigate one. Herodotus, in The Histories, describes at least three cases of women who were abducted and ravished - and that is only in the first three paragraphs. The beginning of a conflict lasting two generations begins with Io, the daughter of a leader named Inachus. During an open market, the Phoenicians captured and abducted a large group of women who were there to trade. Io was included in this group. This action instigated a conflict between the Phoenicians and the people of Argos. Next, Herodotus describes how Cretans made off with the Phoenician king's daughter, Europe, and how, in a retaliatory strike the Phoenicians abducted Medea, the daughter of the king of Colchis. The ensuing conflicts, still remembered by the next generation, led to one of the most famous uses of rape and abduction as an action of war:

In the next generation afterwards, according to the same authorities, Alexander the son of Priam, bearing these events in mind, [those mentioned above], resolved to procure himself a wife out of Greece by violence, fully persuaded, that as the Greeks had not given satisfaction for their outrages, so neither would he be forced to make any for his. Accordingly he made prize of Helen; upon which the Greeks decided that, before resorting to other measures, they would send envoys to reclaim the princess and require reparation of the wrong. Their demands were met by a reference to the violence, which had been offered to Medea, and they were asked with what face they could now require satisfaction, when they had formerly rejected all demands for either reparation or restitution addressed to them (Herodotus 1).

Thus, war began because these factions considered women to be nothing more than commodities; granted they gave them enough status to be considered something of enough worth to fight over. In actuality, though, these sides would have as easily fought over stolen ships or land. No mention is given to the conditions of the abducted women, nor of their plights as victims. They are mentioned as the means of conflict for the warring factions; nothing more than beauties to be taken and taken advantage of. Herodotus even chastises the Greeks' and Phoenicians' actions because, as he argues, a man who fights over something as lowly as a woman is a fool:

Now as for the carrying off of women, it is the deed, they say, of a rogue: but to make a stir about such as are carried off, argues a man a fool. Men of sense care nothing for such women; since it is plain that without their own consent they would never be forced away (1).

Again, Herodotus' attitude is one of contempt for the victim, arguing that she must have consented, or she never would have been carried away. (This is still a problem for the Muslim women in their patriarchal society.)

In the sixteenth century, Shakespeare paints a different picture; one of using rape as a threat in order to obtain the submission of a town. In Henry V, Shakespeare portrays King Henry V as threatening the French town of Harfleur to surrender. King Henry uses strong words and imagery to describe the vileness of his own soldiers and what will happen under their uncouth hands:

The gates of mercy shall be all shut up,
And the flesh'd soldier, rough and hard of heart,
In liberty of bloody hand shall range
With conscience wide as hell, mowing like grass
Your fresh-fair virgins and your flowering infants-
What is't to me, when you yourselves are cause
If your pure maidens fall into the hand
Of hot and forcing violation?-
The blind and bloody soldier with foul hand [will]
Defile the locks of your shrill-shrieking daughters- (III.iii.10-35)

This speech could have come straight from the mouth of a modern day leader; the story of a commander washing his hands clean of the actions of those below him. Yet it also shows how women were considered an important part of conquering a city or a people. Raping the women of a particular town was used to belittle the men in charge, not the women themselves. In some cases, it was to produce children of the same ethnicity as the conquerors, which we will see was the case with the Bosnian Serbs and their quest for "ethnic cleansing." Either way, it shows how women became possessions in the hands of their aggressors.

Also present in other works of fiction is the concept of Prima Nocte, or "First Night." This refers to the right of a nobleman to be the first to have sexual intercourse with his new bride. The intended goal was to produce children of the nobleman's own seed, as Edward Longshanks stated in Braveheart (in reference to the domination of the Scottish), "If we can't get them out, we'll breed them out." This idea also appears in Mozart's opera, Le Nozze di Figaro ("The Marriage of Figaro"), but here it is more out of a Count's lust than a desire to propagate children of a different ethnicity. In any case, Prima Nocte exploits a woman's ability to beget a child. This was the objective for many Bosnian Serb soldiers as a plan to ethnically cleanse the Bosnian Muslims.

            In a more recent historical context we see more examples of rape and sexual enslavement used during conflict. At Nuremburg, rape was downplayed because the Russian troops raped many women throughout Eastern and Central Europe. Also, the French told Moroccan troops positioned in Italy that rape was a bounty of war, (which was incidentally fictionalized in Alberto Moravia's Two Women and in film by Vittorio De Sica) (Neier 181). Neier points out that since France and Russia were on the victorious side of World War II, "[A]t Nuremburg, rape was a victim of victor's justice" (181). At the trials in Tokyo, however, Japanese soldiers were tried for the "rape of Nanking," where thousands of Chinese women were raped and murdered. Japanese comfort women, however, were not brought up at the trials. These comfort women were essentially forced into prostitution for the pleasure of the soldiers. Not until recently have these women been given attention and has some attempt at reparations or conciliatory efforts been made. Even after the war was over, rape still occurred. In Helke Sander's and Barbara Johr's film BeFreier und Befreite (Liberators Take Liberties), the filmmakers explore the almost 110,000 rapes that occurred in the Berlin area after the war (Seifert ,54). Why then, we may ask, are women violated during conflict? Why are women considered bounty? Why are they raped and forced into prostitution during times of war? We will now look to Ruth Seifert, as she tries to explain why men rape during wartime.

Rape in the Context of War

In War and Rape: A Preliminary Analysis, Seifert offers five theses as to why men rape during wartime, but we will first look into what she calls the "function of rapes." While some may call rape an unavoidable outcome of a man's uncontrollable natural instincts, Seifert argues that this is not so. Rather, she argues that rape has nothing to do with a man's nature or his sexuality. Instead, it is an act of aggression and violence. She explains that:

Studies show that rape is not an aggressive manifestation of sexuality, but rather a sexual manifestation of aggression. In the perpetrator's psyche it serves no sexual purpose but is the expression of rage, violence, and domination over a woman. At issue is her degradation, humiliation, and submission. To be sure, this violent act is carried out by sexual means (55).

This is also supported by the fact that one out of three rapists has trouble performing sexually during the act of rape (Seifert, 56). Rape is also, as she explains, an excruciating attack on a woman's dignity, or rather in the words of Judge Mumba, "[with rape] the terror took on another, very personal dimension" (Trial Chamber II, 2). Seifert echoes these sentiments by stating:

A violent invasion into the interior of one's body represents the most severe attack imaginable upon the intimate self and the dignity of a human being: by any measure it is a mark of severe torture-It results in physical pain, loss of dignity, an attack on her identity, and a loss of self-determination of her own body (55).

A person's sexuality is a deeply ingrained part of that person's identity, and rape has the ability to destroy both. Also, the social stigma attached to rape often prohibits a woman from telling her story. Especially in Muslim patriarchal society, a raped woman faces the chance of losing her husband and is therefore even more afraid to speak out. The fear of telling others what happened and the internal struggle to psychologically and physically deal with being raped is enough to make some women think death would be easier than surviving rape. So, why did the Serbian soldiers resort to rape? Why wasn't it enough "just" to kill them? We will now look into Seifert's "5 Theses" on why men use rape during wartime.

            Thesis 1: Rape is a part of the "Rules" of War

            Seifert begins by explaining that while there are always definite roles in society of "masculine" and "feminine," these roles are normally relaxed during times of peace. She says that historically, this was even more so, leading to fewer incidents of rape (Seifert 58). If, however, rapes are a common occurrence during war, then there must be a cause. Seifert says the cause is that war is very ritualized and systematic in nature. She even goes so far as to call it a game, solely because it appears that there are "rules" during warfare: "in war, well-defined armies are present, the enemy is clearly identifiable, and there are recognizable procedures at the front, with a clear order of command" (Seifert 58). One of the rules of war is rape and violence against women. Seifert comes to this conclusion because of the high incidence of violence and rape during the immediate postwar period, for example the Rape of Nanking ,and the incident in Berlin after World War II. The victors are the ones committing these crimes because this, too, appears to be one of the rules: those who win have free rights to the conquered women. It does not matter where the women are found; civilians and brothels alike are fair game. Since the victor has free reign in his conquered territory, "in the 'open space' of war, many men simply prefer to rape: it has nothing to do with sexuality, but rather reflects the exercise of sexual, gender-specific violence" (Seifert 58).

            Thesis 2: In Belligerent Disputes, the Abuse of Women is an Element of Male Communication

            In the context of war, the victor can use rape symbolically to humiliate his male opponent. By raping women in a conquered region, the victors are insinuating that the conquered men are unable to protect "their" women . Even though the myth of man as a protector is just thatãa mythãthere are still social and psychological effects for the men and women. In conquered regions, women feel unsafe and men feel threatened, even to the point of feeling that their masculinity is compromised by the rape or abuse of "their" women (Seifert 59). The worst effect of the male communication in Yugoslavia was the busloads of women shipped back over enemy lines in their sixth or seventh month of pregnancy, with crude inscriptions on the sides of the buses about the children that would be born from these women (Seifert 59).

            Thesis 3: Rape also Results from the Offers of Masculinity that Armies make to their solders, or from the elevation of masculinity that accompanies war in western cultures

            Armies are, at times, considered a rite of passage into manhood, and many men find the army attractive because their "masculinity" is reinforced and confirmed (Seifert 59). In the army, men learn behaviors that reinforce specific gender identities. These behaviors mix power and dominance with eroticism and sexuality. Any image of a gentle or sensitive man is thought to be homosexual and inferior. Thus, the images of strong, powerful, and conquering men are daily reinforced. The media also emphasizes the images of eroticism by using terms such as the "rape of Kuwait" to describe the invasion by the Iraqis. Seifert argues that these factors all add up to an inclination to rape. Psychologist David Marlow has stated that military life encourages the metaphor of "soldierly masculinity," which produces a superior self-image and an "ideal of virility" that is also encouraged and enforced (Seifert 61).

This does not mean that every soldier rapes. But it does mean that the construction of the soldierãor to express it differently, the subjective identity that armies make available, by fusing certain cultural ideas of masculinity with a soldier's essenceãis more conducive to certain behavior rather than others. (Seifert 61)

Joan Smith has studied militaries and male psychology, and she has found that the creation of the front of masculinity - not permitting such emotions as empathy, sympathy, or gentlenessãleaves a soldier unable to deal with his emotions effectively. This makes a solider more able to take his emotions out in violent ways, especially against women. Men who are unwilling to rape in combat are often derided by their fellow soldiers and have their sexuality questioned; the gang rapes in Bosnia were no exception.

            Thesis 4: Rape in wartime aims at destroying the opponent's culture.

Often times it is overlooked that a majority of wars, especially recent ones, are not waged in battlefields but in residential areas. This means that more civilians are involved than most people realize. Recent statistics have shown that civilian deaths usually outnumber soldier deaths. In World War I, there were a disproportionately greater number of civilians killed than soldiers. In the Soviet Union during World War II, there were about 9 million soldiers of both sexes killed compared with more than 16 million civilians. The soldier to civilian ratio for the Korean War is 1:5, and for the Vietnam War it is 1:13. According to 1989 UNICEF data, in the wars fought since World War II, 90 percent of all casualties were civilians and a large share of them were women and children (Seifert 63).

Seifert argues that women are especially targeted as civilians because the female body is seen as a "symbolic representation of the body politic" (63). Women are targeted because they bear the children, run the families, and are the wives of the soldiers of the opponent's army.

Thus the rape of the women in a community can be regarded as the symbolic rape of the body of this community. Against this background, the mass rapes that accompany all wars take on new meaning: by no means acts of senseless brutality, they are rather culture-destroying actions with a strategic rationale. (Seifert 63-4)

This is one of the objectives that the Serbian soldiers tried to achieve; they wanted to destroy and drive out the Muslims from Bosnia-Herzegovina. Thus, they raped and violated women in order to achieve ethnic cleansing and to destroy the culture of the Muslim people.

Thesis 5: The background to rape orgies is a culturally rooted contempt for women that is Lived out in times of crisis.

Some theories have developed stating that rape would not happen in such a brutal fashion if there were not an inherent contempt for women. They argue that women are raped in war not because they "belong to the enemy camp, but because they are women and therefore enemies" (Seifert, 65). Ines Sabalic points out that after some women were raped in Bosnia; they had their breasts cut off, which she says indicates an extreme hatred for women because the crimes committed against them were gender- specific (65). Also, Seifert mentions that in the Berlin rapes, it was not just German women, but also Jewish women and forced laborers who were raped. In Kuwait, it was not just Kuwaiti women, but also foreign workers from the Philippines and Egypt who were raped (65). Thus, rapes in these circumstances were not ethnically specific, but were aimed at women simply because of their gender.

The term "enemy" usually implies someone who fights back. Yet during war, women neither expect to have to fight back, nor are they normally expected to do so. In Yugoslavia, women thought they were safe from the war until they became victims of its violence. Women in wartime often feel helpless because the patriarchal nature of certain societies predicates their helplessness. Thus, women do not expect to be violated because they feel it is generally understood that they do not have the power to fight back or rebel.

Since women are the victims of violence and rape during wartime, Seifert explains that this must be because of an inherent misogyny that becomes exacerbated during wartime and in times of crisis. She points to the fact that rape rates rise during times of conflict, as they did in Israel during 1991 and in Croatia around 1992 (66). The culture of hatred and acceptance of rape as a natural by-product of war continue to silence many women's stories of the violence they experienced in wartime.

Comments and Contradictions

In regards to Thesis 4, it is apparent that the debasement of Muslim society was the objective of Serbian soldiers, as mentioned above. The Serbian forces sought to drive away the Muslims by punishing them so forcefully that they would not think of returning. As one victim said, "What mattered to them was that the people from our region should clear out, should never come back; and rapes are a splendid way to get that result" (Stiglmayer 90). Ethnic cleansing was not only achieved through mass killings but also through mass rapes. Women held in detainment camps were gang-raped and taunted nightly. They suffered psychological damage from being told that they would have "Chetnik babies," and women who did become pregnant were treated well. They were fed and separated from the other women. However, they were also detained for longer terms then most women in order to prevent them from having abortions, thereby forcing them to have children of partial Serbian ethnicity. This was clearly an attack on the culture of the Bosnian Muslims and especially on the female civilian population, many of who were left with no home or husband - though many had no desire to return home.

Aryeh Neier, however, would warn Seifert from overstressing rape during wartime. He says that doing so "depreciates the multiple harms done to them." The Bosnian Muslim women have seen their husbands disappear or be killed, their children suffer, their homes pillaged, their towns destroyed, and they have been held in detainment camps. He feels that emphasizing the fact that they were raped might take attention away from the other material and psychological needs that these women may have.

Neier also raises the point that, in relation to Thesis 3, there is evidence that some armies punish soldiers for violence against women. Many of the women violated often said that if someone had held the soldiers accountable for their actions, much of the violence would not have happened. The problem was that there was no one on top telling them that their actions were wrong. Neier also cites the example of the Eritrean Popular Liberation Front (EPLF). This army was on a campaign to take back the government of Eritrea, and the higher- ups in the army made it known that "sexual attacks would be punished severely; as a result, its record on the treatment of women was exemplary" (Neier 183). Thus, it is possible for armies to take responsibility to stress that violence against women is unacceptable and severely punishable.

Evolution of Attitudes

As mentioned before, it has only been recently that women are able to go to court to help prosecute wartime rapists. Only in the last thirty years has there been an increase in support for women's rights, with more organizations and voices willing to fight for them. International organizations such as the International Red Cross and many media groups were concerned when they heard reports of women in detainment camps and gang rapes in Bosnia. While these organizations were permitted to visit the camps, women were often killed, hidden, or released before the outside groups were allowed in. Lawyers like Catherine MacKinnon, after years of fighting for women's rights in domestic courts, were recruited to help Bosnian women fight under the Alien Tort Act of 1863. This has all culminated in the effort to prosecute three Bosnian soldiers solely for crimes of rape and enslavement under the International Criminal Tribunal for the Former Yugoslavia. This could not have been achieved without the changes in mindset that have occurred to recognize rape as a war crime. We will now look at how this mindset has appeared in legal form, as we discuss the evolution of laws regarding rape during wartime.

Legal Evolution of Rape into a Crime Against Humanity

Documented military laws against rape have been in existence since the fourteenth century, , and similar lawssupposedly have existed since Greek and Roman times. However, since there have been only a few documented cases of soldiers tried for rape during wartime, it is obvious that these laws have not been heavily enforced. In addition to military law, there have also been commissions and conventions regarding rape, most notably the International Commission to Inquire into the Causes and Conduct of the Balkan Wars, and the Geneva Conventions. We will now follow the timeline of these laws and conventions, and discuss their importance to the evolution of rape as a crime against humanity.

Military Laws

In medieval British military code, rape was a capital crime under Kings Richard II (1385) and Henry V (1419). However, there is no evidence that anyone was ever punished for these crimes (Neier 183). In the seventeenth century, Dutch jurist Hugo Grotius, citing influences from Greek and Roman authorities that condemned rape in wartime and from Christian views on rape, said that, "whoever forcibly violates chastity, even in war, should everywhere be subject to punishment" (Neier 168). Grotius is known as the founder of international law, and through his writing he expressed that the morality of men should be reflected in their laws.

The Leiber Code of 1863 was instrumental in founding later laws regarding rape. Abraham Lincoln issued this code, called the General Order 100, during the United States Civil War in order to regulate the conduct of the Union Army. The sections governing women and rape are as follows:

Article 37: The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. [italics added]
Article 44: All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.
A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
Article 47: Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred. (Leiber, Section II)

The Leiber Code became the basis for other international laws regarding land warfare, as we will now discuss.

International Laws and Commissions

The 1907 International Peace Conference in Copenhagen adopted Article 44 as international law. Although the rape provision was drastically changed, Article 44 also became the basis for laws regarding customs of war on land at the Hague Convention IV (Women's Caucus for Gender Justice, 1). At the Hague Convention in 1907, Article 46 stated that, "Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice must be respected." While there was no specific mention of rape here, this provision was relied upon to prohibit it.

In 1913, the Carnegie Endowment for International Peace created the International Commission to Inquire into the Causes and Conduct of the Balkan Wars. In the 420 pages of the report, there were about 100 pages describing the crimes committed against women. On almost every page, violence and rape were mentioned according to the contemporary term of "violation against women." One section mentioned a woman dying after being raped, and two women and a girl being carried off by the Greeks (ICICCBW, 323). The words of the Bosnian women in the 1990s were echoes of what was written in the pages here: "I can't, I can't tell you anything. There's no describing what I've seen. God! how they tortured us, undressed us naked, while we cried and wept" (ICICCBW, 322). This raised international awareness about rape and violence against women, which continued into World War II.

In the Tokyo trials after World War II, the "Family Honour Provision" was used to convict soldiers of rape. In the London Charter that created Nuremburg, there was no mention of rape, although the Control Council Law No. 10, which was the basis for the prosecution of low-ranking Nazi soldiers, listed rape as a crime against humanity (WCGJ, 1). Shortly after, in 1949, the Fourth Geneva Convention met to further define war crimes, and as we will see, the development of the Geneva Conventions continued to define rape as a war crime.

Geneva Convention

The Fourth Geneva Convention of 1949 did not specifically mention rape as a war crime by itself because of a preoccupation with "biological experiments." However, customary law recognizes its coverage under Common Article 3, which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment" against protected persons (i.e. civilians). Article 27 of the Fourth Geneva Convention, did, however, make special note of women's rights under a section relating to the protection of civilians: "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." Rape was admitted, at this time, as a weapon of terror if used to furnish information during interrogations, and it also fell under the guidelines of "willfully causing great suffering or serious injury to body or health" and "inhuman treatment" (Neier 180).

Not until the Additional Protocols in 1977 was rape itself admitted onto the pages as a war crime. Additional Protocol I covered rape under "ethnic cleansing" because it defined ethnic cleansing as the "inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination." This certainly applies to rape, and even more specifically to the rapes in Bosnia. Article 75 outlaws sexual enslavement under a provision designed to protect civilians in international armed conflicts. This article states that "outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault" are punishable crimes. Article 76 calls for the special protection of women from "great suffering or serious injury to body or health," during armed conflict and is meant to include rape. Article 4 of Additional Protocol II prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" during internal armed conflict. This last article is especially important in determining jurisdiction for such courts as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

ICTY and ICTR

The Statutes of the ICTY and ICTR list rape as a crime against humanity. The Statutes also specifically state that rape is within the tribunal's jurisdiction, but it is not specifically listed as a grave breach of wartime conduct or as a serious violation of customary law. The jurisprudence of these tribunals has prosecuted and punished rape and other forms of sexual and gender violence. These crimes were finally recognized for the seriousness and severity of their nature. The courts "have recognized that rape and other sexual violence can constitute genocide, torture and other inhumane acts" (WCGJ, 1). This is an encouraging step in the right direction, especially with the creation of the charter for the International Criminal Court.

Rome Statute of the International Criminal Court

The Rome Statute of the ICC, written in 1998, explicitly mentions a variety of crimes against women, including rape. The Statute covers "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other forms of sexual violence of comparable gravity" under different articles and different classifications. Under Article 7.1 (g), these acts are considered crimes against humanity. Under 8.2 (b) (xxii), they are considered war crimes when committed during international armed conflict. Under Article 8.2 (e) (vi) they are made war crimes when committed during non-international armed conflict. Article 8.2 also mentions that these acts constitute a serious violation of Common Article 3 in the Geneva Conventions. In Article 7.1 (h), persecution of an identifiable group for "political, racial, national, ethnic, cultural, religious, [or] gender" reasons is strictly prohibited. Article 7.2 addresses enslavement and forced pregnancy. Under 7.2 (c), enslavement is defined as the "exercise of any or all of the power attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children." And in 7.2 (f), forced pregnancy is considered illegal when a woman is unlawfully confined and forcibly made pregnant, with "the intent of affecting the ethnic composition of any population or [to] carry out other grave violations of international law." While the Rome Statute has not been ratified yet, it has the most complete and sensitive list of offenses against women to date. If ratified, this means that women will now be able to prosecute their aggressors, and will have a secure means of having their voices heard, with the assurance that justice may be done.

Prosecuting Rape in Court

While the ICC may not be in place yet, there have been two recent court cases that have convicted soldiers of rape during wartime, and have made it known that a soldier, no matter how lowly, can be punished for committing violence against women.

Kadic v. Karadzic

Following in the footsteps of Fil·rtiga v. PeÒa-Irala, lawyer Catherine MacKinnon filed two lawsuits against Radovan Karadzic, one on behalf of S. Kadic, and the other on behalf of Jane Does I and II, for atrocities committed in Bosnia. Karadzic was a Serbian camp commander who organized and led the genocide and rape of Muslims in Bosnia-Herzegovina. He was arrested and tried under the Alien Tort Act, which allows a defendant to be sued for criminal acts committed in other countries while visiting United States soil. A district court originally threw out the case on the grounds that Karadzic was not acting on behalf of a state, and therefore his actions were not in violation of international law. However, the Southern New York Appeals Court overturned this decision. Karadzic was not indicted solely for rape, but for genocide as well. The opinion of the court, as stated by Jon Newman, read:

We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.

The decision of this court bears significant weight. The reality of punishment for perpetrators of war crimes is becoming more tangible with every court decision, and this, indeed, was an important first step for the prosecution of Bosnia soldiers. There are high hopes that the true orchestrators of these crimes will one day be punished, and they cannot now ignore the fact that the people under them are being sentenced, and that they too, will face a worse fate.

Judgment of Trial Chamber II in the Kunarac, Kovac, and Vukovic Case

            This judgment, given on 22 February 2001, was the first of its kind. The ICTY was the first to convict soldiers of rape as a crime against humanity, not just as a war crime. This was also the first conviction of enslavement as a crime against humanity. The Trial Chamber II also declared that rape could be used as an "instrument of terror" by armed forces, and that a soldier should expect to be punished, regardless of rank.

       The Trial Chamber II sentenced Dragoljub Kunarac to 28 years, Radomir Kovac to 20 years, and Zoran Vukovic to 12 years, each for charges of rape, torture, enslavement, and outrages upon personal dignity. The following is a summary of the Trial Chamber's Judgment.

The three soldiers were from the Foca region in Bosnia, and they were ordered to "ethnically cleanse" the area of Muslims. Muslim men and women were rounded up and detained in camps and other public places, such as high schools, in the area around Foca. The women were separated from the men and taken away. As the Trial Chamber mentions, it was in these places that the women's terror "took on a very personal dimension" (TCII, 2). Here, at the "rape camps," these soldiers used rape as a "weapon of war" to systematically terrorize the Muslim women because of their ethnicity. And they used this terror whenever and upon whomever they chose. Presiding Judge Florence Mumba explains that:

[W]hat the evidence shows, are that Muslim women and girls, mothers and daughters together, robbed of the last vestiges of human dignity, women and girls treated like chattels, pieces of property at the time of arbitrary disposal of the Serb occupation forces, and more specifically, at the beck and call of the three accused (TCII, 2).

The Trial Chamber goes on to explain the terms and conditions of the three soldiers' actions, specifically citing their complacency and participation in ethnic cleansing, in detaining and systematically raping Muslim girls and women, and in dehumanizing their victims through sexual enslavement. The Trial Chamber recognized that these men were not the originators of violence, but stated that soldiers of all ranks should be held accountable for their actions:

The three accused are certainly not in the category of the political or military masterminds behind the conflicts and atrocities. However the Trial Chamber wishes to make it perfectly clear that, although in these cases before this Tribunal it is generally desirable to prosecute and try those in the higher echelons of power, the Trial Chamber will not accept low rank or a subordinate function as an escape from criminal prosecution.

Political leaders and war generals are powerless if the ordinary people refuse to carry out criminal activities in the course of war. Lawless opportunists should expect no mercy, no matter how low their position in the chain of command may be.

Indeed, it is opportune to state that, in time of peace as much as in time of war, men of substance do not abuse women (TCII, 3).

Thus, with this last line, the Trial Chamber set a precedent by making it clear that rape and sexual enslavement are as serious as crimes such as genocide, mass murder, and torture. Indeed, they even clarified that rape, when used systematically, can be punished as a form of torture. What makes this judgment even more important is the fact that this trial was carried out by a United Nations sanctioned tribunal. The significance of this lies in the fact that the United Nations is a high- profile organization, thus giving credibility to the Trial Chamber's decision. In addition, the judgment received more publicity because of the UN's reach throughout the world, thus making it known that future perpetrators of mass rape and other war crimes against women will be punished to the full extent of international law.

            The inclusion of rape and sexual enslavement in the category of "crime against humanity" bears great significance to many women because it validates the horrors and torture they experienced during the war. The Trial Chamber's decision validates the fight for women's rights, making it known that they are significant and important. The violations of their bodies and the tortures they faced, such as forced impregnations and sexual enslavement, are now finally considered full- fledged crimes against humanity and are fully punishable under international law. Women are no longer just the "spoils of war," but now have the right to take control and prosecute the men who violated them so personally. Thus, they may find justice and as much peace as possible in life, after facing such harsh, demeaning, life-altering, and undeserving punishment.

The Real Stories of the Bosnian Muslim Women

            The Bosnian Muslim women who were so violated during the war in Bosnia-Herzegovina have had more opportunities to tell their stories than any other group of women before them. The international media have recorded their stories and documented the truth so that it may be known, and so that similar incidents may be avoided in the future. Following are selected accounts of rape and enslavement that fall from the lips of (too many) Bosnian Muslim women.S

Rape Camps at Foca

            Foca was the region, mentioned above, where the three convicted soldiers were stationed. Here was the infamous rape camp, where many women were detained in places such as high school buildings, often right next to police stations, where they were raped and beaten daily; their screams falling silent on the ears of those who could possibly have done something about their pain.

            In the little town of Miljevina, just outside of Foca, there were about 40,000 people before the war, and about 52 percent of them were Muslims. In April of 1992, the Serbian army descended upon Miljevina, in order to "cleanse" it of Muslims. Women were often left after the first wave of violence, in which the Muslim men were taken out and killed. Many stayed in Miljevina, but in July the soldiers started attacking women and children too. The women would hide during the day, becoming prisoners in their own homes, afraid to go outside for fear of having their houses looted, being raped, or drawing attention to their children. Stiglmayer says that, "[O]ut of [the statements of] the four women I interviewed, there were approximately one hundred Muslim women still in Miljevina, and every one of them was the victim of at least one rape and sometimes several" (104). Many women knew their rapists, and although the rapists would pretend to be Montenegrans or policemen, the women recognized them as their Serbian neighbors. These soldiers employed many methods of terror in order to drive the Muslims out of the Foca region, not only using rape, but also torture, assault, and threats that damaged the psychological health of the women:

They dragged us one after the other into the room, and what all didn't they do to us there! They beat us, tortured us, raped us - they did whatever came into their heads. They said if we told anyone about it they'd come again and butcher us and our kids. I decided to run away to the woods, so the Chetniks wouldn't catch me at home. (104)

They used to get together and sing, "O beautiful bula, a Chetnik's beard will scratch you" or about how Muslim women would give birth to Serbian children. (104)

They pretended to be policemen. One of them stayed with my daughters in one room while two of them went with me into another room. My little girl began to cry and called out for me. But he put a rifle to her head and said, "If you cry for your mama again, I'll kill you." They ordered me to get undressed, and they cursed my mother. I screamed and wept. They yelled at me not to cry, they threatened me with their guns: "We'll knock out all your teeth, we'll butcher your kids, hack them to pieces, and make you watch." (104-5)

He told me, "It's war now, you don't have to bother defending yourself. There's no law or order anymore." (106).
But Pero E. is no saint. He brought twelve-year-old girls from Kalinovik to a brothel in Miljevina. They're still there; he keeps them there as his playmates. (107)

I saw how they came with their cars and dragged young girls into the brothel. At night I heard them screaming and crying. (107)

Her name was Alma B. She was twelve years old and gorgeous. While we were between Ustikolina and Osanica they stopped the bus and took her out. Later in Gorazde I met Edi, a man I knew from Miljevina-I asked him if he knew anything about Alma, and he told me she had been in the brothel in Miljevina and slit her wrists there. (108)

They told us we were going to give birth to Serbian children and they would do everything they could so we wouldn't even dare think of coming back again. (109)

They ordered me to do the dishes. When I stood up they roared at me, "How dare you stand up without permission!" They said we were at war now, there wasn't any law and order anymore. (109)

All they had to do was give two or three of them a stiff punishment and it would've stopped. But they never did that; practically speaking it was legal to rape Muslim women and all the rest of it. (109)

The next morning they locked us in the apartment and left. We were supposed to clean it up. It looked awful; there were bottles everywhere, blood, filth-I wanted to jump out the window and kill myself. Why should I go on living? To be raped every day and then have to work for them on top of that? (110)

They put their fingers into me all over, to see if I was hiding money anywhere. Then four of them raped me, one after the other. After the fourth guy I fainted. If I hadn't fainted, they'd have kept on going. (109)

            And the stories go on. Stiglmayer even spoke with a twelve- year- old girl named Velvida who had been raped by many soldiers in the course of her detainment, and once her mother, herself, and another woman had been detained in a room and raped by the same man.

            There are many more women throughout Bosnia-Herzegovina, Croatia, and Serbia who have stories to the ones of the women in the Foca region. Forty-one men raped a woman named Hasiba in the course of five days. She was even gang raped in public. Young girls were mocked by the soldiers for being virgins and told that they had been saving themselves just for the Serbians. Women who became impregnated were separated and detained long enough to prevent them from having an abortion. Doctors were shocked because many women refused to even look at the child after it was born; one woman even placed a pillow over her head so she would not have to hear her child's cries. Men were mocked if they did not want to participate in gang rapes, and they were pressured until they did. What all of these stories show is that the terror committed against the Bosnian women was widespread. The nightmares they lived through are unimaginable to most. But there is hope.

The Validation of Women's Suffering

Since the mass rapes were one of the most publicized aspects of the war in the former Yugoslavia, there are many accounts of this terror from many different women. Many have decided that the best way to exact revenge against the Serbians is to tell their stories to as many people as possible. Others joined the Bosnian army to fight against the Serbians. They raised guns to the men responsible for the deaths of their families and for the personal humiliation they themselves feel. Out of the 100 or so women raped in the Foca region, only sixteen showed up at the Trial Chamber hearings to testify against the three soldiers. Women like Jadranka Cigelj and Nusreta Sivac made their struggles known by participating in a movie titled Calling the Ghosts, which tells of their detention and their work to compile the stories of other victims. Women like them strive to encourage other women to tell their stories, and especially to raise awareness of the importance of being a witness at trials.

What is most gratifying is that the world is beginning to take notice. The Trial Chamber has made it known that such grave violence against women is no longer acceptable and that men who perpetrate such violence will be punished. The ICC seeks to continue this statement by compiling a comprehensive list of punishable offenses and crimes against women. The world has come a long way legally to arrive at this point. And with the high hopes of the ICC, future perpetrators of war crimes against women will have to face a credible legal system for their actions. They will also face the reality of punishment and actual jail time. Hopefully, the realization that they can be punished will make soldiers think twice before harming anyone. Society, too, has traveled a long road to finally believe that the personal and sexual dignity of women is worth enough to declare that any wartime violation of their integrity or their bodies is enough to constitute a crime against humanity. The cries of help and the screams of terror from so many women in Bosnia, and from so many women throughout time, may find validation and comfort in the fact that they have finally been heard. In the introduction to Mass Rapes, Alexandra Stiglmayer wrote this dedication to the women of Bosnia-Herzegovina:

I am saddened that their willingness to come forward was to no avail, for it is unlikely that they will ever experience justice, as the world has chosen to close its eyes to what has happened in Bosnia and Herzegovina.

How validating it is to know that eight years later, it is quite definite that the world has opened its eyes, and has taken action to pursue justice for the women of Bosnia and Herzegovina.

Bibliography and Works Cited

Allen, Beverly. Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia. Minneapolis: University of Minnesota Press, 1996.
 
Herodotus. The History of Herodotus. Trans. George Rawlinson. 2000. 10 April 2001. < http://classics.mit.edu/Herodotus/history.1.i.html>.
 
Neier, Aryeh. War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice. New York: Times Books, 1998.
 
Seifert, Ruth. War and Rape: A Preliminary Analysis from Mass Rape: The War against Women in Bosnia-Herzegovina. (Stiglmayer, Alexandra, ed.) Lincoln: University of Nebraska Press, 1994.
 
Southern New York Appeals Court. Kadic v. Karadzic: Decision of US 2nd Appeals Court. 11 October 1995. 10 April 2001. <http://diana.law.yale.edu/diana/db/kara1.html>.
 
Stiglmayer, Alexandra. The Rapes in Bosnia-Herzegovina from Mass Rape: The War against Women in Bosnia-Herzegovina. (Stiglmayer, Alexandra, ed.) Lincoln: University of Nebraska Press, 1994.
 
Trial Chamber II. Judgment of Trial Chamber II in the Kunarac, Kovac, and Vukovic Case. 22 February 2001. 10 April 2001. United Nations. http://www.un.org/icty/pressreal/p566-e.htm.
 
Unabridged William Shakespeare. Philadelphia: Running Press, 1989.
 
Women's Caucus for Gender Justice. Treatment of Sexual Violence Under International Law. 1999. 22 April 2001. http://diana.law.yale.edu/diana/db/kara1.html>


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S Each of these accounts is found in Alexandra Stiglmayer's work titled The Rapes in Bosnia-Herzegovina. Pages will be cited, but all cases are from the aforementioned essay.