Yugoslavia was an example to the whole world of how differences can be met, how different ethnicities can live together. Nobody expected or believed that Yugoslavia will end up with crimes on a mass scale that took place during its breakup. Genocide took place in the heart of Europe, in Bosnia and Herzegovina in 1995. It was the worst atrocity on European soil since World War Two. Srebrenica was the culmination of a brutal campaign of ethnic cleansing across Yugoslav territories.

Among the most significant events during the breakup of Yugoslavia were the war crimes, which were manifested by the rape of women as well as rape of men. Bosnian Muslims were selected for murder not only on account of their Muslim faith, but also because of their gender. The women suffered a different fate. Around 20000 to 50000 women and girls were victims of genocidal rape.

The following paper will predominantly focus on female victims of sexual violence and rape, because the data on male victims is not easy to reach due to the fact that the overwhelming majority of survivors that decided to speak out are women and girls, as the men are more hesitant to bring the claims due to the social conventions in Bosnia’s Muslim majority male-dominant society

Background of events

During Bosnian war women’s bodies became a battlefield. By destabilizing women; mothers, wives, sisters, grandmothers – nationalists were destabilizing the entire society. Women were selected for an unimaginable campaign of sexual violence. They were gang raped and sometimes sexually enslaved and forcible impregnated in so-called rape camps, by armies and paramilitary groups. The shame and stigma prevented many from speaking out. Many of the perpetrators were friends, neighbors or colleagues of the victims and still deny their crimes, walking freely amongst their victims and making it difficult for them to speak openly.

Despite living with ongoing trauma the women of Bosnia have been at the forefront of bringing perpetrators to justice and seeking to prevent sexual violence in conflict. Unraveling the complexities of sexual violence in Yugoslav territories was only possible through the determination of those who came forward to tell their stories.

Information about different rape patterns have been reported for the first time in 1992 after the refugees from the different regions had the opportunity to tell their stories. In 1992 the UN mandated a Commission of experts to investigate and document the allegations on the ground. The Commission’s report was unequivocal. Sexual assault and rape have been carried out by some of the parties so systematically that they strongly appear to be part of a policy. The extent to which women were raped was so high because it was being done with impunity says Judge Florence Mumba, who later became one of the leading international judges dealing with cases of sexual violence in the region. The soldiers and the authorities thought that no action would be taken against the rapist and that the women’s voices would never be heard by anybody. However, the reports that circulated around the world sparked a passionate outcry to stop this wartime victimization and many became dedicated to putting this pressing issue on humanitarian agenda.

What does International Humanitarian Law say?

The international humanitarian law, the Geneva conventions and protocols that govern the principles of armed conflict have universally recognized provisions about the sexual violence during armed conflicts. Rape is specifically prohibited in both international and non-international armed conflict. Other serious sexual assaults are either expressly or explicitly prohibited. Sexual violence is prohibited, even though in a less clear fashion, in the 1907 Hague Convention, which applies during a military occupation, asserting that “[f]amily honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected”; in Common Article 3 of the Geneva Conventions, applicable in non-international armed conflict, and prohibiting “violence to life and person”, including “mutilation, cruel treatment and torture”, as well as “outrages upon personal dignity, in particular humiliating and degrading treatment ”; and the Third Geneva Convention, which states that “[p]risoners of war are entitled in all circumstances to respect for their persons and their honour” and “[w]omen shall be treated with all the regard due to their sex”

The Rome Statute of the International Criminal Court contains the broadest articulation of conflict-related sexual violence offences to date, codifying rape as both a crime against humanity and a war crime, and including sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as both a crime against humanity and a war crime.

ICTY Case Law Developing the Jurisprudence

As the reports that circulated around the world, many became dedicated to putting this pressing issue on the agenda of policymakers. This ended up with session in UN where the Commission decided to draft a resolution to be passes on to the Security Council (UN SC) creating a new war crime classification – rape. On the 25th of May 1993 UN SC unanimously passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia. The serious violations of the humanitarian law which have been taking place in the territory of the Yugoslavia have outraged the conscience of humanity. The rule 96 of Tribunal’s statute was designed to safeguard the integrity of the victims of sexual violence by narrowing the permissible defenses for those crimes. “No collaboration shall be required”- it said. Consent shall not be allowed as a defense if the victim was under duress and prior sexual conduct of the victim shall not be admitted into evidence.

Investigations reveal the complexities of the sexual violence, which included sexual enslavement, torture and sexual mutilation. It was even much more complicated that get against men. Not infrequently men were sexually assaulted because what a better way to demoralize brigade that charged the hill than to capture those men and then publicly have them commit fellatio upon each other. It was a weapon that goes to the very psyche, physical sense and social sense of a person.

The first trial of ICTY began on 26th of April in 1995 with charges of Tadic. The Tadic case was pioneering in more ways than one. Not only was it the first war crimes trial conducted by an international court since World War II, it was also the first trial to include charges of sexual violence in the form of sexual mutilation. It presented the unique case not presenting the sexual violence against the women but sexual violence against a man. In the case the international judges were called upon to decide whether or not the accused was guilty of having participated. As Tadic was present during this sexual violence he was found guilty of aiding and abetting the crime. The number of cases followed that began to expand the existing legal understanding of the term sexual violence.

Gender crimes went toward forms of sexual mutilation and having put evidences and received the Yugoslav tribunal convictions for mutilation of genitalia and other parts of the body, forced nudity in a public sphere, threatening the physical integrity via forcing the victims to watch someone else who is being sexually assaulted.

In reading of the later judgments the Trial Chambers specified that the rape has been used in order to punish the victims and therefore, these crimes have also been defined as torture. The ICTY chamber also decided on couple of new cases that the rape also amounts to a great breach of the Geneva conventions - violation of the laws or the customs of war and act of genocide. ICTY decision was groundbreaking because it held that rape is a tool of war, it is not an isolated act. And in Yugoslav cases it was significantly advanced jurisprudence to decide that rape was used as a tool of war and tool of genocide.

In the 2003 case about city of Foca, the Trial Chamber of ICTY held that “women and children some as earlier as young as 12 were detained and enraged vaginally, anally and orally, subjected to gang rapes and forced to dance nude with weapons pointed at them and even enslaved”. For the first time in history account of sexual enslavement was recognized as a crime against humanity among the charges. One of the many victims was captured and held by the accused as a sexual slave for nine month and eventually sold for 500 Deutsche marks.

The prosecutors pyramid approach of investigating crimes of sexual violence and indicted those responsible had pay off as prosecution used the evidences and jurisprudence developed from completed trials to link these crimes to high-level political and military leaders. The significance of ICTY was first listing the rape as crimes against humanity, secondly by prosecuting and developing the jurisprudence of sexual violence.

Conclusion

The Balkan conflicts changed the gendered war perception. This war was not just about ethnic division, historical grudges and men killing men but a violent systemic attack on civilians where rape was used to dehumanize and terrorize. The events in Bosnia and Herzegovina have played a significant role in global struggle against the sexual violence in conflicts, eradication of rape as a weapon of war, to deter and prevent sexual violence, to change the global attitude towards the survivors.

Due to the incredible bravery of victims of sexual violence in Bosnia we now have an international law which recognizes what wartime rape really is. The ICTY cases changed the way in which the international jurisprudence prosecuted the rape now as crimes against humanity, torture and in certain circumstances as an element of genocide. However, law is not the absolute solution to everything. Law is the one part in achieving those goals, and some might even claim the least important part. The more important one is the political will. The network of security is highly gendered. I don’t mean it is gendered in a manner of men and women separately; I am talking about the relationship of men and women to structures of power and the context which those structures of power emanate from.

The stigma attached to rape transcends ethnic differences, political parties and geographical divisions harming rape survivors wherever they are. Many of the men who were successfully prosecuted are now out and free as they have already served their sentences and back in Bosnia and Herzegovina. Moreover, many of the men who were perpetrators were not prosecuted. The ICTY is not the one to blame, because the Tribunal choice was to focus on war commanders, ones who organized the crimes against humanity and war crimes. The individual level were supposed to be down in the local courts in Bosnia, however the vast majority of the cases have been prolonged and not been prosecuted.

There is a need to address the context that we need to seek justice and protection for survivors of sexual violence. Survivor of sexual violence should have an access to health care, certain social counseling, health and reproductive rights, which includes the right to termination of child or fetus conceived in rape. There should be an in-depth awareness of these issues which creates a framework for future researches on the matter.