Sunday, October 23, 2011

Bosnia, War Crimes, and a Seminal Case at the ICTY

Bosnia has been in the headlines of late, as a UN criminal tribunal at The Hague tries former Bosnian Serb military leader Ratko Mladic for war crimes --most specifically his "alleged" leadership role in the massacre of 8,000 Muslim men and boys in the town of Srebrenica in 1995. His stretched out trial before the tribunal -- commenced after Mladic spent over sixteen years eluding authorities-- has brought Bosnia back into the international limelight, a place they shamefully inhabited in 1996.

That year saw the International Criminal Tribunal for the Former Yugoslavia (ICTY) indict eight Bosnian Serb soldiers for the rape, torture, and enslavement of sixteen women in the Bosnian town of Foca in 1992 -93. The region was in the midst of an ugly dissolution, as fervent strands of nationalism spurred vicious battles between community neighbors and factions who had lived in relative (if not complete) harmony for quite some time.
As incident to a widespread surge of so-called "ethnic cleansing" of Muslims and other minority groups, women --and their bodies-- became a disastrous and effective tool of warfare.

I Came to Testify, showing on PBS Video here, is a powerful new chronicle of the sixteen women who testified in those tribunals, and who gave grave insights into the atrocities of rape and sexual enslavement that Serb soldiers instituted against thousands of Bosnian Muslim women. This documentary marks the the first time since the tribunal that the sixteen women have publicly spoken about these events. It is also a story about the development of gender-based sex crimes as a distinct category of international "crimes against humanity," as well as a profile of the three strong women (one German, one American, one Nepalese) whose prosecution strategies made such a doctrinal change possible.

Testify sets the stage of the story: In a small Bosnian town of Foca (FOH-CHuh), and in the heat of the cleansing, while men were taken off to their own prison camps, the women were rounded up for a different purpose. According to an audio montage of the witnesses, "They said we should get ready. There was a truck waiting in front of the high school... They didn't tell us where we were going, and we didn't ask... They took us to one of the schoolrooms. They would curse us, and tell us that we were getting what we deserved... There were 72 of us there... Once we were all brought together, that's when the raping started."

UN investigators later turned up considerable physical evidence in Foca alone that convinced the prosecutors that they could build a case that the Serbian soldiers had indeed instituted a comprehensive and systematic campaign of rape in the region --as an instrument of terror.

The scope of the campaign was chilling. Some experts and historians, the film tells us, put the number of individual women raped in the war at 20,000. Others said closer to 50,000. One witness, a 15-year-old, going by the anonymous name of FWS-87, endured eight months of torture, rape and enslavement at the hands of several named individuals. Others were held in rooms for weeks on end, raped, and sold at will or loaned to others in the form of personal favors and debts. One purpose of these actions was to discover the whereabouts of the men in town. Yet the effect of the campaign was powerful. Women and families in nearby towns and cities who heard about the events would quickly flee the region for fear of experiencing the same fate themselves.

Eight Serb soldiers were indicted, but the convictions were handed down piecemeal, and over time. Of the eight, three received sentences (of 28, 20, and 12 years) in February 2001; two died while trying to escape arrest by NATO forces; another received a 16-year sentence in 2006; still another got 34 years in 2007.

From a historical perspective, rape and sexual crimes against women and girls were hardly novel developments. These kinds of acts had long gone on in vicious wars -- from the Middle Ages throigh to the 200,000-odd enslaved, so-called "comfort women" held by the Japanese military during World War II.
Yet from a legal standpoint, international law (both human rights and criminal) was extremely slow in addressing these crimes as anything but another aspect of war crimes in general. The raping, then, was just one ingredient of the everyday "raping and pillaging" that came with war. (For a very good discussion of the history of sexual war crimes, and international law's eventual response to them, see: "Prosecuting Wartime Rape and Other Gender-Related Crimes: Extraordinary Advances, Enduring Obstacles, Stefan A. Riesenfeld, Berkeley Journal of Int'l Law, 2003).

One of the 1996 UN Tribunal Prosecutors, Peggy Kuo, spoke of how the international community had already begun to look more and more closely at sexual war crimes as a discrete wrong -- acts based on gender, not based on only war. A cynical realist may advance the argument that this kind of act --sexual violence in wartime-- is but another form of violence. They are all heinous, and they all deserve appropriate punishment as crimes against humanity. Yet clearly a recognition that rape is an act of violence is not to say that that is all it is. Wartime rape and sexual enslavement is its own evil, and revealing it in legal fora can have tremendous moral and precedential value for the international community. Says Peggy Kuo, "
"It was absolutely worth getting out there. It needed to be talked about. So that, even if we're not prosecuting every rape that occurred, we're acknowledging that this is what is occurring"

The Foca case, then, was a seminal one. While the Foca indictments mentioned as many as 62 counts of crimes against humanity, and also many violations of "the laws and customs of wars,", the ICTY singled out gender-related crimes specifically. This was the first time that rape and enslavement were qualified, and punished, as particular offenses of crimes against humanity under international law.

Other international tribunals have followed from the ICTY's groundbreaking lead -- most notably the war crimes tribunal in Rwanda. And it is encouraging that this area of wartime depravity was revealed for what it is. Yet, as one who has long felt that criminal laws need reform --and that lengthy sentences often fail to serve the purpose their length suggests-- I honestly cringed to find that some of the eight who were indicted were sent to prison for less than
20 years. I find myself thinking that, in that instance of punishing a crime against humanity, justice was done wrong by.


Megan said...

It is saddening and frustrating for me to read your post because of how horrific it must have been for those women who were rounded up and how utterly ineffective our system is at righting these wrongs. You pointed out that out of a mere 8 soldiers who were prosecuted, only 3 received sentences...but 20,000-50,000 women endured the torture and rape. That is beyond imaginable. It is immediately compelling (we should do something NOW to help!) and overwhelming.

S said...

Although the topic is saddening, I am happy to read that the general public has an opportunity to be informed on the important developments of how rape is being conceptualized as a weapon of war.

Some have understood rape during war as a simple by-product of war. There is a consensus now that rape is a "weapon of war." See Rethinking ‘Rape as a Weapon of War,’” by Doris E. Buss. In Rethinking Rape as a Weapon of War, Buss explores how the Rwanda Tribunal is conceptualizing rape as a tool used in effectuating the Rwanda Genocide.

“In Rape as a Tactic of War: Social and Psychological Perspectives,” [See] Diana Milillo explores the backdrop by which rape has been used as a weapon. Milillo argues that cultural norms of women (both gender and sexuality), as well as social dominance and soldier’s social identify have played roles in the use of rape during war.

Interesting is the development of women being integrated into the scope and protection of international law. As Rhonda Copelon states in “Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law,” until the “1990s sexual violence in war was largely invisible.” War is nothing new to the world. Neither is rape during war. Why the wait?

Aside from the delay of international law’s integration of women, one of the most disturbing aspects of rape as a weapon of war is how an act that is the essence of human creation and the building blocks of a community, sexual intercourse, can quickly be mutated into an effective agent of human and social destruction through forced penetration on a calculated and grand scale.

I hope that the continued efforts of the people fighting to raise awareness of rape as a weapon of war, and the prosecution of those people responsible for these heinous acts have positive results. Only then will the victims of these crimes be given some form of relief.

tomindavis said...

Thanks for the comments, S and Megan. They were very instructive. S, I am impressed by the extent of your research into ththis matter! I look forward to reading some of those pieces on wartime rape to get a good picture of the horrible phenomenon, especially Dorothy Buss' paper the Rwanda war crimes tribunal!

Ringo1985 said...

Your article reminds me of a class I took on the Holocaust several years back. When one thinks about the atrocities committed against over 6 million Jews, Roma, homosexuals and other targeted groups, rape is oftentimes not mentioned. The images of concentration camps, emaciated Jewish men and women, gas chambers, and the unthinkable violence perpetrated by the Nazis dominate contemporary Holocaust dialogue.

In typical scholarly discourse about the Nazi regime and the horrors they inflicted upon the targeted population, there is often little or no mention of rape against Jewish women. I remember reading a piece about the lack of historical information documenting rape during the Holocaust, and some scholars suggested that Holocaust writings failed to address rape because to do so would detract from the war crimes committed against the general population. Essentially, rape during the Holocaust has been largely erased from academic literature on the topic because singling out a crime against women separates the collective harm perpetrated by men and women alike. Whether this has been a conscious or accidental historical oversight, viewing the Holocaust through a feminist lens would inevitably touch on poignant issues unique to women who suffered from the abusive hand of the Nazis.

In this vein, women must construct a revisionist theory of the Holocaust, where women are the central focal point of the study. While such research exists in bits and pieces, the experience of women during the Holocaust must be integrated to become a part of general Holocaust history.