THE RAPE OF THE BALKAN WOMEN

An Argument for the Full Recognition

of

Warüme Rape as a War Crime

by

SARBJEET KAUR SARAI

A thesis submitted to the Department of Political Studies

in conformity with the requirements for

the degree of Master of Arts

Queen's University

Kingston. Ontario, Canada

October 1999

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This thesis examines the practice of rape as it is carried out during wartime. It begins with an examination of feminist theory in international relations and its contn'bution to the delineation of rape in war. Feminists have lobbied to bring focus to serious issues concerning women but their efforts have only been hampered by the domination of the masculine perspective within the field. To this point, one major emphasis has been on rape in the domestic context with some work done on rape in war. This thesis discusses the differences between rape in war and peace. One case study is used to analyze the context of rape in war. With a focus on the civil war in the former Yugoslavia, and an illustration of how rape was used as a community-desîroying strategy against Muslirns and Croatians, one of the key conclusions is that rape in war and forced irnpregnation constitute war crimes. This recognition cm most readily be achieved by the addition of rape to the current war crimes designation. In order to ensure that such a recognition takes place, the thesis proposes that the establishment of a permanent International

Criminal Court will be instrumental. The creation of this Court will minimize many of the complexities and difficulties inherent in past and present ad hoc tribunals. Acknowledgments

1 am tint of all most grateful to my GUIU,Guru Granth Sahib, and God for leadllig me on this path and for blessing me with this great project. As weü, to my spiritual teacher, S.S.S. Harbhajan Singh Khalsa Yogi Ji who blessed me and guideci me in the focus and structure of this thesis.

1 am especially indebted to Professor Phil Goldman who committed himself to reading the thesis nurnerous times to ensure that rny position was clear and rehed. Thank you for your guidance and supervision. Without your time and dedication to this thesis, encouragement and confidence for my ideas, I would have been lost This thesis certainly would not have turned out the way it did without your extensive howIedge in the subject. I have learned a great deal from your valuable suggestions and unique perspectives on the various aspects of rape in war, and for that 1wiil dways be grateful to you.

1 also owe gratitude to the Department of Political Studies - the professors, my colleagues and fiiends, and administrative staff; your support and advice throughout the year made rny theat Queen's a most mernorable one, 1am indeed honoured to have been given the opportunity to attend such a disthguished university, and to have worked and learned in a great environment with every one of you.

1 must acknowledge Margaret Little for her excellent course on Feminist Theory without which Chapter Two would not have been possible. As weil, 1 am thankful to Abigail Bakan for her course on Women and International Politicai Economy.

To the Thesis Proposal and Defence Cornmittees: Thank you for your suggestions and insight which contrïbuted to a complete thesis.

1 owe immense gratitude to my family (my parents, brother and sister) and fkiends who have displayed a great deal of patience and support while 1have set myself to accomplish yet another goal in my life.

F ind1 y, to my beloved Randeep, without whose love, support, and encouragement 1 would not be where 1 am today. 1wili be forever indebted to you my dear. Dedication

This thesis Ls dedicated tu every wumm who har suffered as a victim of warlime orpeaceîime rope. To those women who have been raped in war and have lost their lives while providing smaZ services to men, and to those who survived with dreadj'ül mernories, but would live to fight for jjuîce for their sisters. 1hope that one &y you will receive justice. which you so ~ghtlydeserve- Table of Contents

Chapter 1 ...... 1 Introduction ...... 1

Chapter II = Feminist Thought and International Relations ...... 7 Introduction ...... 7 From the Perspective of International Relations ...... 9 Susan Brownmiller's Analysis ...... 17 Cynthia Enioe's Analysis ...... , ...... 21 Conclusion ...... ,...... 24

Chapter III .Rapes in the Former Yugoslavia: The Unthinkabk and Unspeakabk ...... 26 introduction ...... , ...26 Definitions ...... 27 Rape as a Policy of War and as a War Crime ...... 31 The War Against the Balkan Women ...... 33 Conclusion ...... 49

Chapter IV .Rape as it Oecun in War and Peace Is there a Dierence? ...... 52 Introduction ...... 52 Definition of Rape ...... 54 Nordstrom's Argument ...... 56 MacKinnon 's Argument ...... O..-...... 59 Analysis ...... 61 Conclusion ...... 68

Cbapter V .A Permanent International Criminal Court ...... 70 Introduction ...... 70 What is Preventative Justice? ...... ,., ...... 72 The Nuremberg Trials ...... ,...... 75 The Intemationai Military Tribunal for the Far East ...... 79 The Yugoslavia War Crimes Tribunal ...... 85 The International Criminai Tribunal for Rwanda ...... 91 A Solution? ...... 97 Conclusion ...... ,., ...... -...... 105

Chapter VI ...... 106 Conclusion .Mistakes of the Pwt and a Hope for the Future ...... 106 Appenüix 1 ......

Appendi 2 ...... , ...... *.*.....*...... *..*......

Appendix 3 ...... Bibliography ......

Vita ...... 129 List of Tables

Table 1 - Dernographie Shifts in the District of Rijecior ...... 43 Chapter 1

Introduction

Many ofus, rabed ih the traditions of Geneva Conventions and close ro the Mvidness of Nori homors,foud it had to believe thforces Europe haà catout 50 years earfierwere once again ascendant.'

The intent of this thesis is to examine sexual violence against women during wartime,

focusing on the violence that erupted in the former Yugoslavia in 199 1. in particular, 1 will

study the Serb govemment's armed aggression against the Muslh and Croat populations that

took the form of "ethnic cleansing." 1 will examine the context of the policy that was leveled

against these groups, the manner in which it was carried out, and the role of the international

community in preventing such abhorrent massacres fiom occurring and in bringing those

responsibie to a war crimes tribunal.

It will be argued in this thesis that the act of rape and forced irnpregnation cornmitted during war, whether against one womadman or in a systematic fonn against thousands of womedmen must be identified as violations of fûndamental human rights and be declared as punishable war crimes by the United Nations 0.This recognition should take the form of an addition to the curent international conventions that establish war crimes and crimes against humanity. War crimes are crimes against humanity, and therefore, there is jurisdiction in the international community to address these violations. Undoubtedly, such a recognition will revolutionize public perception with respect to the understanding of rape during wartirne while at the same time expanding the scope of nghts for al1 women.

' Cedric Thornberry, "Saving the War Crimes Tniunal," Foreip PoIüy (Fall 19%) :78. In addition, it will be subrnitted that due to the hadequate enforcement mechanisms

previously created and currently in place, it is necessary to establish a permanent International

Criminal Court (ICC)~to effectively addres such war crimes, to bring those accountable (war

criminals) for the atrocities to prosecution, and to prevent Merrepetitions of heinous crimes. 1

will conclude that the rapes in the former Yugoslavia were plmeci and systematic, and are

readily characterized as war crimes. This cognition needs to be consistent and must be enforced by the United Nations. War crimes and crimes against humanity are the worst type of crimes, and their prevention in the fhrerequires that war criminals be prosecuted and punished. This can be most readily accomplished by the establishment of an independent ICC and the expeditious and potent intervention of the UN in the early stages of anwd conflict. Thus, the purpose of the thesis will be two-fold. First, to illustrate that it is imperative that rape and forced impregnation during times of war be distinguished as war crimes and second, to analyze the mechanisms in place to deal with that recognition.

When using the terminology Var crime," 1 apply the definition of the United Nations

Commission of Experts, which was charged with investigating war crimes in the former

Yugoslavia. In its Jan- 1993 report it detined a "war crime" as "any violation of the law of international conflicts, sufficiently senous and commined with the requisite intent to be regarded as a crime when inflicted against a person on the other side of the confîict.'"

The ethnic rivalry of the Balkans has existed for centuries. The tensions and oppressions between the Serbs, Cmts, and Muslims that heightened to a new level in the 1990's were reminiscent of history. Serbs have killed Muslims and Croats and Muslims and Croats have

It shouid be noted that the Uiteniational community is currently m the procesmg of estabiishing an International Criminai Court; although, debate continues as to its efficiency and swiftness. 1 will discuss the key issues surroundhg this debate in Chapter Five. killed Serbs. The claims to territory and inter-ethnic conflict can be traced hmthe sixth century Slavic invasion of the Baikans through to World War II, and into the 90's: It was at this time in July 1991 that the war in Croatia began, and the very first accounts of rapes have been reported to have taken place in the fdl of that year. In the former Yugoslavia, the purposefil rape of Muslim and Croat women by Serbian forces was linked to the patriarchal character of those societies. Women represent the honour and the integrity of these communities. In this war, rape served to desttoy entire families and undermine the fabric of their cornrnunities. It was also intended to create a greater Serb population through forced pregnancy or motherhood. Thousands of women were raped in a systematic manner. At least 50,000 -

60,000 Muslim, Croatian and Serbian women5 were the victims of rape Owlng the Yugoslav war.

An additional 100 000 wornen were killed6. The sheer number strongly suggests that they were a result of a policy, although there is independent evidence as well. While the position of this thesis is that rape is invariably an aspect of war, the rapes of Bosnian women can be viewed more strategically, an instance perhaps of a fom of genocide. Hence, the delineation of rape as a war crime is animated by a new understanding of its role.

-- - - Beth Stephens, "Women and the Atrocities of War," Humun Rights 203 (1993) : 13. 1 wiU expand on this definition in Chapter III. 4 The onset of a series of events provoked the initia1 stages of the war. On June 25, 1991 the Republic of Croatian and the Republic of Slovenia uniIaterally declared their independence and withdrew hmYugoslavia The Yugoslav National Amy forces were sent to both republics and the war began. Although the United Nations successfulIy negotiated a ce-£ire in January and February of 1992, it did not take long for the cease-fk to be violated. On May 22, 1992, both of the republics were granted membership in the UN. On March 3, 1992 Bosnia- Herzegovina declared independence after a positive vote in a teferendum. The republic was intemationally recognized as an independent nation on A@ 7, 1992, and the Bosnian govexnment formally declared itself in a state of war on June 20, 1992 after violence had escalaîed to a climatic point, For the histoncal ove~ew,see Alexandra Sagimayer, ed. The Wür AgarRsr Women in Bosnia-Henegovina (Lincoln: University of Nebraska Press, 1994). Tamara L. Tompkïns, bbProsecutingRape as a War Crime: S-g the Umpeakable," Notre heLow Review 70.4 (1995) :847. Tompkins 847. The conditions that are relevant to this discussion are that a woman's right to not be

raped has yet to be recognized as a fûndamental human nght. The problem dius far is that rape

in war has been regarded as perïpheral and even excusable by amies in combat. However, the

recent and systematic rapes of women in war have ignited calls for an end to these types of

attacks, and this despite the existence of conventions and treaties prohiiting such abuses. This

analysis can thus k construed as a study about changing the definition of what constitutes a war

crime. The ontology of rape and the theoreticai fknework of the thesis wili be shaped by works

of several theorists.

The purpose of chapter two will be twofold: fkst, it will analyze International Relations

(IR) theory to determine how it has perceived and defined sexual violence against women.

Second, the chapter will illustrate how feminists have produced concrete analyses of the events

that took place in Bosnia, and the impediments they have experienced in studying sexual

violence. The feminist articulation has been that "the personal is political." Historically, rape

has been regarded as a private issue, an act between the aggressor and the victim. However, it

has developed to a public act in wartime with the rise in women's organizations and femuiist

legal theorists protesting such violations. As well, rapes during wartime have been committed in the presence of many witnesses. It is now recognized as a political issue du~gwar, which calls

for international prosecution.

Chapter three will outline the facts about the genocidal rape as it occurred in the early

90's in the former Yugoslavia. It will be demonstrated through depictions of the methods in which the rapes were carried out that iadeed this was a written Serbian military policy and that the rapes cornrnitted clearly constitute war crimes. This will be Mersubstantiated by way of reference to the theoretical works of other scholarly writers who cal1 for the declaration of rape as a war crime. 1 will Merdevelop the application of the war crime designation to these

events by seeking answers to the following: what do the statistics tell us about the scope of

sexual violence? Do they point to a pattern of genocide? 1s ethnic cleansing a form of

genocide? What are the victims' accounts of theù experïences? What are the submissions nom

captured Serb soldiers? Do their clairns that they were ordered to rape add a special political

dimension?

In chapter four I will assess carefblly whether domestic tape and rape in war are Marly

or differently situated The juxtaposition between the two involves complex issues surrounding

the phenornenon of rape. At the domestic level, rape is a private matter, between two people or a small group. DiPuig a war, it is a public event with rnany witnesses, and with the added dimension of torture, confinement, and the loss of shelter. This analysis will contemplate the causes of rape - in both the domestic and international contexts. Important factors to be considered include: what symptoms do victims experience fiom their rape attacks? What remedies are available for those victims of rape in the domestic arena and those victims of rape in the international arena? In both physical and mental conditions, how does rape affect the rapist? What is the motivation to rape? Does a hierarchy of rape exist - meaning, is rape committed during wartime more significant than that committed during peacetime? Related to this inquiry is an important question to be considered - whether any differences exist between rape during war and rape in a non-war setting in view of the fact that in both circurnstances thousands of women are raped, although through diffant periods of time.

The fiflh chapter will comprise of an analysis of the International Criminal Tribunal for the Former Yugoslavia (ICTFY). 1 will focus on the hction of the Tribunal in relation to its effectiveness and swiftness in the prosecution of war criminals. In addition, a comparative analysis will consist of a study of other ad hoc triiunals such as Nuremberg, Tokyo, and Rwanda

War Crimes Tribunais in order to ascertain whether these constitute sources of deterreme. in addition, the discussion will seek to answer the following questions: what werdare the goals and legacies of these tribunals? What led to theu formation? What nurnber of war criminais were brought to trial and what was the outcome of their prosecutions?

This analysis of enforcement mechanisms and recognition of their imperfections dictates the ekamination of an alternative - a permanent ICC, which wilI be a product of the Mequacies of current tribunals. The answers to the following questions wiil be instrumental in making such a determination: are ad hoc tnbunals effective or would a permanent court be more appropriate to achieve efficacy? What are the various arguments for and against the establishment of the

ICC, especially by those who have been involved as major actors in reporthg such atrocities for the UN? And fhally, will the ICC serve as an effective deterrent?

The final chapter, chapter six, will provide concluding remarks and thoughts for the fbture of rape during wartime. Cbapter II

Feminist Tbought and International Relations

Introduction

Rape transcends al1 borders; it occurs during war and peace, in the homes and on the streets of every country in this world. How do we explain the phenornenon of rape? Has IR theory provided an adequate basis for the study of the epistemology of sexual violence? How has feminist theory constnied rape as it occurs at the international level? Many feminist scholars, legal experts, and women's rights groups have explored the ontology of rape generally.

They have identified social indicators, psychological factors, gender desand expectations, as significant causal factors.

The act of rape as it is carried out during warthe however, has achieved less attention fiom international actors and states, and feminist theory is no exception to this. Indeed, Sandra

Whitworth explains that at the time of writing of her book, Feminh und International

Relations, in 1994, feminist activity within the field of international relations had just begun to increase. 7 Lately, the consideration given to this topic has become more prominent with the increase of media technology and the voices of women's rights groups who have been fighting to bring focus to the issue. However, the problems of womeil and international relations have yet to receive sustained scholarly attention, thus leaving the crime of rape during warcime under - theorized. The principal argument is that women have been invisible in the international

7 Sandra Whitworth- FemhrSm and International Relarionx Toww& a Political Economy of Gendkr in Interstate and Non-Governmental Imrirutiom (Great Britain: MacMillan Press Ltd, 1994) ix-x, relations field. They have experienced discrimination in every part of their Iives: sociaîly,

culturally, in the work force, and this has taken the form of discrimination based on religion,

culture, ethnic background, and gender - wkich is the primary concern for this discussion.

Rape has been a part of war ever since small battles kttook place. The earliest

accounts of rape date back to ancient Greece with the abduction of Helen of Troy and the rape of

the Sabine women to save ~ome?Women continued to be raped in times of war, and more

importantiy, it became an accepted part of war. Acts of rape and other forms of sexud violence

in war, and the lack of concem attributed to them illustrate how warmaking has always defïned

and demonstrated stereotypical masculinist traits? As a hidden act, rape has not been perceived as a problem to be resolved, either theoretically or practically.

The central argument of this chapter is that this lack of theorizing is a result of the inherent gender bias that characterizes international relations, resulting in a failure to make effective use of ferninist scholarship. In tm, subjects such as rape in wartirne have been consequently marginalized. Only recently, with the expansion of ferninist literature coupled with the extensive reporting of sexual violence in the former Yugoslavia has headway begun to be made in scholarly work on rape in war.

Feminist theory is a very broad subject matter that encompasses the thoughts of radicals, liberals, Marxist feminists, socialist feminists, just to name a few. In recognizing such variance,

Rebecca Grant and Kathleen Newland write that diversity within feminist thought is no handicap, and should not hamper the way in which research is conducted on the gendered nature

' Sandra Whitworth, Femùrism ond International Relations: Towarak a Political Economy of Gendm ih Interstate and Non-Governmental Imtinctions (Great Britain: MacMillan Press Ld, 1994) Ur-x. National Film Board of Canada, Rape: A Cheof Ww (Canada: 19%). 9 Ralph Pettman, "Sex, Power, and the Gdof Positive CoUaboration," in Marysia Zaiewski and Jane Parpart, eds., The "Man" Question in International Relations (United States of America: Westview Press, 1998) 174. of international relation^.'^ Instead of centralizuig the discussion to follow on the

aforementioned femùiist theones atone, 1 will analyze feminist Iiterature and research of

different women scholars. 1 will examine their contriiutions to the study of the violations of

women's human rights. This chapter will explain how feminist international theorists have

construed the act of rape as it occurs in wartime. in particula. radical femioists have made an

especially important contribution because of theù emphasis on the centrality of sexua1 violence,

including issues such as rape, pornography. and femaie genital mutiIation. The intemational

relations literatwe developed fiom this group of feminist scholars has examined women in war

and peace, more than any other." It is thus an appropriate peFspective hmwhkh to begia the study of sexual violence in the international context. This is so even though radical feminists' conceptions and solutions to the problem of oppression of women are extreme.

From the Perspective of hferna#ionaiRei&kwts

Feminists have remained invisible in the field of intemational relations until the last decade. in particular, issues surroundhg sexuality have received little attention since these topics are apparently private and trivial, and do not hoid high priority on the international political agenda. Whitworth writes that few women have become IR scholars and we have even fewer feminist IR ~cholars.'~Literature in respect to the issue of women and gender in ïR has begun to emerge slowly. A primary reason for why male international relations theorists have not partïcularly welcomed women into their discipline is that women's experinices have been linked to the private sphere. This is not to say that only women's roles must be analyzed. As

'O Rebecca Grant and Kathleen Newland, eci, Gender d Intemutionrrl Relations (Great Entain: The Millennium Publishing Group, 1991) 4. " Whitworth 17. " Whitworth 1 1. Charlotte Hooper argues, feminists need to scrutinize men and mascuünity in depth otherwise we

will limit ou.own critical analysis and understanding of the gender order for gender does not

only include ~ornen.'~From her point of view, we camot write only about men either since this

contributes to marginalking women mererThus, the study of IR must reflect the experience of

both genden to make an analysis complete.

Accordhg to Grant and Newland, the masculine viewpoiut has been prominent since

international relations theory has been constnicted by men through their Iens and male sensibi~it~.'~The source of such inherentiy gendered ideas of international relations is the fact that men and women experience societies differently. It is men who have excluded women fiom this realm in not only their scholarship and contributions, but also as actors whose lives are influenced by international theories and events. Events that affect women's lives have not ken viewed as real events.IS Grant explains that inherent gender bias has existed in issues of war and security which has led to the gender bias in international relations theory.16 In this regard Sandra

Whitworth summarizes the predicaments of international relations when she &tes that feminists argue that:

"international relations are about numerous phenornena which hdamentaIly affect the lives of women and men throughout the world and which, because of the primacy given to the 'hi& poiitics' of peace and security policy, have gone largely unnoticed, unrecognized and unanalyzed."17

How is gender bias sustained in international politics and how does it affect women? No one theorist in conventional JR study has given extensive thought to how ideas and practces

l3 Charlotte Hooper, "Masculinist Practicts and Gender Politics: The Operaiion of Multiple Masculinities in International Relations," in Marysia Zalewski and Jane Parpart, eds., The "Man" Question ih Internafiorni Relations (United States of Amenca: Westview Press, 1998) 28, '' Grant and Newland 1. '' Grant and Newland 3. l6 Rebecca Grant, "Sources of Gender Bias in Intemational Relations Theory," in Rebecca Grant and Kathieen Newland, eds., Gender and IntmationaZ ReZatwns (Great Britain: The Millennium Pubüshing Group, 199 1) 16. affect the lives of women. Whitworth argues that the prevailing visions of what it is to be masculine and ferninine have been created by activities of international relationdg As will be discussed below, this opinion is also heId by other feminist theorists who have studied gender and international relations. Whitworth writes that to examine gender and international relations is to "examine how ideas about the appropriate relationships between women and men, rnasculinity and femininity and about the role of women and men in society and the workforce, inform the activities of intemationai relatio11~-'''~The designation of these desto men and women are not natural and since they are socially constructed, Whitworth argues that they cm be re-constructed.

In outlining the critiques of Richard Ashley, Grant writes that Ashley should make his analysis clear by demonstrating that the exclusion of women is a necessary condition for the appearance of the 'sovereign man.'20 in her opinion, the traditional viewpoint of man has ken that of a rational choice mahg citizen. This image derives £iom his "ability to legitimate vio~ence."~~Man ignores the pnvate morality and separates it f?om the public morality. Thus, the state Iegitimates violence while at the same time excluding female-associated traits.

Traditionally, men, States and wars have been the relevant actors and events of theory" What is necessary argues Grant, and others* is the recognition by international relations theonsts that women too are actors and subjects whose experiences are relevant.

I7 Whitworth xi. '' Whitworth 158. I9 Whitworth 4 1. 'O Grant 18. " Grant 18. 22 Grant 20. 23 See particdarly, Saadra Whitworth as weii Spike Peterson and Jacqui True, "'New Times' and New Conversations," in Marysia Zalewski and Sane Parpart, The "Man" Quesrion h Inrernattonal Relations (United States of America: Westview Press, 1998). AmTickner, as well, argues that international politics is primarily a man's world, From her perspective, international politics is encompassed by power and conflict in which instance to go to war is a pnvileged activityF4 Tickner, like Cynthia Enloe (whose work 1 will discuss later) believes that it is important to outline the assurnptions based in international politics about human nature which infonn the understanding of mascdinity and femininity. That both are socially constnicted roles rather than biologically determined has been argueci by most feminist theorists. The dichotomies between the two are very evident m such pairings as c'objectivity vs. subjectivity, reason vs. emotion, mind vs. body, culture vs. nature, self vs. other or autonomy vs. relatedness, knowing vs. being."2s And perhaps, the most relevant for politics is the dichotomy of public vs. private.

The publidprivate dichotomy surrounding rape in war is the prominent reason wherefore rape against women has ken controversial. The crime itself is within the public sphere, but the victims are part of the private sphere since they have never been included in the public sphere.

Kalajdzic argues that masculine and patriarchal overtones exist in the military, and that war has been and is the penultimate "public" domain of men and the state which is fa.fiom the "private" realrn of ~ornen.~~On the other hand, rape as war policy is a state-generated act of war, and therefore; it cannot be classified as a private matter. It is evident that one of the methods in which rape can be accepted as a public matter is if it is recognized as a war crime. The reason

'' J. Ann Tickner, "Ham Morgenthau's Pnnciples of Political Realism: A Feminist Refodation," in Rebecca Grant and KathIeen Newland, eds., Gender md Intemutional Reiutions (Great Brie: The Miiienniurn Publishing Group, 1991) 27. 25 Tickner 30. '6 Jasminka Kalajdzic, "Rape, Representation, and Rigfits: Penneating Intemational Law With the Voices of Women," Queen's Law Journal on Quick Law 2 1.2 (1 9%) :7, online, Internet, Novernber 1998. being that most states, especispeciallyin the western world, will no longer tokrate those who have

committed war crimes?'

The feminist articulation that the C'personalis political" is a conception that has been closely identified with the femuiist movernent. What this slogan has declared is that the private sphere, normdly relegated to women, is politically important Peterson and True write that within the division of public and private spheres?politics has been marked as exclusively a male a~tivit~.~'Such an actiuity includes the male characteristics, and within the inferior private sphere, female associated characteristics as outlined by Tickner above?' Peterson and True argue that women cannot simply be added to the categories of the public sphere for such a category is defined by its exclusion of femininity. The other option is then to transfonn the category to accomrnodate the inclusion of women and ferni~ïhit~.~~It would also require altenng the meaning of masculinity since masculinity and the public sphere are related and masculinity and femininity are a dichotomy.

Peterson and True maintain that dichotomies that are present in Western thought can be characterized as "andocentric." This tem not only privileges those characteristics that are associated with masculinity over femininity and dismisses those qualities associated with femininity; but for the purposes of our discussion, assumes that activities associated with men and masculinity (war, diplomacy, global finance) constitute the 'main ~tor~.'~'Those realities associated with women, children and nonelite men are merely 'background' and do not warrant

" PTosecution of military soldiers can be difllicult when it is solely the "mind-set" of the miiitary that the international community is aware of and there does not exist a written policy. In aU instances, whether there is a clearly written military policy to carry out atrocities or not; those that shouid be prosecuted as war criminals must include rnilïtary leaders for it is theu fesponsibility to ensure that such practices do not occur. This debate will be elaborated on in the fifth chapter. V. Spike Peterson and Jacqui Tm,"'New and New Conversations," in Marysia Zalewsla and Jaue Parpart, me "Man" Question ù1 Intemational Reliiriom (United States of Amcria Westview Press, 1998) 18. " Peterson and True 18, significant treatment. The danger of this interpretation according to Peterson and True is that we

are then ignorant of the 'background' itself (by makhg asswnptions and not investigating) and

ignorant of the relationship of the 'background' to the 'main story' (we are not aware of to what

extent the main story depends on the backgr~und).'~However, we must keep in mind that

feminist legal scholars also caution against assumùig that al1 men have hegemonic power.

Movements such as Women In Development have aimed to bring solidarity among

women across the worlà, and have concentrated their efforts on the demand for women's rights

and attributing importance to their roles. However, Newland writes that more needs to be done.

It is her position that questionhg the role of women rather than merely helping them perform better is what is ~~uired?~Also necessary is to not avoid controversial issues facing women.

For exarnple, attempting to bring rape to the international agenda will be a difficult task For one, it is strenuous for rape victims to contend with theù rape. They experience stigmatization because the honour of theù family will be stained. The victim often encounters obstacles in becoming accepted as a cornplete member of the family. And this points to the need for research and foreign policy to study the affects of war on women: i.e. rape. In other lmguage, this places the matter of gender and human rights on the international relations agenda.

Fred Halliday identifies four ways in which issues related to women and the international arena have received greater recognition in the past years: 1) the identification by IR of the relevance of feminism; 2) the recognition of gender-specific consequences of international processes and policies; 3) the increase in prominence of women as distinct actors on the

-- 30 Peterson and True 18. '' Peterson and True 20. " Peterson and True 20. " Kathieen Newland, "From Transnational Relationships to Intemationai Relations," in Rebecca Grant and Kathleen Newland, eds., Gender und Intentational Rehtiom (Great Bntain: The Millennium Publishing Group, 1991) 130. international scene, and hally; 4) the significant gender dimension to foreign policy issues."

Halliday believes that nationalism is a venue for men to exert control over women. And

although nationalist movements have the benefit of involving women in politid life, national

movements also subordinate women in regards to their role and place in society." They force

women to confom to male dehed values, and prevent the introduction of alternative policies by

labeling them alien. This, he suggests, causes feminist movements to become silent and questionable.

What is required, then is a feminist epistemology of international relations that is less gendered and respects the contributions of both women and men. It would be a broader representation of international relations including what Robert O. Keohane explains would provide an institutional vision of IR which would promote lateral cooperation behreen institutions and organized entities, States, and others? A feminist-institutionalist theory is one that would attempt to link hurnan beings across state boundaries creating networks to achieve cornrnon goals.)7 Whitworth also recognizes the need for feminist analysis to explore how the notions of the roles of men and women, theu relationships and behaviours are created, sustained and legitimized by international institutions.)* Such a criticaVfeminist account in anaiyzhg women and war goes merthan merely questioning the role and feelings of wornen during wartime to analyzing how govemments and militaries exercise such notions and prevailing discourses relating to gender to their benefit.

Fred HaIliday, "Hidden From international Relations," in Rebecca Grant and Kathleen Newland, eds., Gmde+ and International Relations (Great Britain, The Milldum Publishing Group, 199 1) 160 - 163. I5 Halliday 164. Robert O. Keohane, %ternational Relations Theory," in Rebecca Grant and Kathleen Newland, eds., Gender ad International Relations (Great Britain: The MEilennium Publishing Group, 1991) 44- 37 Keohane 44 - 45. 38 Whitworth 26. Keohane clarifies that feminist empiricism has emphasized the ways in which women

have become victims of patriarchal states. It has studied to what end the institutionalization of

warfare and the reinforcement of state sovereignty have also caused hardand disastrous

effects on the lives of women?' However, in his critique, Keohane argues that the issue to study

and document is the various degrees of repression that exist in different States?in gender

stmctured societies, and international systems that have severe consequences for women and th ers.^

Steve Smith. in analyzing mascuiinity in international relations makes three important

points that surnrnarize accurately the arguments made by feminists and international theonsts in

this chapter. First, he states that the discipline is very gendered both in practice and its power str~cture.~'For example, sexual harassrnent exists in the workplace, and promotions are contentious with salary concems and child-care arrangements. Second, the subject matter of IR is viewed as gender-neutral? This is a concem in pdcular for feminists since they argue that

IR is not gender seutral and is dominated by men. Finally, he believes that masculinity is deeply entrenched in the IR field which influences our perception of IR because the subject matter is always maleP3 His central conclusion is that feminist work has been accepted into the discipline of IR but that it also has been criticized, attacked and marginalized?

1 now turn to two works that have critically examined gender in international relations.

The first, by Susan Brownmiller is Against Our WiIl: Men, Women and Rup. Brownmiller, in

1975 was one of the first to develop an in-depth analysis of how sexual violence characterizes

39 Keohane 45. *O Keohane 45. " Steve Smith, "'Unacceptable Conciusions' and the 'Man' Question," in Marysia Zalmski and Jane Parpan, eds., The "Man" Question in International ReIations (United States of Amerka: Westview Ress, 1998) 67. '' Smith 67. 'j Smith 67 the relationship between mascdinity and femininity, in war and peace. More recently, the

second work pubfished in 1993, is that of Cynthia Enloe's, The Morning After- Here she

examines gender in IR and documents the role of women during wartime. Her book highlights

the obstacles and oppressions women of the worid experience during war (as soldiers,

prostitutes, and tape victims) and the dtsof it in peacetimef The study of these analyses

suggests how feminist theorizing has developed over a period of alrnost two decades.

Susan Brownmiiler 's Analpis

Susan Brownmiller's book accentuates rape as a violent act that is a violation of women's

fidamental human rights. As a feminist researcher, she pioneered one of the initial studies to

scrutinize govemment policies that established militarued masculinity and rape in wartime.

Brownmiller brings an interesting perspective to the ontology of rape, one which has been used

widely by feminist scholars. Although, similar to other radical feminists, she does espouse some

more extreme points of view. For example, she suggests that the penis is a weapon. in addition,

the most concise definition of rape that Brownmiller offers is that "it is nothing more or less than

a conscious process of intimidation by which al1 men keep al1 women in a state of feu.& The

emphasis on "al1 men" asserts that a11 men are rapists or are intent on ensuring women are

dependent if not subservient, and suggests the limited reception for radical feminist theory.

Smith 69. '%nloe's approach differs sanmhat hmtheorists such as Nordstrom who argues that military and acaâemic Iiterature lack in any apparent focus on rape. Nordstrom studies rape as it is commitîeâ in wartime and peacetime. Enloe conchdes that an interplay of local cultural concepts such as family honour, tetigious shame, sexual purity, and gender identity are important factors leading men to rape. She also examines the issue of who can legïtimately speak for rape victims. 1 will summarize Nordstrom's position regarding rape as it is inflicted in peacetime and wartime in the following chapm. Susan Brownmiller, Agaimt Our WiK-Men. Women dhpe(United States ofAmeric11,- Bantam Books, 1975) 15. Brownmiller's book offian histoncal account of how rape bas been a part of war. It

has been practiced as a weapon of terror, as a weapon of revenge, to relieve boredom, and lately,

as the next chapter will illustrate, for genocidal purposes. Brownmiller writes that in war, rape is

an opporhinity for men to vent theu contempt of women. h addition, the dceof prostitutes is

provided to satisQ the needs of soldiers!'

Who is to blame for these rapes? Brownmitler wrïtes that a husband will blame his wife

for the rape, whether it occurred in war or in pea~e.~~She writes that rape is more than a

symptom of war or evidence of its violent excess. It is a familia.act with a familia. excuse!9

Rape is the firndarnental act, argues Brownmiller, by which the male dernonstrates to the female

that she has been conquered by his superior strength and power.sODuring war, a woman is not

chosen because she is representative of the enemy '%ut precisely because she is a woman, and

therefore an enemy."51 Cleaily, Brownmiller's analysis points towards the hatred that some men

have espoused for women, and thus one of the reasons for rape. However, this statement should

not be construed as every man having hatred for a wornan/women.

According to Brownmiller's study, men who rape do not consider their victims as women or humans. They do not place a status on these women. Rather, they are part of the enemy.

They are "sluts," "whores," "dink," or ccgook"Women are raped because men are only human, and they need "it" to express their masculinity. They are also raped, she explains just as Enloe does, since they are perceived as the property of men, and it is a great dishonous to a man if his wife, daughter or sister is raped. Sex appeal has Little to do with the act, Brownmiller argues. It is the concept of sexual access of male power and privilege that fiels the rape mentality.

'' Brownmiller 76. 48 Brownmiller 40. 49 Brownmiller 32. Bmwnmiller 49. Uprisings, riots, and revolutions have dso provideci an excuse for men to rape women.

However, the problem is that women have not been believed. Only when it sui& the agenda, is it

published and ernpha~ized.5~The claim of rape is suspect because it is so unpleasant that it is

difficult to believe that something of the sort could happen so we prefer to believe it to be an

"exaggeration. "3

Br~wnmillerargues that if rapists did not exist, women would be able to hely move

without the fear of men? She wrïtes that al1 rape is an exercise of power, but some rapists have an edge that is more than physical.s5 In an institutionalized setting, rape works in the rapia's favour, as for example in slavery or times of war. But it may also exist in a dependent relationship that is hierarchical or in an authontarian structure. For example, therapists, heroes, movie stars or prison guards can use their authoritative positions to take advantage of those dependent upon them.

BrownrniIler also analyzes rape as it is presented in the media She explains that a woman only makes it in the media for the following rûwns: 1) famous politiciadastronaut, 2) innocent victim of rape or other disaster, or 3) she has committed a crime." The news is made by men, and edited for men by men; women readers are tagalongs. Editors believe sex is a necessary spice for the paper. The use of the word "attractive" is common in presenting a story.

Since the question normally concerns whether the victim was pretty while more important information is made irrelevant. It is unfortmate that some male reporters believe that to report a rape is a waste of time. Hence, the media plays an essential role in the portraya1 of rape, and the

Brownmiller 64. " Brownmiller 1 11. 53 Brownmiller 1 14. Brownmiller 209. 55 Brownmiller 256, Brownmiiler 338. method in which it presents rape can seriously affect rape victims and alter mainsiream viewpoints about rape.

Pornography and prostitution are central to the analysis of rape? It is Brownmiller's belief that hard-core pomography is the most extreme manifestation of the ideology of sexual violence which men carry with themselves. Books, movies, and songs depict violence to women and glorify the man who perpetrates such violence. Brownmiller argues that rape is not a crirne of irratioml, impulsive, uncontn,Uable lust, but is a delilmate, hostile, violent act of degradaton and possession on part of the would-be conqueror designed to instill fear? She asserts that we need to study those elements that promote these attitudedg

By way of solutions she states that women need to fight back on a multiplicity of levels."

Brownmiller maintains that we need laws that reflect female reality, a social system that does not shut women out, and that does not promote a masculine ideology of rape. However, in making rape a speakable crime, Brownmiller writes, the women's movement has had a good start by holding speak-outs. It is important to talk about rape in view of the fact that rape laws do not suffice to elimuiate it. As well, she argues that women need to leam how to use their bodies just like men are taught to use their bodies at a young age.6' Women can master the art of how to use their bodies and to protect them by taking defence classes. For Brownmiller, it is more important to fight back because women can.

" Bmwnmiller 390. Browumillef 39 1. 59 Bmwnmiller 39 1. Brownmiller 404. CynMa Enloe's Analys&

Enloe emphasizes the interplay of class, race, gender and sexuaiity in women's

oppression. She studies how gender biases are created. She contextualkes the problem of

gendered politics fiom her research by linking the violations of women's rights, and by coupling

subjects such as domestic work, rnilitary life of women, rape and prostitution. It is women,

writes Enloe, that make this global world possible by upholding various roles as a mother,

patnot, wife, sex slave @rostitute or rape victlrn). In writing about gender des, she explains the

importance of the role of a woman as a wife and mother to militarized sons, husbands, and

~overs.~'From girlhood they are prepared to admire men in unifonns and bandage the wounds inflicted by violence rather than idicting it the~nselves.~~Throughout her book, Enloe critically examines the expectations of "femininity" and gender roles that women must conform to by comecting women's experiences hmVietnam, South Korea, Philippines, the former

Yugoslavia to the women in the United States. She asserts that barriers exist in recogniPng violence against women in the international agenda because many governments that are part of the UN are usually opposed on grounds of sovereignty, to any outside agency having the authority to intervene in any activity that is related to the 'bf~ly.~~

Thus, Enloe argues that there are two challenges facing feminists in raising the status of rape to an international violation of women's human rights. First, they need to overcome the resistance of govemment officiais who are refùsing to accept the UN'S jurisdiction in what they define as a "family" matter? Second, they need to ensure that men (fiom one ethnic group) do

------'' Brownmiller 404. " See chapten I and 2 in Cynthia Enloe, Tne MomgAM Sexual Poli& at the End of the Cdd Ww (Berkeley, California: University of California Press, 1993). Enloe 63, Enbe 243. " Enioe 244. not express their anger (of theu women king raped) by escalating the militarimtion of

masculinity, and by limiting the activities of their women for the sake of theù safetyfy6'

In her analysis of masculinïty's relationship to the military, Enloe writes that factors such as the historical evolution of citizenship, the state's military, and the articulation of women's public roles have dl contributed to shaping young men's dependence on military service to affirm their manliness in their own eyes and in the eyes of their familyP7 Enloe maintains that in order to understand the masculini;red military, it is necessary to anaIyze the relationship between women, women and men, and women and the state. Her pNaary argument is that militarization and demilitarization have a negative effect on these relationships.

The military operates in a manner to ensure that boys transform into men of a certain

End. It succeeds in changing their conception of what is moral and immoral. Enloe theorizes that "men in real life learn about and accept or resist their culture's ideas about what is natuni1 in male behavior by relying on (while still controlling) women, by fantasking about women, and by working to separate themselves 60m women?* She notably demonstrates how a masculinized military operates to violate women's human rights. It is a common phenomenon, she postulates that the silence of women is necessary to preserve not only the honour of individual men, but of the nation.69 She writes that it is an integral part of the processes of war and post war order in al1 societies. For example, for women soldiers who have been sexually abused by their colleagues or others, to speak out and break their silence is a major step towards recovery but it is also a stab in the heart of the nation. Her argument is that of al1 the different

- --

66 Edoe 244. Enloe 53. Enloe 19-20. 69 Enloe 188. forms of state-organized violence, it is war that has provided the most urgent context for feminist

In addition, Enloe asserts that the end of wartïme does not necessarily bring the end to militarization of masculinity. Rather, it only exemplifies the extent to which men dominate post- war societies which are dso ~exualized.~'For example, in pst-war era, women are expected to relinquish the autonomy gained during wartime. They also are also to heai the emotional trauma and physical damages deredby their sons or husbands. They rnay be expected to bear anothet child following their husbands remhome or to surrender their jobs that they gained after the men lefi for war. Women are relegated to their normal duties akra war has ended. They may also turn to prostitution by reason of their displacement from other jobs. Enloe asserts that "rape and prostitution have been central to many men's construction of the nationalist ca~se."'~She maintains that wartime victims are only some of the indications of this. in addition, a masculinized military is reflected in military prostitutes and pin-up models on patriotic calendars.

Enloe has also theorized about the ontology of militarization and demilitarization and the effects of these processes on gender relations especially in the context of how this relates to the militarization of the Serb soldiers. Although it is difficult to conceptuaiize the causes of war,

Enloe purports that it is important to consider what the rapes and reports of rapes reveal about the masculinization and militarization of Serbian nationalism, Bosnian Croatian nationalism, and

Bosnian Muslim r~ationalism.~~She argues that the masculinization and militarization of soldiers' nationalist consciousness is not automatic, and therefore more inquiry is required to

70 Enioe 60. 7' Enioe 25,6243. Enioe 239. Enioe 240. understand how rape affects them. According to Enloe, rape was wielded as an instrument of militarized, masculinized nationalism in the former ~u~oslavia"For example, a soldier was told by his commander that he should rape women since it raises the fighter's morale?' Such confirmations come not oniy hmthe soldiers but rape victims as well? in her analysis of the phenornenon of the gendered military, Enloe questions the application of rape as a dell'berate tactic of intimidation. If it is practiced as such, is it to intimidate the women or are the real military targets the rape victims' husbands, sons, and fathers, for whom their male honout is detennined by the extent to which they can protect "the?' womed7

Conclusion

The dominant view amongst feminist writers is that the practices that have been legitimized within IR that afkt taking women's human rights seriously, and the relative underplay of feminist scholarship within the field must change. Men in IR need to allow for accountability and questionhg of theu identities and power. Theie is also widespread agreement amongst theorists that the absence of women in IR is a consequence of the prevailing masculine discourse and the ignorance they have attributed towards feminist thought. This has led to male understandings of what constitutes sexual abuse, and is responsible for the perception of rape in society. IR theory in general should alter its ideologies and recognize that women are also actors whose experiences in the private sphere are relevant. The field of IR also should analyze how it legitimizes male-dominated research and practices.

74 Edoe 239. '' Enloe 24 1. 76 Enloe 239. n Enloe 121. The primary contniution of feminist theorists is the perspective that the C'personalis

political," and this is a message that has dominated feminîst writings in recent years and has

been successfùl in changing the direction of IR. Feminist scholars will write about rape in war and other issues seriously affecthg women if their place in the field is accepted This discussion

has suggested that feminist scholars agree that the socially constnicted roles of gender need to be

studied. They argue that to study gender is essential to discuss how it is sacially constmcted; and is hence understood in the international arena since focushg exclusiveiy on mascuiinity or femininity threatens to undermine the other.

Works such as Cynthia Enloe's the Morning Afier are exemplary of what we need to see more of today. Enloe provides a significant contribution to feminist theory in her anaiysis of the female gender and her male counterpart This is a different and unique angle not pursued by other feminists. The deep and extensive research conducted by Enioe to provide a "globai" perspective on many issues is invaluable. Similady, Brownmiller's book has become popular among many and there are gwd reasons for this. Although, some ideas expressed in her book have altered twenty - five years later. Her book can be viewed as a breakthrough in the study and perception of rape despite the fact that it advocates some relatively extreme views. With international attention king directed towards violations of women's human rights in the past few years, feminist theorking can only continue to raise the issue of rape in war to a significant level. Cbapter ïII

Rapes in the Former Yugoslavl.: The Unthiikabk and Unspeaâable

Introductron

As evident in the last chapter, a newly emerging debate in the international political arena

is the subject of rape during war. Today, we are seeing an inchfocus on this topic, albeit a slow one, by the mainstream media and the international community. A source of this recent concentration on rape in war is the early 90's civil war in the former Yugoslavia in which the

Serb leaders carried out a policy of genocidal rape against thousands of Muslim and Croatian women. This is not to Say that the Muslims and Croatians did not retaiiate; certainly, al1 parties to the war are guilty for committing rape. However, the primary distinction is that the Serbs enforced a policy and it was carried out on a massive scale.

This chapter will outline the nature of the rapes that took place in the former Yugoslavia.

1 will argue through depictions of how the rapes were camied out that they reflected Serbian military policy, and that the rapes committed were clearly war crimes and crimes aga& humanity, and must be recognized as such. This will be illustrated through first examining key legal definitions of such important concepts. 1wili then use some statistical data to argue that the rapes were carried out in a systematic manner. Other evidence that 1 will provide include victirns' accounts of their experiences, submissions fkom perpetrators who insist that they were ordered to commit the egregious acts, and also by reference to the theoretical works of scholarly writers who cal1 for the declaration of rape as a war crime. Definitioms

Despite the existence of treaties and conventions that ptoclaim human rights and 'just

war"' practices, acts of sedviolence are a major component of 'dirty ~ar''~today. The

current discussion of violatious in war focuses on the legal dennitions of key concepts that include - '%ar crime," "crimes against humanity," "ethnic-cleansing))) "genocide," and "rape"

(including "genocidal rape"). As the definitions below will illustrate, rape is not recognized as a

crime of violence in the international arena, and the references to rape and what it entails are

minimal. Thus, there has been no prosecution of war criminals for acts of rape. However, the

conflict in the former Yugoslavia has provoked cries for the explicit recognition of rape as a war

crime, and for such violence to be recognized as a crime against women.

As defined in the Introduction, a "war crime" is "any violation of the law of international conflicts, sufficientiy serious and committed with the requisite intent to be regarded as a crime when inflicted against a person on the other side of the ~ontlict.~~This does not mean that the crime has to be massive; it cm be a single occurrence and constitute a grave breach or a war crime. Grave breaches are known asjudicially actionable war crimes meaning that States must search for, apprehend and persecute, or extradite suspected criminals?' For exarnple, if rape

For an excellent analysk of 'just war', see Micbael Walzer, Just and Unr

cornparison to crimes aga& humanity or genocide which require a massive pattern."

More specifically, the Nuremberg Tfibunol Charter in Amèle 6 rc) defines war crimes

a:

". ..violations of the laws and customs of war. Such violations shail include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of citia, tom, or villages or devastation not justified by military ne~essity.'~~

Article 5 of the Statute of the International Win-Crimes Tribunul Respomible for the

Former Yugoslaviu declares ha?the following crimes constitute "crimes agauist humanity":

murder, extermination, enslavement, deportation, impnsonment, torture, rape, persecutions on

political, racial and religious grounds, and other inhumane acts." Rape was included in this

definition at the request of the United Nations Secretary General's May 1993 report to the

Securïty Council proposing the structure of the ~ribunal.**In addition, many feminists lobbied

for this inclusion. Hence, it is necessary to understand the difficulty or the extent to which

organizations must apply pressure for specific recognition. The Statute only recognizes gender-

specific offences in the provision that gants the Tribunal juridiction to prosecute "crimes against humanity." Rape and other forms of gender-based violence are not recognized as a

"crime against humanity" unless they are massive and systematic." Hence, a single occurrence

% Kalajdzic 15. " Norman L. Cigar, Genocide k Barnia: The Poiüy of "EfhnicCIeansing " (College Ststion: Texas A&M University Press, 1995) 7. " United Nations Security Council, Stature of the Inrent4tionui Tribunaifir the Rosecutàon of Persois Respomibie for Serious Violations of Internationai Humanirarion Law Committed in the Tern'roty of the Fonner YugosIauio since 1991, UN Doc. S125704at 36, Annex (1993) and S/25704/Addl(1993), UN Doc. S/RES/827 (New York United Nations, 25 May 1993) Article 5, online, Intemet, 23 November 1998. %5 Stephens 13. " Kathleen M. Pratt and Laurel E. Fletcher, "rime for Justice: The Case for htenrôtionai Prosecutions of Rape and Gender-Based Vio!ence in the Former Yugoslavia," Berkeley Women S Law J~nnaI9 (1994) :79. of rape would not be recognized as an international crime and aerefore, those persons

responsible would not be held accountable.

Ethnic cleansing as it is carried out includes abuses such as deportations, confinement of

civilians in detention camps, torture, rape, murder and indiscrimiaate bombardment of civilian

comrn~nities.~~Its primary objective is the forced displacement of civilians. which is a violation

of international humanitarian ~aw.~*Ethnic cleansing involves every means possible including

starvation and murder to achieve these objectives.

The 1949 (Genevo) Convention on the Prevention und PunrShmenf of the Crime of

Genocide proclaims in Artide 2 that "genocide" means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: a) killing rnembers of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to b~gabout its physicai destruction in whole or in part; d) imposing measutes intended to prevent births within the group; e) forcibly transferring chitdren of the group to another group.89 It also states that the crime of genocide includes conspiracy. whether direct or attempted.

A report prepared by the Special Rapporteur of the United Nations' Commission on

Human Rights, Tadeusz Mazowiecki, emphasizes that rape is primarily a crime of violence:

"Rape is an abuse of power and control in which the rapist seeks to humiliate, shame, embarras, degrade and teme the victim. The piimary objective is to exercise power and control over

87 HeIsinki Watch, WmCrimes in Bosnh-HiegoovUia (Volume II, United States of Arnerica: Human Rights Watch, 1993) 1. 88 Helsinki Watch 9. " United Nations Gmeral Assembly, The 1949 Convention on the Prevenmion unàPunishment of the Crhe of Genocide, Resolution 260 (m)(Geneva: United Nations, 9 Deamber 1948) Article 2, online, Internet, November 1998. another person."w The Fourth Genevu Convention Article 27(2) also addresses this issue -

'komen shall be especially protected against any attack on their honou., in pariicular against rape, enforced prostitution, or any form of indecent assault"' The difficdty with this dehition is that it does not recognize rape as a violent crime against women, rather one as a sexual crime against comm~nity?~It States that women shall be protected, but how? The dehition needs to go Merto stipulate methods of how to protect women and children alike.

of genocide and it exists in three main forms: first, Chemiks (irregular ultranationalist Serbian soldiers) or other forces enter a Bosnian-HerzegoWuian or Croatian village, take several women nom their homes, rape them in public view, and depad3 The people of the village are then threatened never to remand the Serb forces offer them safe passage out. Second, Bosnia-

Herzegovinian and Croatian persons detained in Serb concentration camps are chosen at random to be raped, at times as part of torture preceding death? Third, the women are imprisoned in rapeldeath camps, and are raped systematically for extended pends of tirne?'

Peter Maass, a foreign correspondent £kom 1983 to 1995, based in Asia and Europe, writes that when he traveled to the Balkans he experienced a learning process which he terms

"struggling with the ABCs of atrocities.*'% He explains that words such as 'bcl~ed,""mass

90 United Nations Generai Assembly Security Couucil, The Siîuarion of Humon Rights in the Tmitory of the Former Yugoslavia, Document A/48/92, SC5341 (New York: United Nations, Febniary 26,1993) cited in Simon Chesteman, "Never Again.. .and Again: Law, Order, and the &der of War Crimes in Bosnia and Beyonâ," YuZe Journal ofInternutionuI Law 22.2 (1 997) :334. " United Nations Generai Assembly, Founh Geneva Convention Relative fo the Protection of Civilian Persons in Theof War (Geneva: United Nations, 12 August 1949) Article 27(2), online, Intemet, November 1998. ïdea denved nom Jasminka Kalajdzic, "Rape, Rcprrseiitation, and Rights: Permeating Internationai Law With the Voices of Women," Queen's i.uwJuurnal on Quick Law 212 (19%) :43 pp., online, intemet, November 1998. 93 Beverly Allen, Rape Warjme: The Hidden Genocide ùi Bosnià-Henegoviha and Croarirr (Minnesota: University of Minnesota Press, 1 996) 39. 91 Allen 63. 95 Allen 63. % Peter Maass, Love Thy Neighbor (Nm York: AîfM A KnopE Inc., 1996) 5. arrests," "torturey" ''rapts," 'bexpulsions," and "concentration camps" are not part of the

American vocabulary." In addition, that one must understand that this was a system, not simply random acts of violence. To this end, he felt that it was important for him to Ieam the words and their meanings before comprehending what they entailed.

Rupe as u Pofiqof War and es a War Crime

While protection against gender violence has yet to be recognized as a fundamental human rigiit, many obsewers have denounced the use of rape in war and have declared that it should be recognized as a war crime." The problem thus far is that rape in war has been legitimized, and this has led to the acceptance of the act It has been painted as a by-product of war, meaning that rape was not paiticularly the purpose of the war, but became a part of the battle, although, in the former Yugoslavia, it was a deliberate policy of war. As discussed in the previous chapter, the act of rape has consistently been an element of war (including Mormal warfare) and has not ken recognized as a crime or a violation of women's human rights.

Rather, it has been allowed as a means of war. In this regard, Michael Walzer explains that in times of war, there is no morality or iaw? Here, men and women will do whatever it takes to

Save their lives; inter onno denr Zeges: in time of war the law is silen~'~

98 The US. Houe of Representatives introduced a resdution expressing its concem about the mass rapes. In addition, seventeen U.S. senators wrote letters to Madeline Albright, U.S. ambasador to the UN declaring that rape shouId be recognized as a war crime. International women's pups as weli imified to urge that rape be recognized as a war crime and a vioIation against human rights. For a general overview of these efforts, see Danise Aydelott, "Mas Rape During War Prosecuting Bosnian Rapists Under Intemationai Law," Emory Lav Review 7.2 (1993) : 626-627; Jasminka Kaiajdzic, "Rape, Representation, and Rigbts: Permeating International Law With the Voices of Womm," Queen's Law Joudon Qukk Low 2 12(1 996) :43 pp., onhe, Intemet, November 1998; Theodor Meron, "Rape as a Crime under Internaîiod Humaaitarian Law," Americm JoM~L~~of Infernational ional 87.3 (1993) :424-428; and Beth Stephens, "Women and the Atrocities of War; Rape is a First Class Crime but its Victims are Treated as Second Class Cdties," Human lPlghts 203 (1993) :12- 1 5- Walzer 3. 'O0 Walzer 3. The General Assembly, in its 1996 resolution, "Rape and Abuse of Women in the Areas

of Armed Conflia in the Former Yugoslavia," claims that the policy of 'ethnic cleansing'

employed by the Serbs was a deliberate weapon ofwar and a form of genocide.lO1The

Resolution furthemore states that it condemns the detestable practices of rape which are a violation against women and children constituting a war crime.'" Jasminka Kalajdzic argues that just as torture and degrading treatment are prosecutable as war crimes, so too does the warùme rape of one woman by a man in a civil conflict constitute e war crime.103 Similarly,

Danise Aydelott explains that there is a strong case for prosecuting mas rape as a war crime on account of the large number of victims, and the fact that most are Muslims which highlights a deliberate policy on the part of the Serb establishment.'" Moreover, the fact that captured Serb rapists daim they were ordered to rape, and were to use the threat of rape to move people out of their homes adds to the c~aim.'~~Finally, the evidence ïndicating that Serb rapists intended to impregnate their victims. lo6 These prelirninary observations take on added significance when examined as a component in how a mascullluzed military operates to violate women's human rights.

'O1 United Nations Generai Assembly, "Rape and Abuse of Women m tbe Areas of Axmed Confiict in the Former Yugoslavi&" Resolution 51/115 of 12 December 19% (Geneva: Office of the United Nations High Commissioner for Human Rights, 1997) 1. 'OZ United Nations General Assembly, "Rape aud Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia" 2. 'O3 Kalajdzic 36. IWDanise Aydelott, "Mass Rape During War: Prosecuthg Bosnian Rapists Under International Law," Emoy Luw Review 7.2 (1993) :624. Tlie War Agoinst the BaihWowwn

War occupies an important place in the history of the Balkans especially during its

formation. Serbs, Croats, Muslims, Turks, have been fighting for centuries to claim their

beloved homelands. By 1990. Yugoslavia was once again unsettled. At issue was how the

independence seeking Yugoslav republics would separate. in 199 1, Serbia and Croatia begm a

war.Io7 The Serb attack on Bomia followed on April 1, 1992.1°8 Serbian President Slobodan

Miiosevic insisted that Croatia couid becorne independent ifody it gave up the temtory in

which the 600,000 Serbs livedlw Ironically, one of the reasons why the Serbs were reluctant in

granting independence was that with independence, there was a fear that the Muslirns and Croats

would commit genocide against the Serbian people. Yet, it was then for the Serbs to carry out

ethnic cleansing. Along with this, horrible acts of rape were initiateci, and the UN and the

Western world failed to end the carnage."* Although they did broker a cease-fire, it was

violated. Furthemore, the United Nations Peacekeeping Forces (UNPROFOR) were not given

an active role, and therefore they could do litîle to bring ao end to the atrocities. With some

influence and power, they may not have halted die brutal attacks entirely, but could have

------'OS AydeIon 624. Aydetott 625. 'O7 Maas 27. 'O8 Maass 2 1. 'O9 Maass 27. "* ïhe UN and the Western world have beea heaviiy criticized for their lack of action in the Balkans. That is, action that aiso came too late. in fact, Canadian General Lewis MacKenize, the first UN commander in Sarajevo was against intervention in Yugoslavia, stating tbat ail parties wete alI respomibIe for attocities and that it did not make sense to help the "lesser evil" of th- dl. In addition, he believed that the Bosnians cornmitted some of the atrocities on their own people such as the" BreacUine Massacre" of May 27, 1992. He blamed them for killmg Serbs. He was aIso able to minimize the extent of the atcociaes. He wnvinced the UN tbat there was no need to intervene for these reasons and he succeeded. And wbcn they did interverje, after all the torhnes, kiiiings and tapes, the UN brokered a tnice, one year too late In addition, MacKeMe was riesponsible for the sicepticism of îhe UN when it was reported that he was paid S 15,000 to go on a spealQng tour that was sponsored by the Serb-American lobbying group, Ser€.Net.It was on tbis tour he urged that the UN not intemene- For îùrther reading see Peter Maass, Love Thy Neighbor (New York- ALI'red A. Knopf, 1996) as well as Fred Pelka 10. prevented the extent to which the atrocities were carrieci out"' They could have arraoged for

"safe havens" and humanitarian aid to those people who were forcibly displaced fiom their

homes.

The 1994 report to the Secretary-General of the United Nations, then Boutros Boutros-

Ghali, is named the Bassiouni Report. This report describes the relative responsibility for the widespread genocide in the Yugoslav War. It concludes that military and camp commanders carrÏed out a policy of cornmirsion by orderhg their subordinates tu rape and sedyassault people.'12 They dso carried out a policy of omksion where the cornanders fàiled to prevent such conduct and punish those respon~ible.'~~Hence, not only did high level superiors encourage such violence but they also ignored it, aithough they were acutely aware that crimes were being committed by their units. Indeed, was there an incentive to take responsibility when they were "part of the attacks?"

A second UN report, of February 1993, by Mazowiecki declares that rape of women and children was carried out to a massive extent.lL4 It pronounces that no one in the Serb army that held a position of power attempted to stop the rapes. in addition, that Croat, Muslirn and Serb women were detained for extended periods of time and raped repeatedly. The Mazowiecki report notes the following experiences of rape:

' " However, to much dismay, it has been alleged thaî some UN C'peacekeeping"forces were involved in bribery and illegai black market activities. It has been asserted that they were involved in prostitution, trafficking of women, and rape. See especially, Philip J. Cohen, "War and Peace in Former Yugoslavia," in Stjepan G. Mestrovic, d, Genocide Afir Emotion: The PostemotionaI Balkan Ww (New York: Routledge, 1996) 42; and Fred Peka 10- IlZ United Nations Security Council, CherifBassiouni and Co-ttee, AddendummAnnexes to the FkIRepon of the Commission of iiiprfsEstaNished Pursuant to Securt2y CoudResolution 780/1992. S/1994/674/Addendum 2, volume 1, "Ruies of Procedure," Annexes I to V (New York: United Nations, 28 December 1994) 13. "3 United Nations Security Council, CherifBassiouni and Cornmittee, "Rules of Procedure" 13. ' " United Nations General Assembly Semnity CounciI 75. "One ethnic Croat woman was detained in a Serb-controlled camp with 34 other women and a large number of men. She reported that al1 34 women in the camp were raped: 'There were so many killings, torture. Death became very familiar. Ail of the women were begging to be killed, to be shot, not to be tortureci.. .-' Another ethnic Croat woman was detained in a "special house" where she was rapeâ by several men every night for approximately two months. Every night she could hear screams and cries of other women. She reported that, while raping her, the men were shouting: 'you will have a Serb child.' She aiso report& being told that, if she were pregnant, she would be 'forced to stay there until six months of pregnancy. 9-1 15

The Serb military leaders116were intent on dnvïng out nonsabs and this was mandated

through mesures of summary execution, rape, detention, forcible displacement, deportation and

ghettoization of non-Serbs (including civilians), torture, and settïng fire to their houses.' " The

homes of Muslims and Croats were tom apart and valuables such as jewelry were seized. The

ethnic cleansing was designed to not only kill them, but to destroy al1 traces of their history 'la

For exarnple, a Sarajevo Iibrary was fire-bombed. The objective was to eliminate any incentive

for the victims to retum. Those involved in the rapes were Serb personnel fiom the Yugoslav

Army, irregular Serb soldiers, Chetniks, and even ~ivilians."~Many of them were recognized by the victirns as king theu neighbours, co-workers, and f5ends. Ironically, those whom they had played with in theü adolescent years or worked with as colleagues had unbelievably tmed into their killers. There was a dual purpose to involving the civilian populace in the ethnic cleansing strategy. First, to make them complicit to drive out the non-Serbs fiom their tom and villages; and second, so that the victims or survivors would fear rehiniing because their

'15 United Nations General AssembIy Seciuity Council73. Il6 One of these men was Milan Kovacevic who was born in a Wodd War II Croatian concentration camp. It was a slaughterhouse where at least tens of thousands Serbs, Jews and Gypsies died at tbaî tirne, Kovacevic grew up to himself dehis own coacentratioa camps. See Maass 37. "'Kathleen M. Pratt and Laurel E. Fktck, 'Time for Justice: The Case for International Rosecufions of Rape and Gender-based Violence in the Former Yugoslavia," Berkeley Women 's Law J-19 (1994) :84-45. "8 Maas 85. '19 Allen 65. killers were their fnends, neighbours or doct~rs.'~~Women attempted to elude the Serbs and

their paramilitary groups by altering theù appearances including cutting their hair, smearing then

faces with dirt, and binding up their breasts to pass as boys.12'

One fonn of the Serbian rnilitary's expression of haeed towards the Cmats and Muslims

was that of rape. The women were raped by reason of their association with the enemy. As one

victim explained, They didn't want sex. They were gloating because they were humiliating

Muslim women. wl22 A gynecologist who treated the srnvivors of rape in BWadetennined that

women were raped to disgrace them and that rape was the goal of war? Ruth Seifert's

perspective on the intention of rape in war is instrumentai in explaining such a stmtegy. She

concludes that it is not only this idea of belonging to the enemy that causes one to be raped, but

also because the victims are viewed as "the objects of a fiindamental hatred that characterizes the

cultural unconscious and is actualized in tirnes of ri sis."'^^ Rapists do not rape for sexual pleasure, rather it is an expression of aggressiveness, of power and dominance over a woman, to

make her feel hurni~iated.'~Carolyn Nordsirom indicates that researchers who have studied specific war sites such as the Balkans have done so to explain why rape is practiced so widely.

Their concIusions are that the interplay of local cultural concepts such as family honour, religious shame, sexual purity, and gender identity are important factors leading men to

lx Fred Pelka, "Voices From a War Zone," The fiumanist 55, March/April(1995) :9. 12' Maas 7. '" For detailed descriptions of the impact of the YugosIav war on victims and aa historical analysis, see Aiexancira Stiglmayer, ed., "The Rapes in Bosnia-Herzegovinanin Mus Rape: The Ww Agautst Women in Bosnia- Herregovina (Lincoln: University of Nebraska Press, 1994) 12 1. '" Enloe 239. ''' Ruth Seifert, "War and Rape: A Prtaiminary Analysis," in Alexandra Stiglmayer, ed, MeFs Rape: The Wm A ainsr Women in Busnia-H'egovh (Lincoin: University of Nebrash Ress, 1994) 65. "Ruth Seifert, "The Second Fmnt: The bgic of Sexual Violence in Wars," Women 's Studies Intemutioml Forum 19 January/Apn1(1996) :36. Nordstrom 10. In 'dirty wars' such as in Bosnia and Croatia, the purpose of rape is the deconstniction of

culture and the destruction of an entire population. The former Yugoslavia is a society that is

heavily characterized by patriarchy. In such patriarchal societies, high value is placed on

ferninine sexual honour and prrrity. Any woman that is subjected to a sexual experience even if

it is against her will risks stigmatin'ng the hoaour of herself and her fhily. A twenty year old

Muslim receptionist expiained these sentiments as foilows:

"There are women in this camp who wae rapad, but they are not talking about it When 1 meet them 1 talk about everything else. They want to forget this and lead a normal life. They think they are infirior. Virginity is very important to us ~uslims."'*'

Hence, women represent the nobleness and integrity of the community. When they are raped, it is the symbolic rape of the body of the comm~nit~.'~~According to Tamara Tompkins, by practicing sexual atrocities against Muslim women, the Serbian forces have "exploited a central tenet of Muslirn life - the separation of gender roles and the sanctity of women's sexuality.rr 129 It was precisely due to the aforementioned factors that Muslim and Croat women were targeted foremost to successtiilIy destroy their communities. Especially in times of war, rape as a violent act symbolizes power and control of society, and influence on a woman's social position, identity and setf esteern.l3O Rape shatters a community, robs the victixns of their sense of security and obliterates personality.

For each region in the former Yugoslavia, it is difficult to establish how many women were raped, one of the chief reasons king underreporting by the victims. Aithough numbers

Vary, it has been estimated that 50,000 to 60,000 Muslim, Croatian and Serbian women were the

"'Helsinki Watch 172- '" Seife~"War and Rape: A Relimuiary Anaiysisn 64. Tompkins 866. ''O Seifert, "War and Rape: A Prelimùiary Andysis" 57. victims of rape during the civil war, and that an additionai 100 000 women were ~led'~'In

Croatia, it has been supposed that in some cases each woman was raped between 100 to 300

times over the course of a month or more.'" However, very few victims visited a doctor as they

were concemed that they would be made outcasts. They faced the double burden of shame and

of being doubted. In addition, those that did take the initiative to report the attacks found that

the officials did very litîie. Yef they hesitated to identiq themselves fearing rejection by their

husband and families, The honow of the family which îhey in their hands was very

important and could be compromised. Many of those that idormed their families about their

experiences were left to live on their own and to heal by themselves. Thus, it is clear that the

hmof disgrace was an incentive for the rapists to continue their attacks for they were mindfid

of the fact that the victims would likely not report the incidents.

Widespread discussion among many experts and researchers has centered around the role

of the rapes in the war. As 1 am arguing and others have insisted, rape was a primq goal of the

war and a strategic military policy, especially in view of the high number of victims. Yet, not

everyone is convinced by such assessments. In particda., Misha GlemyYa writer and

broadcaster of the BBC World Service, who was stationed permanently in Yugoslavia nom the

beginning of June 199 1, denies that a poiicy of rape existed arnong the Serb leadership. Such theones, he writes, are "'amnt nonsense.""' He argues that the rape of the Babwomen has been a part of the Balkan wars, and that humiliation of victirns is something al1 sides knew would happen. Furthemore, he believes that to assert that the Muslims were particularly affected by the rapes on account of theU religious beliefs, characterizes hem as fiindamentalists,

--- 13' Tompkins 847. 13' Peika 8. '33 Misha Glenny, The Full of Yugodavia: ne heniird Balkan Wm (New Yo* Pen@ Books, 1996) 209. and the Serbs and Croats. as though they can deal with the rapes in a more rational manner.'"

Glenny afEms that rapists test@ that commanders used the act of rape to "reinforce the

psychology of violence associated with the ~ar.""~However, he also offers the opinion that

women will not be ostracized fiom their communities; and that the children borne out of these

rapes will be adopted or will grow up in orphanages not assuming the naiionality of their fathers,

but of the family in which they are raised and brought up.'36

If myihing, Glenny's observations are too extreme- His arguments about the fUaire are

speculative and he offers explanations that are impossible. For example, his conception that the

circurnstances of rape-borne children are not that unfortunate since they will be raised in

orphanages pays no attention to the loss for the children to be raised in orphanages nor does it

provide any serious consideration to the state of orphanages in the former Yugoslavia. Second,

interviews by many observers with rape victims dong with practical experiences dictates that

women fkom particular cultural backgrounds will be ostracized fkom their communities. Thïrd, if

rapists do profess that the purpose of rape was to reinforce the psyçhology of violence during war, where are these testimonials? Glenny does not refer to a single one and rnakes a generalized comment. in fact, the statements provided in this thesis point towards a carefiiily

orchestrated poky where the low rankuig soldiers to the high level ranking commanders did

little to prevent rape attacks. The objective of employing rape as an instrument of war was not only to inflict violence but to mate a Greatet Serbia, to ensure Serb children were borne by

Muslim and Croatian women, and to destroy a people and their villages.

Finally, despite the fact that rape has been part of the Balkan wars for centuries, it does not signiQ that this was not a unique instance or that investigations should not be undertaken. It

-- - '" Glenny 209. especiaily does not insinuate tbat rape is then an accepted part of war activity. We now bave women's organizations that are carryû~gthe voices of the victims in speaking out against rape as a weapon of war; media outlets reporting incident. of rape in wars, students and feminists studying and writing about the subject to the point where we can thomughiy analyze the phenornena of rape as it has been articulateci in the past and toàay. Such infiormation was not accessible even a decade ago. Rape continues to be a hidden act because it has not been emphasked as a crime of war, but that does not at al1 suggest that it bas not been carried out as a policy of war.

It has been alleged that the first officia1 document establishing "ethnie cleansing" as rnilitary policy is what is known as the Ram Plan or Brana ~1a.n.'~'Italian journalists suspect that the Plan dates back to approximately August l9W. This is a strong indication that it was not only a mind-set of the military before the war began, but as well a written policy of Serb forces to kill as many non-Serbs as possible or to impregnate women through rape. However, some have questioned the existence of such a plan including Glemy who writes that the fidl name of the plan was never ~ncovered.'~~Yet, at the same tirne, he writes that the federal Prime Minister of Yugoslavia, Ante Markovic, revealed the existence of a plan in a leaked a tape conversation between President Milosevic and General ~ikola.'~~Hence, there are conflicting views as to what extent a policy or a written document did exist. What we do know is that mass atrocities were conducted on part of the Serb forces.

13' Glenny 209. '36 Glenny 209-210. 13' In addition to the Ram Plan, the pmpaganda writtea in the same mioutes ofa meeting came to be know. as the Brana Plan, "Ram" means "loom" and '%tanan means "dam"; thus the Serb military policy will "dam up" the Muslim population, Further evidence of such a policy indudes photograpbs of the meetings at wbich these documents were ratifiai. It was Italian journaüsts who discovercd these documen~,see Alleu 56-57. 13* Gteruiy 150. Glenny 15 I. Certainiy, the Bassiouni Report fin& that there existed a policy of ethnic cleanshg. It

addresses the fact ihat the practices ofCbethniccleansing" were not sporadic or coincidentai.

Mer, it determined that there was an overd1 pattern of humanitari*an Iaw violations. There was

"simultaneous military activity to displace the civilian populations, common elements of the . . commission of rape and sexual assault" that maxlrmzed shame and humiliation for the victirn and

the entire community, and lady, the thhgof the atrocities.'" The report Merpurports that

such evïdence is a strong indication that systematic rape and sexual assault pdicy did exist, and that one of the largest factors that leads to such a concIusion is the mass number of rapes that were carried out. Norman Cigar, as well, argues that the genocide that befell the Muslims was not an unintentional by-product of the war, but it was a rational policy, one that was made with a conscious muid by the Serbs to achieve theu one and only objective, an ethnically pure Greater serbia.I4' Tom Gjelten cites UN experts and a European Commission which concluded that mass rapes were canied out as an instrument of "ethnic cleansiag," and were not incidental to the aggression.'"'" And, Pratt and Fletcher wam that if the policy of "ethnic cleansing" is left unsanctioned, it will make a mockery of established principles of humanitarian laws requiring

States to respect and protect fundamental human rights.'"

Some measure of the magnitude at whkh the ethnic ckansing occurred can be gleaned fiom available statistics. A 1991 census revealed that there were 112,470 people'M living in the district of Prijedor. Of this number there were 44 per cent Muslims, 42.5 per cent Serbs, 5.6 per cent Croats, 5.7 per cent "Yugoslavs" and 2.2 per cent others (Ukrainians, Russians and

'XI United Nations Security Council, CherifBassiouni and Cornmittee, ''Rape and Sexual Assauit," volume 5, Annex IX 12-13. 141 Cigar 4. "'Tom Gjelten, Sarajevo Daily. A Ciiy and its Nëwsp4per Under Siege (United States of Americ8: Harper Collins Publishers, 1995) 135. IJ3Pratt and Fletcher 79. ~talians).'~~The table below compares the figures of the total populations nom the beginning of the conflict to 1993. The rwults are astonishing but clearly" idenw the large extent to which forced displacements or murders took place. It should be noted that these numbers are not indicative of whether the decrease in population is a consequence of killings solely- Even so, if some of these people fled, they went elsewhere, to a place that was not home- To lose al1 that was of value to them was a traumatizing experience for the families. Some early intervention .. - hmthe international c~rnmunity'~'would have arguably mmmd the extent of the ethnic cleansing.

'- United Nations Security Council, Cherif Bassiouni and Comxnittee 24. 14s United Nations Security Council, Cherif Bassiouni and Cornmittee 24. '* It was near Prejoder in North West Bosnia in Omarska where existeci the Serbs' most notorious camp. It was a Nazi like death camp. The media revealed the camp but it oniy showed the men who were held, their starvation apparent hmtheir skinny bodies. However, the women and their suffiering was not revealed. People fiom aii professions were imprisoned at this camp including judges and lawyers. They were the enemies of the Serbs because of their professions and were on a hit lia Among the detained was a dentist who never thought that her Serbian coIleagues wouid ever rape her. The camp at Omarska was near an iron-ore mine that had enonnous sheds that held 5000 detainees. Thirty six women were imprisoned there that were forced to watch beatings and wash blood. Mer dark, they suffered a ciiffirent nightrnare. One where they were taken and raped repeatedly throughout the night, They were threatened and some of the threats were carried out in which case their breasts were cut. Each night for two months, these women were raped and beaten, One victim states that it destroyed the humanity that they had in them. That it destroyed their identity. That it took a primitive and morbid mind to cany out the most notorious things that can be thought of. Their SUCVival took the form of holding hands each night. The bond that that they formed tbugh their survival is one that one victims states can never be broken. A unique and excellent source on this is Film Board of Canada, hpe: A Crime of Wia (Canada: 1996). '" Although the role of the United Nations or any 0th- country in the confîict is not a focus of this paper, it is necessary to state that the UN led by the US painted f;ilse pictures about the conflim It provided the misleadhg impression that intervention would be impossible, George Kenney, the US State Department assistant tesponsible for the region, resigned and aüeged that his job was solely to create the appearance that the US was active and concerned about the situation when the tmîh of the matter was that it had no intention of taking any significant action. And, this lack of willmgness to intervene was the impression that the US did not wish to express. For a detailed description, see Stiglmayer, 'The War m the Former Yugoslavia" 22-26. Table 1

Demom~hicShi* in the District of Prijedor

1991 1993 Reduction New Arrivils Serbs 47,745 53,637 - 5,892 Muslims 49,454 6,124 43,330 - Croats 6,300 3,169 3,131 - Others 8,97 1 2,62 1 6,350 -

Source: United Nations Security Councii, ChdBassiouni and Cornmittee, ALIaendum. Annexes tu the Final Report of the Commission of Erperts Established Purmant to &@ Couricil Resolunon 780.1992. S/1994/674/Addendum 2, volume 1, "Rutes of Proceduren, Annexes I to V (New York: United Nations, 28 December 1994) 24.

Propaganda was also an instrument of warfare that enticed the Sdsto attack Muslims

and Croats. Belgrade television was controIIed by Milosevic, and it televised fdse information

about Muslim "fundamentalists" and "genocidal" Croats. It claimed that the Muslims sought to

establish a fùndamentalist Islamic state and that they intended to force Serb women to cover themselves with ~eils.'~*The Serb population was made to believe that the Muslims tried to steal Serbian land, and that bath factions had been killing Serbs. Yet, when the Serbs were involved in a campaign of massacres and widespread patterns of rapes, it went unreported.

Pomography was used as war propaganda Some rapes by Serb forces were filmed and no one was spared. Even pregnant women were subject to rape. Serb men dressed in generic camouflage uniforms, the women were forced to Wear a Serbian cross. The pomography included forcing women to sing Serbian songs, beating them and raping them br~tall~.'~~Rape victims were then forced to confess on film that they were raped by ~roats.'" Catherine

MacKinnon offers the following assessrnent on this type of behaviour as she understands it from

'" Gjelten 133. lJ9Catherine MacKinnon, Tuniing Rape into Pomography: Postmdcrn Genocide," M. 4.1 (1993) :27 MacKinnon, "Turning Rape into Pomography: Posânoodem Genocide" 27. the analysis of her research - Tenophobia and misogyny merge here; ethnic hatred is sexualized; bigotry becornes orgasm. Whatever this rape does for the rapist, the pomography of the rape rnas~-~roduces."''

When we think of rape, what it must mean to be raped or what a rape attack entails, most of us assume that it is sexual intercourse against one's will. But rape is more than just unwanted sex. This point is very important, one that cannot be more tnie than with the case of the Bosnian and Croatian women. Their rape attacks also entailed torture, beatings, threats to be eut open, threats that the Serbian cross would be carved on their faces or the names of their rapists tattooed on their arms and legs. Their own husbands, brothers and sons were ordered to rape them. if a soldier was physically unable to rape, he used a bottle or a gun. The Serb forces also urinated or spit on the women. Such inhuman acts and threats have not been recounted by one victim bct they have been reported by rna~~~.''~For example, one women named Nihada (this is a pseudonym to protect the identity of the victim) explains how for four months the people of the village lived in the forest after encomtering threats fiom the Serbs. One &y she retumed home and a Cetnik appeared at her house to infom her that he had orders to kill her. She claims that

"'Listen closely to what 1 am gohg to tell you, 1am going to cut a Serbian cross into your face and throw salt in your face.' 1 told him that he couldn't do that, and then he said that he would tattoo me %th sixty-four letters.' 1 told him that he was crazy. He then got angry and said he was going to kill my children, that he was gohg to cut the fingers hmmy children's han& and make a necklace out of them. 1got scared and 1 let hirn tattoo my body."'"

"' MacKinnon, Turning Rape into Pornography: Postmodem Genocide" 27- Is2 There are numemus accounts given by victims,men and women, concexning how they, their friends or neighbours suffered during the war. However, space limitaîionsdo not permit the inclusion of these statements in this thesis. 1 have chosen those that I feel would sum accurately the form in which these barbarou acts took place. lS3 Helsinki Watch 254. The rape and death camps that were estabiished to detain Bosnim-Herzegovinian and

Croatian women and girls to systematically rape them for weeks and months on end included

restaurants, hotels, hospitals, schools, factories, peacetime brothels and other buildings such as

animal stalls in bams, fenced-in pens, and arenas.'" From the testimony of victims, indications are that there were at least 30 such camps,'" and there were at least 100 concentration camps in

Croatia, Bosnia-Herzegovina and inside serbia? Not al1 rapes occurred in camps or brothels.

The Serbs also came to homes and raped women. One girl describes her feelings after she and her fourteen year old neighbour were raped. Her brother and his fiend went to see what happened in the village, and what they saw was mentally incomprehensible and dishmbing:

"There were mutilated bodies of dead people lying everywhere, in hntof al1 the houses, in the gardens, on the Street, and in the fields. 1 knew dl of them. These people were my relatives, niends, neighbors. 1 felt a great pain, but 1wasn't able to cry. It was hot, it was summer, and the smell of blood was in the air. The 9,157 Chetniks didn't let us bury the dead for five &YS.

The rapes served to make the victims feel dehumanized. For example, those held in detention were given only a slice of bread a day. They were left with only sharne, and for this reason only a few reported the rapes or spoke about the pomography being circulated. One of the most severe foms of torture and castration experienced by Muslim rape victims that expressed the hatred Serbs held for them was the amputation of their breasts. The Serbs amputated their breasts and then placed the victirns' hands in a cross on theu chest, with one hand slipped under the "flaps of skin that remained where each breast used to be."'s8 This was the symbol of the Serb religion'" experienced by the victim just before she died.

154 Allen 65. Is5 Allen 65. '% Peika 6. 157 Stighayer 98. Is8 AlIen 79. IS9 Allen 79. Forced impregnation or motherhood was a widely used method of genocide to produce

Serb children. Most victims were virgins and the visibility of a pregnancy was a clear indication

of rape. Many of those that did not become pregnant, were killed. They were detained in camps

for a minimum of 28 days - a complete mensmial cycle - to ensure irnprepati~n.'~~As the

following statistics suggest, these women did not want to give birth to the children that resulted

fiom the rapes.16' The children were nothing more than the enemy to their rnothers, and a

terrible reminder of the rape. &ce, many sought to have abortions, Some women were not as

fortunate to undergo abortion treatment because îïrst, they were only allowed to have abortions if

approved by a hospital commission on ethics, and secondly, they were detained in detention for

Iong periods to prevent them fiom accessing a legal abortion.

Mazowiecki reports that in 1992 in one hospital in Zagreb, 6,52 1 infants were delivered

and 4,6 15 abortions perforrned.'62 in the second hospital, 4,039 infants were delivered and 4,100

abortions performed (as compared to 3,103 deliveries and 3,000 abortions in 1991).lQ In

Sarajevo, the number of abortions performed doubled in the fa11 to 400 or 500 per month

compared to pre-war rates of approximately 200 per month.'" in addition to this, the number of

patient visits decreased by half. Mazowiecki interprets these statistics to denote that there were

effectively four times the number of abortions in those months compared to pre-war rates.I6'

--

''O Pelka 8. One Grandmother feared to leave a child bom out of rape with its mother because she feit that the mother would strangie since it was "conceived in hate, born into tragedy." See Film Board of lanada, Rope: A Crime of Wiv (Canada: 1996). '" United Nations Generd Assembty and SdtyCouncii, "The Situation of Human Rights in the Territory of the Fonner Yugoslavia" Document A/48/92,Sn5341 (New York: United Nations, Febniary 26, 1993) cited in Beverly Allen, Rape Weare: The Hidden Genocide in Bamio-Hbzegowina and Crmîiiz (Minnesota: University of Minnesota Press, 1996) 157. United Nations Generai Assembly and Security Comd 157. Idt United Nations Generai Assembiy and Secucity Comd 157. United Nations Generai Assembly and Secrnity Comd 157. The Bassiouni Report atnmis that the responsibility for the bulk of the atrocities belongs

to Serb perpetrators since the rnajority of victims were Bosnian Muslim and the vast rnajority of

the alleged perpetrators were Bosnian ~erb.'" However Serb women were also raped. They too

were made to feel dehumanized and were raped in cellars, in the woods or in detention camps

like the Muslim and Croatian women. The Serbian women aiso became pregnant and sought to

abort the child, and some of them committed suicide. Thus, the rapes whether against the

Muslim, Croatian or Serbian women had similar psychological and physicai attri'butes, More

importantly, rape is a rape regardless of nationality or number committed One of the reasons

why Serbian women were ignored in the media is perhaps because joumalists did not have

empathy for them. There was no motivation in theu min& to investigate, then assist the Serbs by offering them propaganda (the ones responsible for the war)?'

Alexandra Stiglmayer in her book Mas Rape: The War Aguinst Women in Bosniu-

Herzegovina provides an account of her research and her numerous inteniews with the victims when she visited the area. She explains the difficultiesthat she and her colleague encountered in speaking to women about their experiences. Victirns of rape are not mourned like soldiers who give their lives in war.'" They are used as messages to illustrate to the other side who is winning, but the victims themsehes may encornter difficulty in communicating ttieir trauma.

Some women wished to speak to foreign journalists but their experiences were so humiliating and unutterable that they had problems ~~eakin~.'~~In addition to this, Stiglmayer felt that when the women were recounting their experiences and crying she was forcing them to live through

------'" United Nations Security Councii, Cherif Bassiouni and Cornmittee, "Rules of Proceduren 72. 167 Stiglmayer, TheRapes in Bosnia-Herzegovina" 13 8. Seifert, "The Second Front: The Logic of Sexual Violence in Wars" 38. 169 Stigimayer, 'The Rapes in Bosnia-Herzegovina" 83. their rape one more time. She concluded in her investigation that there was indeed a war king

waged against the women in ~os~a-~erze~ovina~~~

In Bosnia-Hmegovina, those Serb rapisd7' captured maintain that they were ordered to rape women and that they were led to believe that the Croats and Muslims were destroying them.

Thus, the army succeeded in making enemies out of fiiends. In many occasions, the men who were responsible for the rapes knew the women. Most men explain that they were given orders and they were required to obey them. The soldiers defend themselves by c1ai-g that they were compelled to rape and that it did not excite them at all, that they did not know how to butcher, and were scared, but they were told that they would be taught to butcher. As one soldier explains, other soldiers threatened him and said, "If you don? butcher them, we'll butcher you." ' Stiglmayer also conducted interviews with Serb rapists. These interviews illustrate that some men were coerced to rape otherwise their lives were in danger, and that it was clearly the policy of the Serb rnilitary to rape Muslim and Croat ~0rnen.I~~However, Serb leaders deny that the rapes occurred at all. They answer to assertions that thousands of women were raped by their men by remarking that Serbs are not horrible persons. Some question how they could have won the war if they were busy raping?'" Despite their denials, they were heard chanting songs as to how they raped a Musiim ~oman.'~*

170 Stiglmayer 84. 17' It would be unjust if 1 were to not also note that there were acts of decency dedout by some Setb soldiers such as those who Lied about raping a girl, prevented others hmtorturing, or fed a prisoner secretly and idormeci his family that he was alive. Such acts of human kindness prevent one hmstereotyping and genetaliPng all Serb rnilitary soldiers and teaders as tortures and rapists. See particularly, Maass 54 and Human Rights Waîch, IRStiglmayer, 'The Rapes in Bosnia-Herzegovuian 156. '" Please see Appendix 1 for statements of Serbian Rapists. 17' 17' Cigar 92, Conclusion

The use of systematic rape during the Yugoslav war served as a strategic purpose in that

the objective of the Serb Govemment was to ethnically cleanse the Muslim and Croat

populations. One of the chief methods of achieving this was by way of intimidation. The crimes committed in the former Yugoslavia were gender-specific crimes and state-generated acts of war.

However, as Claudia Card reminds us, it is important to also acknowledge that the rapes against the women and girls of Bo&-Herzegovina were an intersection of martial racism and

~exisrn.'~~The Serb forces sought to destroy families and they succeeded for women in that society are regarded as property of theù male kin, and property is what they harmed.

From the outset of the war the Serb leaders were determined to establish an ethnically pure state. The drive for "Greater Serbia" aationalism encompassed mass expulsions and destruction of property - a breakdown of areas where Serbs, Croats, and Muslims lived together.

The separation of these ethnic groups that once lived together mobilized them to fight agallist each other. This interethic conflict was the route to the establishment of a "Serb Republic" on

Bosnian temtory. Rape at any time is inexcusable and is a severe violation of a woman's or man's human rights.ln For those fighting in the Yugoslav war, it was an expression of repulsion for one another. The systematic rapes carrieci out by Serb soldiers of Bosnian Muslim women and Croat women were a component in a military strategic policy of ethnic cleansing.

As illustrated in this chapter, it is evident fiom the analysis of various scholars, the consensus among victims, doctors, the United Nation's experts and the rapists that rape was an instrument of Serb aggression military policy, and that some soldiers were coerced into raping women. The sheer number of women raped coupled with the torture and castration they suffered

'" Cigar 92. leads to the indication that the attocities committted constitute genocide, crimes against

humanity, and are clearly war crimes as denned at the outset of this paper. Ifwe apply the

criteria of genocide, as definecl earlier, we discover that rape in war meets almost dl of them.

For rape to be considered genocide, it wouid have to occur in a pattern. This was the case in the

former Yugoslavia. The rapes were not random acts of violence, rather, a consequence of a well

thought-out policy. The Muslim women can be classified as targeted under the category of a

religious group. The Cmatian women fan be classified as an ethic group. Considethg thaî

they belonged to these groups, they were condemned, killed, and caused extreme physical and

mental hmthat will lead to little recovery if any at all. In addition, the purpose of these rapes were to destroy the entire groups or populations through various means. Serbs sought to exterminate these populaîïons; and although, their policy was not to prevent births, the requirement for an act to be categorized as genocide, theu actions had the opposite effect They employed rape as a tool to create members of another nationality, in partïcular theu own - Serbs.

Card reports that the pattern of ethnic cleansing that serves to destroy family and comrnunity bonds is the current euphemism for genocide. '" Rape can be classified as a crime against humanity considering that it was a minor extermination, included imprisonment, tomire, and wutionbased on religious and racial grounds. The rapes in this war were massive and took place in a pattern or in a systematic forrn.

As well, the rapes cmbe constituted as grave breaches of the Geneva Conventiom. Rape in war is certainly a war crime for it is what we can define as a crime, and considering that it violates international law and customs of war as it idkinges on women's human rights. The rapes of women led to murder, ill-treatment, slave labour and deportation which al1 fit within the

"'Claudia Carci, "Addendum to Rape as a Weapon of War," H'jpuricr 122 (1997) :218. parameters of a war crime. Hence, rape is delineated as a violation within the legal fhnework of these categories. Evidence nom a variety of sources support this conclusion.

In view of the fact that action was not taken by Serbian commanders to prevent the crimes of rape agauist the women or to punish those responsible, a policy of rape existed if not in a written form, then in a verbal agreement Rape is not oniy genocide or a war crime, it is torture, it is an infigement, it is public and private. International law is composed of conventions and declarations that prohibit violations of women's human rights including any attack on theü honour. However, they have not been employed to their full extent nor have they served as an effective deterrent And so, mass rape continues to be a part of war.

ln It is important to keep in mind that rape was codrtedagahst men in the civil war as well. Cbapter IV

Rape as it Occurs in Wu and Peace - 1s Then a Dierence?

Introduction

Having examined rape as it occurs in war and recognizing the significance of iî, it is also

necessq to analyze the act as it occurs in peacaime. This is so because some femmist scholars

have argued against viewing rape in war as unique requiring difierent understandhg and

treatment fkom rape in times of peace. In many instances, rape as it occurs in society each day is

ignored as a part of deviant activities by some members of society. The attention that such a

violent act receives is nomally not for its abhorrent character but for reasons such as "the victirn

was a beautifhl young blond" or the sensationalization of a story to reap profits for media. Yet, this should be a serious concern for al1 since the fiequency with which it occurs, is too norrnal.

Cathy Wïnkler, a femuiia scholar and a victim of rape as well, reports that one-third of young girls are raped in the United States (US), one-third of al1 teenage women are the victims of date rape, one-third of dl adult women are raped, and that rape occurs once every six

minute^."^ These statistics do not include battered spouses that are sexually harassed or attempted rapes. According to Winkler, these statistics translate to the fact that three-founhs of al1 women are raped in their lifetùnes. Hence, the question9do these statistics not depict a "state of war?"18* Are such numbers not close to resembling what would transpire in a war settllig, not in everyday civilized society? In a state of warfare, such as the case with Muslim, Bosnian, and

pppppp 17' 17' Claudia Card, "Rape as a Weapon of War," Hptia 11.4 (19%) :9. Cathy Wuikler, "Rape Attack: Ethnography of the Etbnographer," m Carolyn Nordstrom and A. Robben, eds., Cultures ut CrrSes: FieIdwork Under Fwe (United States of America: University of California Press, 1995) 156. '80 Winkier 156. Serbian women, it is estimated that at least 50 000 women were raped The same nwnber of

women per capita may be raped in peacetime, although over a Longer period of tirne. It is

necessary to note that peace is not peace; it does not bring an end to rape. Thus, the juxtaposition between rape in peacetime and rape in waaime is a tricky one to analyze.

There are many complex issues surrounding the phenornenon of rape such as why it

happens, what the effeçts are on rapists and their victims, and most importantiy, whether rape that occurr during wartime is significantly diffe~enthm that of rape duMg peacetime- The

following discussion will analyze whether these differences are significant. This chapter will concentrate on the ontology of rape during warthe and peacetime with a focus on men as rapists and women as victims of rape. 1 will remhm using the term "everyday rapeT'to refer to peacetime rape since this phrase suggests that rape that occurs outside of war is nomal or legitimate because it isjusr "everyday rape." It would also imply that rape during war is something more special requiring greater attention.

The primary argument that 1 will make throughout this chapter is that the subjective experience and the fiequency of rape point to similar attributes for rape in war and peace. But the more important differences - î?om the objective dimension - the fact that during wartirne rape can be employed as a policy of war and as a method to destroy entire communities, legitimizes the reasons for declaring wartime rape a war crime. Caroiyn Nordstrom and Catherine

MacKinnon are two feminist theorïsts that offer diBering ideologies on the subject of rape during war and peace. The discussion ml1 begin with Nordstrom's argument and then MacKinnon's argument followed by an analysis encompassïng viewpoints of 0thscholars on the subject.

The Iarger analysis will provide support for my position that although there are many similarities especially in the subjective experience of rape, the few différences that arise out of rape du~g wartime give credence to why it should be declared a war crime. In order to understand and

analyze the meaning of rape, 1 must aiso provide a definition of it which will be presented in the

following section.

Definition of Rupe

What is rape? It is defined in a different method by many dependhg on their experience

or lack of experience with rape. Hence, there are various complexities in deking the act The

traditional meaning of rape is to "seize and carry-off." Winkler argues, "if a person was

terrorized into nonexistence, would we not be ouhaged? That is rape."181 In addition, she

claims that it is a c~tnesslessassault." Although, during times of war, the rape attack can be

witnessed by families or other victims. Winkier States that physically, the effkcts of the rape

include marking, scarring, battering, penetrating, devouring, Iiquidating, or salivathg 18*

Emotionally, rapists stab the victim's feelings - defining, dictating, demanding, manipulating, or i~~filtratin~.'~~Mentally, rapists exercise authority over the actions and words of the victim -

distorting, contradicting, deforming, faisiQing, or contorting them.'" Therefore, Winkler asserts

that rape is an attack on the identity of the person. She argues that just as society considers murder a heinous crime, so is the murder of a person's identit~.'*~

Rape is an assailit that takes place without consent and involves the use of force. Section

143(a) of the Canadian Criminal Code defines rape as the act of having sexuai intercourse without consent.186Catherine MacKinnon writes that rape, from a legal not feminist perspective

"' Winkier 156. '" Winkler 175. '~3Winkier 175. '" Winkier 175. '*' Wier156. Pocket Crimhal Code 1999. Canada- Carsweii Publishing, 1998. is dehed around penetration? This dekition she pronounces is essentially a male point of view. However, what a woman thinks violates her is different and her definition of rape may be more comprehensive. The rape does not end with the attack and there are comequences of it that are also part of the definition such as the aftermath of the feelings, including difficulty in performing sex and a sense of shame and humiliation. Tompkins &tes that rape occurs since A gender discrimination exists against women as a class." She Merasserts that rape serves toy express and to contribute to âhe domination of women by men in every society.'" Since rape is viewed primarily as being cornmitteci by men on women, it is understood to be a political act, meaning that one group or class of people against another.'"

As stated in the first chapter, Brownrniller defines rape as "nothing more or less than a conscious process of intimidation by which ail men keep all women in a state of fea~"'~'She argues that like assault, the act of rape involves "physical damage to another person," and like robbery is also an "act of acquiring property" (the female body).lpl Although rape is proscribed by law, feminist theory on rape bas cited political, legal, medical, and military institutions which have allowed the culture of rape to deve~o~.'~~

'" Catherine Machon, Feminism Unmod~.:Discourses on L@ and Luw (United States of Amdca: Harvard University Press, 1987) 87. lS8 Tompkins 852. Tompkins 852. '" Quoted in Donna M. Hughes and Kathieen Foster, "War, Naîionaiisxn and Rape: Women Rcspoad by Opening a Centre Against Sexual Violence in Belgrade, Serbia," Women 's S'dies hiemutional Fomm t 9 (JadApr 1996) : 183. 19' Brownmiller 5, 19' 19' BromilIer 20 1. NordWom 's Argumen!

Carolyn Nordstrom in her Working Paper - Rap: Politics and Theory in Wmand Paaee employs a method of striking a line through the word '-ce" for she argues that the word

"peace" is a contradiction in itself if violent acts such as rape ensue in society. She poses a challenge to the normal discourse of writing by using this method when writing of "peace" in a context that is evidently chmcterized by severe cultural and structural violence. This line of arguing is also sirnilm to Winkler's who questions how society car! be characterized as

"peaceful" if the conditions in a society suggest a "state of warfare."

The purpose of Nordstrom's papa is to understand the oatology of rape in a socio- political context. She achieves this through exploring three themes in particular, rape - in war, in

"peacetime," and in crosscultural contexts. Nordstrom writes that rape is an inherentiy gendered-phenornenon. Men are the majority of rapists. '" She questions why sexual violence is prevalent in many different countries although there are clear cultural distinctions. Her response to this question is that rape is simply not a sexual assault but an attack on identity. Not only that, but it cnishes any assumptions about security and safiety of the world and the positive value of the self that the victim may possess.195 These characteristics that instill such feelings are present in victims of wartime and peacetime rape and are not exclusive to just one. This subject will be expanded on later.

An interesthg analysis presented by Nordstrom is that men who Wear uniforms are more likely to batter their wives, and those in positions of authority are more likely to experience high

Ig3 Nordsimm 6. lW Nordstrom 7. 19' 19' Nordstrorn identifies a couple of cases where the women felt worthless, p. I 1. Winklcl, herseIf, adrnits in het article that suicide did cross her at one point because she felt tbat she had lost a part of herse& see p. 177. And Tompkins, in her article, writes about Muslin women who internalize theu feelings because of theu tamished honour, see p. 879. levels of violence in their homes.'% These are assaults that take place in peacetime. Oa the

contrary, one would be under the assumption that the homes of such persons would be managed

with more respect for the woman of the household. As members of society, it is only natural that

we trust those who are in power and hold even higher admiration for them. And, if it is these

men who in their private lives retain no respect for women as humans, it is not expected that they

could include in their domestic or national policies the need for recognition of women's human

rights. It is also these men who durhg wartime condone rapes against women and participate in

the attacks. For this reason, Nordstrom argues that rape is a very poignant abject that has been silenced in the history of academic and military discourses. '"

She explores the relationship between rape in war and non-war seaings arguing that the

private and public worlds are inseparable. Nordstrom explains that the stories that she has heard

from victims of wartime rape are quite similar to those from victims of peacetime rape. Both

types of rape encompass "power abuses, terror, physical pain, emotional trauma, and humiliation.,7198 However, she purports that the use of rape during wartime is strategized

differently than that in peacetime, aithough that is the only ciifference. During war, rape can be practiced as a strategic military tactic and it is accepted by some militaries as a weapon to conquer the population and destroy personal integrity. On the contrary, a person in generd society does not rape because it is policy, but commits it for power and control that he or she cm exert, and this is also a feature of wartime rape.

Nordstrom &tes that it is difficult to draw distinctions between the two.'" She argues that the culture of rape is produced through mechanisms such as pomography which legihize

'% Nordstrom 6. '" Norcborn 2. 19' 19' Nordstrom 15. Nordstrom 17. rape. Other structures that are responsible include advertisements, movies, and popular

literat~re.~~In fact, pomography and prostitution are encouraged by many militaries

worldwide. Hence, formal laws are really to no avail in pen-ods of wartime if rape is legitimized

in daily life during peacetime. In her analysis of rape, Nordstrom suggests that the link between

wartime and peacetime rape are mechanisms such as prostitution and pomography that are

allowed in peacetime and cause one to exaggerate his feelings to a deeper extent during warthe

by raping women. According to her, there are similar literary and media sources that legitimile

rape in 'kestem civil society" and militaries world~ide.~~'

But does a hierarchy of rape exist? According to Nordstrom, no. in fact, rape counseling

groups demonstrate that the ontological experience for rape victims is the same in war or outside

of it?" Her investigation of rape during 44peacetime"in Molambique found that victims of rape

experienced the same "power abuses, terror, physical pain, emotional trama, and humiliation as

those found in In addition, that syndromes that are present in victims of rape such as

incest and domestic battery are also present in victims of wartime rape. She argues that it is a

cultural myth that many believe rape during warfhre is worse than king raped in Western

peacetime context~.~~Nordstrom concludes that this misconception is inherent in the fact that

people have not taken the tirne to hear personal experiences of rape fiom others. Her view is that

no significant distinctions can be Qawn between extraordinary (wartime) and everyday

(peacetime) life.*05 Like many feminists, Nordstrom argues that the "personal is political." That

'O0 Nordstrom 18. 20' Nordstrom 18. 'O' Nordstrom 18. *O3 Nordstrom 15. 204 Nordstrom 20. 'O5 Nordstrom 17. rape as a strategic policy is a terror tactic, and that rape under any cucumstance cannot be

viewed as a random or individual act isolated îkom the politics of pwdM

MueKinnon 's Argument

In her analysis of the war in the former Yugoslavia, Catherine MacKinnon argues that a

qualitative difference exists between =genoci&l" rape and "everyday" cape? MacKinnon points out that the suEering that women endure at the han& of men (in. sexual harassment) is

incomparable to the sexual abwSUffered during wartime. From readiig MacKuuion's literature on rape, it is clear that she perceives a distinction between rape during war and rape du~g peace. In writing about the massive rapes that occurred in the war, she suggests that ''this war is to everyday rape what the Holocaust was to everyday anti-~emitism.""~ MacKuuion employs the term "everyday" fiequently, for example, when she argues that rape in warfare is at a different level than everyday rapdo9 Again, what one can infer is that her use of this phrase connotes that a hierarchy of rape exists. nie danger in MacKinnon's stance is that by using the term "everyday," she normalizes the act of rape as though it is less significaut and perhaps not as blarneworthy as the act that is carried out during wartime. Such an analysis only serves to instill false doctrines of peacetime rape as king acceptable.

An engaging part of MacKinnon's argument is her analysis of the relationship between rape and pornography. She writes that pomography is "the perfect preparation - motivator and instruction manual in one" for sexual atrocities such as those ordered in the Yugoslav war

'O6 Nordstrom 3. 'O7 Cited in Nordsimm 19. 208 Catherine MacKinnon, "Crimes of War, Crimes of Peace." UCLA Women's LJ. 4.59 (1993). Lexis-Nexis. November 1998. '09 Cited in Nordstrom 19, genocide.210 She explains that in peacetime, the pomography market is very îkee and pomography is normal. The Serb captors attempted to carry out in reality what they read and viewed through pages of pomographic materials? Like Nordstrom, MacKinnon argues that pomography is one important element that leads to rape in wartime. She thus illustrates the Link between the two in terms of the role certain elements play in their accomplishment

MacKinnon firnily argues that differences exist between wartime and peacetime rape especially in view of the fact that the goal in this war was to destmy a psrticdar population, to eliminate an entire community, and to dishonour it. in peacetime however, the attack is against one woman primarily, and not an attempt to dominate her community or male kin. Another difference that appears important to MacKinnon is that despite the fact that rape is symbolic of the domination over women by men, the women who are raped in war must withstand Methe layers of rapists on top of them who have twice the number of excuses in addition to two layers of impunity which justifies the rapes: just war and just ~ife."~This is the distinction that

Machonattempts to convey in her argument - that not al1 rapes are the same. It would be negligent to undermine the hmsuffered by a victim of peacetime rape or conversely to disregard the fact that victims of war are detained for months and are traumatized in a different and more brutal manner. This is not to say that a gang rape in cornparison to a single man rape is exactly the same. Certainly, a woman raped by numerous men would likely suffer greater injuries. As wetl, during peacetime, women have been victims of gang rape and it is not a unique feature of rape in this instance. Nordstrom in her rebuttal inquires, is not a child who has

'Io MacKinnon, Tuming Rape into Pomography: Postmodem Genocidew28. 2'1 MacKimon, "Tumïng Rape into Pomography: Powiodern Grnociden 2629. 212 MacKinnon, "C~esof War, Crimes of Peace," UCLA Women's U. been raped over years by a family member equivalent to a woman detaiaed in a rape camp and

repeatedly raped the sarnepl3

AnalysiS

MacKinnon's sîrategy in ref&g to cape during peace as "everyday rape," normalizes

the act of rape, although that may not be her intention. She attempts to employ this term as a

critique to demonstrate that rape is too nonna1 as a characterisic of social life, According to her,

the fkequency and harm of rape is more constant than acbowledged. In both the international

and domestic levels, primarily women's groups or agencies bring recognition to this subject and demand that it be a forefkont issue. The argument here is that rape in general has been normalized and ignored.

MacKinnon's argument is telling in the need to look beyond the subjective expenence.

Even Nordstrom admits that she would never claim that warîime and peacetime rape constitute an identical political arena since differencesdo exist?14 This articulation is imperative to the arguments presented in this analysis. This is not to say that the subjective expenence is not important. As we have seen, the subjective experience is the same or similar for most rape victims regardless of the context within which they were raped. For enample, the loss of control over one's body is an integral part of the "self' that a victim loses during a rapts* As well, it is an attack that leaves no self-respect or bodily integrity for the victim. Other feelings of trauma and subjugation that permeate the victims of rape are identical for victims of wartime and peacetime rape.

'13 Noràstrorn 20. "'Nordstrom 16. The period of time that it takes a woman to reçover hmthe psychological and physicd

trauma of a rape is not determined by whether the rape occdin a warfare or a non-warfare

setting. The physicai pain and mental Mering are similar characteristics of most rape victims.

Winkler outlines in her article the feelings and ernotions that overcarne her following her rape

attack These are similar to feelings that a victim of wartune rape may der. She writes that

"the aftemiath of trauma involves unexpected jolts of volcano-1ike eniptions of pain that un-

expectedly and uapredictably surface, resurface, and keep resurfachg.. .experience leogthy

penods of intense cryllrg in which we moum the loss of part of ourselve~."~'~Winkler explains

that the rapist leaves his victim with a constant state of ambiguity (that sunrive in the victim for

months, years, even decades) and a chaos of in sa nit^?'^ These feelings of îhstration and pain

became so intense that they led her to consider suicide nurnerous thes. Similarly, rape victims

of the war in the fonner Yugoslavia also suffered similar feelings particularly when they spoke about their attack with reporters, and this led some of them to commit ~uicide.~"

Nordstrom pointedly writes that the ontological experience for dl rape victims is similar.

Through her research she found that victims of rape Vary on theu recovery period, but they encounter common difficulties such as finding it pamful to speak about the rape, re-occurring nightrnares, and hesitation in sexual intercourse with their partners. Winkler refers to feelings of insecurity and of king silenced because she was not be~ieved.~"She describes emotions of mistmt in not only others but of the self. An important point she explains is that victims of tape

"'Winkier 177. 2'6 Wier177. "' Maria B. Olujic, "The Croaîian War Experience," in Cmlyn Nordstrorn and A. Robben, cds., CuIture~~Ut Crises: FieJdworkUnder Fwe (United States of Amerka: University of California Press, 1995) 199. "'Winkler 178. are lefi speechless because it is very difncult to descri'be pain. For this reason, she asserts,

descriptions of rape attacks are brief - "horrifie"; "it was heILdL9 Allen argues that rape is not something that can be C'~thered."It does not only happen

"over there" or in wars. It takes place every &y in out homes. She redefines the 'Year of rape"

as originally dehed by Robin Morgan by stating that it is the c'universalelement of the identity

of anyone gendered as ferninine under patnarchy."*o According to Allen rape is the product of

a combination of fear and insecurity with power and immunity hmprosecution in a gender

hierarchical system."' She does not distinguish between rape in war and peace and aftùms that

rape is a crime when a woman is attacked. Sarnata Reynolds also views rape as a cruel and

dehumanizing expenence and calls for its eradication whether it is committed during war or

Colleen Ward concludes that feminist theorizing in framing rape as "an expression of male dominance and social control of women and the perception of women as male property" is consistent with the nature of prejudice that victirns of rape face? Gender is socially constructed; and men in every society perceive themselves and are viewed as possessing inherent traits of aggressiveness, dominance, and power. Since it is believed that they possess these charactenstics, men are convinced that they have the right to rape women. The phenomenon of rape is then more co~ectedwith how male identity is culturally constructed during wartime and peacetime as the acts of rape in both times are intemuined. In a Iike manner, Reynolds purports

'19 '19 Winkler 178. "O AlleTl 39. Allen 39. - Sarnata Reynolds, "Deteming and Preventing Rape and Sexual Slavery During Periods of Armed Conflicc" Luw and lnequahly 16 (Summer 1998). Lexis-Ne. Novemk 1998. Colleen A. Ward, Anitudes Toward Rape: FemVIist d kiaI Psychdogicd Perspectives (London: Sage Publications Ltd., 1995) 1 12. that if we recognize this extension of rape in war as a consequence of its incidence in peacetime, we will be able to eradicate its occuefeace in both timesr4

From another perspective, offered by Judith Haanand Wiier, civilian rape places women and children in a waCm that is, a war of the sexes. This war is an outcome of the subordinate position women are focced to assume through the hidden violence of men. Hennan

States that the cdtiesof this sex war are rape victims, battered women, and sexually abused

~hildren?~Thus, as argued by Winkier, the use of the word 'peace' is questionable.

One feature of the crime of rape is that it is "aanslated into the masculine discourse of law and into the masculine discourse of order through la^."^' This delineation of the act of rape was analyzed in the fint chapter. As was noted, the masculine discourse has been prominent in the international field and has thus led to certain conceptions or rather misconceptions about rape. Not only have women in the iR field been marginalized, but the act of rape itself has always been relegated to the private sphere. This Ieads me to the second feature of rape which is that it has traditionally ken viewed as a matter to be codkonted in the '>rivate" sphere. If it is included in the 'public' (politico-legal) sphere, it will implicitly exclude other rapes that remain

'private' (and thus invalid). This is yet another example of how rape during war and peace are treated as one. There has been little progress in redefining rape fiom the traditional masculine discourse or in recognizing it as a subject of concern in the 'public' sphere.

"'Reynolds, "Deterring and Preventing Rape and Sexual Slavery During Periods of Armed Conflict,'' Lcnv ad Inequaliîy 16 (Summer 1998). "Z See Winkler 156; and Judith Herman cited in CIaudia Car& "bpe as a Weapon of War," Hpria 1 1.4 (1996) : 5-6. "'Herman, cited in Card 6. 227 Simon Chesteman, ''Never Again.. .and Again: Law, Order, and the Geoder of War Crimes in Bosnia and Beyonci," Yale Journal of International Law 222 (1997) :333. Chesterman 333. Card draws a cornparison of what she terms as da1and civilian rape and purports that

a significant aspect of rape in both instances is that it is:

"an instrument of domestication: breaking for house service. It breaks the spirit, humiliates, tames, produces a docile, defmtial, obedient soul. Its irnmediate message to women and girls is that we will have in our own bodies only the control that we are granted by men and thereby in general only that control in our environments that we are granted by men. ,229

Card also argues that the fiuidamental hctions of rape whether it is martial or civilian

are to display, communicate, and produce or maintain dominancetUOSpecifically, dominance by

males to control fernales. She writes that both types of rape have become a political institution.

Rape is tolerated in both civilian and military life since it is regarded as ~~atural.~~'Domination

is a goal in wars and in civilian life, and those that view rape as nadalso believe that male

dominance is nat~ual.~~~Allen, as well, explains that rape occurs in a system where dominance

and subjugation exist and that the crime of rape is a way of maintakg that ~~stern?~

Card highlights an important distinction between rape in a war and non-warfate setting.

That is, whereas the threat of rape in civilian life causes women to secure male protection and to

service hem, martial rape airns to destroy the bonds of families and communities and does not

bind women to men, but warrïor rapists to one another? However, some peacetime rape

victims also experience the destruction of their families or relatiomhips as a result of an inability to properly deal with the rape. Seifeit writes that in war massive assaults on women aim at destroying social and cultural stabilityBs Tompkins purports that a feature of wartime rape is to humiliate the victirn whether it is by forcing her male relative to sexually assault her or by

CIaudia Carci, "Rape as a Weapon of War" 6. Car& Tape as a Weapon of War" 7. "' Card, Tape as a Weapon of War" 14. 232 Car& "Rape as a Weapon of War" 14. 233 Allen 39. Card, "Rape as a Weapon of War" 7. leaving the bodies in a degraâing manner in Rape victïms are tortured as well to the extent that it does not OCCUT in peacetime. The objective of the rapist in peacehe is oniy to rape, usually.

Two groups of victims emerge in both wartime and domestic rape according to

~om~kins.~~'One group is comprised of women as a class since the widespread practice of rape in warfare targets women as a population for the idiction of biology-specific violence.238 The goal for this class of women is to end the cycle of violence against women and dicatetape-

The second group of women is ail the individuai women who were actuaily as~aulted?~The goal for these women is to find an environment in which they can heal and to move on with their lives. However, she also spells out that women who are raped in non-warfare settings have extensive support networks and available medical attention? in contrast, wariime rape victims not only suffer îrom rape but have as well experienced torture or savagery, and to retum to a normal life may seem impossible for the ~ictims?~'It is not only necessary to counsel the victims and to provide them with aid and shelter, but in addition to this the victims' male kin will require extensive counseling so that they do not rejet "women as stained goods" or kill thern? After such a brutal attack in wartime, the rape victims do not have legal recourse nor does any law enforcement agency exist to detain and indict those responsible. In contrast, the domestic context has established police agencies and a criminal justice system which allows for perpetrators to be punished.

"5 Ruth Seifert, "The Second Front: The Logic of Sexual Violence in Wars" 39. 236 Tompkins 870. Tompkins 885. Tompkins 885. "'Tompb 885. 'a Tompkins 885. '"Tompkins 885. 'J2 Tompichu 885. Virginity is sacred in many societies around the world, and to tamish the honour of the family by losing it whether against the will of the victim or not may lead to out- of the victim.

In tirnes of war, rape is usually cornmitteci to dishonour the co~munityby violating the women.

Another defining feahire of wartime rape is that it is commitîed by the enemy, which could be the govemment or rival ethnic group. In times of peace, the perpetrator is sometimes well- known to the victim and sometimes a stranger. The aggressor, in peacetime, does not rape due to the victim's religion or colour of sb,but to gain power and control over the victim which is also a characteristic of wartirne rape. Yet, the dominance that the enemy seeks in wartime is of whole cornmunities and villages, not just the rape victh.

Maria Olujic argues that in Croatia, a man must reject his deto "salvage his male pride" whether she consented or not?43 Women rnay be killed by their husbands or disowned by their families if they are single and living at home. Women silence themselves only to protect their farnily regardless of the emotional cost to themse~ves.~~It is important to note that it is sometimes the misinterpretation by many that such patciarchal societies only exist in the aforementioned cultures. However, such values that may lead to rejection of women are implicit in Catholic or Orthodox Christian religions.245 AI1 of these common features are present and felt by victims of rape during wartime and peacetime. Pratt and Fletcher also assert that the stigma that is attached to being raped in Bosnian, Croatian, and Serbian cornmunities is also one that is experienced by women ~orldwide?~Nevertheless, over laying these similarities, there rnay still be room to recognïze that each society has its own conception of what it means for a woman to be raped.

'" Olujic 196. 2er Olujic 196. '45 Allen 70. 'j6 Pratt and Fletcher 100. Concfmion

The subjective experience and the fkquency ofrape are indeed sirnila for victims of rape in war and peace. Rape during war continues until the end of war, and the act of rape in peacetime is continuous. Accounts from wartime and peacetime rape Mctims are simila.in ternis of the mental and physical traumas that they endure and suifier. More importantly, domination of women by men exists in peacetime and wartime. Yet, victims of war may be homeles and will have to estabikh their homes again. Aside km the rapevthey have this second dimension to confront.

Nordstrom admits that differences exist between wartime and peacetime rape. To begh, rape in a warfare instance is employed as a community destroying strategy. Women play an integral role in ensu~gthe cohesion of theu culture or commdty. To destroy the women would then destroy the community. In this conte@ it is strategized in a way that it is not strategic in peacetime. Empirically, rape has the impact intended to undermine the commun@.

Another significant difference is that during a war, rape can be implemented as a policy by an army for purposes of genocide or sexual pleasure. It is practiced to achieve victory over the enemy. Rape in peacetime is an act by an individual and sometimes a group of people to dominate women. It is also regarded as a punishable crime at the domestic level, whereas; it is not a crime per se in war. A peacetime rape victim has the right to file a report with the police to ensure charges are laid against the perpetrator. Yet, in times ofwar, there is no intemational or domestic police that will accept the responsibility of apprehending the cdprits.

A significant difference between rape in wartime and peacetime is that rape in the former is viewed as inevitable because women's bodies are available to the conqueror while in the latter instance it is viewed as generally pre~entable?~'Another distinction is that during times of peace, a victim of rape is forced to provide details of the rape and the description of the rapist in order to prove that her accusations have merit. However, during a thne of war, there may be many witnesses who can collaborate one another's testirnonies. This line of hvestigating would point towards establishing if orders were given by a higher authority to rape women (who belong to the enemy), how many women were raped, and where they were held These dimensions of rape in war provide ample justification for it to be recognized as a war mhesubject to prosecution. Hence, the inqujr of the dinerence between the two results in many questions.

The most important, how do we punish those responsible for rape in wartïme? The answer to this question will be explored in the next chapter.

'" Reynolds, "Deterring and Reventing Rape and Sexual Slavery During Periods of Armed Contlict," hcuid Cbapter V

A Permanent International Criminai Court

Introducâion

Now that we have arrived at a state where we can recognize rape as a war crime, what

does this exactly mean? It is not equivaient to recopkhg rape as a crime at the domestic level

where enforcement mechanisms are readily available. Even though we can now conceive of rape

as a war crime it does not necessarily follow that it can be prosecuted as such. However one

draws the Iink between rape in war and peace what must be codkonted is that the semüil

violence in war has no remedy short of more war. Since it is clear that the cycle of national and

ethnic revenge is no solution, the issue is whether we can contrive a mechanism that will provide

for something like criminal prosecution for rape in war, just as we do for rape in peace. Part of

that task has been to offer an argument for viewing sape ui war as a war crime, assimilating it to the general regime of war crimes and crimes agahst humanity. But the articulation of a war

crime needs something more, namely, some way to give it concrete effect. This perhaps, is an even greater challenge than gaining general acceptance for the formal recognition of the war crime of rape.

Over the course of history, war criminals have found avenues or have at least been provided with avenues to commit the most abhorrent and detestable crimes known to humanity.

Such crimes, hown as war crimes, continw to be petpetrateci. Following World War 11, the international community was instrumental in indicting a few of those respmsible for heinous crimes to trial. These trials were important for theü contribution to international humanitarian

law. The Nuremberg trials brought a sense of confidence and assurance to people mund the

world that we would not witness such horrors again. On the other hmd, the International

Military Tribunal for the Far East (IMTFE) did much les, though that it happened is of

importance. Five decades later, the world stood by and witnessed the Serb leadership carry out

"ethnic cleansing" of entire villages and systematic rapes of Muslim and Croat women. Sexual

assault in that war was not limited to womem only; men weie also victims. We then hdof the

spree of mass killings in Rwanda in 1994. For the fhttime since Nuremberg, ad hoc tribunals

were established to b~gsome justice to the victims. After the genocide of the iewish people, it

was a shock to see that such horrific crimes could be committed again. This is especially tme

following the aftermath of the Nuremberg Trials where crimes agahst humanity and crimes against peace were introduced for the first time. Thereafter followed the adoption of the 1949

Genocide Convention and other protocols outlawing the violations of human rights in thes of war. Hence the question, what has changed?

This chapter will ascertain the extent to which preventative justice in the form of prosecution through war crimes tribunals is effective in preventing war crimes nom king committed in the fiiture, and what might be done to impmve them. In order to make such a determination, it is fint necessary to analyze briefly the concept of "preventative justice" or as it may be referred to as "deterrence." Following this, 1 will examine the famous ad hoc war crimes . tribunals that have been established, al1 of which amse out of particular circw11stances demanding their establishment. This section will include an examination of the Nuremberg War

Crimes Tribunal, and outline its purposes and legacy for international law. 1 will review the

IMTFE of Tokyo, and the trials that it conducted. Lady, I will assess the establishment of the War Crimes Tribunal for the Former Yugoslavia and the Rwanda War Crimes Tribunal. This

part will consider the difficulties that these tri'bds have encountered and analyze their progress

and lack thereof since theu inceptions. Hence, this chapter seeks to draw a paralle1 between war

crimes committed in World War II and those committed in the early 1990s.

The analysis will illustrate essentially that not much has changed, aside hmthe fact that

Gennany itself has never again engaged in such massive genocide. Why is it that 54 years after

the formation of the United Nations, we are again witness to human atrocities not observed since

Nazi Gennany? The study of the aforementioned aibunals in tenns of their successes and

failures will assist in answering these questions. The final section of the papa will argue the

case for an effective permanent International Criminal Court. For it is clear that while ad hoc

international tribunals have been established to prosecute those responsible for war crimes, they have lacked competency in effectively punishing such petsons or in preventing fuhne atrocities.

Rather, what is required is a reforrnulation by the United Nations in brïnging a halt to such barbarity .

Khat is Pmventcdjve Justice?

The concept of preventative justice entails the idea of deterrence. In respect to international law what this refers to is that an act, such as punishing a war criminal for crimes committed during wartime, is imperative to prevent the war criminal or other potential war criminals fkom undertaking sirnilar crimes in the fiiture. The operative word here king

"prevent," through justice. The word "justice" is itself difficult to define. Justice for whom is one question that cornes to mind. Justice for the victims and their fêmilies or justice for the international community? How do we define justice? 1 denne justice as capturing a22 those persons responsible for war crimes (in particular leaders) as well subjecting them to fair hearings and where warranted handing down punishment swiftly and effectively. Similarly, Robert Van

Lierop who analyzed the atrocities cornmittecl in Rwanda, writes that defining justice is not easy, but that it is not revenge or only the punishment of a criminal actZ4' Accordhg to him, the independence of the judiciary is important and al1 those who appear before it must be treated

"equally and in a reasonably predictable manner consistent with basic and hdamentai principles of fairness" This includes the safety and security of a person and the most important criteria, justice must be seen to be done.

James Cramer breaks the concept of deterrence into three categories. The first, primmy deterrence in which the preventative influence is cast on the person who has comrnitted a crime and has been punished.Bo Second, there is genemi deterrence which is targeted at those who have not been legally sanctioned, but who are made aware of legal sanctions if they do commit a crime.25LLastly, Cramer identifies gortzài detemence which is used to regulate the seventy of the crime?* For example, a prospective criminal may commit petty larceny rather than grand larceny due to the Iight penalty for the former violation.

Carlos Santiago Nino writes that punishment prevents evils that are inherent in state- sponsored human rights violations and its purpose is to discourage such violations in the fiit~re.~~Nino believes that triais for human rights violations are jusfifieci on preventionist grounds to the extent that the trials are successfiil in countering cdnual patterns and social

Robert F. Van Lierop, "Rwanda Evaluaîion: Report and Recommendations," ï?re Internatw~ZLmvyer 3 1.3 (Fail 1997) : 898. 249 Van Liero~898. Iams A. Cramer, d,Preyenting Crhe(United States ofAm&car Sage Publiatiom, 1978) 15. =' Cramer 15. 252 Cramer 15. "'Carlos Santiago Nino, RPoicaZ Evil on TMZ (United Staies of Ameria: Yale University Press, 1996) 144. trends that are the source of radical evil? Hence there is a aeed for recognition of the acts committed, laying blame, and accepting responsibility, with the expectation that we will not see systematic genocide again. To this end, Phi1 Goldman writes that the focused and credible process of law which requim the attendance of both the accused and the victim also allows for certain expectations of deterring ftture repetitions?'

Deterrence can be best achieved through the arrest, detention, and successfil prosecution of all those responsible, although the legd adviser in the pmsecutor's office, Payam Akhavan, rnakes the argument that there is a symbolic effect of even prosecuting a few people, primarily the leaders who are responsible as it will not ody assist in national reconciliation but will serve as a deterrence as we11.~~At the time a tribunal is created for the prosecution of war criminals, it is necessary that a credible process is arranged that will work, that it have sufficient resources and time to conduct its work, and is able to make sound judgments. The process must be fke fiom impediments of shortages of staff or other necessities. More importantly, the tribunal must quickly capture war criminals and have the ability to indict those that have fled to safe havens.

This is so since if only a few are captured and the prosecutions do not corne soon enough, deterrence will not be effective. This is especidly necessary today for we are now viewing a spread of civil conflicts more than ever before. Is there an incentive for these persons who are engaging in acts of genocide, to not commit massacres? They are too well aware that they may never be persecuted let alone be captmed.

Deterrence also includes the intervention of the United Nations in conflicts whete gross human rights violations are occurring. By not stepping in, the UN conveys the message to fùture

Nino 146. ZSS Phi1 Goldman, Amnesq: An hayin L4W and Politics (Kingston: Queen's University, 1997) 6. U6 Payam Akhavan, "The International CrimUial Tn'buaal for Rwanda: The Politics and Pragmatics of Punishment," neAmerican Journal of lntemationaf Law 90 (July 1996) :509. perpetrators that they are fiee to commit war crimes since the international body wili not

consider their crimes seriously. On the contrary, by intervening the UN sen& a strong indication

that the international commrmity will not tolerate such abuses. Thetefore, in order for preventative justice to work, two elements are required.. 1) an effective tribunal, and 2) the expeditious and active intemation of the UN in countries where genocide or other atrocities are taking place.

The Nuremberg Triah

The word "Holocaust" has a very deep meaning, one that refers to the six million Jews that were extenninated by the Germaas in World War II. Although the term has several meanings such as sacrifice, the Nazis named it the "FinalSolution to the Jewish Roblem." In tems of deterrence, it is clair that the Germans did not believe that they could be prosecuted.

Afier all, that is a precedent that the Nuremberg Trials set. Before these trials, a war crimes tribunal had never existed. There subsisted no p~ciplesby which to prosecute persons responsible for war crimes, or any treaty outlining what these crimes could be i.e. genocide.

With the end to World War II in 1945, in particula. with Germany on May 8, the world began to piece together what had occumd and began the process of rebuilding?' The Allied

Powers - Britain, France, the United States and the Soviet Union expressed outrage and this is what led to the establishment of the International Military Tribunal. A War Crimes Commission had been established in London, which proposed the inclusion of crimes against humanity -

2s7 Oniine. Intemet 10 April1999. Avaiiabh: h~~hivww2.ebi~0met~-kdn~W. those committed against any person because of race or religion - as one of the crimes to try the Nazi officia~s.~~

The most diffïcult and controversid task facing the allies was of drafüng a charter for the

Tribunal. The Allied Powers could not agree on various principles in part due to the diverse

nature of their legal systems. Contentious issues included which organimtions to prosecute or

whether the act of conspiracy would be in~luded?~After six weeks of negotiations, the London

Charter or as officidly titled, Charter of the Intemationaï MiliqTribunal was adopted on

August 8, 1945.~~'The largest, but not longest ''trial to end al1 wars" in history for war crimes

comrnenced on November 20,1945?' The accused were charged on four separate counts:

Count 1: Conspiracy to wage a war of aggression or a war against international

treatie~;~~~

Count 2: Planning, preparing, and initiating a war of aggression or a war against

international treatie~;~~~

Count 3: War crimes, defined as violations of the laws and customs of war, including

murder, ill-treatment, subjection to slave labor, and deportation of civilians and prisoners

of war,264

Count 4: Crimes against humanity, dehed as murder, extermination, enslavement, or

any other inhumane act committed against any civilian population before or during the

war, as well as persecution based on political, religious, or racial grounds, in the

Nino 6. 259 John F. Murphy, "Intemaiional Cnminal Pmcedwe Law," in George Ginsburgs and VN. Kudriavtsev, cd., The Nuremberg Trial and Internatio~Ihv (Netherlands: Martinus Nijhoff Publishers, 1990) 67. Murphy 68. Pete Brown, "Nuremberg Remembered," Contemprmy Revlew 267 (November 1995) :257. 262 Nmo 7. Nino 7. 2" Nin0 7. execuîion of or in comextion with any crime within the jurisdiction of the tribd,

regardless of whether the accuseci had violated the domestic law of the corntries where

the deeds had been c~mmittted.~~~

The international community watched over a period of ten months as twenty-one

GermadNazi leaders were brought to trial in Nuremberg, Germany for theü participation in

committing war crimes. The purpose of the trials was to act as a deterrent and as a precedent for

future conflicts? Eighteen of the twenty-one were ~onvicted~~'in the opinion of Richard

Goldstone, the former chief prosecutor at the Hague Court for the International Criminal

Tribunal for the Former Yugoslavia, the concepts of war crimes were weil understood at that

tirrie. However, desagainst peace and crimes against humanity were not part of the existing

body of international law; and therefore, the recognition of these crimes was the most important

legacy of ~urernber~?~The other significance of the crimes against humanity designation was

that they did not have to be committed against the enemy, but could be committed by a state

(Germany) against its domestic population (~ews)?' The introduction of law and the process of

these trials is extremely important. However, the drawback of the crimes against humanity was

that they could only have ken committed during wde,igno~g the systematic persecutions

undertaken by the Nazi Party before the outbreak of the war.2" Other important developments

due to the Nuremberg Tribunal include the fact that it was precedent-setting for it implemented

Nino 7. '& Brown 257. '" See Appendix A, Table 2. Richard Goldstone, Prosecuting Wm Crimina&, Occasional Paper No. 10 (David Davies Mernorial Institute of International Studies, August 1996) 2. 269 Goldstone 2. "O GoldStone 2 - 3. enforcement against those persons who committed war crimes?' The trials aiso recognized

individual criminal responsibility designeting it a f'widamental principle of international

humanitarian law? The purpose of this principle was to exclude any defence by a soldier that

he was compelled to obey superior orders including the execution of crimes. nie issue was

controversial considering that individual responsibility for committing war crimes was never

recognized prior to the trials. It was argued that the soldiers could not have been expected to be

aware of such a responsibility when it did not exist. Finally, under Count 1 and 2, the triais

made it clear that the initiating and waging of aggressive war is a crime.

The Nuremberg trials are reflected on today and have heightened international law to a

new level. Although many of those responsible were not cap- the trials have ken admired for being swift and effective as they were completed quickly and delivered severe punishments.

The man most sought after, whose ideologies made these atrocities possible and who waged a war of aggression, Adolf Hitler, cornmitted suicide before the commencement of the trials. Yet, the trials can be credited for prosecuting high ranking Officials?

There is consensus among many legal experts that although the proceedings were an important mode1 for years to corne, they also had shortcomings. In particular, the primary point of concem was that they were based upon erpostfacto ~aw?'~and therefore violated mrllum crirnen sine lege, nullapena sine lege (no crime without law, no punishment without law)?

Arguments that have been put forward dispute tbat the Gemians were not cognizant of the fact

- - "' Hazel Fox, "An International Tniunai for War Crimes: Will the UN Succeed Where Nuremberg Failed?" Ine World Toduy 49 (October 1993) : 194. Goldstone 3. See Appendùr 2 and 3. '74 As defineci by Black's Law Dictionary, this temu means "a law passed aAer the occurceace of a fâct or commission of an act, which reîmpectiveiy changes the legal cooseqwnces or relation of such fact or dd"See Henry Campbell Black, etal., Black's Lrnv Diftionary (Mînuesota: West Publishing Co., 199 1) 402. 275 David Luban, The kgacies of N~rembecg,~kkd Research 54 (Wimter 1987) :707. that they could be puuished for the crimes they were wmmitting shce there did not exist such a

precedent. Another important critique of the trials is that they represented victors' justice wliere

the prosecutors and judges of the triais were hmvictor countries, and al1 the accused were

nationals of the defeated state - ~errnan~?~Matthew Lippman's dticism of the pmcess is that

it did not provide an adequate distinction between war crimes and crimes against humanity. He

argues that those crimes recognïzed as crimes against humanity such as inhumane acts against

civilians also constituted war crimes when carried out in contesteci or ocçupied territory?

However, the legacy of Nuremberg was made clear shortly afler the trials when the

United Nations entrenched the prïnciples of the Nuremberg Charter and the judgment in

international la^?'^ As David Luban observes, the concept of individual responsibility resulted

in the first 'kalistic" deterrent in the history of international law? Thus, the reason for why

we reflect on these trials today and admire the method in which they were carried out.

TIie Infernan'onal Miiitary Tribunalfor the Far East

In World War II, the Japanese were aiso guilty of commiîting abhorrent crimes.

Although, they were prosecuted, they have become famous for what they were not prosecuted

for. During the war, the Japanese soldiers kidnapped, coerced and tricked Korean, Filipino,

Chinese, and Thai women in traveling to places where they could work to earn money for their

families. hstead, the Japanese todc them to areas where the soldiers were serving during the war so that they could become %al men." A majority of the women were Korean, estimated to

''15 FOX194. Manhew Lipprnan, "Crimes Against Humanity," Busrun College nb=dWorld Lw J'mul 17 (Spring 1997) : 201. "Michael Biddiss, "Victors' Justice? The Nuremberg Tn'bunal," History-Todoy 45 (&y 1995) :46. "Luban 807. be at 80 per cent, and they were taken to provide sexual cornfort to soldiers in the war me?

Since then, many comfôrt women have emerged to tell their stories, despite the fact that chastity

is viewed as sacred in many Asian societies, However, the Japanese government has adamantly

denied al1 allegations against it, and has yet to Mly acknowledge responsibility for any acts of

rape or the ownership of comfort stations. In fact, it was on January 11,1992 after damning

documents and a documentary produced by Professor Yoshimi ~oshiaki~~'revealed that the

Japanese mîlitary did run cornfort stations that the tnith was expose& Witti the publication of these documents, the government was forced to admit that, although in the past it had denied al1 knowledge or participation in cornfort stations, it had been involved. Although, stories have surfaced alleging that the Japanese Govemment has also stated that the cornfort system was voluntary.

While the japanese were not indicted for raping women specifically, during the trial of

General Yamashita, the Tribunal heard of Japanese war crimes in the Philippines. It listened to how priests were executed, patients slaughtered in their hospitals, and American prisoners of war beheaded or burned The trial learned about how prisoners were bumed, their fhgers removed, and how babies were thrown in the air impaled with a bayonet283 Moreover, it was told about the 476 women in Manila who were held in two hotels and raped over an eight day period, the twenty Japanese soldiers who raped a girl and then cut off her bceasts; and the dnink soldiers who after killing women civilians, raped the ~orpses.~"Aside nom raping, the Japanese ilI-treated prisoners and massacreci civilian populations. The other crimes waged by the

George Hicks, The Comfirt Women= Japan !s BmtaI Regime of Enfirced Ptostinction in the Second World Wm (United States of America: W. W. Norton & Company, 1995) 11. Hicks 197. *" Richard L. Lael Tiie Yumashita Precedent: War Crimes and Command RapnsibiIi@ (üaiîed States of Arnericar Scholarly Resources Inc., 1982) 83. 283 Lael 83-84. Japanese which were the focus of the trial were beatings, torturing, bdg,and massacring of

thousands of hin ne se?'' The Japanese a~my,navy, police and govemment persorne1

slaughtered whole populations of villages of Java, Rabaul, as well, Kuala Lumpur and Southwest

Pacific ~slands.They had novel methods of eliciting information nom captives including

torture and labouring prisoners until they evenhmliy died?'

The jurisdiction and the powers of the International Military Tribunal for the Far East

were defined under the Tokyo It was on Iuly 26,1945, just a couple ofweeks after

the London Conference that the ailied nations amounced their intention to prosecute the

Japanese officials for their crimes.289 Following Japan's surrender on January 19, 1946, the

Tobo Charter was approved by General Dougias MacArthur, the Supreme Commander for the

Allied ~owers.*~The Tribunal's lepl status, structure, and procedures were defined in the

Charter. The Tribunal was charged with punishing war criminais in the Far East, It did not

provide any provisions for the punishment of criminal organizations. As weli, it focused only on

crimes against peace and not crimes against humanity like the Nuremberg trials?'' This was a

significant distinction in that the Nuremberg Charter included in its definition of crimes against

humanity, "or other inhuman acts committed against any civilian populationy'and included

religious gcounds as a basis for "crimes against h~manit~.'~~~The Tokyo Chorrer, on the other

hanci, deleted the words pertaining to the civilian population to broaden the scope of the crimes

------'" Lael 84. *" Philip R Piccigallo, The Japese on TMI: Allied WmC.es 0peraîion.s ui the East, 1945-1951 (Texas: University of Texas Press, 1979) xii- '"Piccigallo xii. Piccigallo xi '" Lippman 202. B.V.A. Roling and Antonio Cassese, Tke Tokyo Trial and Beyond. Reflectbns of a Peacentonger (Cambridge: Polity Press, 1993) 2. Piccigallo 1 1. 29' Lippman 202 - 203. committed to ensure that punishment was possible for those who committed large-scale killings

of military

The Tokyo Trial which commenced on May 3,1946 included twenty-eight Japanese

defendants? The perpetrators were called to account for their responsibilities during the war.

These were al1 types of people including military men, career diplomats, politicians, and even a

civilian named Okawa Shumei. The Tribunal held that he was unfit for trial?95 Most of the

accused were famous military leaders and a few civifians, as opposed to the Nurembeig trials

which indicted a majority of civilians and fewer leaders. A controversial matter was the decision

not to charge Emperor Hirohito the head of state. Was he a war criminal as well or not since bis role was largely ministerial? The tme reason for not indicting him was to ensure the stabilization of post-World War II Japan. MacArthur's decision was that Hirohito would not be

indicted nor would he be called upon as a witness. In fact, many of the decisions and control over the proceedings and sentences were guided by MacArthur's wishes.

Since the allied powers, in particular the US, were concemed with the stability of the

Japanese economy and society, they sought quick and swift trials to recover fiom the war. As already stated, the accused men were not charged with commiaing acts of rape or unlawful confinement, rather their charges included "thirty-six counts of crimes against peace, sixteen counts of murder, and three counts of crima against humanity, or conventional war crimes. 992%

They were charged wiui planning and initiating aggressive war against China, the US, the United

-- - - - M. Cherif Bassiouni, Trom Versailles to Rwanda in Seventy - Five Years: The Need to Establish a Permanent International Criminal Court," Harvmd Human RiglitsJow~I10 (Spring 1997) :37. 293 Bassiouni 37. RoIing and Cassese 3. 295 Rolùig and Cassese 3. '% Arnold Brackman, nte Other Niu-emberg: me Wntotd Story of the Tokyo WmCrimes TrulIs (New York: William Morrow and Company, hc, 1987) 84. Kingdom, or USSR, singly or c~llectivel~.~Other charges included ordering. authorizing, and permitting atrocities and to prevent breaches of the laws of war.

The defendants pleaded guiity to ali of the charges. AAer a two and a half year trial, the judges found them guilty by a vote of 8-3. AU were found guilty of Count I - as leaders planning or conspiring to wage wars or aggre~sion.~~*in total, seven defendants were sentenced to death by hanging, sixteen to life in prison, one to twenty years' imprisonment, and one to seven years' ~n~~sonment?None of the accused was acquitted and two of the defendants died du~gthe trial. Regardless, none of the convicted persons remained in prison for the full term of their sentence, and they were al1 released by the end of the 1950s? This brings into question the future deterrence of such crimes if the punishment does not %t the crime."

Deterrence can only work if the perpetrators and prospective war crimùials leam firom such events. Yet, these are events that temind us that attitudes have remained relatively unreformed. For example, in December 1992, non-government relief agencies in Carnbodia were concemed about sexual harassrnent by United Nations tro~~s?~'Hence, they sent a letter to Yasushi Akasi, the Japanese head of the Transitional Authority. His reply was that it was natural for soldiers who had ken wodcing in the fields to desire to chase beautifid young

In essence, he irnplied that it was acceptable to haras and seek sexual relief fiom women as a result of stress than to declare such acts as violations of rights and hedoms of the victim.

Controversies arose in this triai as they did in the Nuremberg triais and involved legal grounds, namely that crimes against peace and humanity were expstfacto legislation on the

- "'Brachan 84. '98 Brackman 378. '99 C. Hosoya, N. Ando, Y. Onuma, and R Minear, eds., me Tokyo WmCrùnes Tikal: An Intemationul Synrpsium (New York: Kodansha Ltd., 1986) 9, 300 Bassiouni 34. 30' Hicks 273. part of the London Conference- AUegations were made that the Ameriams were usïng the trial

as revenge for the attack on Pearl Harbor or to alleviate American national guilt for thei.use of

atomic weapons in ~a~an."~Some point out that individuals should not have been held

responsible for acts of the State. They also claimed that "aggression" was not defhed in the

Tokyo Charter. Evidently, politics wholly played a substantial role during these trials. It was in

the name of diplomacy that human rights were ignored and dishonoured, And so, some military

men were not hdicted, and rape was not deternimed as a significant crime to proSecufeSecufeThe

victors were also never brought to triai, a strong indication of their influence and power.

The IMTFE failed to not oniy address crimes agaïnst women, but it failed to provide the

"civilian population" designation. The trials proved to be more of a negative precedent than

anything as they focused solely on rniliîary issues. In contrast, the Nuremberg trails were more

important for their focus on crimes against hurnanity. They set a positive precedent for

implementing new laws and for the fiture of international humanitarian law. Yet, both trials

were brought to an end for political reasons. The western governments believed that domestic

concems and the threat of the destabilization of the governments of the day were risk factors fat

too great to justify the continuation of the trials. This exemplifies how international processes

are vulnerable to political calculation.

-

'O2 Hicks 274. The YkgosI~~~kWar Cimes Tribunai

In 1992, a Commission of Experts was established by the Security Council to undertake

investigations and to gather evidence of the "grave breaches of the Geneva Conventions and

other violations of international humanitarian law.* The investigation of 35 field missions

included masgrave exhumations and the world's largest rape investigation.'os Bassiouni explains that the press reported on the systernatic rapes and ethnic cleansing, but those reports couid be ignored? However, it was the furttier substantiation of these aiiegatious by the

Commission that posed a real threat and made it politically necessary to terminate the work of the ~ommission.~~'

FoIIowing the investigations, the United Nations Security Council established the

International Criminal Tribunal for the Former Yugodavia (ICTFY) in Resolution 827 on May

25, 1993 to prosecute those responsible for serious violations of international humanitarian

~aw.~~~The Tribunal was created thugh the authority of Chapter W of the LIN Chorter. It was ad hoc in nature, established for a particuiar event. On February 13, 1995, the ICTFY charged 21 Serbs with war crimes and crimes against humanity?09 A major@ of these crimes took place at the Omarska concentration camp. A few months later, on November 13, the

Tribunal charged six leading Bosnian Croat officiah with war crimes and crimes against h~manit~.~'~They were responsible for the persecution of the Bosnian Muslim population of the

303 RoIing and Cassese 5. 'O4 Bassiouni 39. 'O5 Bassiouni 41. 'O6 Bassiouni 41. 'O7 Bassiouni 41. 308 Bassiouni 42. 'O9 Major War CrUnUMLs and Swpectk Online. Internet 0 1 August 1999. Available: http~/~.cco.caltech.edu/-bosnia/criminaVcnminalshtml ''O The names of these persans are as follows: Dario Kordic, Tihomir Blaskic, Mario Cerkez, Ivan Santic, Pm Skopljak, and Zlatko Aleksovski- For Merinformation, see Mqbr Wm CrUninnLs and Suspects. OnIine- internet. 0 1 August 1999. Available: Lasva Valley area between May 1992 and May 19933" By September 15,19% seventy-five

persons had been indicted, one prosecuted, one pleaded guilty, and seven who were at the time in

c~stod~?~A notable item, the Tnbrma7sjuridiction allowed it to b~gal1 parties who had

breached international humanitaian law to answer for their cri~nes."~

The need to establish the Tribunal derived fkom ensuring that humanitarian law was

respected and obeyed by al1 parties during the war, and to punish those that cornrnitted or

ordered the commission of ~iolatiom?~Another important factor was that there were

international humanitanan concems and the media brought to tight many of the tdleatroçities

that had occurred?'* Still, such tn%unals are also established to avert public attention nom

dreadful atrocities that give rise to negative attention. Yet, they serve to be more of an illusion

to portray that the UN is seriously concernai about grave violations of human rights, even

though the process or the outcome may not be effacious. Tribunals also serve to deter fùture perpetrators according to some and promote national reconciliation?

The establishment of the ICTFY has also corne nom the astonishing brutalities

cornrnitted by the Serbs and unlike its predecessors, the Tribunal was not victors' justice. Those were world wars, whereas this was an interethnic conflict within a state, and the intervention of the UN into the civil conflict was controversial. At those times as well, there did not exist an international body that could mediate resolutions between parties. Thus, when the allied powers did take the lead in bringing indictments and forming charters, many were quick to fnticïze them

http~/~.cco.caltech.edd-bosata/criminaVcriminals.html 3'1 Major War CrùnùtaIs md Suspects. Online-. Intemet,. O1 August 1999. Available: http~/~.cco,caltech.edu/-bosnia/criminal/mhtml 312 Bassiouni 45. 3'3 Bassiouni 43. "'Akhavan 237. 315 Bassiouni 40. Akhavan 245. for punishing the vanquished and for not condedg their own soldiers and prosecuthg them.

A significant distinction is that among those persons who were brought ta trial in Nuremberg and

Tokyo were leaders, but the ICTFY may not be as successfid in its prosecutions. It has initiated the process of indicting soldieis, and may never have the opportunity to apprehend and prosecute

leaders. Another difference is that the establishment of the ICTFY has led to suspicions that a permanent ICC will be created. More importandy, especiaily for the purposes of this thesis, the

ICTFY is seriously considering the allegations of rape and violence against women providuig these crimes with much needed international recognition. It is the first time that rape has been charged as a specific and indictable war crime."'

The fht verdict handed dom by the XCTFY was on May 7,1999 a year ahthe trial commenced making it the first international war crimes trial since World War II?18 Dusko

Tadic, a Bosnian Serb café owner, karate instructor and part-tirne trafic cop stood trial on

'diirty-one counts of grave breaches of the Geneva Conventions, violations of the laws and customs of war, and crimes against humanity related to the torture and murder of Muslims" at various Serb controlled camps during the summer of 19923'~He was convicted on eleven counts and acquitted on twenty counts? This judgment will prove to be innuential in view of the fact that it documents the existence of Serb policy and ethnic cleansing."' It states that

Tadic did kill Muslim policeman and committed other crimes. As well, the trial chamber agreed that the alleged atrocities indeed occurr~d?~

-

317 Blakesley 247. 3'8 Bernard H. Oxrnan, ed., "International Decisions," American Jounial oflnternatioml Law, 9 1.4 (October 1997) :718 - 721. 3'9 Oman 7 18. 3'0 Oxman 718. 32' han719. 3" Oxman 719. Another war criminal to face the Tniunal was Anto Furundzija, whose trial began on

June 8, 1998 and ended on Novernber 12,1998." He was found guilty of Count 13 - vioiating Law and Customs of War (torture) and of Count 14 - violating the same for outrages on personal

dignity including F~unickijawas sentenced to ten years on the first count and eight on

the second, but was ordered to serve them con~mtl~?~~He was also ailowed to deduct time

served. in the case of Zejnil Delalic, who was prosecuted with Zdravko Mucic, Hazim Delic,

and Esad Landzo, the Tribunal found Delalic not guilty of violating the laws and customs of war

or violating the 1949 Geneva Delalic was released irnmediately, and the other

three were found guilty and ordered to serve their time- The lack of space does not pennit the

explanation of al1 the ICTFY trials, but only a couple more trials have taken place and not many

other persons have been prosecuted327For the crimes that these persans have been alleged to

commit, the prison sentences do not exact retribution. One contentious issue is that the UN does

not support the position of imposing a maximum penalty of death.

The ICTFY can be applauded for its quick indictments but certainly not for the slow Pace

of the prosecutions or sentences. A major difficulty confionting the ICTFY is that although it

has indicted many criminals, including the well-known ones, it does not have the jurisdiction to

apprehend and prosecute them. The difnculty is also that whereas the Tribunal has issued many

indictments, convictions and detentions are low compared to the number of people suspected to have committed violations of international humanitarian law. A controversial decision has ken to limit the penalty to imprisonmeat only as is the case with the Rwanda Tribunal which will be discussed in the next se~tion."~Many have also been critical of UN officials and other member

States who in their objective of achieving peace in the Balkans have tumed a bhdeye to war criminals and their successfûi prosecution? The major leaders have been indicted such as former Bosnian Serb leader Radovan Karadzic and General Raîko Mladic. However, there is little Iikelihood that these two men and other leaders will be apprehended and prosecuted as the

Tribunal lacks effective access to these pemns. A Merimpairment dong with this is that the

Tribunal cannot IegalIy carry out triais in absentia Hence the question, will justice be serveci if those that encouraged violations of human rights and did little to prevent the carnage are not brought to trial? Thombemy believes that the Court's credibility will be gravely affécted ifboth subordinate and leader are not brought to trial,"' and that it can leave a legacy of hop if it does so effectively. Bassiouni çriticizes the Security Council for not applying its powers to enforce orders given by the Tribunal or to take action against authonties of the former ~u~oslavia?~'

Nor, he writes, "&er the Dayton Accords of 1995, will NATO forces, EOR, apprehend indicted war criminals. Once again the pursuit of a political settlement prevails over justice. ,a32

Although, the process will be somewhat successfùl for the human rights movement, a point of gratitude for the victims and for the people of the former ~u~oslavia?~~

A serious difficultyfor the Tribunal is hadequate fimdiag. The Security Council does not fund it, although it established the Tn'bunal. Rather, it has requested that the General

Assembly provide funding. Bassiouni writes that this was an odd and unnecessary choice that

327 For the mon upto-datc Uifodon and the TniUjudgments, please visit the ICTi website at: http~/~.un.org/iciy~mdexhtmltml '" HazeI Fox, "An Inteniationai Tniunal for War Crimes: WÜI the UN Succeeâ Wbm Nuremberg Failed?" The World Tod'(October 1993) 1%- 329 For Merreading, please see Helsinki Watch, Wm Crimes in Bosnia-H~egovha(Volume Ki, United States of Arnerica: Human Rights Watch, 1993). ''O Thornberry 83. 331 Bassiouni 46. has Unpeded the work of the Tnbuual considering that the Tnimal is required to go through

various stages of the General Assembly's budget proced-?34 In addition, the Tniunal has

thus been undeminded since the GendAssembly's budget has been reduced. Such

bureaucratie measures and decisiow only hamper, delay, and -te the work of the

~ribunal.~~~In addition, the fact that the Serb govemment and other leaders fiom the former

Yugoslavia refuse to recognize the work of the Triiunal or cooperate with it has hampered its

attempts to prosecute war ~rimia*?~~Administrative problems of staffhg personne1 has

delayed the work of the Tribunal as well.

Many international obsecvers question the legitimacy and efficacy of the Hague Court-

Cedric Thomberry writes that the Court is facing consttaints that will make it difficult for it to dispense equal justice, and that the Court may just leave a poisoned 1egacy."' He argues that solutions need to be found otherwise the Court's legitimacy will be undermined haing the

Nuremberg and Tohotrials, critics were arguing that the laws under which the war aiminals were punished, did not exist. However, some fie yean later, we have established customary and international laws that exist and uiat have been practiced At the time as well, many asserted that the Nuremberg trials were "show trials" in which the accused did not have protections that would nonnally be accorded to them."' The ICTFY trials are not "show triais" and are for the most part fair and unbiased. These trials are also not victors' justice to the extent that they were at that time. Today, more people have been uidicted through a much faim process, but as with

Nuremberg and the IMTFE, it seems as though only a few will be prosecuted.

33' Bassiouni Akhavan. 333 Helsinki Watch 14. 334 Bassiouni 44. 335 Bassiouni 44. 336 Bassiouni 45. 337 Thornberry 72. The Ikfern&'onal Ctimhai Tfibunaîfor Rwarlir

The phrase "never again" was symbolic of Nuremberg, but why did it happen again, even if it was not to the sarne extent? It has been estimated that at least one million Tutsi or moderate

men and women out of a population of seven to eight million were victirns of a massive genocide that was reminiscent of the Hoiocaust. Another two million fled as cefiigees to safe havens? It was between April and June 1994 that this massacre took place, although the atrocities had begun long before that People of alI ages were invoived in this bloodshed.

Husbands and wives killed each other, they kilied their children, and children were forced to kill other children by higher political and military authorities. In addition, judges, politicians, police

O fficers, joumalists, businessmen, peasants, staff members of international organizations and

NGOs were not only victirns but participants, in part due to their own will and in other instances, by force or threats."' Rape was also widespread during the crisis. The extent and nature of the violence was such as to justi& the use of the tenn "genocide" to describe it.

The cost to human life was immense and followùig the war, a counbry was left to restructure itself. Soon after, in Jdy 1994 the Securïty Comcil enacted Resolulion 935 to establish a Commission of Experts to investigate the atrocities committed in ~wanda."~The

Commission concluded that Hutu elements had in a concerted, planned, and systematic way committed genocide against the Tutsi ethnic group.M3 However, the decision of the Security

-- - 338 Thornbeny 73. 339 Moderate Hutus were killed because they were known to be or thought to be political opponents of right wing Hutus. Madeline H. Morris, 'The Trials of Concurrent Iiirisdiction: The Case of Rwanda," Duke Jodof Cornpurative & Intemarionalhw 72(Spring 1997) :352. Online. intemet. 10 April 1999. Available: http~hivww.Iaw.dukeeeddshelVcite.pl?7+~J~Komp.+&+h~l+L.+349. Van Lierop 892. U' Steven R Ratner and Jason S. Abrarns, AccountrrbiI~fotHumon Rights Airmiries ut International Law. Beyond the Nuremberg Legacy (Unites States of Amerïca: Mord University Press, 1997) 174. 343 Ramer and Abrams 174. Council to Limit the time of these investigations of the acts of genocide was heavily ~riticized,~~~

The time limit prevented the Commission hmcarrying out its mandate to fiill extent or to

investigate any specific allegation. In recognizing the threat to peace and security?the Security

Council adopted Resolution 955 establishing the International Tniunal for the Prosecution of

Persons Responsible for Genocide and Other Serious Violations of International Humanitarian

Law Cornmitted in the Territory of Rwanda, between January 1,1994 and December 3 1,1994

(Rwanda Tnial/IcTR)? At this point, it is important to distinguish that thae are two

separate trial processes underway in Rwanda. One is the establishment of the Tn'bunal by the

UN which will primarily prosecute ring leaders. The other is Rwanda's owa judicial system

which is punishing others such as senior members of govemment. As the following discussion

will highlight, there are few but controversial differences between the two.

The establishment of the ICTR was encouraged by the Rwandese Govemment. Factors

that were relevant for its support include 1) it believed the crimes committed in Rwanda

constituted crimes against humankind and therefore, the international community had a role in

suppressing them; 2) an international tribunal would illustrate faimess and impartiaiity instead of a speedy and vengea justice or "victors' justice;" 3) the Tribunal could help with national reconciliation through punishment of those responsib~e.~The Government expected that the

Tribunal would bring about social justice and respect for the hdamental rights of each person; and hally, 4) it was their opinion that the Tn'bunal wouid be able to apprehend those criminals responsible who had fled to foreign countnes?'

3ec Bassiouni 46. 345 Akhavan, TheInternational Criminal Tniunal for Rwanda: The Politics and Pragmatics of Rmishment" 502. 3ats Akhavan, "The Internationai Crimiuai Tn'bunai for Rwanda: The Potitics and Pragmatics of hmishment" 504 - 505. Akhavan, "The International Criminal Tniunai for Rwanda: The Poiitics and Pragmatics of Punishment" 504 - 505. Despite its support for the Tribunal, the Rwandese Govenimeent also exhibited some

reservations and voted agakit the establishment of the ICTR~First, the Govemment preferred

that the trial include cases that dated back to 1990, when initial massacres began in Bigogwe and

~u~esera?~The argument put forward was t&at genocide nodlyincludes planning, and the

masterminding of this extermination began in 1990 for which the result was the massacre in

1994. Second, the Government was disappointed with the limitation on punishment for those

convicted to Iife in imprisonment and not the deah penalty? The former UN Ambassador

Madeleine Albright amibuted the lack of support for the death penalty to a concern that the

Council would not support it3" However, the fact that most everyone but the senior members of

govemment will face the death penalty in Rwanda. courts bas angered many as justice has ken

seen to have two faces, one for the senior members of govemment and another for their middle-

level genocidaires?52 Such precedents are dso dangerou for the prevention of fùture war

crimes. Nor will it briag a closure to the vifams or theu families who will then question the

credibility of the process.

Third, due to concurrent jurisdiction between the ICTR and the Rwanda judicial system,

the Govemment was worried that the ICTR could ovemile Rwandan judicial decisions?"

Fourth, it was not pleased with the composition and structure of the Tnial, and it requested an

increase of the number of judges and trial chambm.'" The Govemment was concemed that the

Tribunal was short of financial and human tesources and would spend needless tirne on crimes

x8 Goldstone 5. 'J9 Dotinda Lea Peacock, "'it Happeneci and It Can Happcn Again': The Inteniationai Respame to Gen0c1OC1dein RwanW North CaroIina JmmaI of Intermational Law & CommercÜiI RegirIarion 22 (Summer 1997) :928. 350 btner and Abrams 174. "' Peacock 929. 352 Anthony Dworkin, The World in Judgmnt Do Iat«aational War Crimes Tniunals Help or Hïnder National Reconciliation," Inder on Cemorshi# 25 (September/October 1996) : 141. 353 Peacock 928. that came under the juridiction of the intemal eibunais. and would relegate to a secondary level

the genocide. Fifth, a concem included the appointment of judges by countries which the

Government alleged actively participated in the civil war? niey did not want those prosecuted

to be imprisoned outside of Rwanda for they distnisted the countries to imprison them. Finally,

the Government prefened that the seat of the Tribunal be established in Rwanda to teach the

Rwandese people a lesson and to promote national re~onciliation.'~~The seat was established in

Arusha, Tanzania, in a neutral ad5' Despite al1 these concerns, the Rwandese Governent

eventually cooperated and the Tribunal was established.

At the time of writhg. only a handfid of criminals have been convicted. The fht-ever

judgrnent by an international court for the crime of genocide was rendered by the ICTR when it

in its first case found Jean-Paul Akayesu guilty of genocide and crimes against humanity on

September 2, 1998."~Jean Kambanda, former Rime Minister of Rwanda, was also sentenced to

life imprisonment for six counts of gemcide and crimes against h~manity?~On May 1. 1998,

Mr. Kambanda pleaded guilty to al1 six charges.îm Regarding the determination of sentences,

the Chamber stated that the purpose was two-fold, one to ensure that the penalties provided

3Sj Pni1Z 579. 355 Akhavan 507. jS6Dworkin 14 1. 357 Ratner and Abrams 174. 358 United Nations, "Rwanda International Cnminal Tnidîrono~ces GuiIty Verdict in Histonc Genocide Trial," Press ReZease AFR/94 U2895 (02 September 1998) : 1. Onüne. Intemet. 10 Apd 1999. Available: http ~/www.un.org/News/Press/dOCS/1998/1!W8OWî.afi94.hd 359 United Nations, "Rwanda Tniunal Hands Down Life Sentence for Crimes of Genocide Committed by Former Rwandan Prime Minister," Press ReIeuse AFR/95 U2898 (September 1998) : 1. Mine. Inmet. 10 April 1999. Available: httpY/~.un.o~ews/Press/dOCS/1998/1998~.12898htmi United Nations, "Rwanda Tniunal Han& Down Life Sentence for Crimes of Genoci& Committed by Former Rwandan Prime Minister," Press Releuse AFRM U2898 (September 1998) : 1. Onlie. Intemet, 10 April 1999. Available: http~/~~~.un.org/News/Press/docsII998/1!?98O9OU2898.html retribution for the crimes ~ommitted.~'The second was detenence, to ensure that in the tùaire

people are dissuaded fiom corrrrmitiing such atrocities by illustrating that the international

cornmunity would not permit serious violations of international humanitarian faw and human

rights?* Sentenced so fa has also ken former Rwandan militia leader of the extremist group

Interahamwe, Omar Serushago, to fifieen years in prison after pleading guilty to genocide.'63 He

was the first person to receive a sentence of less than life in prison.

lu order for justice to be accomplished in Rwanda, ht, the Tribunal needs to ensure that

the population which is impoverished, largely rural and illiterste, is infonned about the trials

othenvise, according to Akhavan there will be no 66appreciableeffd' of the trials?" In order

for this to be achieved, the most accessible language, Kinyarwanda, and the most accessible

medium, the radio, should be used. Second, Akhavan writes that a balance must be met between

the integrity of the judicial process and the victims' grievances?6s Such a statement calls for a

fair and impartial trial while at the same time ensuring that the punishment "fit the crime."

Logistical problems have also become inherent in Rwanda. Prison conditions in Rwanda have deteriorated and the Rwandan judicial system has becorne questionable. These concerns prompted the President of the UN Security Council, Park Soo Gil, to issue a statement in 1997

'" United Nations, "Rwanda Tniunal Hands Down Life Sentence for Crimes of Genocide Commitfed by Former Rwandan Prime Minister" 2 - 3. "'United Nations, "Rwanda Tn'bunai Hands Down Life Sentence for Crimes of Genocide Codtted by Former Rwandan Prime Minister" 2 - 3. 363 Afnca News Online, "Militia Leader Who ConfiTo Genocide Gets Fifteen Years In Prisonn (February 5, 1999). Mine. Intemet. 10 Aprü 1999. Available: http~/~.afncane~~.org/eaStj~~mda~stol9990205-feat1.htmi 3bS Akhavan, "Justice and Refonciliation in the Grau LaLes Region of Mca: The Conmhtion of the International Criminal Tribunal for Rwauda" 342. 365 Akhavan, "Justice and Reconciliaiion m the Great Lakes Region of Afiica- The Contniution of the Inteniaiionai Criminal Tribunal for Rwandan 342. requestuig the Rwmdan Government to solve the problems and to coopte with the Km3*

The statement was given following a report submitted by the UN Centre for Human Rights in

Geneva. The report crïticized the progress of the genocide trials. Explicitly, it stated that there

were security concems for lawyers, prosenitors, judges and witnesses in the trials?' Not only

has there been a slow progression of trials by the Rwandese judicial system but also by the

ICTR. The trial of Jean-Paul Akayesu which commenced on January 9, 1997 was not completed

until March 1998? With only three -le convicted thus far, it is questionable how many

people will be prosecuted.

Concerns have also been raised regarding the quality of the staff that is working for the

Tribunal in its isolated condition, and also the dïfiïculty of obtaining quick decisions by the UN

on stafig and policy issues.'69 The Tnialessentially has bad a rocky start with bureaumatic

delays, financial problems, serious mismanagement, and a lack of a qualified staff?'' In

addition, the first judges were not elected until May 1995 and the Tribunal was not fully staffed until the fdl of 1996.''' Not only that, but we have to study the deterrent effect of such a

Tribunal. Dorinda Lea Peacock argues that the 'îailwe to exact retrïbution will fiirther impair the goal of deterren~e.'~~~Jacques Amalric believes that the trials under way are a mockery of justice because those that are the tme killers have lefi Rwanda and are living in refùgee camps in

366 International Centre for Human Rights and Democratic Development, "Rwandan Domestic Prosecutions Continue, Despite Criticisms," Impnity-I@io 2-1 (JuIy 1997). Online. Internet. IO April 1999. Available: http~l~~~.ichrddcalPubIicati011~E/Imprmity/NewsO797h~ 367 International Cenîre for Human Rights and Democraîic Development, Online. Intemet, 10 April 1999. Available: http~l~~~~ichrdd.ca/PubticationsE/Impunity/NewsO797.htmWTITLE8 368 Afnca News Online, "International Cnmiaal Tn'bunal for Rwanda," ICTR Fact Sheet (May 19, 1998). Online. Internet. 10 April 1999. Available: http~/~~~.&~8tlews.org/specials/~akes/stories/l9980519-fat3 html 369 Amnesty Lutemational, "International Criminai TnIbunal for Rwanda: Triais and Tri'bulabous," Amnesty Internariona1 Report - IOR 40/03/98(A@ 1998) Online. Internet. 10 April 1999. Available: http~/w~.amnesty.it/aiiiWaipub/1998/IOWI~398htm 370 Ratner and Abrams 176. 371 Ratner and Abrams 176. 3" Peacock 929. Zaire and ~anzania~~The mockery of justice is in the matter of revenge and deterrence. As he

explains, "the revenge is seen only as collective, and the deterrence aims, above aii, at

persuading the Hutu refhgees not to corne back across the border."" The Tniunal may

overcome these complications and its success may be inhenmt in its advancement of

international humanitarian law. At least, a tribunal has been established in which case if it was

not, many of us would be outraged.

A solution?

One of the primary differences between Nuremberg/Tokyo and the ICTFY/ICTR is that

the previous were undertaken by the victonous allies of the war, while in the latter instances,

there has been no global war, only interna1 strife. Another ciiffance is that the Holocaust

occurred without the existence of many of the conventions whereas the more recent codicts

have occurred under their auspices. This says very little for the enforcement of international

conventions or the cornmitment by the international community to prevent atrocities fiom taking

place. For example, "between 19 19 and 1994, there were five ad hoc international investigation

commissions, four ad hoc international criminal triiunals, and three intemationally mandated or

authorized national prosecutions arising out of World War 1 and World War II. rd75

It is the position of this paper that for any Tribunal to be successfùl, it must have

sufficient resources, a well established and structured building to operate fiom, and a healthy

budget. In this regard, the ICTFY and ICTR have encountered numerou problems. In

attempting to serve justice swiftly, the challenge of the ICTR is to deliver fair trials to

Jacques Amalnc, "Mockery of Justice?" WorId Press Review 43 (June 1996) :8. 374 Amalric 8. 37s Bassiouni 1 1. approximately 85,000 pmons presently that have been detaine~l.~~~Of course, there are many

others who took part in the mas kiliïngs but fled Rwanda The truth of the matter is that it will

be next to impossible to prosecute such a high number of people and to capture those have fled.

Anthony Dworkin suggests that perhaps it would be ùest to do is to go after the ringleaders,

those who organized and promoted "systematic violations of human rights.'"57 As stated earlier,

Akhavan also has suggested that the symbolic effeçt of prosecuting even a limited number of

such leaders will have a considerable impact on national re~onciliation?'~Although this is tniet

there is little justification for not punishing aii those involved in order to send a clear message that it is a crime to violate a person's human rights. To deal with just a few, even if they are the organizers of the crimes or senior personnel, will likely make it more difficult to focus on the personaVpolitica1 dimensions of the rapes camed out, on the ground, by ordinary soldien or citizens.

From the perspective of women, the tribunals have been active in pursuing individuals who have committed traditional violations such as war crimes, genocide, torture or murder.

However, rape is not recognized as a war crime by reason of its personal character. For most people, if a tribunal has been unable to capture the leaders, it has failed in its mandate. One of the problems with ad hoc tribunds is that they have ken brought into king by an international cornmunit-so that it can hear evidence of gros violations of huma.rights, and focus on the need to do something constructive to bring a hait to them. One component of this is punishment.

Nevertheless, some people make a connection between leadership and punishrnent. To the

376 Akhavan, "Iustice and Reconciliation in îhe Great Lakes Region of fica: The Contribution of the International Criminal Tnïunal for Rwandan 339. 377 Dworkin 140. 378 Dworkin 140. extent that the ICTFY will focus on the people at the top and not the rapists themselves, it will

leave the victims without justice.

The victims do not care if the rapes were part of a policy; hmtheir perspective, they

were raped. They are indifferent if the ring leaders or cornmandm are captured and punished,

fiom their perspective, they were raped by a person, not the order or the permission fiom the

leader. Victims are violated by people not orders. As the international community, we attempt

to locate and capture the leaders, tbose tesponsible, yet this is one element that the victims do not

see as necessarily primary. According to the victims, it is not dlicient to exclusively pursue the

leaders. They would like to see the rapist, ordinary people, captured and punished in a way that

would render justice to the victims. Some people only perceive the leaders as the players. To be

able to capture the leaders will not make a permanent Court a success. Such a Court might be

more of a citizen's court and less a "big boy's" court. The Ram Plan was characteristic of to what extent a policy can exist for the commission of rapes. However, prosecution should take place even if there is no policy in existence. A permanent Court will prosecute because people were raped, communities destroyed, and officials in authority allowed this to happen-

The victim perspective demands that the international community deal with whoever is responsible for the commission of the rape. In the same manner, victims of peacetime rape are only concemed that the police apprehend the rapist The victims' sou1 cannot rest with leaders punished, but not their rapist punished. Thus, the advantage of a permanent ICC will be that it will not be driven by particular events. Such an institution will likely make it more possible to adjudicate matters of semai violence. It will be a continuous pmcess, hence, to the extent that a victim in a war could go to the Court and lay a charge. A permanent Court will not require that only leaders of the militia be captured. Technically, with such a Court, it should be easier to deal with more conventional, everyday things. For example, even a victim of a peacetime rape may

be able to lay a charge with the Court if his or her government refises to act and lay charges.

This is very conceivable shce any permanent institution tends to grow and deal with

increasingly different items. It is more difficult with an ad hoc triiunal for it is characterized by

high politics and a Iimited mandate in time. Thus, the ICC will resolve some of the problems

that have ken highiighted throughout this thesis. For example, it will briag the petsonal to the

political in its recognition of dvioIencece Most hpotantltly, it will lead to the identification

of issues conceming sexual violence in wartime within the international relations field.

One of the advantages of an international tribunal is that it does not have the remedy of

amnesty. Amnesty is a relatively common feature of domestic processes as for example, in Chile

and South fica. It is a problematic response to war crimes. It means to forget. Specifically, it

is referred to as "legal forgening'which means that the penalty is waived.'" To forget what?

The crimes? The perpetrators? What about the victims and their families, do we forget them

also? WiII they ever forget? What about their feelings? They will never forget the crimes.

Granting amnesty seems to suggest that there are reasons for state actors to intlict pain on others,

to vioIate their human ri*. So we forgive them? Goldman argues that the amnesty process

offers political justifications for inflicting pain and death? So while themay be domestic

political reasons for amnesty, deterrence can hardly be said to be advanced. Akhavan applauds

the creation of ad hoc triibunals though he believes that they are ineffective in preventing and

punishing genocidal acd8'

It is their ad hoc character that is problematic; hence a permanent ICC can only make it

easier for the international cornmunity to prosecute war criminals. However, a permanent Court

379 Goldman 9. can effectively prosecute rape as a war crime ifonly it is fht recognized as such by the UN in an

international convention. It cm also minimue the extent to which rape occurs in war and de-

legitimize it through punishment. The symbolic feature of a permanent Court to act in this area

can have substantial effects in excludhg the argument that rape is normal and exemplify the

power it can ex- So far, there has been some significant progress on the establishment of such

an institution. The United Nations Diplomatic Conference of Plenipotentiaries on the

Establishment of an ICC was held in Rome nom June 15 - July 17,1998?82 At the conclusion of these deliberations, state members adopted by a vote of 120 to 7,2 1 abstentions, the Statute for the The US however, requested a non-recorded vote. in total, 67 corntries signed the treaty.

It was determined at the Conference that the Court will exercise power of jurisdiction over the most serious crimes of international humanitarian law including genocide, crimes against humanity, war crimes, and crimes of aggression just as the ad hoc tribunals for the former Yugoslavia and Rwanda do?" The definition and jurisdictional amibutes for the crime of aggression has been left to a later date, and it has been speculated that perhaps it will not be part of the ICC Statue. The Court will have automatic jwisdiction over genocide and crimes against humanity for States who have ratified the ICC.

At the Conference, debate surrounded around particuiar issues such as why nuclear weapons were excluded fiom the Statute as a serious violation of laws and customs of

380 Goldman 2 1. 381 Akhzvan 242. 3s2 "Permanent Intematioaal Criminal Court Established," UV Chonide 353 (1998) : 10. For the f.1text of the Resolution to establish the ICC please see, "United Nations: GendAsscmbly Resolution 5 1/207 on the Establishment of an international Crimmal Couxt [DeCernber 17, lm,"Intematio~i Legal Materials 36 (March 1997) : 5 10 - 5 13; and for the fidi text of the Statute of the ICC, please set, "Rome Staîuîe of the ïntcniational Crimimi Court, Adopted July 17,1998," Inlef~nOmILegai MaterCaLs 37 (Septembcr 19%) : 1002 - 69. 383 UN Chronicte 10. international conflia On the contrary, some countries put fordthe position that the Statute

is overly explicit and should have excluded certain articles.

The most notable critic has the ken the US which untii the time of the Conference was a

stmng advocate for the Court. Tbe point of objections for the US include the general jurisdiction

of the Court, and its applicability over non-State parties, which it feels is ~nacce~table.'~~

During the proceedings, the US exhibiteci strong opposition to a Court which did not require

state consent and Security Council ratification ofindictments, It urged delegates to consider its

position. The US questioned the intemal armed codict crimes. In addition, it was womed about the "trigger mechanism" by which investigations and indictments would be initiated? In regards to these investigations it was concerned about the powen of the Court, roles of the

Prosecutor, United Nations Security Council, and the consent of the tat te?" The consensus over possible codification of new definition of international crimes (rape, murder, etc.) was-also another point of contention for the US?* Finally, the concept of "complementarity", meaning that the Court should respect domestic efforts to prosecute individuals charged with international crimes was an important point of discussion for the US?" The US essentially fears the impartiality of the Court and frivolous claims that may be initiated against it. And this, is by no means the exhaustive list of areas of concern for the US.

Such interference by the US only exemplifieci the role of politics in the establishment ofa permanent Court which will provide for individual accountability and for any source to provide

------384 Jelena Pejic, "What is an Intemational Crirnid Court? As Negotiations on the Estabfishment of an ICC Stark the Debate Heats Up," Human Rights 23 (Faîi 1996) :17. 385 Henry T. King and Theadore C Thco!hstous, Tmrn Nuremberg to Rome: A Step Backward for U.S. Foreign Policy," Case Western Resme Journal of Internatzo~lLuw 3 lwnter 1999) :78. 3%6King and Theofhstous 78. 3%7 King and Theohtous 78. 388 King and Theofrastous 78-79. 389 King and Theofiastous 79. information on a crime to initiate an investigation? It is rather seifïsh of the US to request or

demand that h position be accepted or it will not ratify the treaty. The creation of a permanent

Court is long overdue as is, and it was the hope of those who played influentid des in the

proceedings of Nuremberg that such an institution be established. For the US, as a prominent

and powerful nation, to now object to the creation of an ICC is not only dis-honourable but

selfish,

Despite the criticisms, the ICC is king welcomed by many who have waited more than

fifty years for its establishment. The argument in this chapter is that the newly fonned ICC

should be robust, ambitious, and more expansive than the ad hoc tribmals of the past and

present A few points, ht,since the Court will be permanent, there will be no need to create an

ad hoc tribunal every theviolations of human rights occur for it will take time and resources

especially with the extensive UN procedures. With a permanent Court, the judges will have been appointed,391the resources including £inancial and stafhg needs will already be established and change fiom time to time depending on the work load of the Court. Countries which are party to the Staîute of the Court will have to provide for a consensus to establish how they will allocate bdstowards the Court, and ensure that efficient and effective resources are consistently at the disposal of the Court. Second, the Court will serve as an effective deterrent provided that its needs are met and it is given broad jurisdiction. Although, it cannot completely eliminate the possibility of genocide. Future war criminals will be cognizant of the reality that they can be brought to prosecution sooner in which case they will think twice before initiating strategies of genocide or torture. In this regard, Thomberry notes that an ICC would provide a

390 Louise hur,"Despite Shortcomings, a Court Deserves Support," UN Chronde 353 (1998) :12. 391 It is my hope that women will also be included as prominent members of the Court whose lmowledge and expertise in the various aspects of sexual violence in war will be utilized to a fidl extent and inform the decision making processes of the Co- high probability of judicial punislunent for those who commit crimes against humanity, which

would decreese barbarism." Third, an ICC will not be limited ïu tirne and space as ad hoc

tribunals are.)93 For example, the Rwandan Triiis not studying any violations of human

rights before January 1994 as the Rwandan Government preferred. Fourth, since the Court will

be permanent, it should be able to pmsecute almost al1 those persans cap- This would

require an agreement between states to return those who have fled. By prosecuthg a greater

number of war CriminaIs, the Court will exempli@ tu the international community, the victims

and their f-ilie~, that those responsible will not go unpunished The combination of these

factors will lead to a successful international Court, but if they are not met, it can aiso result in

failure. A Yugoslav People's Amy Colonel once said, "somehow, we have to be rescued.

Without p~cipleswe shalt keep going down and down into hell.7J94 This admission of guilt and cal1 for effective action by a guilty party illustrate the desperate situation of civil codicts.

Finally, Goldstone argues that an ICC would ensure the enforcement of international

humanitarian law in every country in the world where it is violatedo In this regard, Moms

'Tt is clear that the best form of justice that the ICTR or the national courts will be able to render will be justice delayed The slow progress of justice in Rwanda points to needs for protocols for prompt international assistance to national justice systems; for permanent bodies, such as an International Criminal Court, that can be put readily into service when warrantai; and for clear articulation of the purposes of each international tribunal in order to maximize the effectiveness of both national and international juridictions in responding to crimes of mass violence. 793%

392 in this context, Thornberry is refhgto îhe 1990 civil war that enipted in the former Yugosiavia. See Thornbeny 8 1. 393 Christopher L. Blakesley, "Jurisdiction, Denniaon of Crimes, and Triggering Mechani'ims," Denver JouwI~f International Luw and Pole 25:2 (1997) :241- 3PJ Thornbeny 82. 395 Goldstone 10. Conclusion

The discussion has highlighted the importance of establishing tribunals when violations

of human rights occur. However, it has dso emphasited the need for effective and influential

tribunals to serve justice swiftly and to deter others fÏom committing potential crimes in the

future. In this regard, 1have supported the option of an ICC as discussed at the Rome

Conference. There are many benefits that will derive fiom a permanent institution. The most

important being that all atrocities will be hence answered for by way of prosecution, not ody

those that have ken chosen by the LJN to prosecute. It wodd also potentiaily have the ability to prosecute wartime rape as a war crime and even, punish those for committing peacetime rape, if the Court would so allow.

Unquestionably, an ICC would experience predicaments especially in ternis of jurisdiction and state sovereignty. Christopha Blakesley highlights the importance of possible failures by stating that 1) the Court "could merely be a conduit for retribution &er a pro-forma kangaroo court," or 2) it will not have the funding or expertise to carry out a faV, just, and efficient process in which case the perpetrators could escapejustice?g7 1 also do recognize the fact that a permanent Court could potentially encounter funding difficulties. It will have ongoing proceedings or cases and hding will have to be ailocated accordingly fkom time to tirne.

Therefore, it is crucial that the process of creating this new institution be carefully constructed to prevent such problems. The cooperation of many countries is necessary and so is the willingness to provide hancial resources to the Court when required, Without such obligations by the internationally community, an ICC would also fail in achieving its objectives. Chapter M

Conclusion: Mistakes of the Pwt and a Hope for the Future

Throughout this thesis 1 have concentrated on arguing that undoubtedly, there exists a

strong afiity between rape and war. To demonstrate this argument, 1 undertook an analysis of the bloody civil war in the former Yugoslavia where the abhorrent practice of rape by the Serb nationalists was wielded as a weapon of war. This was no ordinary war, it was a war against women. No one can deny this imth. It was a war to use women to create a Serbian state and to expel nonaerbs. It was a war in which the international community including the UN failed to recognize the violations against women's fundamental human rights. These were not random procedures of violence. A policy to rape was strategized, although there may not be sufficient evidence to confïrm this assertion. Still, indications are that high Ievel officials in the Serb governrnent were very well aware of the systematic rapes, but chose to do little to halt them. tnstead, they too opted to participate in the attacks. The former Yugoslavia is the most prominent example of genocidal rape during wartime in since World War II. However, as we have discovered, the commission of rape has been ignored as one of the most violating and atrocious acts against women that demeans their dignity and self worth.

Rape as a violent act goes beyond the sexual aspect to a mental suffering, torture, and loss of power and control. For too long, women have been raped by men from al1 cultures. It is not an act that is exclusive to one group of people. Rape has existed for centuries. Tribal groups and Greek Gocis were also known to rape. Rape has occurred without cornplaints from victims for speaking out brings shame to the fhlyand degrades one's sexual honour. Every pmon

who is a victh of war has a story to tell. Each of these stories is painful as the next None more

important than the other. To write about such atrocities causes one to question if it really

happened. How could sorneone torture another in a brutai and sadistic manner? These crimes

are unimaginable yet they are the imagination that has become reality and is played out for

entertainment for those inflicting torture. Not every person in the war was as cruel as we al1 may

believe. There are stories of decency, and these are the ones that we do not hear about, Mer ail,

they are the exception. Although, the shock for most victims was that ostensibly good decent

people were committing evil.

The events of the former Yugoslavia are notable for many reasons. One in panicular is

the delineation of rape as one of the definhg characteristics of war. There are few reasons for

the increased awareness of rape in wartime. For one, the women's movement has becorne

broadly based. The early stages of the women's movement focused more narrowly, but has now

widened its interests and concerns to the international arena. The increase of ferninist

scholarship in the subject of rape in war has prepared feminists to more effectively deal with the

act when it is carried out in wartime. Feminists have confionted various issues through theu

voices and demands for recognition- This has consequenly led to the growth of media

awareness of sexual violence in war. With women's groups informing the media, the media has

reported on the subject-matter seriously and to a greater depth than it ever has. Dunng the war,

we observed as joumalists headed to the territory to interview rape victims, to report their

stones, and to educate the world cornmunity. This was never an established practice before when the focus on war victims had always been more exclusively on males as victims and as heroes, and of their sacrifices for their country. Yet, women have sacrificed much on account of their multiple desin war and peace in maintainhg their families and communities. As well, the increase in awareness of rape during wartime has resulted hmvictims coming forward and voluntarily giving the media information and providing personal details of their experiences.

Hence, it is not one particular event, but a series of phenornena that have connected and led to the focus of attention to women as war victùns.

What is required then is an expansion of the scope of human rights for women around the world, and for accountability to ennue war criminais are indicted and punished for their part in the commission of war crimes. We cm hope for justice. By exposing these violations of women's hdamental human rights, we are shattering the myths that exist about wartime rape - that it does not exist, is a normal occurrence during wartime, or does not constitute a violation of human rights. What we also require is greater recognition of women's issues in the International

Relations field. Works by female theorists must be perceived as valuable and signincant. The dominate white male point of view needs to be changed. Atrocities against women have lacked documentation, and through feminist lens we will gain such recognition. However, it is noted that gender specific issues within IR are gaining attention.

The purpose of this thesis was to argue that rape and enforced impregnation/motherhood constitute war crimes and should be unequivocally recognized as such in the form of a convention, and this argument has been successfully demonstrated. From this analysis it is clear that ethnic cleansing also took place. The rapes were not individual acts, but planned and systematic. Clearly, a pattern of rapes was developed and emerged. The Serbs are today responsible for committing rapes, but tomorrow, Muslims or Croatians may rape a massive number of Serb women, and at that point what course of action will the UN take? Currently, there is no assurance that anyone will be punished We have corne to accept rape in war as a part of the battle, and this is inherentiy wrong. Although, rnany activists, critics, and women's

groups are arguing for the recognition of rape as a war crime, the truth of the matter is that the

majority of the time rape is not a crime against the male population. Men are the primary policy

makers and state actors and hence, lack any incentive to take seriously sexual violence against

women.

The UN bears some responsibility for the rapes of thousands of women in the Yugoslav

war since the institution was well-informed of their occurrence when they initially began. The

truth of the matter is that, as an intemational body, the UN had no intention in intemenhg

aggressively or in taking some constructive action mpsbecause the victims were Muslims. If the use of rape as a weapon in war against women is not recognized as a war crime by

international actors including states, and powerful international bodies such as the United

Nations; and if those responsible are not successfdly prosecuted then the international comunity is sending the message that it condones such violence and that it will be repeated. It also suggests that the UN is failing in its fundamental respoasibility to protect women fiom gender-related acts of violence. It is necessary that the UN seriously considers civil confiicts that include severe violations of human rights, and to actively intervene and prevent theu Mer occurrence instead of portraying a sofier image of only maintaining peace. The fact that the

United Nations hesitated to step in when it received reports of rapes occurring systematically is despicabIe. In addition, allegations that UN soldiers were themselves involved in rapes as reported by many observers including Serbs is abhorrent. This international body must study its past failures, its current status, and detennine what changes must be undertaken. The UN needs to revisit its goals and assess how best they can be achieved. We can accept the fact that mistakes were made during the Holocaust, but what we cannot accept is the repetition of these mistakes. Hence, the institution must analyze how massams oui be prevented and how they can

be tenninated when they have begun. The UN must also seriously attend to reports that are

submitted to it about possible gewfide taking place especidy when prepared by its own

officiais. Otherwise, the UN promotes the illusion that somethhg constructive it taking place.

WhiIe some attribute the outbreak of civil confiicts to the failure of Nuremberg; it is not

the failure of Nuremberg that needs to be discussed. Rather, the focus should be on the failure of

the UN for not servïngas an effective deterrent and for not intemenhg on account of politid

pressures. The methods in which the process of intervention or non-intervention, and

apprehension of crimüials and their prosecutions are carried out are detrimental to the credibility of international humanitarian law and the instituîe of the UN. Prosecution is not oniy necessary

for deterrence, but because it is the "right thing to do." So far, as we have seen, the ICTFY is supported by many but doubted as to whether it will be able to prosecute major war criminals.

The Tribunal has indicted hundreds but prosecuted only a handfiil. The fact that it has difficulties in gaining fùnding and adequate staff does not add to its credibility. A major part of its success is the initiative it has taken to investigate the crime of rape, and the recognition of rape as a war crime in its Statute. This is a significant step that bas been taken by this Tri'bund unlike any other. The ICTJiV has not viewed rape as incidental or as a by-product of the war.

For the Tribunal, the numbers were signifiaint and the rapes were systematic and brutal. The notability of the ICTFY will be the ernphasis that it has given to intemational humanitarian law and its determination to seek out al1 war criminals, but it may fail in prosecuting al1 these war cnminals and serving justice appropriately. In this instance, both the ICTFY and the ICTR cm be credited for bringing violations of human rights to international attention. The Nuremberg trials were precedent setting and brought a new concept of justice to

international law, demonstrating that genocide would not be tolerated now or ever again. They

proved to be an effective deterrent for the Germans, but not for other countries as they have

repeated in this decade that which was carrïed out in the world wars. What some believed would

transpire after Nuremberg was the establishment of a permanent International Criminal Court,

this has yet to accomplished and there is discussion again today that it will happen. This is what

we require since in stark con- to the Nurembexg TWS, ad k triiunals today are burdened

by various logistical probiems. They have not met the reasonable minimai expectations required

of an ad hoc tri'bunal. The establishment of this new Court is long overdue and demanded. We

need an institution that will be effective and independent. The convenience of a permanent

institution is that it is easier to have an established court ratber than to create a new one each

time atrocities are committed in a war. It will lead to the deterrent effect as potential perpetrators

will be aware that there is already an enforcement mechanism in place to indict and punish them.

It should be noted however, that a permanent Court will not completely eliminate sexual

violence against women in war. What it has the potential of accomplishing is preventing mass

rapes in war and the associated physical and moral destruction of whole comunities.

What is also required are new agreements between coimtnes on how to apprehend

persons who are needed for trial. Currently, the mechanisms in place do not dlow for the

capture of war criminals. For exarnple, many have escaped to refiigee camps and those recipient countries are not locating or returning the persons. The system, as it currently stands, is

inadequate to deal with human rights for women. Promises are being made but not nothing becomes of them. In view of the method in which the international community has handled itself', it would be no great shock ifthe Serbs or any other ethnic group were to commit atrocities again for the Iikelihood of them being caught is minimal. For this reason, crimes will continue to be committed during wars incIuding the act of rape. This is the reaiity, even if rape is recognized as a war crime. In fact, at the time of hting (Summer 1999) Serbs have begun expulsions of ethnic Albanians, aiso Muslims hmKosovo. This has resulted in a mass exodus of people and a world refugee crisis.

Let us not fa11 back on the pmgress and accomplishments that have been made thus far.

The recognition of rape as a war crime will be a wonderttl advancement for women's human rights at the international level. It will also contribute to the method in which human rights for women are currently addressed and conceptualized. Rapes during war are not only war crimes and crimes against humanity but amount to genocide in some cases and a violation of international humanitarian law. They constitute torture as well and a breach of the 1949 Geneva

Conventions.

On the eve of the millennium, we are unsure as to how conflicts will be suppressed in the future. We are facing the eruption of confiicts across the globe with the war between the Serbs and ethnic Albanians and the crisis in East Timor king the latest, This makes it ail too urgent for the international community to take seriously its grave responsibility of condemning heinous crimes. It may be late, but to explicitly recognize the rights of al1 women not to be raped and to introduce rape as a war crime in the form of a convention will be significant steps towards bringing international humanitarian law and the right of al1 women to a new level. From the media coverage of the latest Balkan War and the prevalence of ferninid scholanhip, the world cornmunity has leamed of how rape was practiced in the former Yugoslavia or how it cm be strategized in wars generally. It is my hope that the ment emphasis placed on rape in war will lead to a formal recognition of rape as a war crime by the UN. There are currently efforts underway by the United Nations to establish a permanent ICC. Hopefüiiy a fair, jus and

effective court can be created so that we are not again witness to another Holocaust. The

following quote serves as a vduable lesson to al1 of us, as the international community:

The hting shame ts not only for rhe many who iumed out to be Hitler's zealous executioers but also for the millions who looked away when thewas stiii time to lookJ9*

398 Norbert Frei, "A People of Final Solutionists? Daniel Goldhagen Dresses an Old Thesis in New Robes" in Robert R Shandley, ed, Jeremiah Rimer, m.,UnWilZUIg Gennans? The Goldmgen Debate (United States of America: University of Minnesota Ress, 1998) 38. These excerpts are taken hpm Aiexandm Sligmayer's The Ripes in Bosnh- Henegovina" pp. 147-158. The person nbo conducted the interviews is George Rodrigue of the Dallas Moming Néws.

George: In general they say that you have killed many men, women, and children with guns and with knives, and that you raped many women. 1s that me? Borislav: It is tnie, but I did not kill any children. G: I would like to talk about the women you raped. 1beke you have Listed their names before. Could you do that again for me please? B: Amara, Sabina, Sumbula, G: Okay. Any more? Who was the first woman you raped? B: Amara. G: Tell me what happened. B: We had an order to go to Restaurant Sonja in Vogosca We were told that we were going to rape girls there. G: Who told you this? B: My captain. The commander of our unit So as to increase the morale of our fighters. G: Was this good for your morale? B: Not at all. And before that and after that 1 had to go to the fiont Iuies, so it was the same for me. G: How do you mean? B: It was just a stupid thing to do. We hadn't any fights, and that is why it was worthless. G: So what did you think of this order? B: 1 had to obey it. G: What would have happened to you if you had not? B: They would have sent me to the worst front line in Trebinje in Herzegovïna, or sent me to jail. G: They would not have killed you? B: 1 cannot say that. But I knew they would have taken away the house that they had given me. G: So you go to the restaurant, and what did you see? B: It had a guard in fiont of if and the girls were in the rmm. G: What room? B: The girls were in a room just inside the door. G: How many girls? B: Sixty. G: How did they look? Clean, dirty, beaten, not beaten, young, old? B: They were young, twenty to twenty-five years. They were looking normal, with normal clothes on them. They hadn't any bruises on them. G: Did they look well fed or hungry? B: 1 didn't notice. G: What happened next? B: I know that they were killed afterwrd G: 1 want to ask who did the very next thing. Who said the next thing? B: They found Mordrag Vukovic and Dragan Damjanovic, they were in Seselj's srmy [a paramilitary group]. And they worked there. It was their work to guard the women. G: What happened then? B : We told them that we were sent by Borov, and they knew what to do. They bmught the girls to us from the room.. ..They picked girls for us. G: And which one was picked for you? B: That Arnara girl.. .she was tall, black hair, about twenty, G: Did you say anything to each other? B: No. G: Mathappened then? B: We went up to the room. On the second floor. That guy Miro showed us the way. And there we raped her, the four of us. G: They picked out on girl for the four of you? B: Yes. G: You were al1 in room when she was raped? B: Yes. G: Didn't this seem strange to you? B: Just a little bit.

Another Serb, Cvijetin Maksimovic, recalls about king forced to rape:

"They said 1 wasn't a real Chetnik and now 1would have to prove to them if 1 was at least a real man....They cursed our mothers 'cause I hadn't tumed into a reai man and said what a disgrace it was that they'd come fiom so far off just to fight for us. Then 1 was also supposed to strip and rape the women who were left over, catch them ...They showed me how you do it, how you grab a women by her breast and take hold of her sex, and they told that 1was fke to rape them. I didn't feel anything at all, I wasn't excited at all, but 1had to lie down on them and take hold of thern. They were naked; the others guys had stripped them. The Chemiks were doing a lot of yelling, making animal noises, whistling: "Oh loolry there, that's supposed to be a man! That's no man, that's a sissy.". .. .

He says he knows why he was forced to kill and rape:

It's because of territory-they have to drive out the non-Serb people in Brcko and annihilate them so that Brcko can become Serbian. Otherwise this Brcko could never belong to Serbia; too many Croats and Muslims would be living there. The rape is part of it; it spreads fear and terror so that the people flee and don't come back. This expulsion and dl, it's made the Serbian people in Bosnia into haters, it's sown hatreà. The killing and the raping were supposed to teach us to hate. Posts hetd by the accnsed: 399

Goring, Hermann - Reich Mmshal and Commander in Chiefof the LufiMe Hess, Rudolf - Depury Fuhrer tilI 1942 Ribbentrop, Joachim von - Foreign Minirter Rosenberg, Alhd - Minister for ocaïpied eartern tenitory Keitel, Wiieim - Field M~1sha1ond Chiefof the O.K.W. (high comrnandaf German armedforces) Kaltenbninner, Ernst - Chief of Security Police including the Gesrap ond the Conceniration camps Frank, Hans - Governor - General of Poland Fnck, Wilhelm - Former Minister of lnterior and one of Hitler r's 'Wd guard" Streicher, Julius - Jew baiter Schacht, Ujalmar - Minister of Economics 1933-36 Funk, Walter - President ofReichsbank, f 939 Doenitz, Karl - Commander in Chief of the Navy and Chancellor in 1945 Raeder, Erich - Commander in Chief of the Navy 1928-43 Schirach, Baldur von - Leader of Hitler youth and Gauleiter of Vienna Sauckel, Fritz - PlenQwtentiary Generulfor manpower Jodl, Alfied - Chief of Qperations of O.K.W. (high command of armed forces) Papen, Franz von - Former Chancellor during the Weimar Republic Seyss-Inquart, Arthur - Austrian Minkter und Reich Commissionerfor occupied Nethedan& Speer, Albert - Minbter for annament and war production Neurath, Constantin von - Minïster of Foreign Affuirs 1932-38 andprotector of Bohemia and Moravia Fritzsche, Hans - Head of broadcasting division in propgunclir minktry Bormann, Martin - Depury Fuhrer Mer Hess Tried in absenria - swpected of having been killed

399 Mine. Intemet IO April 1999. Available: htcpY/www2.ebicorn~et/-kdnuremhbnlbnl Defeodants, Charges, Verdicts and Sentencesa

This listiûg of defendants foiiows the order of the indietment: G = GuUty; NG = Not Guilty

Defendant

Hermann Goring Rudolf Hess Joachim von Ribbentrop Wilhelm Keitel Ernst Kaltenbrunner Alfied Rosenberg Ham Frank Wilhelm Frick Julius Streicher Walther Funk Hjalmar Schacht Karl Donitz Erich Raeder Baldur von Schirach Fritz Sauckel Alfred Jodl Martin Bormann (absent) Franz von Papen Arthur Seyss-Inquart Albert Speer Constantin von Neurath Hans Fritzsche NG NG NG Acquitted Total CuW 8 12 16 16 Not Guiity 14 4 2 2 United Natioms Documents and Pubüc~lr'otts

Arbour, Louise. "Despite Shortcomings, a Court Deserves Support.'" UN Chronicle 3 5.3 (1998) : 12 - 13.

Bassiouni, Chief, and Codtee. United Nations Commhsion of WrfsReport on Grave Breaches of the Geneva Conventions and Oîher Violations of International Humunitman Law Committed in the Tem30~of the Former Yugoslavl'a. New York: United Nations, May 24,1994 cited in Beverly Allen Rape WMàre: The Hidden Genocide in Bosnia-Henegovinu md Croatia. Minnesota: University of Minnesota Press, 1996.

"Permanent International Criminal Court Established." WChronicle 35.3 (1998) : 10.

United Nations. "Rwanda International Criminal Tniunal Pronounces Guilty Verdict in Historic Genocide Trial." Press Releuse AFW94 W2895 (02 September 1998) : 1 - 4. Online. Intemet. 10 April 1999. Available: http://\~~~.un.org/News/Presdd~~d1998/l998/1.

United Nations. "Rwanda Tniunal Hands Down Life Sentence for Crimes of Genocide Committed by Former Rwandan Prime Minister." RasReleuse AFRI95 W2898 (September 1998) : 1 - 5. Online. Intemet. 10 April 1999. Available: http://www.un.org/News/nesdd0~dl998/19980904.12898.html.

United Nations General Assembly. Fourth Geneva Convention ReIative to the Protection of CiviZian Persons in Time of Far. Geneva: United Nations, 12 August 1949. Online. Internet. November 1998. Available: http://www.tufts.edddepartments/fletcher/mdti/texts/BH225.txt-

United Nations General Assembly Security Council. The Sihcorion of Human Righrs in the Territory of the Fonner Yugoslavia. Document A/48/92, S/X341, New York: United Nations, February 26, 1993 cited in Simon Chesterman. "Never again.. .and again: law, order, and the gender of wucrimes in Bosnia and Beyond." Yale Joudof International Law 22.2 (1997) :299 - 343.

United Nations General Assembly and Securïty Council. The Situmôn ofHuman Rights in the Territory of the Fonner YugosImia. Document A/48/92,SB534 1, New York: United Nations, Febniary 26, 1993 cited in Beverly Allen. Rape Weare: The Hidden Genocide in Bosnia-Nenegovim and Croatia. Minnesota: University of Minnesota Press, 1996. United Nations Security CounciI. CherifBassiouni and Cornmittee. Acklendirm. Annexes tu the FinaI Report of the Commksîon of 5hpwt.s Estabhhed Pursuant to Security Council Resolution 780/1992, S/1994/674/Addendum 2, volume 1, Annexes 1 to V, New York: United Nations, 28 December 1994.

United Nations Security Council. Statute of the International Tribunalfor the Prosecution of Persons ResponsibZe for Skrious Violatins of lntematio~lHumanitmQTIan Law Cornmitted in the Tem-toryof the Fonner Yugoslmia Since 1991, UN Doc. SI25704 at 36, Annex (1993) and S/25704/Add 1 (1993), UN Doc. SiREW827 New York: United Nations, 25 May 1993. Online. Intemet. 23 November 1998. Available: http://wwwl .umn.edUniumanrts/ICTFY/statute.hûnl#aS

Generui Assembly Resol~lr'oms

United Nations General Assembly. Rape andAbuse of Women in the Areas of Amed Confict in the Fomter Yugosluvia. Redution 5 11 1 1 5 of 12 December 1996. Geneva: Office of the United Nations High Commissioner for Human Rights, 1997. Online- Internet. November 1998. Available: http://~.unhchr.ch/htmVmenu4Igaredres1 1S.htm.

United Nations General Assembly. The 1949 Convention on the Prevention and Punishrnent of the Crime of Genocide. Resolution 260 0.Geneva: United Nations, 9 December 1948. Online. internet. November 1998. Available: http ://www.tuf€s.edu/departments/fletch/

"'United Nations: General Assembly Resolution 5 Il207 on the Establishment of an international Criminal Court member 17, 1996]," IntenultionaI Legal Materials 36 (March 1997) : 510-513.

"Rome Statute of the International Criminal Court, Adopted July 17. 1998," InternationaI Legal Materials 37 (September 1998) : 1002 - 69.

Films

National Film Board of Canada, Tape: A Crime of Wm." Canada: 1996. Intemet Sources

ficaNews Mine, "Internationai Criminal Tribunal for Rwanda." ICTR Fact Sheet (May 19, 1998). Online. intemet. IO April 1999. Available: http://www.~catlew~.orp/specids/giakes/stories/l9980519-feat3.hW. -. "Militia Leader Who ConfeSSed To Genocide Gets Fifteen Years In Prison" (February 5, 1999). Online. Intemet, 10 April 1999. Available: http://www.~canews.org/east/~~anda~stories/1999OîOS-fat 1.html.

International Centre for Human Rigfits and Democratic Development. Rwandan Domestic Prosecutions Continue, Despite Criticisms." Impunily-lnfo 2.1 (July 1997). Online. Internet. 1O April1999. Avaitable: http ://www. ichrdd.ca/Publicati011~~p~ty/NewsO797html#TITLE8.

Major War Criminals and Suspects. Online. Internet. 0 1 August 1999. Available: http://www.cco.caltech.edu/dosnidcrimkaVcriminals.htm1.

Online. Intemet 10 Apnl 1999. Available: http:///www2.ebicom.net/-kara/n~~em~html.

Prosecutor vs. Anto Fumn&i/la- Judgnint. Online. Intemet 0 1 August L 999. Available: http:ll~..un.or~CTFYlfiinuidzija/tnal~2/j~dpentlmain.htmCase IT-95- 1711.

Pocket Criminal Code 1999. Canada: Carswell Publishing, 1998.

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