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Rape of Muslim Women in Wartime Bosnia

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Rape of Muslim Women in Wartime Bosnia RAPE OF MUSLIM WOMEN IN WARTIME BOSNIA Adriana Kovalovska * I. INTRODUCTION ......................................................... 932 II. BOSNIAN SERB ETHNMC CLEANSING STRATEGY .................... 933 1I1. THE RAPE OF MUSLIM WOMEN IN WARTIME B OSN IA ....................................... ....................... 934 A. Reports of Mass Rape in Bosnia ............................. 934 B. Consequences of Rape ......................................... 935 IV. TREATMENT OF WARTIME RAPE BY INTERNATIONAL COMMUNITY ....................................... 936 A. Rape Historically Unenforced ................................ 936 B. InternationalDocuments Addressing Rape ................. 937 1. Genocide Convention ................................... 937 2. Geneva Conventions and Protocols .................. 938 3. The International Covenant on Civil and Political Rights ..................................... 939 C. No Enforceable Remedy Against Non- Complying States................................................ 940 V. CURRENT PROGRESS TO HALT THE MASS RAPES IN BOSNIA ................................................................ 940 A. Creation of War Crimes Tribunal............................ 940 B. ProsecutingRape Under the Tribunal's Statute ............................................................. 94 1 C. Collecting Evidence for Prosecution ........................ 942 D. CurrentProgress in the Prosecutionof R apes .............................................................. 944 1. First Trials in the Tribunal ............................ 944 2. Recognition of Rape in National Courts of Former Yugoslavia ......................... 944 3. Civil Lawsuits Filed in the United States ....................................................... 945 VI. CONCLUSION ............................................................ 945 * Candidate for Juris Doctor, 1997, Nova Southeastern University, Shepard Broad Law Center. 932 ILSA Journal of Int'l & Comparative Law [Vol. 3:931 Sofija, a thirty-year-old Muslim woman, was raped some 900 times by Serbian soldiers during the six months she was detained in a prison camp. After her release, Sofija was hiding from her family in humiliation while expecting an unwanted Serbian baby.' I. INTRODUCTION For almost four years, former Yugoslavia was ravaged by a war in which acts of incomprehensible and shocking cruelty were carried out on an enormous magnitude. Among the atrocities were the rapes of an estimated 30,000 to 50,000 Bosnian women by the Serbian military., After World War II, several international documents were created to prevent the recurrence of such cruelty and bloodshed.' These treaties address rape specifically but do not provide sufficient enforceable remedies for their violations. The atrocities committed in former Yugoslavia, however, have prompted the United Nations Security Council to institute an International War Crimes Tribunal (Tribunal) to prosecute the responsible individuals for the horrors committed in former Yugoslavia since 1991.1 This article discusses the key international documents currently in place which could be used to prosecute Serbs for the mass rapes and focuses on the prosecution of rape in the Tribunal. Although the Tribunal has demonstrated its willingness to prosecute rape as a war crime, it remains to be seen whether the Tribunal and the international community will bring the suspects to justice. 1. Tom Post et al., A Pattern of Rape, NEWSWEEK, Jan. 4, 1993, at 32. Under Muslim culture, a baby takes its father's ethhicity. See infra note 23. 2. Post et al., supra note 1. See also AMNESTY INTERNATIONAL, BOSNIA- HERZEGOVINA:, RAPE AND SEXUAL ABUSE BY ARMED FORCES 3-5 (1993) (stating that all sides to the conflict have committed rape, and Serbs also used rape as an instrument of war). 3. John Darnton, Does the World Still Recognize a Holocaust?, N.Y. TIMES, Apr. 25, 1993, § 4, at 1. 4. Compliance with international law is usually only ensured by the state's desire to maintain good world relations which may lead it to recognize international jurisdiction. See generally Theodor Meron, The Case for War Crimes Trials in Yugoslavia, FOREIGN AFF., Summer 1993, at 122. 5. The Tribunal was established under Chapter VII of the United Nations Charter which requires that before a tribunal can be created, the situation must constitute a threat to international peace. UNITED NATIONS, SECURITY COUNCIL, REPORT OF THE SECRETARY-GENERAL PURSUANT TO PARAGRAPH 2 OF SECURITY COUNCIL RESOLUTION 808, U.N. S/25704 (1993) [hereinafter Secretary-General's Report]. 1997] Kovalovska 933 II. BOSNIAN SERB ETHNIC CLEANSING STRATEGY The historical ethnic division and animosity between Serbs and Muslims dates back over 600 years.6 At that time, the Ottoman Turks dominated the region comprised of southern Slavic minorities: Serbs, Croats, and Muslims.' Strong Serbian nationalistic feelings surfaced during the Turkish dominion,8 and their intensity grew over the years.9 In 1991, the former Yugoslavia 0 started to disintegrate." After ' Bosnia declared its independence from the former Yugoslavia in 1992,12 the Serbs who lived in Bosnia feared they would be persecuted by the Muslim majority.' 3 Supported by the government of neighboring Serbia, Bosnian Serbs began a strategy of expelling Muslims from Bosnia." Serb leaders use the term ethnic cleansing5 as a cynical euphemism to characterize their vicious campaign to create a homogeneous Serbia.16 Mass rape was an instrument of the Bosnian Serbs' ethnic cleansing campaign.'7 The Serbian strategy was to eliminate the Muslim 6. Water Russel Mead, West Can't Quell Balkan Hatreds, Resentment in Region Is Centuries Old, ATLANTA J. & CONST., Aug. 16, 1992, at D2. 7. Id. 8. Id. 9. See generally VLADIMIR DEDIJER ET AL., HISTORY OF YUGOSLAVIA (1974) (discussing the history of the internal conflicts during Ottoman and Hapsburg Empires). For additional analysis of civil conflicts during the 20th century, see Mead, supra note 6. 10. Prior to recent dissolution, the Federal People's Republic of Yugoslavia consisted of six republics: Bosnia, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. EC Ministers to Discuss Bosnian Conflict andAid to CIS, INTER PRESS SERVICE PORT., Apr. 30, 1992, available in LEXIS, News Library, ARCNWS File. 11. For a discussion of history of the ethnic conflicts in Yugoslavia, see ALEX N. DRAGNICH, SERBS AND CROATS: THE STRUGGLE IN YUGOSLAVIA (1992). See also infra note 12. 12. U.S. Seeks Support for Action in Bosnia; ChristopherSent to Talk to European Allies, ORLANDO SENTINEL TRB., May 2, 1993, at Al, available in LEXIS News Library, ARCNWS File [hereinafter U.S. Seeks Support]. 13. Before the present war, Muslims made up 44% of Bosnia's population while the Serbs, who are Eastern Orthodox Christian, accounted for 33% and Croats, who are Roman Catholic, constituted 17% of the population, U.S. Seeks Support, supra note 12. 14. David M. Kresock, "Ethnic Cleansing" in the Balkans: The Legal Foundations of ForeignIntervention, 27 CORNELL INT'L L.J. 203, 221 (1994). 15. The term is deceiving because Bosnian Muslims, Serbs, and Croats, all have a Slavic ethnicity and are split more by their religious identity. For a historical background of ethnic cleansing generally, see Andrew Bell-Fialkoff, A Brief History of Ethnic Cleansing, FOREIGN AFF., Summer 1993, at 110. 16. Kresock, supra note 14. 17. Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, 934 ILSA Journal of Int'l & ComparativeLaw [Vol. 3:931 population of Bosnia through an attack on Muslim women.'" Subsequently, the body of a woman was "used to send a message to the woman and her community that she and it are conquered," 9 since rape wounds not only the individual woman but also the morale and identity of her society.20 III. THE RAPE OF MUSLIM WOMEN IN WARTIME BOSNIA A. Reports of Mass Rape in Bosnia To accomplish their mission, Serbian soldiers raped Muslim women in a typical pattern. 21 Serbs transformed villages into rape camps for the convenience of their soldiers and for easy access to women.2 The rapes were committed particularly to impregnate Muslim women and to keep them captive past the period for obtaining a safe abortion so that they would "give birth to unwanted Serbian babies." 2 Shocking reports reveal information of gang rapes during which victims died - systematic rapes of girls as young as six years old, some performed in front of their fathers, mothers, and siblings and as many as two hundred witnesses? In one instance, a twenty-eight-year-old woman U.N. SCOR, 48th Sess., Annex, Item 115(c), at 57, 74, U.N. Doc. A/48192, S/25341 (1993) [hereinafter Report of the Special Rapporteuron Human Rights]. 18. Rape Was Weapon of Serbs, U.N. Says, N.Y. TIMES, Oct. 20, 1993, at Al. Although the reported rape cases involve female victims, ranging from children to elderly women, there is evidence that Bosnian men have also been subjected to rape. See Louise Branson, Sexual Abuse of POWs Widespread in Yugoslav War, STRAITS TIMES, Aug. 2, 1993, at 13. 19. Laurel Fletcher et al., Human Rights Violations Against Women, 15 WHITTIER L. REV. 319, 321 (1994) (discussing that the lower social status of women makes them targets for rape, and that such an injury to a woman is a reflection on the community in which women are passive and protected by men). 20. Lance Morrow, Unspeakable: Is Rape an Inevitable and Marginal Part of War?, TIME, Feb. 22,
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