\\server05\productn\B\BIN\27-1\BIN105.txt unknown Seq: 1 23-APR-09 14:51 BOSNIA V. SERBIA AND THE STATUS OF RAPE AS GENOCIDE UNDER INTERNATIONAL LAW ANTHONY MARINO* ABSTRACT The women and children were separated into four groups at the police station and taken to separate houses confiscated from Muslim owners. The witness was placed with a group of 28 women. One of the soldiers told her that women, children, and old people were being taken to these homes because they were “not worth a bullet.” They were kept in this house for 27 days. Day and night, soldiers came to the house taking two to three women at a time. There were four to five guards at all times, all local Foca Serbs. The women knew the rapes would begin when “Mars Na Drinu” was played over the loudspeaker of the main mosque. (“Mars Na Drinu”, or “March on the Drina,” is reportedly a former “Chetnik” fighting song that was banned during the Tito years.) While “Mars Na Drinu” was playing, the women were ordered to strip and soldiers entered the homes, taking away the ones they wanted. The ages of women taken ranged from 12 to 60. Frequently the soldiers would seek out mother and daughter combinations. Many of the women were severely beaten during the rapes. The witness was selected twice. The first time, soldiers had entered and grabbed an 18-year-old girl, asking her if she were a virgin. She said she was. Licking his knife, one of the soldiers said that if they found she was not, he would butcher her. The witness pleaded with them not [to] take the girl but to take her instead. “We’ll take you, too,” they said. While the witness was being raped, her rapist told her, “You should have already left this town. We’ll make you have Serbian babies who * J.D. and M.A. (International Relations) Candidate, Boston University School of Law, 2009; B.A. International Relations, Northern Arizona University, 2005. I wish to thank the Boston University International Law Journal board and staff for all their work. I also thank Professor Robert D. Sloane, who was integral in providing guidance throughout the research and drafting process. Most importantly, thanks are due to my parents, whose constant support, encouragement, and patience made this possible. Any errors are mine. 205 \\server05\productn\B\BIN\27-1\BIN105.txt unknown Seq: 2 23-APR-09 14:51 206 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 27:205 will be Christians.” Two soldiers raped her at that time; five soldiers raped the 18-year-old girl in full view of the witness.1 I. INTRODUCTION ............................................ 206 R II. THE GENOCIDE CONVENTION ............................. 209 R A. The Specific Intent Requirement ....................... 210 R B. Rape as an Act of Genocide Under the Convention .... 211 R III. ARTICLE II(B): CAUSING SERIOUS BODILY OR MENTAL HARM TO MEMBERS OF THE GROUP ...................... 211 R IV. ARTICLE II(D): IMPOSING MEASURES (INTENDED) TO PREVENT BIRTHS IN THE PROTECTED GROUP ............. 214 R A. Forced Separation ..................................... 215 R B. Sexual Violence Against Men .......................... 218 R C. Physical and Psychological Trauma .................... 220 R D. Forced Impregnation .................................. 221 R V. ARTICLE II(E): FORCIBLY TRANSFERRING CHILDREN OF THE GROUP TO ANOTHER GROUP ......................... 222 R A. Can Forced Impregnation Constitute Forced Transfer? . 222 R B. Evidence of Forced Impregnation ...................... 223 R VI. WHAT DIFFERENCE WOULD IT MAKE? A POLICY OF RAPE EVINCING THE SPECIFIC INTENT OF GENOCIDE ...... 226 R VII. CONCLUSION .............................................. 228 R I. INTRODUCTION On March 20, 1993, Bosnia and Herzegovina (Bosnia) filed suit in the International Court of Justice (ICJ) against what was then the Federal Republic of Yugoslavia (FRY),2 alleging the latter’s participation in a 1 Permanent Representative of the U.S. to the U.N., Supplemental United States Submission of Information to the United Nations Security Council In Accordance with Paragraph 5 of Resolution 771 (1992) and Paragraph 1 of Resolution 780 (1992), Annex, submitted to the Security Council, U.N. Doc. S/25586 (Apr. 13, 1993), available at http://documents-dds-ny.un.org/doc/UNDOC/GEN/N93/215/15/img/N932 1515.pdf?OpenElement [hereinafter Submission]. 2 Regarding the identity of the Respondent State, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Judgment, 2007 I.C.J. 91, ¶¶ 67-139 (Feb. 26), available at http://www.icj-cij.org/docket/files/91/13685.pdf [hereinafter Genocide Case]. The parties accepted that Serbia and Montenegro was the successor of the Federal Republic of Yugoslavia (“FRY”), and that the Republic of Serbia was continuator of Serbia and Montenegro. However, one of the most contentious issues in the case was the jurisdictional question of whether the FRY was the continuator in legal personality of the Socialist Federal Republic of Yugoslavia (“SFRY”), which would determine whether it was a member of the United Nations (U.N.) and a party to the Genocide Convention, and so subject to ICJ jurisdiction for the period 1992-2000. A decision of the Court in 1996 rejected the Respondent’s jurisdictional objections and held it did have jurisdiction under the Genocide Convention. See Application of the \\server05\productn\B\BIN\27-1\BIN105.txt unknown Seq: 3 23-APR-09 14:51 2009] THE STATUS OF RAPE AS GENOCIDE 207 campaign of genocide against the non-Serb population of Bosnia and Herzegovina and seeking provisional measures to halt the continued atrocities (“the Genocide Case”). On April 8, 1993, the Court handed down provisional measures ordering the FRY to “ensure that any mili- tary, paramilitary or irregular armed units which may be directed or sup- ported by it, as well as any organizations and persons which may be subject to its control, direction or influence” not commit, conspire to commit, incite, or be complicit in genocide.3 It would take almost four- teen more years for the court to rule on whether the atrocities committed against non-Serbs in Bosnia amounted to genocide, and if so, whether such acts or complicity in them could be attributed to the FRY and its successor.4 Among the issues the Court had to decide was whether sys- tematic rape and sexual violence, as alleged by Bosnia, was carried out as a part of the genocidal campaign. As Alexandra Stiglmayer pointed out in her piece, The Rapes in Bos- nia-Herzegovina, “[w]omen have always been raped in wartime, of course. There were mass rapes even in wars that were not wars of expul- sion. Rapes seem to be part and parcel of a soldier’s life, a ‘normal’ accompaniment to war.”5 But Stiglmayer tacitly acknowledges that there was something different about the rapes carried out by Serbian forces in Bosnia-Herzegovina, because, as she put it, “dispersion [was] precisely the goal.”6 The widespread and systematic rape of women in Bosnia-Herzegovina led to a divide in feminist scholarship on whether rape by one side in the conflict could, or should, be classified as “genocidal,” thereby signaling a matter of heightened international concern. Karen Engle summarizes the competing views in this debate: Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, Judgment, 1996 I.C.J. 595 (July 11). The Respondent later objected to the Court’s assertion of jurisdiction in light of FRY’s admission to the U.N. in 2000, suggesting it had not prior to that time been a member, as well as seemingly inconsistent holdings in the Use of Force cases filed by Serbia and Montenegro against various NATO countries. See Genocide Case, 2007 I.C.J. at ¶ 132. Ultimately, the Court held that the 1996 decision was res judicata and so affirmed its jurisdiction. Id. at 53. This matter is far beyond the scope of this Note, which will simply refer to the states interchangeably, assuming each successive state as a continuator in legal personality of the former. 3 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Provisional Measures, 1993 I.C.J 3, 24 (Apr. 8), available at http://www.icj-cij.org/docket/files/91/7305.pdf. 4 The Court issued its ruling in the Genocide Case on February 26, 2007. See Genocide Case, 2007 I.C.J. at ¶ 140. 5 Alexandra Stiglmayer, The Rapes in Bosnia-Herzegovina, in MASS RAPE: THE WAR AGAINST WOMEN IN BOSNIA-HERZEGOVINA 82, 84 (1994). 6 Id. at 85. \\server05\productn\B\BIN\27-1\BIN105.txt unknown Seq: 4 23-APR-09 14:51 208 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 27:205 If women were raped on all sides of the war and the feminist goal was to stop all rapes, then how could one choose sides in the con- flict? Some feminists did choose sides, seeing the rapes by Serbian men as genocidal and therefore calling for extraordinary attention. Others disagreed, arguing that such a position would deny the extent to which women were always harmed in war, and were specifically harmed on all sides of the Balkan conflict. The latter position did not deny that rapes were hideous; far from it, those who expressed this view often argued that rapes on all sides might be considered “genocidal,” but because of their effect on women as a group, not on Bosnian Muslim women in particular.7 The outcome of the Genocide Case then could have had profound implications for this debate and might have helped to clarify when and how a campaign of rape and sexual violence targeted at a specific popula- tion would constitute genocide.