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Rape, sexual violence, sexual enslavement
International Criminal Tribunal for the Former Yugoslavia
During the late 1980s and early 1990s, the former Socialist Federal Republic of Yugoslavia experienced a period of intense political and economic crisis. At this time, the non-aligned federation consisted of: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. In addition to the six republics, Kosovo and Vojvodina held the status of autonomous provinces within the Republic of Serbia.
As a consequence of the growing crisis, central government was weakened and the Federation grew increasingly divided. Political leaders began promoting nationalist rhetoric to break citizens from the shared Yugoslav identity and build mistrust amongst ethnic groups. By March 1992, a referendum for Bosnia and Herzegovina’s independent was introduced. More than 60 percent of Bosnian citizens voted for independence – Bosnian Serbs had boycotted the vote. Almost immediately conflict broke out, as Bosnian Serbs declared the territory a Serb republic with the support of the Yugoslav People’s Army and Serbia. Bosnian Croats soon followed, declaring their own republic with the support of Croatia. In the middle of a three-sided fight, civilians of all ethnicities became the victims of horrendous crimes. It is estimated that more than 100,000 people were killed and two million people were forced to flee their homes as a result of the war.
In May 1993, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia in response to the mass atrocities taking place in Croatia and Bosnia and Herzegovina. It was the first international war crimes tribunal since the Nuremberg and Tokyo Tribunals.
Dragoljub Kunarac, Zoran Vuković and Radomir Kovač participated in a campaign by Bosnian Serb forces in Foča, an area located south eastern Bosnia and Herzegovina. Kunarac was the leader of a reconnaissance unit and soldier who had access to the highest military command in the Foča area. Radomir Kovač and Zoran Vuković were members of a military unit known as the “Dragan Nikolić Unit”. Together, the three men played a prominent role in organising and maintaining a system of rape camps in the eastern Bosnian town of Foča. Their strategy was recognised as “mostly expulsion through terror”.
A campaign of sexual abuse began as soon as Bosnian Serb soldiers entered Foča. Women were captured and transferred to various locations where they were detained. These locations were kept in intolerably unhygienic conditions and women were subjected to multiple forms of abuse and violence.. Vuković frequently visited these centres, committing rape, gang-rape and transferring women to other locations where he knew they would suffer the same treatment. One of these detention centres, Partizan Sports Hall, was next to Foča’s municipal police building. The local police force helped guard the women and in some cases, joined in the brutal abuse when women came to them for help.
Some women were moved from the main detention centres into private accommodation, which they were not allowed to leave without a soldier accompanying them. Kunarac and Vuković took part in relocating the women and Kovač held women and girls in his flat, where he and other soldiers continually raped, beat, humiliated and degraded them. Kovač also frequently sold women and girls to other soldiers. Kunarac frequently visited various private locations, raping women or encouraging others to do so. His crimes were characterised by their explicit discriminatory intent, telling multiple women that they would now carry Serb babies.
Kunarac, Vuković and Kovač were arrested and their trial began on 20 March 2000. During an eight month trial, sixty-three witnesses came forward to testify, including sixteen survivors of rape, gang-rape and sexual slavery.
What was the decision?
What the evidence shows, is that the rapes were used by members of the Bosnian Serb armed forces as an instrument of terror. An instrument they were given free rein to apply whenever and against whomsoever they wished. … What the evidence shows, are Muslim women and girls, mothers and daughters together, robbed of the last vestiges of human dignity, women and girls treated like chattels, pieces of property at the arbitrary disposal of the Serb occupation forces, and more specifically, at the beck and call of the three accused.
Judgment hearing, Kunarac, Vuković and Kovač
Through its analysis, the ICTY found Kunarac, Vuković and Kovač guilty on multiple counts:
- Torture, rape and enslavement as crimes against humanity
- Torture and rape as violations of the laws or customs of war
- Rape and outrages upon personal dignity as violations of the laws or customs of war
- Enslavement and rape as crimes against humanity
- Torture and rape as violations of the laws or customs of war and crimes against humanity
These multiple convictions were thanks to the bravery of the witnesses who came forward to testify about the crimes committed by Kunarac, Vuković and Kovač. Their testimony was supported by the ICTY’s Rules of Procedure and Evidence. In particular, Rule 96 of the Rules of Procedure and Evidence departed from domestic standards to protect survivors of sexual violence from further trauma and stigmatisation when testifying:
In cases of sexual assault:
- no corroboration of the victim’s testimony shall be required;
- consent shall not be allowed as a defence if the victim
- has been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression, or
- reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;
- before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;
- prior sexual conduct of the victim shall not be admitted into evidence
Rule 96 changed the standards for evidence in cases involving sexual violence and produced a more equitable atmosphere in the courtroom. Kunarac, Vuković and Kovač were not only kept from intimidating witnesses through reference to their previous sexual conduct, they were also generally kept from using “consent” as a defence. Taking account of the coercive and life-threatening nature of armed conflict, ICTY justices stated “…consent will be considered to be absent in those circumstances [outlined in 96(ii)] unless freely given” (para. 464). When the three men did try to argue consent was given freely, the ICTY assessed the context of the surrounding circumstance to dismiss their claims. Because of the threats made against the women and, in many cases, the fact that of their captivity, the overall circumstances negated the possibility that the women could consent of their own free will.
The severe mental and physical pain and suffering by survivors also indicated the gravity of the crimes committed, and was recognised in the ICTY judgment that “Rape is one of the worst sufferings a human being can inflict upon another” (para. 655). Kunarac, Vuković and Kovač had directly committed acts of rape and had aided and abetted other acts of rape by transferring women between locations where they knew the risks they faced. Through survivors’ testimony, it was also clear beyond reasonable doubt that in some cases the rapes were perpetrated with the intention to intimidate and discriminate against Muslims in general. In these cases, the ICTY concluded that rape had amounted to acts of sexual torture.
In the Appeals Chamber decision on this case, the identification of rape as a form of torture was made absolutely clear:
Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.
Prosecutor v. Kunarac, Kovac and Vukovic IT-96-23 &IT-96-23/1-A (12 June 2002), paragraph 151
Evidence presented throughout the trial demonstrated the crimes had been committed under conditions of enslavement. According to the ICTY, factors to be considered in determining whether enslavement was committed included (para. 543):
- Control of someone’s movement
- Control of someone’s physical environment
- Psychological control
- Measures taken to prevent or deter escape
- Force, threat of force or coercion
- Assertion of exclusivity
- Subjection to cruel treatment and abuse
- Control of sexuality
- Forced labour
Some of the women who testified had been taken out of detention centres and held against their will in privately owned apartments and houses, sometimes for 5-6 months at a time. While there, the women were treated as property and denied their freedom of movement. They were forced to cook, clean and serve residents, who were Serb soldiers. They were repeatedly raped, beaten and subjected to other humiliating treatments. Kunarac, for example, had invited a soldier into one of the houses to rape a woman for 100 Deutschmark. Kovač had sold two women who he had detained in his own apartment. Control, including psychological control, made escape an unrealistic option for the enslaved women. Women were aware of the dangers they faced if they attempted to flee and many knew they had nowhere to go if they did manage to escape.
For these reasons, the ICTY determined that enslavement captured the entirety of women’s experiences while detained in the private locations and constituted a crime against humanity.
Learning from other institutions
Throughout the text of the case document, the ICTY’s decision was supported by what other institutions and authorities had said about rape, sexual violence and criminal responsibility. This reinforces the legal value of international standards on gender equality, and helps build a unified global commitment to tackling VAW. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- Jean-Paul Akayesu Case: 428-9, 437, 483, 487, 497
- Convention on the Elimination of All Forms of Discrimination against Women: 536
- International Covenant on Civil and Political Rights: 480-1, 533 537
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: 466-488
- European Convention on Human Rights: 533-5
- American Convention on Human Rights: 475-6, 533
- African Charter on Human and People’s Rights: 533
The convictions of Kunarac, Vuković and Kovač brought attention to women’s experiences of armed conflict and the gravity of rape and sexual violence.
The Foča Trial is considered a landmark case for many reasons. It was the first time that an international criminal tribunal brought charges exclusively for crimes of sexual violence. It was also the first time rape was convicted as a form of torture and sexual enslavement as a crime against humanity. Prior to the ICTY’s establishment, sexual violence committed during armed conflict had been largely invisible in international humanitarian law. While the use of rape and sex slavery in other conflicts (namely, the Japanese “comfort women”) had been acknowledged, it had never been formally recognised or prosecuted by an international criminal court.