Gender, Shame and Sexual Violence

The Voices of Witnesses and Court Members at War Crimes Tribunals

Sara Sharratt

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409419990
• eBook ISBN: 9781317129875
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Drawing on extensive interview material gathered amongst victims, witnesses, judges and NGOs, this book investigates the prosecution of rape and sexual violence in war crimes tribunals, with special attention to The International Court for the Former Yugoslavia (ICTY) and World Court in Sarajevo. It examines the testimonies of victims and witnesses and their reasons for testifying, their attitudes towards perpetrators, the consequences of testifying, their recommendations for other witnesses and conceptions of justice. In addition, it explores the attitudes of judges, prosecutors, psychologists and those in charge of protecting and offering services. Adopting a feminist approach, 'Gender, Shame and Sexual Violence' challenges the assumption that the deterrent effect of making rape trials more visible would reduce the occurrence of sexual violence in conflict situations, contending instead that the manner in which cases are handled both increases the victims' sense of shame and serves to propagate a representation of women's bodies that may actually serve to increase the use of sexual violence during war. A compelling analysis of the prosecution of rape as a war crime, this volume offers extensive new empirical material that will be of interest to scholars of sociology, gender studies, criminology, politics, international relations and law.

Chapter 1
Historical Background

The War: Work of the Commission

The disintegration of the Socialist Federalist Republic of Yugoslavia (SRFY) in 1991 triggered a series of wars. Between April 1992, when Bosnia Herzegovina declared independence from the Serbian dictatorship that had gained power in the former Yugoslavia, and 1995, when the Dayton Accords, Paris Protocol or Dayton-Paris Agreement was signed,1 Bosnia Herzegovina was one of the deadliest areas in a larger conflict that began with the break-up of the former Yugoslavia. Serb forces led campaigns of “ethnic cleansing” against Moslem Bosniaks (the name given to Bosnians of Moslem faith/ethnic heritage) with the worst massacre occurring in July 1995 at Srebrenica where 8,000 people, mostly boys and men, were executed.

Starting in 1992, over successive years, week after week, the world learned of mass population transfers; physical destruction of towns, including their major historical, religious and cultural monuments and the creation of over 400 Serb detention centers reminiscent of Nazi concentration camps (Morris and Sharf, 1995, p. 22).2 Prominent also among all the massacres and detentions was the rape of, and sexual violence against, thousands of girls and women committed mostly by Serbian forces against Muslim girls and women. Croats and Muslims also committed rapes and sexual violence, albeit at a much lower level of incidence.

Reports of horrible acts and violations of International Humanitarian Law during the war, including the brutal sexual violence against women, prompted members of the international community to propose drastic action. On 6 October 1992, the United Nations Security Council requested the Secretary-General to establish a Commission of Experts to examine Crimes against Humanity and war crimes committed in the territory of the former Yugoslavia.3 The Commission’s first interim report,4 submitted about three months later, on 10 February 1993, and its final report, submitted on 28 December 1994,5 confirmed numerous serious human rights violations, including widespread rape and sexual violence. Sexual violence against women was also reported by Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights was also investigating the situation in the former Yugoslavia.6 In his second report to the members of the General Assembly and the Security Council,7 he noted:

Rape is a serious problem in this conflict. Moreover, the identity of the victims, who have included young girls, old women and members of religious orders, and the circumstances in which these crimes have been committed indicate that rape is deliberately practiced as yet another method to show contempt and hatred… This is one of the most tragic aspects of the plight of the Muslim population. (para. 27, p. 12)

The Special Rapporteur also noted in his fourth report that there had been other missions to investigate the widespread rapes of women: European Council, the World Council of Churches, Amnesty International, Helsinki Watch and two French physicians (para. 66, p. 21).8 In his 7 March 1994 report, he states:

Given the problems associated with the investigation [of rape and sexual violence], the Special Rapporteur welcomes the initiative of the Commission of Experts established pursuant to Security Council 780 (1992) to conduct thorough investigations of sexual assault occurring in connection with the hostilities in the former Yugoslavia. (para. 53, p. 13)9

He continues to mention rape as a major problem throughout all his reports including the final one in August 1995.10 It was predominantly described as a part of “ethnic cleansing” which, as it will be examined later, is problematic from a gender and other perspectives.

Commission of Experts

Resolution 78011 proposed documenting the crimes committed in Yugoslavia with the intent to limit the atrocities. Yet, as the evidence will show, the creation of the Commission was, in the games of real politic, an effort to create a controllable working group with limited power. The United States, at the beginning, was the most reluctant country opposing the eventual creation of an Ad hoc Tribunal and the Europeans were also much divided. The establishment of the Commission was a reasonable compromise. As Hazan states, “even agreeing on a name became problematic. The Americans wanted a ‘Commission on War Crimes’ but the other permanent members of the Security Council, insisted on the less binding title of ‘Committee’. Final Compromise: ‘Commission of Experts’” (2004, p. 24). To add to the problems of the Commission, the United Nations did not create a special fund for the Committee basically providing no funding.

For the real politic exponents, the Commission of Experts was intended to serve the purpose of appeasing world public opinion. Its existence suggested that something was being done to seek justice, but at the same time, the Commission had to be on a short leash. (Hazan, p. 38)

Frits Kalshoven a Dutch law professor was elected as the first chair but later when he resigned, other members elected Cherif Bassiouni as the president.12 The Security Council members did not count on the leadership, assertiveness and political and moral compromise of Bassiouni and his team with this project. The Commission had no personnel, no translators and obviously no funds to begin the investigations. In Bassiouni’s own words:

Little did the planners of the scenario anticipate that I would manage to find the necessary resources. (2004, xiv)

Bassiouni himself raised one million dollars in funding among others from the Soros and MacArthur Foundations and persuaded his law school at DePaul University in Chicago to help set up a database and donate space for a documentation centre. All this without any financial support from the United Nations:

We had zero resources to lead an investigation into war crimes that the U.N. Security Council, the most powerful organ in the international community had entrusted to us. The whole affair was crazy. (Bassiouni quoted in Hazan, p. 27)

What is truly amazing is that at the end, the Commission submitted its final report which included 28 appendices compromising 300 pages of detailed evidence and testimony (Hazan, p. 47) which were later given to the Chief Prosecutor of the newly-created Ad Hoc Tribunal for the former Yugoslavia, Richard Goldstone from South Africa. Bassiouni is convinced that he was not elected Prosecutor because he was too “victim oriented” and a Muslim (Bassiouni, 2004, p. xiii).

Investigations of Rape and Sexual Violence

The Commission’s report remains, 18 years later, the most authoritative and comprehensive investigation of sexualized violence during the war in former Yugoslavia.

Bassiouni’s appointment was crucial for the investigation of rapes against women. He named two women, in the previously all-male composition of the Commission, Christine Cleiren (Netherlands) and Ms. Hanne Sophie Greve as new members.13 The Commission established a special section dedicated to the legal aspects of rape and sexual assaults and throughout the entire document rapes are reported as massive and prevalent in different parts of the country. The members also developed a database for cases of rape and sexual violence; a pilot study on rape and a other forms of sexual assault an conducted numerous interviews of victims and witnesses which were also documented.14 The Commission created a Sexual Assault Investigation Team (with Karen Kenny as Principal Legal Analyst) which interviewed 223 Bosnian, Serb and Croatian women during phase I of the project. Of the 223 persons interviewed by the Commission, 82 gave statements on rape or sexual violence: 42 of them were female, six were males and the rest were witnesses of sexual violence committed against others.15

The Interview Coordinator worked with the following key persons in implementing the project: Dr. Stephanie Cavanaugh, Coordinator of Mental Health personnel; Ms. Maja Drazenovic, Chief Interpreter; Dr. Sabina Negetovic, NGO Liaison Officer; Mr. Thomas Osorio, Field Officer; Ms. Nancy Paterson; and Ms. Elenor Richter-Lyonett, NGO Coordinators.16 The presence of women is unequivocal.

The Commission discarded the most general allegations and identified 1,100 cases of rape with close to 800 identifiable victims who gave specific information as to the place, time, or names of perpetrators.17 The Commission refrained from making any estimate of numbers not only because the data did not hold but also because it would distort the picture, given that a high number of multiple rapes and gang rapes were reported. However, the Commission allowed for “about 10,000 additional victims the reports could eventually lead to.” It identified 1,100 cases of rape, 600 perpetrators by name with close to 800 identifiable victims who gave specific information as to place, time, or names of perpetrators. About 55 percent of the 1,100 reported cases referred to rapes and sexual violence in detention sites of which about 160 centers could be identified. As Morris and Scharf cite: “On the basis of investigations the final report to the European Council in 1993 concluded that it is possible to speak in terms of many thousands. Estimates vary widely, ranging from 10,000 to as many as 60,000. The most reasoned estimates suggested to the mission place the number at around 20,000” (p. 66).

Rape and Sexual Violence

Because of the great number of cases reported, the Commission recommended focusing only on rape and sexual assault as a method of “ethnic cleansing”, and ignore “opportunistic rapes,” an unfortunate and purely legalistic distinction18,19.

As previously stated, the focus of the study is not on the formal legal prosecution of rape before ICTY and WCC. A complete presentation of the methodologies used in the present study will be presented in Chapter 4. Suffice it to say here, that the survivors of sexual violence who testified before either or one of both courts were not asked in the interviews to describe the details of the rape(s) and sexual violence they had suffered. Hence, it is important to summarize the patterns of rape that the Commission of Experts found in the former Yugoslavia. Patterns of rape need to be contextualized. The frequency of rape of civilians and other forms of sexual violence varies dramatically across conflicts, armed groups within conflict, and units within armed groups (Wood, 2009, p. 161).20

Patterns of Sexual Violence

The following patterns were found regardless of the ethnicity of the victims or the perpetrators:

A) The first pattern involves individuals or small groups committing sexual assault in conjunction with looting and intimidation of the target ethnic group. This is before any widespread or generalized fighting breaks out in the region. The ethnic group controlling the areas, before the final outbreak, begin terrorizing their neighbors. Sporadic attacks by one of two men occur: they break into a house, intimidate the residents, steal their property, beat them and often rape the females. There is a gang atmosphere where the abuses take place even if not all the participants sexually assault the victims.

B) The second pattern of rape involves individuals or small groups committing sexual assaults in conjunction with fighting in an area. This pattern often includes rapes in public places. Typically, the residents of the village under siege get rounded up and divided by sex and age. Some women are raped in their homes; others are selected to be raped publicly. The population of the village is then transported to camps. This often included rapes by neighbours or friends who happened to be of another fraction group.

C) The third pattern of rape involves individuals or groups sexually assaulting people in detention because they have access to the people village has been rounded up, men are either killed or sent to camps. The women are generally sent off to separate camps. There is no control of who has access to them and soldiers, paramilitary men, guards and even civilians can enter the camp and rape them. Some are taken out alone or in groups and taken them away and either killed or sent back to the camp. Reports frequently refer again to gang rape, while beatings and torture accompany most of the reported rapes. Women were sometimes raped in front of the camp commander. In spite of the general pattern, there are also many allegations that women are raped in front of other internees, or that other internees ...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Tables
• Preface
• Acknowledgments
• Introduction
• 1 Historical Background
• 2 Legal Background on International Criminal Tribunals
• 3 Theoretical Perspectives
• 4 Methods of Investigation
• 5 Voices from the Court
• 6 The Courts Surveyed
• 7 Protective Measures
• 8 The Witnesses
• 9 Discussion and Recommendations from the Court
• 10 Recommendations
• Appendix A: Prosecution of Cases involving Rape and/or Sexual Violence by the ICTY
• Appendix B: Questionnaire for Witnesses
• Bibliography
• Index