Rape, Sexual Violence and Transitional Justice Challenges

Lessons from Bosnia Herzegovina

Janine Natalya Clark

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781351718578
• Edición: 1
• Categoría: Law
• Categoría: Law Theory & Practice

It is estimated that 20, 000 people were subjected to rape and other forms of sexual violence during the 1992–1995 Bosnian war. Today, these men and women have been largely forgotten. Where are they now? To what extent do their experiences continue to affect and influence their lives, and the lives of those around them? What are the principal problems that these individuals face? Such questions remain largely unanswered. More broadly, the long-term consequences of conflict-related rape and sexual violence are often overlooked. Based on extensive interviews with male and female survivors from all ethnic groups in Bosnia-Herzegovina (BiH), this interdisciplinary book addresses a critical gap in the current literature on rape and sexual violence in conflict situations. In so doing, it uniquely situates and explores the legacy of these crimes within a transitional justice framework. Demonstrating that transitional justice processes in BiH have neglected the long-term effects of rape and sexual violence, it develops and operationalizes a new holistic approach to transitional justice that is based on an expanded conception of 'legacy' and has a wider application beyond BiH.

Chapter 1

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Rape and sexual violence in conflict

A historical overview

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‘I told him not to touch me and begged him to let me go… I told him to take me to my mother. I was a young girl, and I asked him, “What do you want from me?” He spent three days having sex with me’.¹ These are the words of a 12-year-old Yazidi girl in northern Iraq. Islamic State fighters have heavily targeted women and girls from the Yazidi religious minority, subjecting them to brutal crimes – including rape² – and often forcing them to become sex slaves.³ As these crimes continue to occur, reports have emerged of the widespread use of rape against women in the escalating conflict in South Sudan;⁴ of sexual abuses committed by members of the Burmese military;⁵ and of conflict-related sexual violence in Ukraine, primarily in places of detention.⁶

These examples attest to the sobering fact that rape and sexual violence remain persistent scourges of war and armed conflict. Yet, there have also been many positive developments and steps forward. In March 2015, for example, military commanders from the Armed Forces of the Democratic Republic of Congo (DRC) signed a declaration to combat sexual violence in war. They pledged, inter alia, to take action against any soldiers under their command who commit acts of rape and sexual violence, to ensure that their soldiers understand the zero tolerance policy and to co-operate with military prosecutors in bringing perpetrators to justice.⁷ In May 2015, the Croatian parliament (Sabor) adopted a new law which provides survivors of rape and sexual violence committed during the war in Croatia (1991–1995) with a comprehensive range of rights, from compensation and health insurance to psycho-social assistance and legal support.⁸ In February 2016, in the Sepur Zarco trial, a court in Guatemala found two former military officers guilty of crimes against humanity – including sexual violence and sexual slavery – against 11 women from the indigenous Maya Q’eqchi’ community. A month later, the court issued a landmark decision in which it ordered both the payment of compensation to the women and the adoption of wider community-focused measures to address the legacy of sexual violence suffered by the Q’eqchi’ during the 1980s.⁹ In June 2016, the International Criminal Court (ICC) sentenced the former Congolese vice-president, Jean-Pierre Bemba Gombo, to 18 years’ imprisonment. He is the first person convicted at the ICC of rape.¹⁰

The issue of conflict-related rape and sexual violence illuminates a fundamental interplay of continuity and progress. The ongoing use of rape and sexual violence in conflict attests to the usefulness of these crimes in warfare. What has changed, however, is that they are no longer seen internationally as mere by-products or legitimate ‘spoils’ of war. In June 2014, the organization of the first Global Summit to End Sexual Violence in Conflict – held in London – reflected a widespread normative consensus that rape and sexual violence constitute dangerous and destructive weapons of war, the deployment of which must be punished and outlawed.¹¹ This chapter moves from the general to the particular. The first sections focus on the international level, while the remaining sections are specifically about the widespread use of rape and sexual violence in BiH during the 1990s. The scale of these crimes had ‘an electrifying effect…’;¹² the international community could not simply turn a blind eye and do nothing. Thematically, therefore, the Bosnian war can itself be associated with both continuity and progress. The crimes committed were not new, but they contributed to new developments – normative and legal – internationally.

Continuities of violence

Just as human suffering and loss have always accompanied warfare, so too have rape and sexual violence. To cite Mitchell, ‘Rape, torture, and sexual violence have been endemic during armed conflict for centuries’.¹³ It was during the twentieth century, however, that some of the most well-known and documented cases occurred. The mass rapes committed by Red Army soldiers in Germany at the end of World War II;¹⁴ the Japanese imperial army’s ‘Rape of Nanking’ in 1931¹⁵ and its use of ‘comfort women’ during the 1930s;¹⁶ the rapes of an estimated 200,000 Bengali women during the Bangladesh Liberation War in 1971;¹⁷ the use of rape and sexual torture by US soldiers during the Vietnam war;¹⁸ the ‘widespread and systematic sexual violence’ carried out by rebel forces during the 1991–2002 civil war in Sierra Leone;¹⁹ the high levels of rape and sexual violence that occurred during the 1992–1995 Bosnian war;²⁰ the systematic rape of between 100,000 and 250,000 people (mainly ethnic Tutsis) during the 1994 Rwandan genocide;²¹ the ongoing rape of women and men in the DRC, earning the country the infamous title of ‘rape capital of the world’.²² These are just some examples of the crimes committed in a century that Hobsbawn has termed ‘the most murderous in recorded history’.²³

The recurrent use of rape and sexual violence in war has inevitably given rise to a wealth of different causal theories, from biological²⁴ and social constructivist accounts²⁵ to purposive/strategic²⁶ and feminist explanations.²⁷ However, no single theory is sufficient to explain the pervasiveness of war rape and sexual violence across time and space. They are crimes that occur within the unique context and dynamics of individual conflicts and their use may further specific conflict-related goals. Such goals can include genocide (as in Rwanda in 1994);²⁸ troop motivation (South Sudan offers a recent example);²⁹ group bonding (illustrated by the use of gang rape in Sierra Leone’s civil war);³⁰ and the defeat of an armed insurgency (highlighted by the Sri Lankan military’s use of sexual violence against members of the Tamil Tigers).³¹

In other words, significant micro variation exists alongside the macro narrative of continuity.³² As Bourke underlines, rape ‘varies between countries; it changes over time. There is nothing timeless or random about it’.³³ These variations across different conflicts and contexts point to the multi-dimensional and polyvalent utility of rape and sexual violence in warfare. This utility, in turn, helps to explain both the persistent use of these crimes in war and the related fact that, historically, they were often viewed as ‘mere inevitable consequences or side effects of armed conflict’.³⁴

Impunity and the changing international landscape

The use of rape and sexual violence in conflict highlights a fundamental disconnect between formal rules of war and the informal codes of conduct that develop and solidify on the battlefield. As Aydelott argues, ‘The treatment of civilian women during war is an issue in which the law often clashes with the expectations of the soldier. In this conflict between law and man, the women are the losers’.³⁵ While this is largely true, it is not the case that rape in war has always gone unpunished historically. For example, some soldiers were ‘subjected to capital punishment under national military codes, such as those of Richard II (1385) and Henry V (1419)’;³⁶ and in 1474, an international tribunal of the Holy Roman Empire sentenced a military commander, Peter von Hagenbach, to death for crimes committed by his troops – including rape – in Breisach in the Rhine Valley. Nevertheless, these were isolated ad hoc developments, and several centuries were to pass before any serious and sustained efforts were made to outlaw the use of rape and sexual violence in war.

In 1863, the United States adopted the Lieber Code, Article 44 of which stated that: ‘all rape, wounding, maiming, or killing of such inhabitants are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense’.³⁷ This collocation of rape with offences such as killing and maiming was in itself highly significant. Rape was thus repositioned as a violent crime instead of simply ‘an affront to a man’s pride as guardian o...