Sources Utilized

Bonomy, Iain.  TTY Interview.  26 May 2006.

Boose, Linda.  "Crossing the River Drina: Bosnian Rape Camps, Turkish Impalement and Serb Cultural Memory."  Signs, Vol. 28, No. 1, Gender and Cultural Memory.  Chicago:   University of Chicago Press.  Autumn 2002.

Engle, Karen.  "Feminism and Its (Dis) Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina."  The American Journal of International Law, Vol. 99, No. 4.  American Society of International Law.  2005.

Harmon, Mark.  TTY Interview.  27 May 2006.

Klarin, Peter.  TTY Interview.  24 May 2006.

Kwon, O-Gon.  TTY Interview.  21 May 2006.

Mundis, Daryl.  TTY Interview.  14 May 2006.

Murphy, Peter.  TTY Interview.  17 May 2006.

Niarchos, Catherine N.  "Women, War and Rape: Challenges Facing the International Tribunal  for the Former Yugoslavia."  Human Rights Quarterly, 17.4.  Baltimore:  John Hopkins University Press.  1995.

Okin, Susan Moller.  "Feminism, Women's Human Rights, and Cultural Differences."   Decentering the Center.  Indianapolis:  Indiana University Press.  2000.

-----.  International Criminal Court website.  2008.  

-----. International Criminal Tribunal for the Former Yugoslavia website.  2008.

The ICC: Picking Up Where the ICTY Left Off

It becomes clear that, though the International Criminal Tribunal for the former Yugoslavia certainly did take major steps in prosecuting rape in the international arena, its system is flawed and the introduction of time tables leaves both the issue and the many voices of the women, children, and families affected silenced.  Where the ICTY failed in certain aspects of its attempt to bring rape survivors a voice and the justice they deserve, the International Criminal Court is trying to pick up the pieces.  

In 2004, the Rome Statute, a treaty signed by 108 nations to date, called for the creation of a permanent criminal court in the Hague, Netherlands "to try persons accused of the most serious crimes of international concern, name genocide, crimes against humanity and war crimes" (ICC: About the Court).  The ICC differs from the ICTY and the ICTY in that there is no concern for completion strategies, as the court will remain a permanent fixture of the international community.  The court is currently hearing cases and compiling investigations on four countries: the Democratic Republic of Congo, the situation in Darfur, Sudan, Uganda, and the situation in the Central African Republic.  Because the ICC has the time, the resources, and the lessons learned from ad hoc tribunals, they have made some major steps forward in giving survivors of such atrocities a voice.

Perhaps the greatest step forward is the incredible and unprecedented move by the ICC to allow for victims and witnesses in trials to have their own representation, separate from the prosecution, allowing them to actively participate in trials beyond merely giving their testimony.  "For the first time in the history of international justice, victims have the possibility under the Statute to present their views and observations before the Court.  Participation before the Court may occur at various stages of proceedings and may take different forms" (ICC: Victims and Witnesses).  In making this move, the ICC appears to be taking a genuine interest allowing the survivors of atrocities to make their voices, their locations, their stories, truly known by the international community.  In providing them with the resource of legal representation who has no goal other than their comfort and justice (unlike the prosecution on so many occasions), the Court has a serious chance of actually succeeding in this goal.  Whereas prosecutors pick and choose what is best for their case, what they feel is the most dramatic and the easiest crimes to prove, the legal representation for the Victims and Witnesses will focus on what's best for the people involved--an end goal the prosecution often manages to lose sight of under the pressure to win.

On top of this innovative move, the ICC has also created a program within the Court called Victims Trust Fund.  The ICC's website lays out its purpose:

As a non-political, cross-cutting organization, we advocate for victims, mobilize people and resources, and fund or implement innovative projects.  We bring assistance and expertise to the most vulnerable victims of genocide, war crimes, and crimes against humanity in the most forgotten countries.  As each situation is unique, the Trust Fund for Victims develops our activities with the victims themselves as partners.  We do not give charity; we provide the tools for victims to help themselves.  Our focus on local ownership and leadership empowers victims as partners in the process of rebuilding their lives (ICC: Victims Trust Fund)

The Fund manages to accomplish two very important goals in its mission: not only does it help provide relief for survivors of these horrific situations, it also helps maintain the agency of the victims involved, by providing them with the means to rebuild their lives rather than throwing well-meaning but somewhat wasteful charity at the issue.  This moves five steps beyond anything the ICTY had considered:  though their Victims and Witnesses Unit provides counseling and aid for some witnesses, it is certainly difficult to obtain and it ends upon the completion of the tribunal, whether it has accomplished it ends or not.  The Victims Trust Fund, again, because of its permanent status in the Court has the opportunity to follow through and really help victims pick up the pieces of their lives.

Only time can tell if the ICC will be as successful in its broad aims for victim support as it aims to be, but at this juncture, it appears that, once again, pioneering progress has been made in the international justice arena.

Information about the ICC compiled from:

http://www.icc-cpi.int/

Trading Justice for Efficiency: The ICTY's Completion Strategy

On March 26, 2004 the UN Security Council unanimously adopted Resolution 1534, calling for the completion of the ad hoc tribunals, the ICTY and the ICTR, by the year 2008 (for more information see http://www.un.org/New/Press/docs/2004/sc8040 ) .  Though the ICTY clearly has not lived up to this fast-approaching deadline, its employees are working steadfastly to wrap things up with a strict completion strategy.  In doing so, many of its workers feel that the voices of the survivors (and particularly the survivors of rape) have been stifled in an effort to more efficiently get through these trials.  

In 2006, I had the opportunity study at the ICTY, observing trials and interviewing judges, the registry, the prosecution, the defense, and the victims and witnesses unit.  I found that, across the board, when the completion strategy was mentioned, tensions would rise.  Below I have compiled some information based on interviews with those whose job is to ensure that the voices of the victims are heard--their stories are startling to say the least--and I think they show just how little the tribunal cares anymore about catering to the victims when faced with a timeline for completion.

Defense layer Peter Murphy claims that "the completion strategy exists because the conflict in the Balkans is old news...There is a widespread assumption that everything is okay in the Balkans now, even though Bosnia and Herzegovina are NOT.  They are still completely polarized--the Serbs still worship Karadzic and Milosevic as their heroes and the Muslims still have their own heroes" (Murphy 2006).    Because of the completion strategy, cases are being rushed through without the due consideration they deserve--testimonies are being cut short--but the worst result is that prosecutors are no longer considering many of the counts in their own indictments when they go after war criminals.  Daryl Mundis of the Office of the Prosecutor (and one of the prosecutors in both Foca rape cases, for that matter) explained to me that rape and sexual assault charges are often the first to go.  He stated, "The counts do exist, but they are often overlooked for 'graver' crimes due to the completion strategies" (Mundis 2006).  I take specific issue with this statement after observing the trials for weeks.  Sexual assault charges were not focused on even when present in the indictment and case information sheets, but what are the graver crimes he speaks of?  Murder is certainly one of them--but some consisted of charges like "Property Damage,"  etc...How does anyone feel they have the right to measure something like property damage as a graver crime than widespread and systematic sexual assault?  When I questioned Mundis about this, and specifically why rape as a form of genocide had not been kept on the table, the most he could give me was that the prosecution "knew that the trials would go down the tube and didn't want the media focusing on that" (Mundis 2006).  I find this hard to buy, particularly considering at least 40 women have had their testimonies as rape victims published since the rape camp trials...It is hard not to attribute this sudden lack of interest to the impending completion strategy.

Beyond cutting counts out of the prosecution's indictments, judges have begun cutting victims' and witnesses' testimonies out of trials.  Prosecutor Mark Harmon believes that this is a direct result of stress due to pressure from the completion strategy: "Now when the Prosecution calls victim witnesses, the court is impatient and asks them to please move on...It seems the court is experiencing victim witness fatigue...they appear to feel that listening to long narratives is only wasting their time, which is why the 92bis has been instated...And don't even get me started on the flaws of THAT system" (Harmon 2006).  Rule 92bis of the tribunal states that witness testimony shall be forgone in exchange for written statements, which can be problematic in themselves, according to Judge Iain Bonomy:  "Of course these statements have flaws and we have no choice but to take that into account...Unless there is a system of legal representatives present at times that these statements are given which, frankly, is rarely the case, they are certain to be problematic in one way or another" (Bonomy 2006).  Judge Kwon defends their use however, stating emphatically that, "It's impractical to hold a trial for every accused and to allow every single victim to tell their stories...In an ideal world, maybe, but the ICTY does not have the mandate, the money, or the time" (Kwon 2006).

Very few of the people I interviewed agreed with Kown.  Mundis made it clear that:

The judges seem to think that, because they read a miniscule amount of a case file, they understand the case...this isn't so.  There are hundreds of witness statement and evidentiary documents...We only use 10-15% of these files and statements in the case itself and the completion strategy has cut this percentage down drastically.  Now the judges read a statement, brush most of it off as hearsay or inaccurate, and think they know what's going on...With all due respect, this shows a complete lack of knowledge of the system of prosecution (Mundis 2006).

Beyond the lack of knowledge that the judges face when they stick to reading 92bis statements, another problem exists in that with 92bis statements, the public never gets the chance to hear the stories of the witnesses and survivors.  In essence, their voices are effectively silenced, and all due to a need for a speedy and cost-effective end.  As Serbian journalist Mikro Klarin so eloquently put it, "It is a travesty that the victims cannot tell their stories--92bis means that the stories do exist, but the public now will never know of the suffering of these people--all they end up hearing is the Defense trying to discredit the witness" (Klarin 2006).

Making this move into written statements that are most often simply "written off," (when sexual assault charges are now even considered--an occurrence that is rare nowadays), the ICTY has effectively transformed these women from the brave subjects of knowledge that they once were, fighting to make the truth of the war known, to invisible objects of knowledge without the chance to respond to any attacks made to their stories by the Defense.  Because of a simple U.N. resolution, the ICTY has effectively undone much of the progress they'd made, in my opinion.  Hopefully this trend will not continue on in the ICC, to be explored in my next entry...

The ICTY: Giving Women a Voice

Muradis Kulenovic, Bosnian psychiatrist and survivor of the war,  understands the depth of the trauma the women of Bosnia experienced.  She realizes that they did not go through your "everyday rape," which is terrifying, life-altering, and heartbreaking enough in itself.  She gets the interlinked trauma, knowing that, "the victim, prior to rape, had experienced the massacre of children and parents, then had to watch the murder of her husband, who had been forced to watch the rape of his wife.  Finally...terrified and naked, she had to flee under a rain of bullets from her burning village, stumbling on the mangled and charred bodies of her relatives, families, and friends" (Boose 72).  She understands that being raped 10-12 times a day for a month straight is incomparable.

"This tribunal has...responsibilities: not only must it punish, but it also must demonstrate, beyond doubt, what the victims have suffered, and expose and condemn the twisted ideas and visions that caused madness to break out in the former Yugoslavia.  Rape is just one of the many atrocities suffered by civilians during this war, but it is the peculiar and odious way in which women suffer in all wars" (Niarchos 653).

The third goal of the ICTY is to bring justice to the victims and give them a voice.  The website states:  

To date, over 3500 witnesses have taken the opportunity to tell their stories while testifying in court.  Through this, they have contributed to the creation of elements of a historical record.  The prosecution has also interviewed 1400 other potential witnesses.   This has given victims and witnesses a real sense that they and their communities are involved in the work of the tribunal (ICTY: At a Glance).

To aid in this process, the organ of the Prosecutor has an entire office devoted to helping those willing to testify--The Victims and Witnesses Unit of the tribunal.  In this office, in exchange for testifying and sharing their stories, survivors of the atrocities are offered various forms of assistance, including all travel expenses, therapy, witness identity protection, and even witness relocation and financial assistance if deemed necessary.  The ability to testify completely anonymously has convinced many witnesses to make their voices heard who otherwise might have shied away from doing so for fear of threats from their enemies at home.  Furthermore, the Victims and Witnesses unit have various field teams in the former Yugoslavia to provide help and assistance to those who still need it.  These painstaking steps taken by the ICTY show a clear effort to aid in making the voices of Bosnian survivors heard--indeed, the ICTY made specific effort to help 40 Bosnian women publish their testimonies in a shocking book entitled I Begged Them to Kill Me (Boose 73).  Despite the imperfections, to be discussed soon, it is clear that the intention of the tribunal is noble and good.

Information on ICTY Cases:

The most well-known cases in which perpetrators were prosecuted for rape at the ICTY are Kunarac et al. and Jankovic & Stankovic, both groups tied to the atrocities that occured in the Foca region of the former Yugoslavia. Below is some information on the cases, indictments and judgments, all available through http://www.un.org/icty/ :

Kunarac et al.

Case Information Sheet:
http://un.org/icty/cases-e/cis/Kunaracal/cis-kunarackovacvukovic.pdf

Indictments:
http://un.org/icty/indictment/english/kun-iii991108e.htm (Kunarac and Kovac)
http://un.org/icty/indictment/english/vuk-1ai000221-e.htm (Vukovic)

Judgments:
http://un.org/icty/kunarac/appeal/judgement/kun-aj020612e.pdf (Trial Chamber)
http://un.org/icty/kunarac/trialc2/judgement/kun-tj010222e.pdf (Appeals Chamber)


Jankovic & Stankovic

Case Information Sheet:
http://un.org/icty/cases-e/cis/jankovic/cis-jankovicstankovic.pdf

Indictments:
http://un.org/icty/indictment/english/foc-1ai991007e.htm

No judgment available on the site for this case.

A Dialogue with Karen Engle: Genocidal Rape or Not?

In examining the transformation in the treatment of rape as a war crime/crime against humanity by the international justice community, Karen Engle lauds the move to prosecute such crimes, stating that "it led to the consideration of rape as a violation against women qua women, rather than simply as a violation of men's property rights" (Engle 779).  Her article, "Feminism and its (Dis)contents- Criminalizing Wartime Rape in Bosnia and Herzegovina" explores the role feminists played in struggle to prosecute rape on an international criminal level.

One of the biggest contentions between feminist groups, according to Engle, was whether or not such rapes should be pursued as "genocidal rape," rather than rape as a war crime.  Forced impregnation with intent to thin the blood lines of a specific racial, ethnic, or religious group has long been considered a potential form of genocide.  So why wouldn't feminists distinguish this form of rape as different, considering "that they were a tool for the systematic extermination of Bosnian Muslims?"  (Engle 779).  The disagreeing feminists argue that rape in time of war is nothing new and should not be punished as such.  The latter argument seems quite flawed to me--In fact, I would argue that it is downright disrespectful to the women  who lived through these horrific daily rapes--to the 35,000 Muslim and Croat women who were impregnated by means of brutal rape.  Could it possibly be right to downplay atrocities like this simply because they "happen all the time" in war?  Is this a situation in which the importance of justice is looked over due to the misguided blanket generalization of cultural difference and the "Otherness" of Eastern European women?  If this were happening in our own backyard, would we so flippantly disregard these atrocities as "just something that happens all the time in war?"  I believe it is a form of discursive insecurity on the part of Western Feminists to react in such a way.

According to lauded feminist Catherine MacKinnon, ignoring the importance of these rapes as a form of genocide is an atrocity in itself.  Indeed, she fought for the inclusion of genocidal rape in the ICTY and decried those feminists who disagreed as being a part of a larger feminist cover-up, one that was "useful to the perpetrators because it seems to acknowledge the atrocities--which are hard to deny (although they do that too)--and appears to occupy the ground on which women have effectively outraged against them.  But its function is to exonerate the rapists and to deflect intervention" (Engle 786).  Despite arguments made by those that disagreed with her that focusing on the genocidal rape of Bosnian women downplays the other rapes that occured in the war, I don't see this to be the case.  At no point did MacKinnon suggest that the tribunal focus SOLELY on the genocidal rapes.  And playing them down to make sure all rapes are addressed makes it seem as though the international community might feel it's necessary to take away the voices of the women in this genocide in favor of making sure other rape victims have a voice.  It just doesn't make sense.  Slavenka Drakulic puts it well, I think, when she states, "Of course, Croats and Muslims have raped Serbian women in Bosnia too, but the Serbs are the aggressors, bent on taking over two-thirds of the territory.  This does not justify Muslim and Croat offenses, but they are in a defensive war and do not practice systematic and organized rape" (Engle 790).   (emphasis mine)

Engle points out a troubling aspect on both sides of the argument, however, when she points out that both treat women as nothing more than victims of war--or objects of knowledge.  In doing so, women's sexual and political agency is stripped from them.  She states:  "Those who focused on rape as genocide were likely to regard all Bosnian Muslim women, raped or not, as victims and as incapable of fighting in the war...Those who emphasized that rapes were committed on all sides tended to regard the women on all sides as victims of, rather than political or even military participants in, the war" (Engle 794).  Engle brings up the issue of women not wanting to share their stories, not wanting their voices to be heard, due to shame and humiliation in their culture.  It is a troubling conundrum, certainly, to consider what's more important: respecting the right of these women to silence or obtaining the information needed to see that justice is served.

Despite all of these arguments and issues, Engle makes it clear that there HAVE been great achievements in the struggle.  "Twenty percent of all charges brought before the ICTY have involved allegations of sexual assault, and three have focused specifically on rape...the ICTY has convicted several men of rape, finding rape and other sexual voice against women to constitute torture and therefore a grave breach under the Geneva Conventions and the ICTY statue, as well as a war crime and a crime against humanity under the ICTY statute" (Engle 781).  Though there are many problematic tendencies to consider, the good that has come from these trials and precedents is immeasurable.

A (Very Brief) History of the Conflict in the former Yugoslavia

Though the bulk of the conflict in the former Yugoslavia took place from 1992-1995, the foundation for the war had been building for over 600 years—to say the hatred between ethnic factions in the Balkans is deep-seated is a vast understatement. In the interest of brevity, however, I will stick to giving you a quick run-down of the conflict itself.



Years of being the (self-perceived) under-dog left Serbians, comprising 66% of the population in the FY, filled with a nationalistic hunger for control. Seizing the opportunity to gain Serb loyalty through such strong nationalism and exercising his power through party control and control of the media, Slobodan Milosevic sought to first void the autonomy of Kosovo. Doing so not only created a conflict that began the repression of Albanian Kosovars; it stirred fear in other ethnic factions, specifically the Croatians and the Bosnian Muslims.



In 1991, Croatia voted to secede from Yugoslavia to fight the plan being hatched by Milosevic to create a “Greater Serbia.” This caused the Serbs to send a military response, which launched into an all out battle and began the capture and “cleansing” of at least a third of Croatia. Meanwhile, in Bosnia, 1992 brought on a referendum for Bosnia’s independence put forth by the Croats and Muslims in response to fear of the Greater Serbia. Milosevic responded by calling for an ethnic cleansing of Bosnia that was supported by the nation’s Serbs due to a chilling propaganda campaign:



“Throughout Bosnia, Bosnian Serb nationalists and the JNA began a systematic policy of 'ethnic cleansing' (a polite term for genocide) to establish a 'pure' Serb republic. They drove out all other ethnic groups by terrorizing and forcibly displacing non-Serbs through direct shelling and sniper attacks. Entire villages were destroyed. Thousands were expelled from their homes, held in detention camps, raped, tortured, deported, or summarily executed. Rape was a military tactic to destroy the bonds of families and communities” (CBD 1996).



To say that the Serbs are solely at fault, however, is a gross mistake. All three ethnic factions ensnared in this war committed war crimes and crimes against humanity, though the Serbs were the only ones who committed genocide and the only group that perpetuated rape as a form of genocide.



In May of 1993, the United Nations Security Council passed resolution 827, calling for an ad hoc tribunal to deal with the situation and with that resolution came the creation of the International Criminal Tribunal for the Former Yugoslavia. In 2002, the Foca case broke major ground in rape prosecution on an international scale, finding the proprietors of the infamous Bosnian rape camps guilty of their accused crimes.



For more information see:
http://www.friendsofbosnia.org/edu_bos.html
http://www.un.org/icty