«Rape is nothing more and nothing less than a very conscious process of intimidation of women by which all men keep all women in the state of fear.»
Susan Brownmiller, Against Our Will: Men, Women and Rape
On rape in wartime
Rape in wartime has been the common experience of the women from all over the world since the first wars broke out. It has occured in all civilisations but different civilisations had different approachs and unequal sanctions concerning this crime.
Rape has been prohibited and punished in many ways ever since the Ancient Rome. The first historic code against the rape in wartime was adopted during the U.S. Civil War in the 19th century (Leiber Codes, 1863.). Rape as a war crime was not clearly listed in this code and rape has not been prosecuted until the establishment of the Former Yugoslav (1994) and Rwanda (1995) International Tribunals.
Geneva Conventions and Protocols (1948 and 1949) enacted after the Second World War – and still used for defining war crimes and their prosecution, specify rape as a grave assault upon personal dignity and it can be prosecuted under different provisions such as torture or as a form of genocide. Nevertheless, this did not occur during the Nuremberg Trials in 1945 and 1946. Two sentences under the special law for prosecuting subordinate commanders were passed in Tokyo in 1946.
See: http://www.amicc.org/docs/Sexualviolence_history.pdf
RAPE IN CROATIA AND BOSNIA AND HERZEGOVINA AND THE HAGUE TRIBUNAL
Wars in the countries of former Yugoslavia in 1990s have been marked with mass rape of women.
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Commmited in the Territory of the Former Yugoslavia Since 1991 was established in 1993. See http://www.un.org/icty/bhs/frames/tribunal.htm. The Tribunal has jurisdiction over these crimes:
· grave breaches of the Geneva Conventions www.nn.hr/sluzbenilist/mugovori/index.asp
· violations of the laws and customs of war,
· genocide,
· crimes against humanity.
Unlike the International Military Tribunals in Nuremberg (IMT) and in the Far East (FET), the Tribunal includes in its founding statute an explicit reference to rape and has been encouraged to give priority to cases of abuse of women and children in court proceedings.
According to The Hague Tribunal rape can be prosecuted as crime against humanity.
Nevertheless, it is not clear whether the rape under International Humanitarian Law is crime against women or against men and the community, and whether it is persecution based on gender or an inhuman act, like maiming or torture, in which gender is of no relevance. From a feminist perspective, although rape was finally clearly defined in Statute of Tribunal as crime against humanity and war crime, disregard of the gender aspect of the crime – the fact that all the rapists are men and that over 90% of war rape victims are women, leaves inconsistency in International Humanitarian Law. Rape is not recognized as an assault motivated by gender dimension. Rape is treated merely as a conflict between the warring sides and their battlefield is „the body of a raped woman... becomes a ceremonial battlefield, a parade ground for the victor's trooping of the colours. The act that is played out upon her is a message passed between men, vivid proof of victory for one and loss and defeat for the other.“ (Brownmiller, 1995). Most feminist theoristicians believe that insisting on ethnic and not on the female gender subject of rape and other forms of sexsual violence in armed conflict intensifies the violence. The emphasis is placed upon the explanation that rape is considered to be a crime against humanity only in the cases of systematic and widespread rapes, when it constitutes a form of ethnic cleansing. Bassioni Commission (Commission of Experts who worked in Bosnia an Herzegovina) in its reports insists on specifying rape as an exclusively political act, an act directed against specific ethnic group and not as a crime against woman's body and woman as a person. The female subject has been completely subordinated to the ethnic subject in terms of language, law and practice.
The Statute of the International Criminal Tribunal (established in 1998) neglects the female subject in favour of national subject. This is evident in interpretation of forced impregnation crimes where these crimes are not defined as violence against woman's body but as attacks on specific ethnic groups. It is clear that only women can be victims of these forms of violence and this furthermore stresses the negation of the female subject.
In August 1992, the United Nations Commission on Human Rights appointed a Special Rapporteur for Human Rights to investigate human rights abuses during the wartime in the former Yugoslavia. In October 1992, the Security Council established a Commission of Experts to analyze the data and to conduct its own investigation. In January 1993, the Special Rapporteur sent a team of medical experts to Bosnia and Herzegovina to investigate rape and cruel crimes allegations and to file a report. In March 1994, The Commission of Experts, mostly dealing with rape issues, sent teams of female lawyers and male and female mental health specialists to conduct interviews with victims and witnesses in Croatia and elsewhere, including Slovenia and Austria.
The Secretary-General of the United Nations in Resolution 820 (1993) dated from April 17, 1993 reminded the Security Council that all forms of violations of the Humanitarian Law should be condemned, especially the practice of "ethnic cleansing" and mass, organized and systematic detention and rape of women, and reaffirmed that the perpetrators of such acts, superior or subordinate will be held personaly responsible. The Resolution is available online at http://www.nato.int/ifor/un/u930417a.htm.
Several trials before The Hague Tribunal state violation of person's dignity, including rape as one of the elements of indictment. Some cases such as Furundžija, Kunarac, Kovač i Vuković have been concluded and some are still in legal proceedings. The acess to the cases is available online at the official Tribunal web page www.un.org/icty/bhs/frames/cases.htm.
Vesna Kesić wrote about international and local women's movement which explicitly specified rape as war crime and played great roles in the process of establishment of the International Criminal Tribunal for the Former Yugoslavia in her paper Od Vještica iz Rija do revizionistica povijesti (From witches from Rio to history revisionists), together with Mirko Petrić. His paper O feminizmu i nacionalizmu (On feminism and nationalism) and Vesna Kesić's paper were published in Zarez, No. 48.
Mass rape in wartime was one of the significant topics that have contributed to the conflict within the women's movement in Croatia and the region and also was one of the essential causes why the feminists were attacked and persecuted as "inadequate patriots, traitors, foreign spys" in the early 1990s by the regime in power and the media. Feminist explanations of mass rape were not acceptable.
Cases of mass rapes in wartime on the teritory of former Yugoslavia were intensely politicized. Politics established national identity and homogenization over the raped female bodies.
Ivana Radačić wrote about the rape issue and international law regulation of the gender based war violence, especially sexual violence and the establishment of International Criminal Tribunal for the former Yugoslavia in her paper Granice međunarodnoga kaznenog prava: Jesu li žene napokon unutar granica? (The limitations of International Criminal Law: Are the women finally within the limitations ?), published in Treća magazine, number. 2, vol. VI, in 2004. In her paper Empowering Women Through International Criminal Tribunals Kelly D. Askin wrote about the historical treatment of women in armed conflicts and about the establishment of the Tribunal.
Christine Chinkin, a law professor at Southhampton University, wrote about rape in the context of international law in her paper Rape and Sexual Abuse of Women in International Law
Local context
In March 19, 1994, Večernji list published article Tužila sam Karadžića zbog silovanja (I pressed charges against Karadžić for rape) by Catherine A. Mackinnon, an American professor of law at Michigan University, where she stated that she had pressed charges against Radovan Karadžić on the behalf of several raped Croatian and Muslim women. Mackinnon in her article attacked local feminists and their interpretation of war events and wartime rapes.
Mackinnon has analyzed rapes in Bosnia focusing on the role of pornography in the former Yugoslavia. The author claimed that pornography was more present in the former Yugoslavia than in the other socialist countries. The author advanced her theory and stated that pornography in the war on the territories of the former Yugoslavia, even though sex and pornography have been used for mobilization and manipulation of the ethnic hatred, was for the first time conciously, cynically and in sophisticated manner used as means of genocide. The result of her analysis showed that pornography itself had served as the preparation for the subseqently committed crimes. Mackinnon explained her theory in article «Turning Rape into Pornography: Postmodern Genocide» published in MS magazine., July/August 1993, p. 24-30.
Many American female feminist scientists reacted to this article and Vesna Kesić wrote a commentary- response to it published in Hastings Women´s Law Journal, November 2, 1994.
Susan Brownmiller, a prominent feminist author, gave her interpretation of cases of mass rapes in Yugoslav wars. She pointed out that rapes in Bosnia were not the products of ethnic identity but the crisis of male, militarized ethnic identity. Men on the Balkans found the ethnic reason to fight and die in order to protect their wives from their enemies. Unlike Mackinnon who placed rape in the context of ethnic conflict, Brownmiller put it in the context of conflict between men. ”Sexual assault on enemy's wife is one of the pleasures in the process of conquest, (…), once the soldier is free to kill he becomes a young man driven by adrenaline rush with a license to tear down doors to take and steal in order to vent his hatred against all the women who belong to other men". Women's bodies represent battlefields where men transfer their rage to the other men. (See http://www.susanbrownmiller.com ).
Chatherine N. Niarchos in her work Women, War, and Rape: Challenges Facing The Inrnetional Tribunal for the Former Yugoslavia divides rape cases in 5 categories:
The domestic and foreign media has in great number published stories of women victims of such horrific crimes who spoke about their experiences. (some examples: "Vilina vlas" Hell (Pakao “Viline vlasi”, by Ines Sabalić, Nedeljna Dalmacija, December 9, 1992; Zašto su hrvatske vlasti prešutjele srpska silovanja (Why has the Croatian government suppressed Serbian rapes ) by Jasne Babić, Globus, December 11, 1992; Silovano djetinjstvo (Raped childhood), by Darija Filipović where she described the experience of victims from Vukovar, Nedjeljna Dalmacija, December 23, 1992; Silovali su nam i dušu (They have raped our souls), by Dušanka Figenwald, Mila, January 20, 1993). Cases of mass rapes became topics of political commentaries and war-nationalistic journalism. The nationalities of the raped women were more often than not identified with the nations. The raped Croatian women became the symbol of "raped Croatia" and raped Muslim women stood as a metaphore for "raped Bosnia". Their sacrifice and sufferings became instruments in the hands of polititians who used it as justification for their own deeds during the wartime.
Vesna Kesić in her article Silovanje je poruka (Rape is message), published in Nedjeljna Dalmacija, January 6, 1993 introduced the issue of mass rape as a problem of gender relationship and patriarchy through the views of several theoriticians. Globus published article by Davor Butković Srbi siluju i muškarce (Serbs rape men too) in January 22, 1993 where he stated testimonies of rape victims and analyzed the strategy of Serbian rapes. In this article he also fiercely attacked Croatian feminists; Autonomous House for Women Zagreb and Zagreb Women's Lobby for their statements. He accused Zagreb Women Lobby, by having published its letter of intent, for being "put under Great Serbian yoke".
European Women's Lobby reacted to the cases of mass rapes on the teritory of former Yugoslavia in its statement released February, 2.
Women´s solidarity, an international conference, was held in Zagreb on February 8, 1993. Drago Buvač in his article Silovanje politike (The rape of politics), published in Slobodna Dalmacija, February 20, 1993 brought the commentary of the discussion carried before the Comission for Women's Rights of the European Parliament where the representatives from Bedem ljubavi and women from Serbia were present.
Ines Sablić wrote about war rapes in Croatia and Bosnia and Herzegovina in her article Pečat na tijelu (Mark on body) published in Nedjeljna Dalmacija and Ljiljan on May 24, 1993. She analyzed the theory that cases of war rapes occur in every war and that all three warring sides have raped, with the special focus on the rape as a gender expression of the aggresion and not the aggresive expression of the gender. Believing that the rape in this war has its gender and national identity, the author explained the purpose of rape as the means of communication between men focusing on the Serbs as rapists. The author addressed the problem of victim's silence. She explained the silence about suffered crimes as the reason why she lost evidence of her subjectivity because the rape had reduced her to the national and religious object, to the carrier of the message for her husband or father.
Veronique Nahoum-Grappe, a French anthropologist and a historian, in her interview in Nedjeljna Dalmacija, September 1, 1993, gave reasons for European lack of influence concerning the Balkan conflicts. The author explained rapes through systematicly planned ethnic cleansing by the Serbs, "There were rapes in every war; but systematic rape is something different; it had to be invented, just like the gas chamber. Our hunters used to kill people, they spilled their blood and now they are taking over the husband's place and impregnate the woman with the other ethnic group. This represents greater monstrosity of the rape because it functions as the ethnic cleansing and the creation of pure nation. Occupier is a sadist, he leaves his victims alive but destroyes their lives. All this represents the logic of the extreme Right where everything runs through the same blood line, through the sperm. Husband is gone, killed or deported, somebody should take his place. A phantasmagoric stands behind this, an idea that, objectively speaking, is not just Serbian specialty but an idea which the Serbs have brought to paroxism - : they put rape at the service of national identity .(...) rape unfortunately occurs in every war, (...) but that what the Serbs are doing is something else. (...) Rape, as well as looting is organized in the framework of ethnic rape project."
Indira Kajošević in paper Undrestanding war rape: Bosnia 1992 gives her interpretation of wartime rapes (http://orlando.women.it/cyberarchive/files/kajosevic.htm).
The topic of mass rape in the Balkans wars during 1990s has been re-actualized, questions concerning the fate of raped women, the legal treatmant of their countries towards them concerning the regulation of their status, children who were born after the rapes and the treatment of the immediate neighborhood are being discussed.