|By Thom Shanker
She gave her name as Marijanna, but it really is Mirsada, and she said very little after arriving at the hospital in August of 1992, when the conflict in Bosnia-Herzegovina was only a few months old and the brutality of the shifting front lines still veiled stories of mass rape.
With the passing weeks, though, the pale-skinned, brown-haired girl—half Croat, half Muslim—spoke of being imprisoned with her mother and two dozen other women in the basement of a municipal hall in her home town of Teslic, in north-central Bosnia. Her jailers, Bosnian Serb irregulars, raped her and the others and forced them to have sex with uniformed Bosnian Serb troops deploying through the area. She and her mother each had to watch as the other was gang-raped three times a day, every day, for four months. Mirsada was released only when she became visibly pregnant, and her jailer-rapists said, “Go bear our Serbian children.” By the time she crossed the front and found medical care in Croatia, the fetus was too developed to be safely aborted. As she sat in the maternity ward of Zagreb’s Petrova Hospital, she kept a palm over her stomach. In her womb was ever-growing evidence of the ever-expanding horror of the Bosnian war. Mirsada was seventeen.
Rape as a spoil of combat can be found throughout history, as far back as the oral recounting of Mediterranean warrior-kings attributed to Homer, but today rape and other forms of sexual violence have become a strategic weapon of war and terror. Through the ages, the practice of seizing women as war booty, hardly different than cattle and corn, may have been superseded by the rise of a Judeo-Christian tradition and the development of customary laws of war in the West, but those laws had scant impact on public acceptance of rape as a natural, if unfortunate, by-product when men took up arms for battle. This worldwide shrug, in effect saying that rape is an unavoidable part of the battlefield, caused initial stories from Bosnia to be viewed as unremarkable by citizens in the West (who were confused by the war itself) and discounted by politicians in the West (lest public alarm at atrocities force them to action). It was not until victims like Mirsada came forward and foreign correspondents confirmed the archipelago of sex-enslavement camps and uncovered a program of systematic mass rape that the world took notice, and arguments could be raised that the rapes constituted crimes against humanity and were elements of a premeditated program of genocide.
Rape has been considered a war crime for centuries, and punishable as such. In 1474, Sir Peter von Hagenbach was convicted by an international military tribunal on charges of rape during a military occupation. He had been appointed by Duke Charles the Bold of Burgundy to govern the Austrian town of Breisach, and his brutal tools to subdue the town included pillage, murder, and rape. During the American Civil War, the Union Army operated under a general order prepared by Francis Lieber and signed by President Lincoln in 1863 that made rape a capital offense. In the twentieth century, rape was included—in increasingly explicit terms—in various treaties regulating the conduct of war, starting with Article 46 of the regulations annexed to the 1907 Hague Convention. It ensures respect for “family honour and rights”; the prosecution relied on this provision when it brought war crimes charges relating to the pandemic rape of Nanking, China, in the post-World War II trial before the Tokyo Tribunal.
The history of modern warfare has shown, though, how little formal and customary laws of war have been observed—and how rarely they have been enforced. The Soviet Army raped its way across Prussia and into Berlin in the final days of World War II, yet Moscow’s military judges took a victor’s place of honor on the bench at Nuremberg. In fact, the founding statute of the International Military Tribunal in Nuremberg made no specific reference to rape, relying on language prohibiting inhumane treatment to encompass rapes committed by Nazis. And the companion tribunal in Tokyo phrased its provision for war crimes jurisdiction in highly general terms, “namely, violations of the laws or customs of war.”
From the postwar period, Article 27 of the Fourth Geneva Convention of 1949 clearly states that “women shall be protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.” Again rape was referred to as a crime against honor or dignity, not a crime of violence. Article 27 applies to international conflicts, and in the early months of the Bosnian War, the world community tied itself in knots arguing whether the conflict was a civil war within a constituent republic that was attempting to illegally secede from Yugoslavia, or whether the conflict was an international war of aggression, inspired and abetted by Belgrade, the capital of Serbia, against the newly sovereign state of Bosnia-Herzegovina.
This debate mattered not to the question of rape as a war crime. Civilians in noninternational conflicts are protected by Article 3 common to the four Geneva Conventions of 1949. Although rape is not explicitly mentioned, the prosecutor at the International Criminal Tribunal for the former Yugoslavia brought sexual assault charges under Common Article 3, citing its provisions on cruel treatment, torture, and outrages upon human dignity, in particular, humiliating and degrading treatment. Civilians in both international and noninternational conflicts are given further protection under the 1977 Additional Protocols to the Geneva Conventions. Additionally, the appeals chamber of the Yugoslavia tribunal has held that the Common Article 3 establishes minimum guarantees for all armed conflicts. Thus, serious violations of its provisions in international, as well as internal, armed conflicts would be considered war crimes.
In the lengthening shadow of the Yugoslav conflict, it is clear that rape and other forms of sexual violence are also a war crime when committed against men. For example, Dusko Tadic, a Bosnian Serb, was convicted among other things of violating Common Article 3, as incorporated into the statute of the Yugoslavia tribunal under the heading “violations of the laws or customs of war,” for his role in the incident during which one detainee at Omarska was forced to bite off the testicle of another. In the Celebici case, three defendants were convicted for various forms of sexual violence against both men and women. The court also specified that if the prosecutor had indicted one accused for “rape” instead of “cruel treatment” when forcing two male detainees to perform fellatio on each other, it would have convicted on rape instead of the more obscure cruel treatment. The Yugoslavia tribunal also convicted Anto Furundzija, a Bosnian Croat paramilitary leader, of torture by means of rape, when a colleague orally, vaginally, and anally raped a Bosnian Muslim woman while Furundzija verbally interrogated her. In the Furundzija case, the first United Nations war crimes trial to focus exclusively on rape, the tribunal carefully chose gender-neutral terms in defining the elements of rape committed against “the victim,” whether man or woman.
But the most groundbreaking decision on gender-related crimes was rendered by the Rwanda tribunal, when Jean-Paul Akayesu was convicted of not only rape as a crime against humanity, but also rape as an instrument of the genocide in Rwanda. In addition, the tribunal convicted Akayesu for inhumane acts for several instances of forced nudity. The above cases represent some of the most pioneering jurisprudence in successfully prosecuting gender-related crimes.
Thus, rape can be prosecuted as a war crime as a grave breach under Article 147 of the Fourth Geneva Convention, as a violation of Common Article 3, and as a violation of the laws or customs of war. Rape has successfully been prosecuted as rape, as a form of torture, a means of persecution, and indicia of enslavement, among other crimes. It is now indisputably regarded as a serious crime of war, crime against humanity, and instrument of genocide.
The statute establishing a permanent International Criminal Court, adopted by the United Nations diplomatic conference in Rome on July 17, 1998, grants jurisdiction to prosecute rape, enforced prostitution, sexual slavery, forced pregnancy, enforced sterilization, and other forms of sexual violence of comparable gravity. (The Yugoslav and Rwanda tribunals have noted that other forms of sexual violence include forced marriage, forced abortion, forced nudity, sexual mutilation, and sexual humiliation.) The crimes can be prosecuted whether during war or peace, if of a widespread or systematic nature. The ICC Statute also recognizes gender related persecution and trafficking in women and children. Thus, in the past 14 years, since the Yugoslavia tribunal was established in 1993, the progress on gender-related crimes has been unprecedented.
In Bosnia, as in virtually all contemporary wars, rape was a weapon of combat, a mighty instrument of terror and destruction. After Mirsada gave birth to a healthy, nine-and-one-half-pound girl, she refused to see the baby. The Zagreb maternity staff, mostly Catholics not expert in Muslim names, called the newborn Emina, after a romantic but sad poem by a favorite Bosnian poet. On the second day after the birth, the nurses noticed that Mirsada was not in her room, nor in the ward, nor anywhere on the hospital grounds. She never contacted the hospital again. Mirsada, though, is not seeking justice against her attackers. Her name does not appear on the roles of witnesses to be called at The Hague, nor is she among those who have contacted victims-rights attorneys bringing separate civil lawsuits against the architects of ethnic cleansing and genocide in Bosnia.