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The Foca rape case was the first time that individuals were convicted for rape as a crime against humanity. The Foca case came out of the war in the Balkans and represented a huge step forward in defining the field of international humanitarian law.
 

When does rape change from sexual assault carried out by one individual against another to become a crime against humanity?

In terms of international law, it began in 1945 and was solidified in February 2001 with the verdict of the Foca Rape Case.

Foca Rape Case

The Foca Rape Case was prosecuted by the International Criminal Tribunal for the Former Yugoslavia (the ICTY) in an effort to bring to justice those responsible for crimes against humanity in the war in Bosnia. Up until this time, no one had ever been convicted of rape as a crime against humanity.

Even though a number of specific acts were defined as “crimes against humanity” in the Charter of the International Military Tribunal for the Nuremberg Trials (1945), rape was not specifically mentioned as one of these actions. "Crimes against humanity" was defined in the Charter in the following way:

" 6(c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."

The omission of rape as part of the definition of crimes against humanity became blatant in the war in Bosnia in the 1990s.

Rape as a Tool of Terror

The atrocities carried out in the Balkan war made it clear that rape could be used as a tool of terror in a campaign of “ethnic cleansing.” The Serbs sought to carve out a new Republic of Srpska from Bosnia and Herzegovina in the former Yugoslavia (see Figure 1). The goal was to have this new republic “cleansed” of non-Serbian groups. Much of populace of this area of Bosnia and Herzegovina were Muslim.

Figure 1. Proposed Republic of Srpska

One way to get rid of the Muslim population was, of course, to kill people. And this certainly occurred. However, another means of eradicating a particular group from an area was simply to make them leave and never want to come back. For this, terror was needed, and rape became an important tool for terror. In fact, the accounts of rape that traveled from one village to another could be enough to drive people out of an area. Explaining her reason for fleeing the area, one Bosnian woman put it, “Down the road, forty women were raped.”

A woman did not need to be raped herself in order for the terror of rape to be effective.

Crime against Humanity

The Serbian commander, Dragoljub Kunarac was arrested in 1999 by the ICTY and taken to the Hague along with two other soldiers to be tried for crimes against humanity.

The legal question was whether the acts of these soldiers were crimes against humanity or simply individual acts of depravity. In order to prove that the soldiers' acts were crimes against humanity, the prosecution in the Foca rape case argued three things:

  1. The use of rape in attacks on civilians was widespread and systematic,
  2. To support the allegation that rape was “widespread and systematic” the prosecution worked to show that the tactic was repeated and continuous (systematic) and that what had happened in Foca was a representative sample of Serbian methods of ethnic cleansing in Bosnia (widespread),
  3. Rape was not simply an individual action but involved a chain of command. This did not mean that a commanding officer had ordered his men to rape, but that rape was occurring with his knowledge and he did not intervene to stop it.

The prosecution brought witnesses (whose identities were often concealed for protection) who described grisly ordeals of gang rapes, sexual enslavement and the existence of rape houses or rape camps.

The defense, on the other hand, argued that since the accused had not killed the women they had sex with, the acts should not be taken as a serious crime. Going further, a witness to the trial reported that the defense attorney provoked an audible gasp from the gallery when he concluded that, “The rape itself is not an act that inflicts severe bodily pain.” So, he argued, the victims were not exposed to any severe physical or psychological suffering.

Chain of Command

It was also important to implicate the military chain of command in the rapes.

Unlike other instances of genocidal actions and campaigns, the prosecutors of the Foca rape case realized that there was no way for them to trace the responsibility all the way up the chain of command. Dragoljub Kuranac was only a low level commander and the two other soldiers indicted in the case were subcommanders. Nevertheless, it was important to be able to demonstrate that culpability for rape involved the chain of command since this would support rape as part of an “aggressive war.”

The defense argued that Kunarac should not be held responsible for the actions of his men since the soldiers committed rape when they were off duty. So, they argued, Kuranac was not actually in charge.

The prosecution in the Foca case presented evidence and made arguments in cross examination that Kuranac had known about (as well as participated in) acts of rape and sexual enslavement. He had done nothing to stop the actions. Additionally, they argued that whether or not the soldiers were officially on duty made no difference since Kuranac's authority was recognized by the soldiers even when they were off duty.

Verdict and Significance

The ICTY handed down its verdict in February 2001. The court ruled that the acts of rape were recognized as crimes against humanity because:

  • They were part of a systematic and widespread campaign,
  • The acts included elements of enslavement.

So, even though the wording of the Statue of Rome had included rape in its definition of crimes against humanity, the Foca rape case made that language a reality.

Following the Foca case, one commenter noted that, “Now we say rape is a crime, a crime against humanity, or a war crime or a constituent part of genocide.”

 
Data and Methods:

Data Sources:

  • A survey was conducted in 2000-2001 of 109 employees from the International Criminal Tribunal of the Former Yugoslavia (ICTY).
  • The survey was followed up with over one hundred in-depth interviews (2000-2003).
  • Interviews included the chairman of the commission of experts that preceded the ICTY, all three chief prosecutors, the deputy prosecutor, four chiefs of investigations and prosecutions and employees at all levels.
  • The author also observed trials and analyzed trial transcripts over the same period.

Funding Sources:

  • American Bar Foundation
  • Social Sciences and Humanities Research Council of Canada
  • National Science Foundation
  • Russell Sage Foundation
 
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Reference

Hagan, John. 2003. Justice in the Balkans. Chicago: University of Chicago Press. Ch. 6, pp. 176-203.

 
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