6 - 12 April 2000
Issue No. 476
|Published in Cairo by AL-AHRAM established in 1875|
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The power of wordsBy Nyier Abdou
For victims of the atrocities committed under the cloak of war, what use is the distinction between a "war crime" and a "crime against humanity"? To the layman, the nebulous offence of "violation of the laws or customs of war" is an outrageous farce; a testament to the unnatural claim that pain and suffering can be inflicted in an orderly and lawful fashion. Definitions based on the Geneva Conventions and built by a body of international war crimes convictions constitute an arsenal of terminology ranging from "torture," to "genocide," to "inhuman treatment," to the mighty "crimes against humanity" -- all words that we naturally equate with a single concept: human destruction.
But for the legacy of international jurisprudence, the distinction is crucial; international tribunals set up by the UN Security Council to investigate and prosecute perpetrators of war crimes in Rwanda and the former Yugoslavia are bent on setting legal precedents that are quickly redefining the manner in which we perceive crimes committed during times of conflict and, more importantly, who is culpable.
The trial of three Bosnian Serb commanders recently opened by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague is a landmark case for war crimes prosecution and a precious step in the struggle to expose gender-based crimes as an instrument of war. Radomir Kovac, Dragoljub Kunarac and Zoran Vukovic, commanders in the Serbian town of Foca, south-east of the Serbian capital of Sarajevo, are facing the war crimes tribunal on 33 counts of crimes against humanity and crimes against the laws and customs of war. The case is the first war crimes trial under international law based exclusively on charges of sexual violence against women.
The prosecution will give a two-month presentation aimed to prove that the three commanders used organised and widespread sexual crimes against women in order to humiliate and terrorise Muslim women as part of a larger campaign of "ethnic cleansing." By demonstrating that the attacks were both systematic and targeted, they will qualify as crimes against humanity.
The charges are widely seen as a critical shift in the perception of sexual assault against women during war. Tens of thousands of women were forced into slavery during World War II as "comfort women" for Japanese soldiers, but the latent belief that sexual offences are an unavoidable excess of war -- an individual crime committed by a single person -- has barred perceptions of mass enslavement as an instrument rather than a consequence of wartime aggression.
Rape is considered a war crime under the Geneva Conventions, but until the Akayesu decision of the International Criminal Tribunal for Rwanda (ICTR), sexual assault by military forces had been treated as a violation of the laws and customs of war, a lesser charge than crimes against humanity. Protocol II of the Geneva Conventions, which governs the protection of civilians in internal armed conflicts, forbids "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault." Even a single incident of rape can be tried as a war crime, but both the ICTR and the ICTY have a different agenda, aimed at laying bare a historically ignored facet of systematic genocide, which has been defined by the Convention on the Prevention and Punishment of the Crime of Genocide as an act "committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such."
In the case of Akayesu, the communal leader who publicly provoked and supervised attacks on Tutsi women during Rwanda's civil war, the classification of rape as an individual crime was forced into re-examination under the overwhelming evidence that sexual aggression was both systematic and carried out on a massive scale. In the Foca case, the defendants will stand against charges that so-called rape camps were set up in town buildings like the sports centre and the high school as part of a larger project of methodical oppression and expulsion by Bosnian Serbs of the Muslim population of Bosnia-Herzegovina. It is the first sexual enslavement prosecution in an international court.
The Yugoslav tribunal has already incarcerated 14 Serbs, Croats and Muslims for war crimes. The tactic being used for prosecution in the Foca case differs significantly from previous war crimes tribunals in that the routine attacks on Muslim women in Foca and elsewhere during the Bosnian War are being presented as a substantive part of the overarching attempt to eradicate a portion of the population based on their ethnicity. That is to say, the physical and mental distress of rape is seen as damaging in a way that is comparable to murder in the context of ethnic cleansing.
At least 10 victims will testify anonymously in the Foca case, their voices scrambled electronically and their faces hidden from spectators and the media by a screen. "Victim No. 50," who testified last Wednesday, identified both Vukovic and Kunarac in the courtroom, saying that during her internment in the summer of 1992, they had raped her, along with so many others that she had lost count. Girls as young as 12 and even a pregnant woman were sexually assaulted in Foca as part of what a 1992 UN commission of experts concluded was a "systematic rape policy." Kunarac is also charged with "command responsibility," which holds him responsible for crimes committed by his subordinates. The three defendants, all from Foca, have pleaded not guilty.
The case, whatever its results, sets an enormous precedent and bodes well for prosecutions of war crimes in the ethnic-Albanian region of Kosovo. Human Rights Watch, a New York-based watchdog, has documented 96 cases of rape by Serbian Yugoslav forces against Kosovar Albanian women before and during the 1999 NATO bombing campaign. It is taken as indisputable that the numbers during both the Bosnian and Kosovo wars were significantly larger -- an estimated 20,000 women were assaulted during the conflict in Bosnia-Herzegovina from 1992 to 1995 -- but it is impossible to gather representative figures given the strong social taboos and historical silence on the topic. Many women fear being ostracised by their community and even their spouses and consequently admit to being detained, or even tortured, but deny being raped, ultimately skewing figures so radically that they become useless.
The report issued by Human Rights Watch on Kosovo asserts that sexual attacks were not merely isolated incidents committed by individuals. "Rape," contends Regan Ralph, executive director of Human Rights Watch's women's rights division, "was used as an instrument of war."