Crimesof War

In June 1996, the International Criminal Tribunal for the former Yugoslavia (ICTY) issued an indictment against eight Bosnian Serb soldiers for the enslavement and rape of Muslim women in the eastern Bosnian town of Foca during 1992 and 1993. The entire indictment focused exclusively on various forms of sexual violence committed against women and girls in Foca, and it represented the first sexual slavery prosecution in any international criminal proceeding. In the indictment, among other charges, members of the Serb military police were accused of enslaving and repeatedly torturing and raping one fifteen-year-old girl over the course of eight months.

The girl’s story was all too typical of the kind of practices that went on throughout the Bosnian war, as in other conflict situations. In July 1992, with at least seventy-two other Muslims, she was held captive in the Foca high school. For a time, she was raped every night by one or more soldiers. The attacks continued after she was moved from the school to Foca’s Partizan Sports Hall. And after that, when she was taken to a house that served as a Serb military brothel, she was turned into a servant as well as a sex slave, washing the clothes and cleaning for the soldiers who were raping her. According to the indictment, her captors eventually sold her for five hundred deutsche marks to two soldiers from Montenegro.

Victims’ statements indicate overwhelmingly that what happened to this particular girl in Foca was anything but unique. Multiple witnesses, interviewed separately, described “rape camps” throughout Bosnian Serb-controlled territory, as well as a far smaller number of camps run by Croatian and Bosnian government forces. The Foca indictment eventually went to trial against only three accused in what is known as the Kunarac case, as they were the only indictees who had been apprehended and turned over to the tribunal. Eventually, all were convicted of torture, rape, and enslavement for sexual violence. The rape and enslavement as crimes against humanity counts were used essentially to prosecute the crime of sexual slavery (“sexual slavery” was not explicitly listed as a separate crime in the ICTY Statute, although it is now listed as a specific crime in the Statute for the International Criminal Court.)

This was by no means the first time the world was confronted with systematic rape and enslavement of women. The 100,000 Asian “comfort women” enslaved in Japanese military brothels during World War II provide perhaps the ghastliest twentieth-century example. Other postwar courts convicted soldiers of the war crime of “enforced prostitution”: a Netherlands tribunal in Batavia convicted Japanese military defendants who had enslaved thirty-five Dutch women and girls in comfort stations for war crimes including rape, coercion to prostitution, abduction of women and girls for forced prostitution, and ill-treatment of prisoners. These principles have been reaffirmed in the 1949 Geneva Conventions and the 1977 Additional Protocols. It should be noted that “forced prostitution” and “sexual slavery” are both listed in the ICC Statute as crimes against humanity and war crimes. (“Forced prostitution” was included in the ICC Statute largely because of it is explicitly listed in earlier treaties. The elements of these two crimes are quite similar and the vast majority of survivors vehemently reject any reference to prostitution, however forced, and assert that the term sexual slavery more adequately describes the crime committed against them.)

Under certain conditions, the kinds of practices that took place in the so-called “comfort stations” during World War II, and with the sex-slave camps in Bosnia, may constitute the crime against humanity of enslavement when they are committed as part of a widespread or systematic attack against a civilian population. In the “comfort women” context, women and girls were systematically held for sexual use for the Japanese soldiers with an aim of providing these soldiers with relatively easy and safe sexual access during the war. In the Bosnia context, as in many other conflict situations, women and girls of the opposing side were targeted for various forms of sexual violence, including sexual slavery, in large part in order to terrorize and demoralize the enemy. Sometimes, the women are held and repeatedly raped in order to get them pregnant; other times, more selfish purposes may be behind the sexual enslavement. Thus, in the two situations, the targeted group and purposes were different, but the result— females being held and repeatedly raped by male soldiers—was essentially the same.

It should be noted that slavery is an international crime, whether or not it is linked to a combat environment. The Slavery Convention defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” The ICC Statute similarly defines enslavement as the exercise of any or all of the powers attaching to the right of ownership over a person, and the Statute emphasizes that this includes the exercise of such power in the course of trafficking in persons, in particular, women and children.

The legal basis for prosecuting those responsible for rape, enslavement, enforced prostitution and sexual slavery has long existed, even if prosecutions have not always been robust. The post-Cold War environment of ethnic conflict, as well as the establishment of the International Criminal Court and other international or part-international tribunals may lead to more cases being brought to court. For example, the Special Court for Sierra Leone has issued two indictments against senior commanders charging them with rape, sexual slavery, and forced marriage. Forced marriage, broadly considered a more intimate form of sexual slavery (typically a woman or girl is used by one combatant instead of many) will be prosecuted explicitly for the first time in this court. Whether as the charges involve rape and enslavement, sexual slavery, or forced marriage, depending on the specific facts, these prosecutions are finally redressing a common but long-ignored wartime abuse.