BOSNIA-HERZEGOVINA: Are Bosnian and Herzegovinian Victims of Wartime Rape Finally Being Given Constructive Attention?

Bosnia and Herzegovina (BH) is a state of coexistence of people from various ethnic backgrounds, in particular the most represented are Bosnian Muslims, Bosnian Serbs and Bosnian Croats. The state is divided into two entities: the Federation of Bosnia and Herzegovina (Federation of BH) and the Republika Srpska, which makes BH a loose federation. In 1992 BH was caught up in a violent, almost four year long war, which cost the lives of approximately 100.000 people, displaced half of the country's population, approximately 30.000 people were made victim of enfoced disappearances and 20.000 to 50.000 people fell victim to rape and other forms of sexual violence. The most recently estimated number is the former one, published by the Parliamentary Assembly of the CoE in 2009. The complicated political system in conjunction with difficulty in achieving political consensus has resulted with the fact that BH did not have operating qovernment at the state level since the elections in October 2010 until December 2011. Such a situation creates problems in taking state-wide decisions, which in consequence affects all victims of war, including victims of wartime rape and other forms of sexual violence.

Rape and other forms of sexual violence during the war in BH were widespread and used as a tool of ethnic cleansing. They were committed on a large scale by all parties to the conflict. However, based on available information the majority of victims were Bosnian Muslims. It is necessary to add that this crime affected also the male population of BH but regretfully no research has been done in this regard. The exact data about the number of persons affected directly by the crime is extremely difficult to establish. It is caused by the small number of women who reported the crimes committed against them due to a number of reasons. During and shortly after the war the relevant institutions were not functional and often involved in rape themselves (no lustration took place in BH) and reporting the crime could disclose the identity of victims and cause their stigmatization in local communities. At that time no psychological help was available to immediately lend support to this vulnerable group.

In the light of international law and jurisprudence wartime rape is qualified as war crime. If widespread and committed systematically against civilian population it can be qualified as crime against humanity. Whereas if committed with the intent to destroy, in whole or in part, a particular group, targeted as such, rape or other forms of sexual violence can amount to genocide. Unquestionably, in the light of international doctrine and jurisprudence rape also violates the right to personal integrity and can be considered form of torture.

It is the the International Criminal Tribunal for the former Yugoslavia (ICTY) which has majorly contributed to the development of jurisprudence in this regard, interpreting rape and other forms of sexual violence against women as torture and crime against humanity. In 1995 the Office of the Prosecutor of ICTY created a position of Legal Advisor for Gender-related Crimes who was responsible for formulating the Prosecutor's approach to such crimes in ICTY and International Criminal Tribunal for Rwanda. Notwithstanding some “feminist criticism“, as Karen Engle calls it, all of that has made ICTY an important step forward, which effectively influenced the Rome Statute of the International Criminal Court regarding such crimes and their criminalization in both international and non-international armed conflicts. Nowadays the catalog of crimes against humanity related to sexual violence includes: “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity“. The UN march towards higher protection of women against sexual violence in armed conflicts has not finished in early 2000s. In 2000 the famous UN Security Council Resolution 1325 was also adopted. In 2008 the UN has created a Special Representative of the Secretary General on Sexual Violence in Conflict, with currently acting Margareta Wahlström, who visited BH in 2010. After her visit she published a report on her mission to BH, calling the process of pursuing justice “painfully slow“ and the conviction rate for sexual violence being “roughly 10% lower than for other crimes“.

Indeed some 31 cases regarding wartime rape have been prosecuted at international and domestic level, however the majority of perpetrators still enjoy impunity, often living in the same communities as their victims. Rape survivors suffer from various physical and psychological consequences, such as post traumatic stress disorder (PTSD), sleeping disorders, severe anxiety, nightmares, loss of confidence, depression and suicidal impulses. In prevailing cases neither psychological support nor appropriate health services are available. The victims also allegedly suffer from unemployement, resulting from all the abovementioned, which creates a vicious circle of inability to afford medicines to properly function and be able to earn a decent living.

Such a state of affairs has brought attention of Amnesty International (AI) and TRIAL (Track Impunity Always), a Swiss association against impunity. This culminated with AI publishing a report “Bosnia & Herzegovina: 'Whose justice?': The women of Bosnia and Herzegovina are still waiting“ in 2009, putting emphasis on reparations to this very group of victims, and subsequent monitoring by the organization.

Whereas TRIAL has since 2010 been providing additional information to the UN Committee against Torture (CAT), among others, about wartime rape, on the basis of the fact that this crime also amounts to torture. This and other shadow reports resulted in a more comprehensive insight by the CAT to the situation in BH. In paragraph 4 of CAT concluding observations it was explicitly stated that “the State party consists of two entities, but recalls that Bosnia and Herzegovina is a single State under international law and has the obligation to implement the Convention in full at the domestic level“. This note is very relevant, since as signaled the lack of political consensus on state level causes many problems in implementation of any measures meant to remedy problems of victims and by that to fulfil BH's international obligations. One does not need to search far to see that there is no state law regulating the status and rights of civilian victims of war, which causes their unequal treatment in the two entities, not to mention the huge discrepancies between the rights of combatants and civilian victims of war.

Generally the attention of the abovementioned organizations and international human rights protection bodies can be divided into several categories of problems. One of them is the controversial definition of wartime rape in Bosnian legislation, which effects with wrong legal qualification by entity courts and in consequence disproportionally low sentences or even impunity, opposing international standards related to such a war crime. The current definition includes a condition of “forced threat or immediate attack”, whereas it may exclude some crimes committed on the basis of other “coercive circumstances”. Additionally, entity courts use the SFRY Criminal Code, instead of 2003 BH Criminal Code, which provides more appropriate definitions of the crimes and can be used retroactively due to the fact that the crimes at time of commitment were “criminal according to national or international law, including customary international law”. What has also been missing is comprehensive statistical data on wartime rape and sexual violence and amount of unresolved cases effecting from that crime. This is one of the elementary steps to be taken to fight impunity.

Another problem encountered in various reports is the witness protection in cases of wartime rape. The current measures are noted to be insufficient to save victims from potential (but often very realistic and actually happening) threats or attempts of bribery, aiming at withdrawal of their testimonies. Only few courts in BH offer separate entrance for witnesses and accused which is meant to prevent intimidation and make confrontation impossible. Another aspect is psychological assistance, which is supposed to help avoid re-traumatization and further distress related to being a witness in court. This however for now concentrates more on ad hoc measures and is not based on any comprehensive program. The carelessness of authorities can be illustrated by cases of disclosure of victims' identity. Additionally victims who wish to testify and cannot afford legal help need to go without, since Law on Free Legal Help is only being worked on now, over 15 years after the conflict was terminated. This amounts to a paradox: accused have access to free legal help and their victims do not. This is closely connected to an overall problem of victims not enjoying many rights in criminal procedure, especially since the 2003 reform of the Code of Criminal Procedure, which prohibits victims from conducting subsidiary and private prosecutions.

Furthermore, reparations understood as guaranteeing restitution, rehabilitation, satisfaction, restoration of dignity and reputation, guarantee of non-repetition as well as prompt, fair and adequate compensation for the harm suffered, all with the aim to allow victims to lead a decent life, are discriminatory in BH. This is caused by no law on reparations to civilian victims of war on the state level. This issue is only regulated on the entity levels, causing unequal social benefits (and in some cases their lack) and other services to the same groups of victims in the Federation of BH and Republika Srpska.

All the issues tackled above are repeatedly mentioned in relevant documents (including the annual Progress Reports of the European Commission) as requiring immediate reactions by state, which if present at all, are not well coordinated. From positive developments there is a national program targeting victims of rape and other forms of sexual violence during the war being drafted by the UN Population Fund (UNFPA) and the state Ministry of Human Rights and Refugees (MHRR). Works on it were initiated in late 2010 and a draft of the program was meant to be produced by the end of 2011. Importantly, the works include consultations with civil society, namely the associations of victims. This gives hope that the so far neglected group of victims will finally receive attention from the state.

This contribution was meant to shortly sketch the current situation of the female victims of wartime rape in BH. The same group of victims which has been given a lot of media attention in the 1990s, little attention from its own state and recently given a lot of attention from international organizations and bodies, which will hopefully have visible practical effects. Such an optimistic scenario will only happen once a political consensus to pursue it is reached and corresponding resources are secured, what might not be that easy having in mind that the government at the state level is still fragile.