Bosnia-Herzegovina (BiH) is located in south-east Europe and has a population of 3.53 million. It is a multi-ethnic state with three constituent peoples: Bosniaks, Serbs and Croats. BiH was one of the six republics that formed the Socialist Federal Republic of Yugoslavia (SFRY). After Slovenia and Croatia declared independence from the SFRY in 1991, BiH’s future remained uncertain.
The rise of nationalism and the conflicting ambitions of the country’s political leadership led to the start of the Bosnian war in April 1992. Over the following three years, over 100,000 people were killed (BBC 2007), thousands went missing (International Commission on Missing Persons n.d.) and more than a million people were displaced from their homes. The conflict finally ended with the signing of the Dayton Peace Accords, brokered by the United States, in November 1995 (Organization for Security and Co-operation Europe 1995).
During the Bosnian war, large-scale acts of sexual violence were committed, including rape, forced pregnancy and sexual mutilation. On 6 October 1992, the United Nations (UN) Security Council adopted Resolution 780 and requested the UN Secretary-General to urgently establish an impartial Commission of Experts to investigate violations of international humanitarian law taking place in the former Yugoslavia – and particularly in BiH. In its final report, issued in May 1994, the Commission found that: ‘The rape and sexual assault study and investigation…suggests a very high number of rapes and sexual assaults in custodial and non-custodial settings. Thus, the earlier projection of 20,000 rapes made by other sources is not unreasonable considering the number of actual reported cases’ (Bassiouni 1994: §87). Such estimates must be treated with great caution, and indeed it will never be possible to know exactly how many people suffered acts of sexual violence during the Bosnian war. Some of them were killed or have subsequently died; some have moved abroad; and some have never disclosed what happened to them, due to fear or a sense of shame. In BiH, as in many societies, there is significant stigma attached to sexual violence, and this can deter survivors from speaking out or seeking help (Foreign and Commonwealth Office 2017).
Many acts of rape and sexual violence were committed in camps, including Omarska in north-west BiH (Prosecutor v. Duško Tadić 1997; Blake 2002), Sušica in Vlasenica (Prosecutor v. Dragan Nikolić 2003) and Čelebići near Konjic (Prosecutor v. Zejnil Delalić et al). More ‘informal’ places of detention were also used, including houses and apartments (Prosecutor v. Kunarac et al. 2001). Serb forces were responsible for a very significant proportion of the sexual violence that occurred. In a 1993 report, for example, Amnesty International (1993: 7) found that: ‘…the rape and sexual abuse of women, the great majority of them Muslims, by Serbian forces has occurred in many places in Bosnia-Herzegovina and in some cases has been carried out in an organized or systematic way, with the deliberate detention of women for the purpose of rape and sexual abuse’. However, it is important to acknowledge that all sides in the conflict committed acts of sexual violence (Clark 2016; 2017; Simić 2018) – a fact that highlights the utility of rape and sexual violence as weapons of war. It is also crucial to underline that it was not only women who suffered these heinous crimes. Men did too (Sivakumaran 2007; Clark 2017c). Male survivors, however, have been largely overlooked, a problem that is not specific to BiH (see, for example, Dolan 2014). While there are various NGOs in BiH dedicated to aiding female survivors of sexual violence, little support is available to men. Although a small number of them have spoken publicly about their experiences (Taušan and Mačkić 2014), many of them continue to suffer in silence.
Survivors who live in the Federation have the right to apply for civilian victim of war status, in accordance with the Law on the Principles of Social Protection, Protection of Civil War Victims and Protection of Families with Children (Federation of BiH 1999). Those who successfully apply receive a monthly social payment of around £262, although this money is often paid late. Furthermore, the application process can be protracted (see Clark 2017a). For survivors who live in Republika Srpska (RS), however, the situation is considerably worse. The Law on Civilian Victims of War RS requires that civilian victims of war must have at least a 60 per cent disability, as assessed by a medical commission (Republika Srpska 2010: art. 2). Unlike in the Federation, survivors of sexual violence are not treated as a special category and hence are not exempted from this disability requirement. The Law also states that applications for civilian victim of war status needed be submitted within five years of sustaining the relevant disability; and the final deadline for the submission of applications was 31 December 2007 (Republika Srpska 2010: art. 34). These restrictive timeframes mean that survivors living in RS can no longer apply for civilian victim of war status.
At the international level, it has long been recognized that victims, broadly defined, have a right to a remedy. In the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ‘remedy’ is conceptualized as combining different types of justice. The document emphasizes, for example, that ‘A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law’ (UN General Assembly 2005: § 12). Some of the perpetrators of sexual violence committed during the Bosnian war have faced ‘justice’, either in local courts or at the International Criminal Tribunal for the former Yugoslavia (ICTY). Indeed, the ICTY’s trials have substantially contributed to the development of international jurisprudence on sexual violence crimes (Askin 2003).
‘Justice’, however, is far more complex and nuanced than simply criminal prosecutions. There have been a small number of legal cases in BiH in which convicted defendants have been ordered to pay reparations to their victims (Borger 2015). However, as few defendants are in a position to make large financial payments, the practicality of such ‘reparative justice’ must be questioned. Unnecessarily raising survivors’ hopes is neither constructive nor responsible. What CSRS is advocating is a more transformative and ecological approach to transitional justice. Rather than simply asking what survivors need from transitional justice processes, it is arguing that transitional justice has a crucial role to play in helping to transform survivors’ social ecologies (their environments, their communities), thereby fostering resilience and resourcefulness.
Amnesty International (1993). Bosnia Herzegovina: Rape and Sexual Abuse by Armed Forces, available at: https://www.amnesty.org/en/documents/eur63/001/1993/en/
Askin, Kelly Dawn (2003). ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’, Berkeley Journal of International Law 21: 288-349.
Bassiouni, M. Cherif (1994). Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, S/1994/674 (27 May 1994), available at: http://www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf
BBC (2007). ‘Bosnia War Dead Figure Announced’, available at: http://news.bbc.co.uk/1/hi/world/europe/6228152.stm
Blake, Felix (2002). ‘Nusreta Survived the Rape Camp but her Torture is Unending’, available at: http://www.independent.co.uk/news/world/europe/nusreta-survived-the-rape-camp-but-her-torture-is-unending-128934.html
Borger, Julian (2015). ‘Bosnia Rape Victims May Claim Compensation for the First Time’, available at: https://www.theguardian.com/world/2015/jun/30/bosnia-victims-compensation-landmark-ruling
Clark, Janine Natalya (2017a). Rape, Sexual Violence and Transitional Justice Challenges: Lessons from Bosnia-Herzegovina (Abingdon: Routledge, 2017).
Clark, Janine Natalya (2017b). ‘Untangling Rape Causation and the Importance of the Micro Level: Elucidating the Use of Mass Rape during the Bosnian War, Ethnopolitics 16: 388-410.
Clark, Janine Natalya (2017c). ‘Masculinity and Male Survivors of Wartime Sexual Violence: A Bosnian Case Study’, Conflict, Security and Development 17: 287-311.
Dolan, Chris (2014). ‘Has Patriarchy been Stealing the Feminists’ Clothes? Conflict-Related Sexual Violence and UN Security Council Resolutions’, IDS Bulletin 45 (2014): 80-84.
Federation of BiH (1999). Law on Principles of Social Protection, Protection of Civil Victims and Protection of Families with Children, available at http://www.refworld.org/pdfid/4d30226f2.pdf
Foreign and Commonwealth Office (2017). Principles for Global Action: Preventing and Addressing Stigma Associated with Conflict-Related Sexual Violence (London: Foreign and Commonwealth Office), available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/645636/PSVI_Principles_for_Global_Action.pdf
ICTY (n.d.). ‘Crimes of Sexual Violence’, available at: http://www.icty.org/en/in-focus/crimes-sexual-violence
International Commission on Missing Persons (n.d.). ‘Bosnia and Herzegovina’, available at: https://www.icmp.int/where-we-work/europe/western-balkans/bosnia-and-herzegovina/
Organization for Security and Co-operation Europe (1995). ‘Dayton Peace Agreement’, available at: http://www.osce.org/bih/126173
Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo (1998). International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-96-21-T, Trial Chamber Judgement (16 November 1998).
Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (2001). ICTY, Case No. IT-96-23-T& IT-96-23/1-T, Trial Chamber Judgement (22 February 2001).
Prosecutor v. Dragan Nikolić (2003). ICTY, Case No. IT-94-2-S, Trial Chamber Sentencing Judgement (18 December 2003).
Prosecutor v. Duško Tadić (1997). ICTY, Case No. IT-94-1-T, Trial Chamber Opinion and Judgement (7 May 1997).
RS (2010). Zakon o Zaštiti Civilnih Žrtava Rata, available at: http://www.udas.rs.ba/wp-content/uploads/2010/03/zakon_o_zastiti_civilnih_zrtava_rata.pdf (accessed 8 September 2014).
Simić, Olivera (2018). Silenced Victims of Sexual Violence (Abingdon: Routledge, forthcoming).
Sivakumaran, Sandesh (2007). ‘Sexual Violence against Men in Armed Conflict’, European Journal of International Law 18: 253-276.
Taušan, Marija, and Erna Mačkić, ‘Crimes across the Border’, available at: http://www.justice-report.com/en/articles/crime-across-the-border
UN General Assembly (2005). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx.