Hierarchies of rape and sexual violence

By Professor Janine Natalya Clark

In 2018, the government of Republika Srpska – one of the two entities in Bosnia-Herzegovina – adopted a new Law on the Protection of War Torture Victims. Article 4 of the Law defines a torture victim, inter alia, as ‘A person who was raped against their will or who was exposed to any other form of sexual abuse’[1].  ‘Gordana’[2], a Serb woman in her sixties, recently submitted an application under the new Law, to seek recognition as a victim of torture. Her application was rejected, on the grounds that she was not raped. She described the disappointment she felt when the decision letter arrived. Receiving a sum of money each month, like victims/survivors of conflict-related sexual violence living in the BiH Federation who have successfully applied for civilian victim of war status, would make life financially easier. However, for her, the issue is not just about money. She would like recognition and acknowledgement of what she went through during the Bosnian war. She recalled that when she testified in court several years ago, she was made to feel as though she herself was the guilty party. Nobody in the courtroom, she stressed, ever asked her how she felt.

A field and hillsideDuring the war, Gordana was detained in a camp for over a month and made to strip naked while some of the camp guards watched and mocked her. Even though the aforementioned Law refers to ‘any other form of sexual violence’, the fact that Gordana had ‘only’ experienced forced nudity has, to date, not been sufficient for her to be recognized as a victim of torture. She has appealed against this decision and is awaiting the outcome. Her case, however, highlights a broader point. There are clear hierarchies of victimhood in BiH when it comes to the issue of conflict-related sexual violence; and a person’s sex and ethnicity shape his/her position within that hierarchy. Yet, there are also hierarchies of rape and sexual violence crimes.

I recall several years ago, in 2015, when I interviewed a woman in the Federation who struggled to speak about what she had experienced. While her daughter suspected that her mother had been raped, the interviewee herself insisted that she had not and that the soldier who entered her home had kissed her, touched her and ejaculated on her. This woman was completely unaware that victims/survivors of sexual violence in the Federation can apply for civilian victim of war status. With the interviewee’s consent, I called three different NGOs to request information about how she could start the process of applying for status. None of them were sure whether she could apply, given that she had not been raped. After several phone calls, a lawyer from one of the NGOs confirmed that the interviewee could in fact apply. I use this example to underscore that in BiH, attention has overwhelmingly focused on those who were raped, and more specifically on (Bosniak) women who were raped. This has also been politically useful for propagating the idea that one side in the conflict was subjected to genocidal rape[3]. Other types of sexual violence have often been sidelined, as if they are less significant. Indeed, some victims/survivors do not recognize their experiences as sexual violence because they were not raped. 

The ‘Call It What It Is’ campaign, recently launched by the Women’s Initiative for Gender Justice in The Netherlands, is to be welcomed[4]. The aim of the campaign is to strengthen legal accountability for sexual violence in conflict, and one of the outcomes will be the development of a Civil Society Declaration to provide guidance on what might constitute ‘an act of a sexual nature’. Significantly, the campaign will seek the views of victims/survivors themselves, and the Civil Society Declaration will ultimately be presented to the International Criminal Court at the end of 2019. Certainly, the Rome Statute contains limited guidance on what might be considered sexual violence. For the purpose of defining crimes against humanity, for example, Article 1(g) refers to ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’[5]. It is not enough, however, simply to clarify and elucidate the meaning of sexual violence. It is also imperative to ensure that relevant country institutions, as well as victims-/survivors themselves, understand what sexual violence is and do not relegate it as secondary to, or somehow less important than, the crime of rape itself. 


[1] See http://www.rcirz.org/images/dokumentipdf/Zakon_o_zaštiti_žrtava_ratne_torture.pdf

[2] Not her real name.

[3] See, for example, Beverley Allen, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia (Minneapolis: University of Minnesota Press, 1997) 

[4] See https://4genderjustice.org/call-it-what-it-is-the-survey/

[5] See https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf