The zigzagged search for justice

By Professor Janine Natalya Clark

I first met Amela (not her real name) last September. She cried for more than an hour, not because of the sexual violence that she suffered during the Bosnian war but because of her present situation. Amela joined the army of Bosnia-Herzegovina (BiH) in 1992. Her decision to do so was motivated by a sense of necessity; she had been expelled from her home, had nowhere to live and felt that the army would at least provide her with some existential security. In 1994, two fellow colleagues raped her and severely beat her. She was left bloody, her clothes torn, wondering how she would carry on. Despite everything, she has managed to rebuild her life; and her family have been a huge motivation to her in this regard. She knows that they need her and this has given her the strength to go on. To argue that she has moved forward with her life, however, does not tell the whole story. 

Zig zag patternAmela described how, for the last few years, she has ‘zigzagged’ from place to place, organization to organization, institution to institution, trying to obtain civilian victim of war status. In the BiH Federation, civilians who suffered rape and sexual violence during the 1992-1995 Bosnian war have the right to seek this status and thus to receive a monthly social payment (a type of reparation). After the rape, Amela immediately reported what had happened to her and was consequently subjected to verbal abuse and stigmatization within the army. ‘I felt like a prostitute’, she recalled. For her, getting civilian victim of war status would be an important acknowledgement of her suffering. It would also help to ease the financial stresses that she faces on a daily basis.

To date, however, Amela’s attempts to obtain civilian victim of war status have not been successful, due to the fact that she was part of the BiH army when she was raped. Yet, can it be legitimately argued that the consequences of being raped were any less serious for her merely because she had a military role? Does this alleviate the trauma of being raped? A 2017 decision from the International Criminal Court in the case of Prosecutor v. Bosco Ntaganda,[1] moreover, fundamentally challenges any notion that civilians and combatants should be treated differently in relation to sexual violence. In that case, the Trial Chamber found that there is no requirement within the Rome Statute that only those who are hors de combat should be legally protected. It emphasized that ‘While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct’.[2]

Even though Amela was in the ABiH, she was arguably hors de combat when she was raped. She was not on duty or in uniform at the time; she was taken from her bed while she was sleeping. Indeed, she has a notice from a BiH court – informing her that proceedings have been initiated against one of her alleged perpetrators[3] – which expressly refers to her as a civilian. Even if her military status is emphasized, the crucial point – as the Trial Chamber underlined – is that ‘there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law’.[4]

It is regrettable that such arguments necessarily lose some of their potency in a country where everything is highly politicized – and where nationalism is once again on the rise. In BiH, some victims–survivors of sexual violence are persistently ignored or overlooked. Others are instrumentalized for the purpose of promoting and propagating a particular war narrative. In such an environment, it is not enough that a person endured the indignity and humiliation of being sexually violated. Other factors may also come into play, including the person’s ethnic identity and/or the identity of those who committed the crime.

When asked what she would call her life story, Amela did not need to think about this for long. She answered: ‘A difficult life journey’. By continuing to support her in her fight to obtain civilian victim of war status, I hope that her search for justice at least can become less ‘zigzagged’.

[1] Situation in the Democratic Republic of Congo in the case of The Prosecutor v. Bosco Ntaganda, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06.

[2] Ibid., at para. 47.

[3] Unfortunately, since Amela received the notice two years ago, she has had no further information and does not know what is happening with the case. Many victims–survivors are in a similar position. They give statements to police, prosecutors, etc. and are then simply left waiting.

[4] Ibid., at para. 49.