Global Policy Forum

By Neil Arun

The prosecution of rape as a war crime has been one of the outstanding successes of The Hague's war crimes court. By jailing rapists under war crimes laws, the court has removed any possibility that rape could be regarded as no more than a by-product of conflict - a popular view amongst many armies.

A series of high-profile convictions by the tribunal have confirmed that sexual assault was used in Bosnia deliberately and systematically, and responsibility for its use has been extended up the command chain to the military and civilian officials who allowed or encouraged it.

Now the judicial framework created by the tribunal will be inherited by the International Criminal Court, ICC, which has a much wider brief covering 89 nations. Until the tribunal began to flex its muscles, it was all too easy to class wartime rape as the work of perverted individuals, motivated by personal sexual gratification - a by-product of the violence. The wars in Yugoslavia changed all that. Recent prosecutions "have destroyed the stereotype of the wayward soldier-rapist" one senior prosecutor told IWPR.

The horror of wartime rape was exposed in the very first contested case The Hague ever held - that of former concentration camp guard Dusko Tadic. Tadic, a Bosnian Serb who worked as a guard at the notorious Omarska camp, was jailed for assaulting female prisoners. During the trial, evidence from witnesses revealed how Tadic's own violent and perverted sexual urges were given full reign because they fitted an overall strategy of systematically inflicting terror. Tadic was one of many guards left in charge of hundreds of vulnerable women and children, many of whom had lost male relatives in the conflict and were already traumatised. Along with his fellow guards, he was also given free access to arms and alcohol. The fact that he took advantage in such a violent way shows that not only was he responsible, but so were those who had created such conditions in Omarska.

A similar reasoning was used by prosecutors in establishing blame for the atrocities that took place in Srebrenica, where 7,000 Bosnian Muslim men and boys were shot dead by the Bosnian Serb forces who overran the enclave in 1995. The Serb troops abused women and even children who they had herded into makeshift enclosures. The breakthrough came when prosecutors established that these rapes were entirely foreseeable. Judges agreed that the generals in charge should have reasonably predicted that, under these conditions, the sexual assaults were likely. It was concluded that any rapes that took place in Srebrenica were therefore the fault of the commanders.

Hague officials say that the tribunal's progress in dealing with rape has come from three factors - the courage of the victims and witnesses who testified, the tenacity of the prosecuting lawyers, and the years of tireless lobbying by pressure groups.

But while the tribunal is encouraging Balkan courts to hold many categories of war crime trial at home, The Hague still holds an advantage. Victims are more willing to testify far from the pressures of home, and that distance is vital when persuading victims and witnesses to confide in lawyers. In the future, gender rights campaigners hope the ICC will look at a wider range of crimes against women, including the repression and loss of rights common across much of the world.

But Vahida Nainar of New York-based Women's Caucus for Gender Justice, says this is unlikely in the short term as the ICC, created to try only the most serious crimes, which she hopes will soon include the trafficking of women. "The chain of trafficking that exists from Central Asia through Eastern Europe to the West is immediately a crime against humanity," she told IWPR.

Neil Arun is an IWPR contributor.

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