ANALYSIS: Foca's Monumental Jurisprudence

The Foca rape case judgement four months ago made legal history. In the landmark ruling, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were convicted of crimes against humanity for numerous sex offences, including two counts of enslavement.

The convicts are now filing appeals, most likely to be heard in the fall. The prosecution also has reason to be disappointed, as the judgement could have gone further, based on the evidence presented, to establish systematic rape, rather than individual cases, as part of a planned component of war. Some victims, too, were critical of what they deemed short prison terms, ranging from 12 to 28 years.

Yet for the first time the tribunal found that sexual violence was used as an instrument of terror in the Bosnian conflict and that sex crimes formed part of a widespread and systematic attack against the civilian population. For the first time, a conviction was secured based on rape as a crime against humanity.

The judgment, combined with rulings from the International Criminal Tribunal for Rwanda , represents "monumental jurisprudence", according to Patricia Sellers, a legal adviser with the Office of the Prosecutor for both tribunals.

Earlier military codes, including The Hague and Geneva Conventions, prohibited rape, but prosecutors and governments had tended to overlook sex crimes as an inevitable part of war, said Sellers. "Now we say rape is a crime, a crime against humanity, or a war crime, or constituent part of genocide," Sellers told reporters in The Hague around the time of the verdict.

The first prosecution of rape as a war crime came at the Tokyo Trials after World War Two. More than fifty years later, the Rwanda tribunal delivered a ruling that took up where the Tokyo trials left off. In the Akayesu case, sex crimes against Tutsi women were treated as an instrument of genocide and a crime against humanity. In the Celebici and Furundzija cases before The Hague tribunal, defendants were found guilty of using rape as a means of torture.

The Kunarac case was part of a larger indictment that originally charged eight suspects with a variety of sex crimes committed in the town of Foca during the Bosnian conflict. Only three of the eight suspects were arrested and in the tribunal's custody by the time the trial commenced: Kunarac, a Serb paramilitary commander, and Kovac and Vukovic, sub-commanders of the military police and paramilitary leaders in Foca.

Judge Florence Mumba, the presiding judge and vice-president of the tribunal, made clear that the subordinate rank of the accused did not absolve them of criminal responsibility:

"The three accused are certainly not in the category of the political or military masterminds behind the conflicts and atrocities. However, the Trial Chamber . . . will not accept low rank or a subordinate function as an escape from criminal prosecution, " she said. " Political leaders and war generals are powerless if the ordinary people refuse to carry out criminal activities in the course of war. Lawless opportunists should expect no mercy, no matter how low their position in the chain of command."

According to the indictment, when Serb forces captured Foca in mid-April 1992, its inhabitants were assembled, with men separated from women and children. Bosniaks (Muslims) in Foca were held for several months in homes and detention centres. During this time, women and young girls were regularly and systematically raped in the centres, which became known as "rape camps".

Some victims were taken out to other locations where they were subjected to various forms of sexual violence before being returned to the centre, while others were never returned. Rarely were the victims simply raped. Most were publicly gang raped or repeatedly raped over an extensive period of time. Some were enslaved, and subjected to sexual servitude by their captors. Girls as young as twelve were held in sexual slavery and loaned, rented, traded, or sold for sexual purposes.

Some women were raped while watching their mothers and their daughters also being raped right beside them. Others were held for six months for the exclusive sexual use of selected soldiers. Others were tasked with domestic work by day and sexual servitude by night. Sometimes young girls were forced to take off all their clothes and dance on a table for the entertainment of their captors.

Still others were taunted during gang rapes with reminders that if they became pregnant as a result of the rapes, they wouldn't know which perpetrator was the father. Yet others were tortured by means of rape or sexual mutilation as punishment for reporting their abuses. Virtually all were also physically and verbally abused during the course of their ordeals.

For their responsibility for these crimes, in some instances engaging in sexual violence and in other instances incurring responsibility for the sex crimes committed by others, each of the accused were found guilty of war crimes and crimes against humanity.

Kunarac was found guilty on 11 counts of violations of the laws or customs of war for torture and rape; and crimes against humanity for torture, rape, and enslavement. He received a single sentence of 28 years imprisonment. Kovac was found guilty of crimes against humanity for four counts of rape and enslavement, and violations of the laws or customs of war for rape and outrages upon personal dignity. He was sentenced to a single term of 20 years imprisonment. Vukovic was found guilty of crimes against humanity and violations of the laws or customs of war on four counts of torture and rape. He was sentenced to 12 years imprisonment.

The accused were each found not guilty on some charges, with certain allegations held not to have been proved beyond a reasonable doubt. Forceful language in the judgment indicates that the judges consider crimes of sexual violence to be among the most despicable and cowardly of crimes.

Yet the sentences are disappointing in many respects. They do not appear to take into account the repeated and continuing nature of the crimes (these were essentially serial rapists who raped their victims countless times), the gravity of the offences, and the intense suffering sex crimes cause to the victims/survivors and society as a whole. The sentences are consistent with the tribunal's sentencing practices in which relatively lenient sentences tend to be handed out for extremely serious crimes.

Another disappointment is that the language in the enslavement section of the decision could have been far stronger in directly linking the enslavement to the sex crimes. The judgement often failed to even mention the sexual nature of the enslavement, and when it did it usually treated the rapes as merely one of a number of indicators of the enslavement, instead of treating it as an inherent part of and the principal purpose for the enslavement.

In fact, the women and girls were not enslaved so that they could be bartered, sold, or forced to do domestic labour. This treatment, while horrible, was nonetheless incidental to the sexual violence. The victims were enslaved so that they could be raped. The rape and the enslavement were inseparably intertwined, and the combination resulted in sexual slavery.

Despite these shortcomings, the judgment sets a critical precedent in redressing the sexual violence to which women and young girls have long been subjected in war. Most notably, classing rape and enslavement as crimes against humanity breaks new ground in the prosecution of gender-based crimes, quashing the impunity traditionally surrounding sexual violence. It also lends credence towards efforts to place the stigma of sex crimes squarely on the perpetrator, not on the victim.

As Judge Mumba emphasised at the judgment and sentencing hearing, "In time of peace as much as in time of war, men of substance do not abuse women."

Kelly Askin is acting executive director at the War Crimes Research Office, Washington College of Law, American University, and author of War Crimes Against Women: Prosecution in International War Crimes Tribunals.