OTI Online
Summer 1993

Women Under Siege Let's Finally Right the Wrongs:
Rape is a War Crime
by Jean Bethke Elshtain

The Bosnian story is one of terror, and tragically that is an oft-told tale. Female victimization at the hands of enemy soldiers recurs as a motif in epic poems and humble remembrances. In his fourth-century masterwork, The City of God, St. Augustine urged women violated in time of war not to punish themselves, for they did not "consent to the wrong." Guilt, he continues, "attaches only to the ravishers, and not at all to the woman forcibly ravished without any consent on her part." Augustine saw himself as defending the bodies and minds of ravished women, protecting them, in part, from the standards of "honor" of their day. For the prevailing doctrine among the Romans held that a woman raped in time of war had to do the "right thing" in light of her dishonor — and kill herself! Augustine claims this victimized the woman twice — first at the hands of her tormentor, and then, by her own hand in the name of Roman honor.

How sad that this story should be at once ancient and contemporary. The current scenes of horror arise from the fighting in Bosnia-Herzegovina. We read of detention camps turned into forced brothels; of women—and girls as young as five or six—raped as their fathers, husbands, or brothers are compelled to watch, helpless to act; of forcible impregnation ot Bosnian Muslim women at the hands of their tormentors with an eye to ethnic dilution as part of ethnic cleansing. It has never been easy to get a handle on the facts in time of war, especially when relief agencies and independent investigators have so little access to what is happening "on the ground."

But as pieced together from eyewitness accounts and testimony by United Nations Rapporteurs and representatives as well as independent human rights organizations this much seems certain: The mass rapes taking place as the world watches the death throes of Bosnia are a centmlfeature of Serbian i par-fighting strategy. That is, the rapes are not an example of disciplinary break-down or freelance terror but part of a knowing policy of depredation aimed at destroying a culture and its people.

We know, of course, that all sides are behaving heinously in die fighting in former Yugoslavia. Women caught on all sides of the conflict have been raped. What makes the action of Serbian forces in the field especially repellent lies in the fact that the mass rapes, documented by United Nations investigators and others, appear to be part of their strategy of war — in direct contradistinction to the rules of war. More often than military analysts would like to believe — although the stories and evidence are there — rapes have been permitted in wartime, seen as part of the "booty" of war. But there are important distinctions between what various armies historically have' 'permitted'' themselves in this regard.

In his important work, Just and Unjust Wars, Michael Walzer recounts the rape of Italian women carried out by Moroccan soldiers fighting with the Free French forces in Italy in 1943. As he reports, "These were mercenary troops who fought on terms, and the terms included license to rape and plunder in enemy territory....A large number of women were raped; we know the number, roughly, because the Italian government later offered them a modest pension." Walzer points out that giving soldiers "privileges" to rape and plunder is no doubt as old as "the right to sack" a city.

But, he says, this ancient "right" is overridden by the rules of war that declare rape a "crime, in war as in peace, because it violates the rights of the woman who is attacked." Walzer traces the prohibition against rape in wartime back to the Hebrew Testament and the Book of Deuteronomy in which the Lord thy God Himself declares that if a man desires a captive woman he must bring her to his own country and make her his wife. With some understatement, Walzer points out that although this may be offensive to modern understanding because the woman, a noncombatant, is made a captive, it does, however, begin to build in prohibitions on the rape and killing of civilians. The Israeli army, heirs to this ancient tradition, are scrupulous in prohibiting their soldiers to rape.

The British and United States armies, as well, have not been armies to whom rape was routinely "permitted," with officers looking the other way, although British and American soldiers have committed "opportunistic" rapes.

Even in the Vietnam War, where incidents of rape, torture and massacre emerged, raping was sporadic and opportunistic rather than routine. That is why stories such as Daniel Lang's Casualties of War have made a powerful impact.

Lang recounts the abduction and repeated gang rape of a young Vietnamese woman by a five-man reconnaissance patrol in the Central Highlands of Vietnam. The year was 1966 and the girl was taken from her remote hamlet and forced to accompany the patrol. Four of the soldiers, following the lead and at least tacit command of their sergeant, raped the young woman repeatedly. One soldier, called "Eriksson" by Lang, refused.

Before returning to base, the sergeant decided the woman should be "wasted," in the fierce lingo of the time, and she was shot and her body dumped. Eriksson was haunted by the incident and brought charges—despite the advice of a number of higher-ups in his unit to "forget the whole diing." Eventually, with the help of a chaplain, he did succeed in getting charges brought; the others were tried, convicted, and sentenced. Eriksson received a commendation from the commanding officer of his division praising him for "seeing that justice was done." If justice was done in that case, one must surely assume that there were rapes that went unreported.

In order to understand why the current Bosnian situation is so horrible and what might be done about it, a further bit of history is helpful. As I learned from my research on military politics and history, war is not a freeform unleashing of violence; rather, fighting is constrained by considerations of war aims, strategies and permissible tactics. Were war simply an unbridled release of violence, wars would be even more destructive than they are. Over the centuries, nations in the West devised unwritten laws and rules governing the conduct of war. These became known as the customary law of war; its basic purpose was to limit suffering and destruction of combatants and to protect non-combatants.

Efforts to codify the customary law of war—in place since the Middle Ages — gathered steam in the 19th century and became a reality with the Hague Convention Number IV of 1907 and the Geneva Convention of 1949. These represented major efforts to write previous customary, or unwritten, laws of war into a codified body of law. The Hague and Geneva conventions established restraints on property seizure and destruction but, most importandy, provided for the protection of civilians during wartime. Article 27 of the Geneva Convention states that the wounded and sick must be cared for and "women must be protected from attacks on their honor," including "any form of sexual assault." Defiling the "personal dignity" of noncombatants, "inflicting humiliating and degrading treatment" on such persons, is labeled a "grave breach" of law.

Such breaches are further spelled out in Section 45, Article 120, of the Uniform Code of Military Justice. The text is unambiguous: "Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without her consent, is guilty of rape and shall be punished by death or such other punishment as a court martial may direct." Penetration, "however slight," is sufficient to "complete" the offense. In the explanatory section of the text, the always controversial matter of consent is raised. The fact that a woman may not have resisted her attacker does not constitute prima facie evidence of consent, the Uniform Code insists, for "if resistance would have been futile,"or "where resistance is overcome by threats of death or great bodily harm," no presumption in favor of consent can or should be made. The maximum punishment for rape is death. Thus, interestingly, rape is a capital offense under the Uniform Code of Military Justice, by contrast to most civilian legal codes.

As with all crimes committed in time of war, however, it is difficult to bring offenders to trial unless the leaders of the military forces are themselves determined to ferret out and punish tormentors of civilian populations. Needless to say, if the strategy is itself one of tormenting civilians, rapists are not going to be called before a bar of justice unless, in the aftermath of the conflict, trials are held based on "crimes against humanity" — the so-calledNurembergprecedent. The genocide ofWorld War II brought forth such revulsion that attempts were made to create a framework for the punishment of those responsible — their 38 offenses were so egregious that they constituted a crime against the moral sensibility ofhumanity itself. This, too, is an ancient and honorable idea, going back to the notion of jus gentium, a more or less generic, universal moral code dating from the days of the ancient Roman jurists and legists. The United Nations may well be laying the groundwork for such a possibility in light of the mounting evidence that as part of the Serbian war effort rape and torture was ordered by field commanders and sanctioned by "higher-ups."

These are the facts as they have thus far emerged: An investigatory team of the European Community has estimated that at least 20,000 Muslim women have been raped since the fighting began last April. The team concluded that the rapes were a strategy of the war. But, as Tamar Lewin pointed out in a piece in the New York Times, "The Balkans Rapes: A Legal Test for the Outraged" (January 15, 1993), "...as a legal matter, prosecution for war crimes is a difficult task. There is no international criminal court, and setting up an international tribunal on war crimes, as the Allies did at Nuremberg after World Warll, depends as much on favorable political winds as on legal precepts." Those "political winds" include, at present, widespread international outrage, with human rights and ad hoc women's groups pointing the way. The very real possibility of an ad hoc war crimes tribunal is emerging as one avenue for bringing those most responsible for the rape strategy to trial.

The International Court ofjustice in the Hague is probably not the ideal "court of appeal" in this instance. Not only has it never heard a genocide or mass-atrocity case, it has no real enforcement power.

It would, therefore, take an act either of the United Nations Security Council or the United Nations General Assembly to create an international war crimes panel. Before the Bush Administration left office, Secretary of State Lawrence Eagleburger not only raised the possibility of American support for such an effort, he listed three Serbian leaders for possible indictment — an act nearly unheard of in diplomatic circles. But it takes sustained political pressure, and plenty of it, to bring the matter to a head and to keep the issue before the public.

We are tormented daily with scenes of the death throes of a society, with stories of starvation and freezing and cruel punishment. The particular horror in the tales of rape is that they are being perpetrated even as negotiations continue. As a special report to the United Nations on "The situation of human rights in the territory of the former Yugoslavia" notes: "Ethnic cleansing does not appear to be the consequences of the war, but rather its goal. That goal, to a large extent, has already been achieved through killings, beatings, rape, destruction ofhouses and threats." Perhaps one 40-year-old Muslim woman's testimony may suffice to convey what happened during an attack on her city when hundreds of women were forced into a school, and selected women were raped and tortured: "It was unbearable to watch girls being raped in front of their fathers. I was raped and tortured too, because they knew that I am a wife of a leader of the Muslim party....Many women and girls who were pregnant remained in the camp. They were transferred to a hospital and fed twice a day because, as the Chetniks (a Serbian paramilitary organization most deeply implicated in the rape strategy) said, they had to bear their offspring."

This story is reminiscent of those told to me by the Mothers of the Disappeared in Argentina whom I interviewed in 1982, 1986 and 1991. Throughout the years of that country's torment (the so-called dirty war from 1976-1979), some 10,000 people—most of them between the ages of 16 and 24 and about 70 percent male — were "disappeared," tortured, killed. Some women were raped as part of their torture. Others who happened to be pregnant at the time of their "being disappeared" were kept alive only until the child was bom. In order that the child's upbringingbe "pure," the mother was then killed and the child "adopted" by a military family. If anything, the evidence coming out of Bosnia is even worse, for it seems Muslim women are being forcibly impregnated in order to "dilute" their own identity through the identity of their offspring. This is the work of inflamed racists who seem to believe that identity comes down, finally, to race or ethnicity. The Argentine torturers didn't go that far: Being "adopted" by one of them sufficed to guarantee one wouldn't grow up "tainted" by being raised in the wrong sort of family.

In light of all that has happened, what should be done? The most important step is to prevent further harm. A large body of opinion has favored lifting the arms embargo to the Bosnians so that the Muslim population can at least partially defend itself against total destruction or displacement. Self-defense is a hollow hope unless one has something with which to defend oneself.

Ever more energetic humanitarian relief, including assistance to special centers where raped and abused women can find asylum, share their stories, and get medical, psychiatric and spiritual care is essential. United Nations peacekeeping forces should supplement the humanitarian forces as soon as possible. The killing and rape must be stopped first. Once the hostilities have ceased, a special tribunal on war crimes should be established. Public testimony from eyewitnesses and survivors should be taken over a period of weeks. It is important to document what happened. A culture of memory is needed in order that the victims not be obliterated in the aftermath as people hasten to "normalize."

With all appropriate legal protection, charges should be brought and the worst offenders and those most responsible for the tragedy in Bosnia be held accountable. Law builds slowly, case by case. International law and its enforcement is underdeveloped. It is difficult to know who is responsible for what. It is, therefore, important to reinforce the principle that the wholesale destruction of the lives of a people will not be permitted and that this destruction includes mass rape and torture as well as genocide. Crimes against humanity should not have to culminate in death camps for the international community to cry, "Nunca Mas." Never Again.

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