User:Opbeith/Foča camp

The Foča rape camps were buildings in the town of Foča in southeastern Bosnia and Herzegovina, including schools, the local prison and other municipal buildings, which were used during the "ethnic cleansing" of the Drina Valley by Bosnian Serbs in 1992 as detention facilities where Bosniak (Bosnian Muslim) women were subjected to systematic rape, torture and other degrading treatment.

The Serb takeover of Foča
Foča (Serbian Cyrillic: Фоча), is a town and municipality on the Drina river, in Bosnia and Herzegovina not far from what was in 1992 the border with Serbia and Montenegro (now the border with Montenegro). According to the last official census in 1991, the population amounted to 40,513 persons 45% of whom were Serbs, 52% Muslims and the remaining 3% other ethnicities.

At the start of the Bosnian war on 8 April 1992 the Bosnian Serb forces launched an attack on the town using heavy artillery and deploying paramilitary groups against pockets of resistance. The Serb forces involved in the takeover of Foča included the Yugoslav People’s Army (the “JNA”), the Territorial Defence (TO) which later became the Army of the Bosnian-Serb Republic (VRS), the Serb police and various irregular Serb military formations. .

The aim was, inter alia, to remove the non-Serb population from the Foča area. A wartime administration called the "Crisis Committee" was formed to plan and carry out the expulsion. “The method employed was mostly expulsion through terror”. 

The Foča police worked closely with the Serb military forces occupying the municipality and played primary and direct roles in the arrest, expulsion, detention, rape, torture, and murder of the town's non-Serb population.

Captured men and women were separated and transported to local buildings including schools, the local prison and other municipality buildings that had been converted into detention facilities. During the arrests many civilians were killed, beaten or subjected to sexual assault.

Men were beaten and in many cases killed; the survivors were transferred to Montenegro or other locations under the control of the BiH government.

The International Committee of the Red Cross (ICRC) was denied access to Foča until the beginning of October 1992, by which time thousands of non-Serbs from Foča had been imprisoned and subsequently expelled or killed and few non-Serbs were left alive in the municipality.

The fate of the women captives
The captured Muslim women, including girls as young as 12, were first held at Buk Bijela and then transferred to other detention centres such as the Foča High School, the Partizan Sports Hall (a few metres from the local police station), and the Kalinovik High School (where civilians from the neighbouring municipalities of Gacko and Kalinovik and other neighbouring villages were kept). Conditions were described by many witnesses as "dreadful" and "appalling". Food was scarce and of poor quality, hygiene facilities were almost non-existent, sanitary conditions were appallingly low and only a few gym mattresses were available for the "detainees".

Buk Bijela was a settlement on a hydro-electric dam construction site which was turned into a local military headquarters and barracks for Bosnian Serb forces and paramilitary soldiers after the April 1992 take-over of Foča and the surrounding villages. Prosecutor v. Dragan Zelenović (IT-96-23/2-S), Joint submission of annex to the Plea Agreement, Amended Indictment, 17 January 2007, para. 5.1. After the Serb forces took over the Foča area, the Foča High School functioned as a barracks for Serb soldiers and as a short-term detention facility for Muslim women, children and the elderly. Prosecutor v. Dragan Zelenović (IT-96-23/2-S), Joint submission of annex to the Plea Agreement, Amended Indictment, 17 January 2007, para. 6.1 Partizan was on slightly higher ground than the other buildings in the neighbourhood and could therefore be seen clearly from the surrounding areas, including the police building. Partizan was also close to the main municipal building, where the Serb authorities had their principal offices. Partizan consisted of two large halls. Al1 detainees were held in only one of the halls. This hall measured roughly 12 metres by 7 metres. Prosecutor v. Dragan Zelenović (IT-96-23/2-S), Joint submission of annex to the Plea Agreement, Amended Indictment, 17 January 2007, paras 7.1-7.2.

The Serb forces operated a system of constant and methodical physical and psychological torture including sexual assaults and rape in these detention centres, which became known as “rape camps”. Soldiers were allowed free access to the detention centres and were able to select and take away girls and women whom they then raped, tortured and humiliated. "The women had no choice but to obey the men and those who tried to resist were beaten in front of the other women".

Other local houses were also used to rape women who were locked indoors and often treated as slaves, obliged to perform household duties and repeatedly raped by their captors. Some were sold and many were not seen again.

Within the "rape camps" some of the witness stated that they were raped so many times that they were unable to assess with accuracy the number of times they had been raped. The Foča civilian authorities not only failed to protect the victims but assisted the perpetrators of the crimes.

Women were subjected to daily rape and torture over a period of months and some were detained until the beginning of 1993. According to Presiding Judge Mumba in the Summary of the Kunarac et al. Trial Judgment, Press release n. 566, available at http://www.un.org/icty/latest-e/index.htm, "Rapes were used by members of the Bosnian Serb armed forces as an instrument of terror. An instrument they were given free rein to apply whenever and against whomsoever they wished." The Judge stated that the perpetrators of the crimes had "shown the most glaring disrespect for the women’s dignity and their fundamental human rights on a scale that far surpasses even what one might call the average seriousness of rapes during wartime."

Foča rape camp cases at the ICTY
The International Criminal Tribunal for the Former Yugoslavia (ICTY), issued its initial indictment in Case No.: IT-96-23 (the "Foča" case") in 1996 charging Dragan Gagovic, Gojko Jankovic, Janko Janjic, Radomir Kovac, Zoran Vukovic, Dragan Zelenovic , Dragoljub Kunarac and Radovan Stankovic with crimes against humanity (torture and rape) and violations of the laws or customs of war (torture and rape).

Zoran Vuković, Dragoljub Kunarac and Radomir Kovač stood trial jointly at the ICTY under case number IT-96-23 & 23/1. On 22 February 2001, the ICTY Trial Chamber found them guilty of the charges The cases against Radovan Stanković and Gojko Janković were transferred to the BiH authorities. Janko Janjić died on 20 April 2001. On 17 January 2007 Dragan Zelenović pleaded guilty at The Hague to seven counts of rape and torture as crimes against humanity under case number IT-96-23/2.

Kunarac et al.
On 22 February 2001, the ICTY Trial Chamber found Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic guilty of the charges, in a historic judgment described as "a landmark contribution to international legal history".

The case against Kunarac, Kovač and Vuković was the first case at the ICTY in which the accused were convicted of rape not only as violation of the laws or customs of war but also as a crime against humanity. Previous convictions at the ICTY had only ever been handed down for the crime of rape as a violation of the laws or customs of war. The judgement elevated the crime of rape to a crime against humanity whose gravity is second only to the crime of genocide. It was also the first time that an international tribunal had convicted defendants exclusively for sexual violence or prosecuted sexual slavery at all.

On 12 June 2002 the ICTY Appeals Chamber dismissed the appeals by Kunarac, Kovac and Vukovic and confirmed their sentences.

Kunarac was the leader of a reconnaissance unit which was part of the local Foča Tactical Group. Kovač and Vuković were both members of a military unit called the “Dragan Nikolić Unit”.

The evidence showed that the method employed to carry out the removal of the non-Serb population was expulsion through terror and that rapes were used by members of the Bosnian Serb armed forces as an instrument of terror. The Trial Chamber found that the defendants had sexually abused, raped, tortured and enslaved several Muslim girls and women detained in the area of Foča, showing deepest disrespect for the human dignity of Muslim women.

Kunarac was found guilty of torture, rape and enslavement as crimes against humanity, and torture and rape as violations of the laws or customs of war, and sentenced to 28 years’ imprisonment. Kovač was found guilty of rape and outrages upon personal dignity as violations of the laws or customs of war, and of enslavement and rape as crimes against humanity and sentenced to 20 years’ imprisonment. Vuković was found guilty of torture and rape as violations of the laws or customs of war and as crimes against humanity and was sentenced to 12 years’ imprisonment. On 12 June 2002 the Appeals Chamber affirmed the Trial Judgement.

Janković & Stanković
Stanković was a member of the Miljevina battalion, a Bosnian Serb paramilitary unit based in Foča. He along with other soldiers of the same battalion used the abandoned house of a Muslim man as his own residence. In this house, nine Muslim girls and women were enslaved by the accused and two of them were raped on an ongoing basis by him and his comrades from 3 August 1992 until 10 October 1992.

He was charged on the basis of individual criminal responsibility with enslavement and rape as crimes against humanity and rape and outrages upon personal dignity as violations of the laws or customs of war.

On 14 November 2006, the Court of BiH sentenced Radovan Stanković to 16 years’ imprisonment.

Janković was a sub-commander of the military police and a paramilitary leader in Foča who took part in the military attack on Foča and was directly involved in the interrogation, torture and rape of Muslim women. He was also charged with torture and rape as crimes against humanity and as violations of the laws or customs of war, on the basis of individual criminal responsibility, and—due to his command position within the military police—also on the basis of superior criminal responsibility (Article 7 (3) of the Statute).

As mentioned above, the accused were tried before the Court of BiH following the referral of the case pursuant to Rule 11 bis of the Rules of the ICTY. (A brief explanation of the functioning of the referral procedure is set out below.) On 28 March 2007, the Appellate Panel in Sarajevo modified the conviction, increasing it to 20 years. Radovan Stanković escaped the facilities of the Foča prison on 25 May 2007 while being taken for dental treatment at a local hospital. On 16 February 2007, the Court of BiH sentenced Gojko Janković to 34 years’ imprisonment. The sentence was appealed by the accused. On 23 October 2007 the hearing before the Appellate Panel took place and on 16 November 2007 the sentence was confirmed. In both cases the accused were convicted, inter alia, for rape as a crime against humanity.

Zelenović
Zelenović was a soldier and a de facto military policeman in Foča and a member of the “Dragan Nikolić Unit”. He was directly and actively involved in the campaign launched by the Serb forces in the municipality of Foča in April 1992 and with the commission of heinous crimes against several Muslim women and girls. Following a plea agreement on 14 December 2006, Zelenović agreed to plead guilty to seven counts of crimes against humanity, three charging torture and four charging rape. He was held personally accountable for committing nine rapes, eight of which were qualified as both torture and rape, and sentenced to 15 years’ imprisonment. The judgement was affirmed by the Appeals Chamber on 31 October 2007.

In return for Zelenović pleading guilty to the seven counts of rape and torture as crimes against humanity and agreeing to cooperate with the Office of the Prosecutor, including testifying at any trial before the Tribunal, the Prosecutor withdrew the remaining charges of rape and torture as violations of the laws or customs of war. One of the criticisms levelled at the plea agreement procedure is that it often results in the dismissal of certain charges from the original indictment – jeopardising the Tribunal’s fundamental objective to prosecute serious violations of international humanitarian law.

Rape as crime against humanity
Rape is referred to in Article 5 (g) of the Statute as a crime against humanity within the Tribunal’s jurisdiction. The offences enlisted in Article 5, if committed in the context of an armed conflict ‘as part of a widespread or systematic attack directed against the civilian population’, amount to crimes against humanity if the perpetrator knew of the wider context in which his acts occurred and knew that his acts were part of the attack. The Trial Chamber in Kunarac et al. was satisfied that an armed conflict existed from 8 April 1992 until at least February 1993 in the Foča municipality. It also found that the crimes charged in the indictment were closely related to the armed conflict.

The Trial Chamber further emphasised that the requirement that the acts be ‘closely related to the armed conflict’ was also satisfied if the criminal conduct occurred in the aftermath of the fighting, up to a point at which the combat activity ended, and if the acts were committed in furtherance or took advantage of the situation created by the fighting.

The Judges determined that there was a systematic attack against the Muslim civilian population which, after the municipality had been taken over, was subjected to a specific strategy which followed the same pattern:

Muslim houses and apartments were systematically ransacked or burnt down, Muslim villagers were rounded up or captured, and sometimes beaten or killed in the process. Men and women were separated, with many of the men detained in the former KP Dom prison.

Muslim women endured the ordeals described in the previous paragraphs. The accused knew of the attack against the civilian population and “they knew that their criminal acts fitted in with or were part of this attack”. Consequently all the elements required to consider the conduct of the accused as a crime against humanity were found beyond reasonable doubt by the Trial Chamber.

The elements of the crime of rape

The Trial Chamber conducted an analysis of the elements of the crime of rape. The specific elements of the crime of rape, namely the actus reus and the mens rea, are not set out in the Statute nor in international humanitarian law or human rights instruments. The Trial Chamber therefore adopted as a starting point of its analysis the definition of rape given by the Trial Chamber in the Furundžija case (the “Furundžija definition”).

The Furundžija Trial Chamber had noted that it was not possible to discern the elements of the crime of rape from international treaty or customary law, nor from the “general principles of international criminal law or general principles of international law” and consequentlypronounced that in order to arrive at an accurate definition of rape based on the criminal law principle of specificity it was “necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws.” The actus reus of the crime of rape is (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person.

The Trial Chamber in Kunarac et al. agreed that the Furundžija definition elements, if proved, constitute the actus reus of the crime of rape in international law, but found that the element of coercion or force or threat of force against the victim or a third person in paragraph (ii)was too narrowly construed for the requirements of international law. The Furundžija definition did not refer to other factors “which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”. A ‘broadened’ approach in this respect was—in the opinion of the Judges—the appropriate scope of the definition in international law.

(Interestingly, in a footnote the Trial Chamber acknowledged that the Prosecution in its final trial brief also seemed to share the narrow approach to the elements of rape requiring proof of coercion or force or threat of force against the victim or a third person, and expressed its disagreement on this submission.)

The Trial Chamber found that the analysis of the legal systems carried out in Furundžija showed that although force, threat of force and coercion are certainly central elements to many legal systems, “the true common denominator which unifies all the systems [is the] wider or more basic principle of penalising violations of sexual autonomy”.74 The Judges seemed to be willing to stress the relevance of the “absence of consent” among the elements characterising the actus reus of the crime of rape.

Furthermore, the Trial Chamber stated that, according to the survey of the law in force in many different legal systems, it can be concluded that sexual conduct can be considered as ‘rape’ when it falls among one of three broad categories.

(i) First of all, when the sexual activity is accompanied by force or threat of force to the victim or a third party.75 Several jurisdictions provide a definition of rape which requires that the sexual conduct is carried out by force or accompanied by force or threat of force.76

(ii) The second category is that where the sexual activity is “accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal”.77 As for this category, the Trial Chamber took into account several legal systems in which the law considers relevant certain circumstances which pertain to the vulnerability or deception of the victim besides from the use of force or threat of force.78 The Trial Chamber gave a few examples stating that “these circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation.”79

(iii) Finally, the third category enumerated by the Trial Chamber comprises the sexual activity which “occurs without the consent of the victim”.80 It emphasised that in many common law systems81 “it is the absence of the victim’s free and genuine consent to sexual penetration which is the defining characteristic of rape.”82 This is a crucial point in the Trial Chamber’s discussion. It points out that—in these jurisdictions—force or threat of force need not be proven; but that when “consent” is obtained through such factors it is not considered real consent.83 Furthermore, the Trial Chamber stresses how the consent must be genuine and voluntarily given.

These considerations seem to reflect the Judges understanding of the elements of rape. Specifically the Trial Chamber concluded that the core element which turns a sexual activity into rape is the violation of the sexual autonomy of a person which means the lack of consent on her part. Consent must be given voluntarily as a result of the victim’s free will, assessed in the context of the surrounding circumstances.

The use of force, the threat of force, or any other circumstance which make the victim particularly vulnerable or negated her ability to make an informed refusal (namely, the first two categories discussed above), “are matters which result in the will of the victim being overcome or in the victim’s submission to the act being non-voluntary”.84 In other words, the essential element of the crime of rape is the absence of the free consent of a person to engage in sexual conduct, whereas force, threat of force or taking advantage of a person who is unable to resist are evidence that the sexual autonomy of such a person has been violated, as there was no such free agreement, but they are not necessarily elements which need to be proven for the crime of rape. Therefore the terms coercion, force, or threat of force employed by the Furundžija definition were not to be interpreted narrowly. Specifically, the term “coercion” should be interpreted as referring to most conduct which negates free and voluntary consent.85 Consequently, the Trial Chamber found that the actus reus of the crime of rape in international law is constituted by:

(i) the sexual penetration, however slight:

(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator;

(ii) where such sexual penetration occurs without the consent of the victim. 86

The mens rea of the crime of rape “is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim”.87

This definition of rape given by the Trial Chamber was challenged on appeal. Specifically, the Appellants argued that—in addition to penetration—two further elements must be proven, namely the force or threat of force and the victim’s “continuous” or “genuine” resistance.88 In other words, according to this interpretation, the victim must show resistance throughout all the sexual intercourse so as to give notice to the perpetrator that his conduct is not welcome.

The Appeals Chamber rejected this argument defining it “wrong on the law and absurd on the facts”.89 Secondly, and most importantly, the Appeals Chamber emphasised that it concurred with the definition of rape given by the Trial Chamber, and with regard to the role of force in such a definition noticed that the departure of the Trial Chamber from the previous jurisprudence of the Tribunal on this point was only apparent. Specifically, in the opinion of the Appeals Chamber, the Trial Chamber addressed the relationship between force and consent finding that “force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape”.90 The Trial Chamber felt the need to explain that there are factors other than force which "would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”.91

The Appeals Chamber found that this conclusion was reached out of concern that a “narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.”92

The Appeals Chamber stressed that for rape to be categorised as torture all the elements of rape and torture must be present in the conduct of the accused.97 It concluded that in the case under analysis:

[T]he physical pain, fear, anguish, uncertainty and humiliation to which the Appellants repeatedly subjected their victims elevate their acts to those of torture. These were not isolated instances. Rather, the deliberate and co-ordinated commission of rapes was carried out with breathtaking impunity over a long period of time…Whether rousted from their unquiet rest to endure the grim nightly ritual of selection or passed around in a vicious parody of processing at headquarters, the victims endured repeated rapes, implicating not only the offence of rape but also that of torture under Article 5 of the Statute. In the egregious circumstances of this case…all the elements of rape and torture is met. 98

The ICTY's Conclusion - Fiori

The atrocities committed in the Foča municipality against the Muslim civilian population and particularly against the Muslim women are amongst the most heinous crimes in international law. The crime of rape in the past had too often been considered as a natural component of every war, something which no longer evoked indignation on account of it being an ‘inevitable’ consequence of an armed conflict. The ICTY to its enduring credit addressed this dark page of a terrible war, denying such an attitude and giving a full and accurate account of what happened in the area showing no mercy for the perpetrators of such a crime. The Tribunal captured the gravity of the crimes perpetrated in Foča and showed a deep understanding of the sufferance endured by the victims who were left with profound scares which will probably never heal.

“Muslim women and girls, mothers and daughters together were robbed of the last vestiges of human dignity, women and girls treated like chattels, pieces of property at the arbitrary disposal of the Serb occupation forces, and more specifically, at the beck and call of the three accused.”99 Rape was used as an instrument of terror, perpetrated through a constant and systematic pattern and the Tribunal convicted the perpetrators under Article 5 of the Statute, thus elevating the crime of rape, in the jurisprudence of the Tribunal, to a crime against humanity second only to genocide in its gravity.

The detailed analysis of the actus reus of the crime of rape offered by the ICTY in the so-called “rape camp” cases showed that there is no room in international law for a narrow definition of the elements of rape and that the main component is the absence of genuine consent of the victim and not the use of force. In other words, rape can also occur when there is no use of force, as long as the consent of the victim is missing. The relatively low rank of the accused will not allow them from escaping criminal prosecution. As the Trial Chamber in the Kunarac et al. case put it: “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 may be.”100

The approach of the Tribunal to these cases is to be welcomed as it contributed to the establishment of the truth, giving a detailed account of the terrible events which occurred in Foča from April 1992. Many of the victims could see their torturer convicted, but most of all the Tribunal made clear that rape under international criminal law is among the gravest offences and that there will be no leniency shown for the perpetrators of such crimes.

Aftermath
Following his referral to the Court of BiH, on 23 May 2007, Radovan Stanković escaped from the Foča prison where he was serving a 20-year sentence. As of January 2008 there was still an Interpol warrant out for his arrest. See ‘Stanković, Radovan’.