Rape and other forms of sexual violence can constitute international crimes and also can be crimes under national law. Rape and other crimes of sexual violence may be prosecuted as war crimes,115 torture,116 crimes againsthumanity,117 grave breaches of the Geneva Conventions,118 and, in some circumstances, constituent acts of genocide.119 Consistent with the understanding that "torture or inhuman treatment" and "wilfully causing great suffering or serious injury to body or health"120 can include acts of rape and sexual violence, the ICTY has indicted defendants for these war crimes.121 The ICTY's statute explicitly lists rape as a crime against humanity under Article 5(g); the Tribunal has already won convictions for rape as a grave breach (Article 2), as a violation of the laws or customs of war (Article 3), and as a war crime (Article 3) in the conflict in Bosnia and Herzegovina.122
Rape and Sexual Violence in Kosovo: Legal Analysis
Rape and other forms of sexual violence have long been mischaracterized and dismissed by military and political leaders as private crimes or the unfortunate behavior of renegade soldiers. Worse still, these crimes have been tolerated precisely because they are so commonplace. Rape functions in ways similar to other human rights abuses, but until recently it has not been exposed and condemned like all other violations. The differential treatment of gender-based violence makes clear that the problem, for the most part, lies not in the absence of adequate legal prohibitions, but in the international community's willingness to tolerate sexual abuse of women.
The crimes documented in this report are prohibited by international humanitarian law. By early March 1998, hostilities between the KLA and Serbian and Yugoslav government forces reached a level of conflict that triggered the obligations of Common Article 3 to the 1949 Geneva Conventions and Protocol II.123 With the initiation of the NATO bombing in March 1999, the conflict in Kosovo and all of the Federal Republic of Yugoslavia, to the extent it involved NATO and Yugoslav forces, became an international armed conflict to which the full body of internationalhumanitarian law applied.124 The abuses dealt with in this report took place during hostilities between the KLA and the Serbian and Yugoslav government forces and are therefore governed by international humanitarian law applicable to internal armed conflicts. The violations of humanitarian law carried out by police, soldiers, and paramilitaries in Kosovo are fully within the jurisdiction of the ICTY.
Each of the rapes in Kosovo documented in this report is a war crime. The rapes and other forms of sexual violence purposefully inflicted by military forces upon these women are covered by Common Article 3 of the Geneva Conventions, Section 1 which prohibits "violence to life and person . . . cruel treatment and torture" and "outrages upon personal dignity, in particular humiliating and degrading treatment."125 In addition, the rapes described here violate Protocol II to the Geneva Conventions, which explicitly outlaws "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault."126
Each of the rapes reported here may also be prosecuted as torture.127 Soldiers, paramilitaries, and police intentionally inflicted the rapes described here for the purposes of intimidation, coercion, punishment, to elicit information, or simply based on discrimination against Kosovar Albanians and/or against women. In some cases, the intent was clearly to intimidate-through the act or the threat of rape-the victim, her family, and her community. For example, numerous victims and witnesses described explicit threats of rape used to terrify and intimidate fleeing displaced persons.128 In other cases, the rapes and threats of rape were committed with the intent to elicit information concerning the whereabouts of male family members.129 A necessary criterion for these rapes to rise to the level of torture is for the perpetrators to be acting in their official capacities. Rape and other forms of sexual violence constitute torture when they are intentionally inflicted on a victim by an official or with official instigation, consent,or tolerance for any of the purposes listed above.130 The soldiers and police who committed rape and sexual violence acted in their official capacities. The paramilitaries in Kosovo during the conflict acted as agents and auxiliaries of the Yugoslav forces.
Even where the act was not rape, or did not cause severe physical pain or suffering, it still may rise to the level of torture or other cruel, inhuman, or degrading treatment on account of the psychological suffering inflicted. In internal armed conflicts, Protocol II prohibits "torture . . . or other cruel treatment of persons under any circumstances."131 Common Article 3 of the Geneva Conventions prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."
In many interviews, women spoke of being forced to strip naked, clean houses, and serve coffee to soldiers and policemen. A broad definition of sexual violence has been established as a precedent in the Akayesu Judgment. There, the International Criminal Tribunal for Rwanda (ICTR) held, "Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact," including forced nudity.132
As additional evidence of rape and sexual violence emerges over the coming months, there also may be reason to prosecute these crimes as crimes against humanity.133 Rapes and sexual assaults served as a weapon in the systematic campaign of "ethnic cleansing" throughout Kosovo. Human Rights Watch found ninety-six credible accounts of rape and sexual assault; there is reason to believe that many more rapes occurred. The patterns of sexual violence throughout Kosovo are remarkably similar and consistent. The evidence shows that the main perpetrators of rape in the province-police, soldiers, and members of paramilitary forces-entered Kosovo with the assistance and encouragement of the Serbian authorities.
Serbian forces perpetrated numerous rapes and other crimes of sexual violence in Kosovo; the crimes were neither incidental nor random. Some experts on the ground monitoring the abuses, including representatives of international institutions who conducted interviews during the refugee crisis, believe that the rapes and sexual assaults already documented may reach the level of crimes against humanity. Sevdie Ahmeti, for example, argues that the rapes perpetrated against Kosovar Albanian women during the conflict were both widespread and systematic.134
Regardless of whether the charges are framed as war crimes, torture, or crimes against humanity, those with command responsibility, as well as individual perpetrators, must be indicted and prosecuted. The evidence that the military, police, and members of paramilitary forces cooperated closely in Kosovo indicates either that orders were given to commit these atrocities, or that officers were wilfully blind with regard to the crimes. One OSCE official familiar with rape testimonies collected by that institution argued that there was either a breakdown in the commandstructure or total official acquiescence to the rapes.135 As the ICTY stated in the Celebici decision, "the crimes were so frequent and notorious" that there is no way the command structure could not have known about them.136 And while it is still too early to know definitively how many rapes took place in Kosovo, Kosovar Albanian women and girls throughout the region reported that threats of rape permeated the environment as they fled. Once again, the Serbian military, police, and paramilitaries have used rape as a weapon of systematic "ethnic cleansing."
In Kosovo, as everywhere, the problem in prosecuting crimes of sexual violence has not been the lack of a legal basis, but the failure of political will. Since prosecution under national Yugoslav law is highly unlikely, it is incumbent upon the ICTY, and nations willing to exercise universal jurisdiction over these crimes, to prosecute rape and sexual violence to the fullest extent possible under international law.115 In internal armed conflicts, such as that which occurred in Kosovo, Common Article 3 of the Geneva Conventions prohibits "violence to life and person," "cruel treatment," "torture" and "other outrages upon personal dignity." Article 4(2)(e) of Protocol II to the Geneva Conventions, also governing the protection of civilians in internal armed conflicts, explicitly outlaws "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature December 12, 1977, Article 4(2) (a) and (e), 1125 U.N.T.S. 3, 16 ILM 1442 (1977) [hereinafter Protocol II]. Yugoslavia acceded to the four Geneva Conventions on April 21, 1950, and to Protocols I and II on June 11, 1979. 116 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 23 I.L.M. 1027 (1984), Article 1, defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." [hereinafter Convention against Torture]. According to the Report of the U.N. Special Rapporteur on Torture, rape can be an act of torture. Report of the U.N. Special Rapporteur on Torture, Mr. Nigel S. Rodley, submitted pursuant to the Commission on Human Rights Resolution 1992/32, E/CN.4/1995/34, Paragraph 19, January 12, 1995. The ICTY convicted Anto Furundzija as a co-perpetrator of torture for aiding and abetting a rape committed by another indictee. See Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T. Yugoslavia signed the Convention against Torture on April 18, 1989 and ratified it on September 10, 1991. 117 Crimes against humanity "refer to inhumane acts of a very serious nature . . . committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds." "Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808," 32 I.L.M. at 1159 (1993), para. 48. The ICTY statute explicitly lists rape as a crime against humanity in Article 5(g). 118 Grave breaches are those acts in an international armed conflict against persons protected by the Geneva Conventions, the perpetrators of which states are obligated to seek out and prosecute or extradite. Although rape and other crimes of sexual violence are not enumerated in the articles defining grave breaches, the International Committee of the Red Cross (ICRC), among others, has interpreted rape to be an example of the grave breach crime of "torture or inhuman treatment" or "wilfully causing great suffering or serious injury to body or health." See Geneva Conventions I through IV, Articles 50, 51, 130, and 147 respectively. 119 Convention on the Prevention and Punishment of the Crime of Genocide adopted 9 Dec. 1948, 78 U.N.T.S. 277 [hereinafter Convention Against Genocide]. Genocide is defined by the intent of the perpetrators to destroy a national, ethnic, racial, or religious group through acts which include "causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring abour its physical destruction in whole or in part." See also Akayesu Judgment, Case No. ICTR-96-4-T. 120 Geneva Convention IV, art. 147. 121 Prosecutor v. Dusko Tadic, Case No. IT-94-1I, 10 February 1995, Indictment. 122 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T and Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T. See also "ICTY Prosecutor, Carla Del Ponte, Releases Background Paper on Sexual Violence Investigation and Prosecution," Press Release, The Hague, 8 December 1999.
123 Yugoslavia acceded to the four Geneva Conventions on April 21, 1950, and to Protocols I and II on June 11, 1979. For a detailed analysis of the conflict and its legal implications, see Human Rights Watch, Humanitarian Law Violations in Kosovo, pp. 91-96.
124 International humanitarian law (IHL) applies expressly and uniquely to armed conflict situations, with distinct provisions to regulate international and non-international (internal) armed conflicts. See Human Rights Watch, "Civilian Deaths in the NATO Air Campaign."
125 Geneva Conventions, Common Article 3.
126 Geneva Conventions, Protocol II, Article 4(2)(e).
127 Articles 7 and 8 of the Convention against Torture mandate prosecution or extradition of any person who has committed torture. The prosecution should take place in "the same manner as in the case of any ordinary offence of a serious nature under the law of that state." Convention against Torture, Article 7, para. 2. Under the ICTY Statute, torture may be prosecuted as a grave breach of the Geneva Conventions (Article 2(b)), as a violation of the laws or customs of war (Article 3), or as a crime against humanity (Article 5(f)). In the Furundzija case, the trial chamber defined torture in an armed conflict as:
(i) "the infliction, by act or omission, or severe pain or suffering, whether physical or mental."
The trial chamber further required that:
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, ar at discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity."
See Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, para. 162. Article 5(f) of the ICTY statute lists torture as a crime against humanity.
128 See section of report Attacks in Flight.
129 See, for example, testimony of X.R. in section Rapes and Sexual Assaults of Women Held Hostage or Detained.
130 Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T, para. 941.
131 International Committee of the Red Cross (ICRC), Commentary, IV Geneva Convention (Geneva: ICRC, 1958), p. 226.
132 Akayesu Judgment, ICTR-96-4-T, Trial Chamber 1, 2 September 1998, para. 688.
133 In order to rise to the level of crimes against humanity, the rapes must be committed on a widespread or systematic basis. See Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (The Hague: Kluwer Law International, 1997), pp. 351-361.
134 Human Rights Watch interview, Sevdie Ahmeti, Pristina, July 12, 1999.
135 Human Rights Watch interview, OSCE Official, Pristina, July 11, 1999.
136 Celebici Judgment: Prosecutor v. Delalic, Mucic, Delic, and Landzo, Case No. IT-96-21-T, para. 770.