We Need a Better Way to Prosecute Sexual Assault in Conflict

Following many years of organizing within the United States, Kosovar survivors of conflict-related sexual violence that occurred during the 1998 to 1999 Kosovo War are now pressing U.S. President Joe Biden to seek redress and accountability from the government of Serbia. An estimated 20,000 rapes of Kosovar women were carried out by Serbian soldiers and police during the conflict but, to date, only one has been prosecuted by a court of law, and it is now on appeal. According to Human Rights Watch, the assaults may have served as a means “to discourage women from reproducing in the future,” which indicates genocidal intent.

A letter sent to Biden by Democratic Congressman Adriano Espaillat of New York and 15 of his colleagues in December requested the administration to urge Serbian President Aleksander Vucic to bring justice to the perpetrators who raped and tortured Kosovar women, citing the case of Vasfije Krasniqi Goodman, a U.S. citizen born in Kosovo who was raped by a Serbian police officer as a 16-year-old girl in her village in 1999.

Goodman, the first woman to go public about her rape in Kosovo, testified before Congress in 2019, emotionally detailing her abuse. The letter also addressed other alleged crimes against humanity perpetrated during the conflict, including the case of three Kosovar Americans who were executed in Serbia in 1999.

Despite its well documented human rights abuses and staggering death toll, only six men have been found guilty of crimes committed during the Kosovo War by the International Criminal Tribunal for the Former Yugoslavia (ICTY). And the body has completely failed to prosecute perpetrators of sexual violence from that conflict. Local courts in Kosovo are just beginning their own war crimes prosecutions. Last year, the first sex crime verdict against a Serbian police officer was handed down in Pristina.

Regrettably, this only follows more general trends. Though rape and sexual assault committed during conflict are legally considered atrocity crimes, they are rarely prosecuted by international and national courts. But now, by acting on the letter sent to him by lawmakers, Biden can initiate a course correction.

Korean and other women enslaved by the Japanese also have not been able to achieve any form of justice in subsequent legal action. As recently as last year, a South Korean court upheld Japan’s immunity and dismissed victim claims against the Japanese government for reparations. The Japanese government has refused to apologize for these crimes, saying the issue of legal responsibility was resolved in past treaty agreements with South Korea. Justice has remained elusive for more than 70 years for these remaining survivors.

In 1949, the landmark Geneva Conventions were adopted by the United Nations, setting standards for the treatment of civilian populations during war. Among other provisions, they state, “Women shall be especially protected against rape, enforced prostitution, or any form of indecent assault.” But it was not until the wars fought during the breakup of the former Yugoslavia when two female survivors of sexual assault, Jadranka Cigelj and Nusreta Sivac, invoked this line to take action. After their rescue from the camps in 1992, Cigelj and Sivac, both lawyers, gathered over 200 testimonies of women who were raped by Bosnian Serbs. They presented the evidence to the ICTY, persuading prosecutors to act on the testimonies and include crimes of sexual violence committed during conflict.

During the Bosnian War from 1992 to 1995, Bosnian Serb forces strategically targeted women, children, and many men detained in concentration camps. The worst such incident occurred in 1992 in the Luka concentration camp in the town of Brcko, where Bosnian Serb authorities detained Bosnian Muslims and Bosnian Croats. Many of the male survivors have rarely spoken about their experiences given the taboos around sexual abuse perpetrated against men.

The chief perpetrators of these atrocities were Goran Jelisic and Monika Karan, a couple keen on sadistic torture and murder. While Jelisic was one of the first to be arrested and indicted by the ICTY in 1999, Karan slipped under the radar. She was a teenager at the time she committed the atrocities, later changing her identity and continuing to live in Republika Srpska, the Serb entity in Bosnia and Herzegovina. Karan was arrested in 2011 and convicted by a court in Brcko to four years in prison for war crimes against civilians. She was released early in 2014 and blended back into society.

In total, the ICTY charged more than 70 individuals with crimes of sexual violence including sexual assault and rape by ICTY, ultimately convicting 32 of them. This produced landmark international jurisprudence with respect to sexual violence during conflict. In a few different cases since 2000, the tribunal found rape to be a crime against humanity, an act of torture, and a tool of terror, establishing a clear link between rape and ethnic cleansing. However, the ICTY failed to establish that rape was a component of genocide, though an estimated 50,000 rapes were perpetrated during the Bosnian war.

The landmark precedent declaring rape a war crime was made in 1998 by the International Criminal Tribunal for Rwanda (ICTR).

The landmark precedent declaring rape a war crime was made in 1998 by the International Criminal Tribunal for Rwanda (ICTR). Established in 1994, the tribunal worked in parallel to the ICTY. Their case laws overlapped and supplemented each another. During the 1994 Rwandan genocide, roughly half a million women and children of the Tutsi ethnic group were raped, sexually mutilated, or murdered by Hutu extremist gangs and police during a span of 100 days. In 1998, Jean Paul Akayesu, the mayor of Taba commune, became the first person convicted for directing rapes of Tutsis, establishing the precedent that rape and sexual violence can constitute genocide. It was then used to convict Pauline Nyiramasuhuko, at the time the Rwandan minister for family welfare and the advancement of women, who ordered the rape and murder of Tutsi women and girls.

The International Criminal Court (ICC) levied its first conviction in 2016 for sexual crimes against Jean Pierre Bemba Gombo, former vice president of the Democratic Republic of Congo, for atrocities committed during the conflict in the Central African Republic from 2002 to 2003. But in 2018, to the dismay of survivors and human rights activists, Bemba was acquitted on all charges by the Appeals Chamber. In 2019, Congolese rebel commander Bosco Ntaganda was convicted for crimes committed in the Democratic Republic of Congo in 2003, including sexual slavery and rape. This time, the verdict was upheld by the Appeals Chamber. It is considered a landmark conviction for wartime rape.

More recently, the Yazidi community in Iraq was subjected to horrific crimes by members of the Islamic State after the fall of Sinjar province in 2014. In 2016, the Independent International Commission of Inquiry established by the United Nations released a report that labeled the crimes perpetrated against the Yazidis as “unimaginable horrors,” stating the acts constituted genocide in their entirety.

In 2021, the Iraqi Council of Representatives adopted the Yazidi Survivors Law, which should pave the way for prosecutions of Islamic State sex crimes and trafficking in domestic Iraqi courts. The law instituted reparations for Yazidi, Christian, Turkmen, and Shabak minority groups, and supports education, health services, and universal basic income for these communities. In 2021, a German court convicted an Islamic State member for genocide and crimes against humanity but did not address the alleged sex crimes. The enslavement and trafficking of Yazidi women and other sex crimes must be addressed in future trials.

Also last year, reports surfaced of a systematic rape campaign by the Ethiopian government forces against women in Tigray province in the country’s ongoing civil war. During a Ethiopian parliamentary session in on sexual violence in Tigray, Prime Minister Abiy Ahmed rebuffed the severity of the allegations, saying, “The women in Tigray? These women have only been penetrated by men, whereas our soldiers were penetrated by a knife.” Similarly, survivors of the concentration camps in China’s Xinjiang province have alleged systematic sexual violence and rape as a torture tactic against the Uyghur detainees.

In 2021, the Ethiopian Office of the Attorney General prosecuted four Ethiopian soldiers, three of whom were found guilty of gape and one of whom was convicted for killing a civilian in the Tigray region. There are also 28 Ethiopian soldiers on trial for killing civilians and 25 on trial for acts of sexual violence and rape.

Just last week, the ICC announced it will launch an investigation into alleged war crimes, including rape, perpetrated in Ukraine since 2013, when protests against Russian-backed President Viktor Yanukovych began and were soon followed by the Russian annexation of the Crimean Peninsula and strife in eastern Ukraine. There have already been reports of renewed sexual assaults since the full-scale Russian invasion of the country began last month.

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Despite the best efforts of the Women, Peace, and Security apparatus at the United Nations, survivors of conflict-related sexual violence are generally underserved by public agencies intended to provide reparations and health care for survivors of wartime sexual violence. While survivors from Bosnia and Herzegovina are legally entitled to care and compensation through a domestic reparations program, the country has been ineffective in providing them under international standards. The survivor has sometimes only been awarded damages if provided a rare opportunity to participate in a criminal trial. The survivors of these crimes deserve prosecution within a reasonable amount of time. There must be a redoubling of political will by the world community with respect to preventing conflict-related sexual violence.

In 2019, the Nobel laureates Denis Mukwege and Nadia Mura established the Global Survivors Fund, which is conducting a study focusing on the status and opportunities for reparations for survivors of sexual violence in more than 20 countries. A preliminary report was presented last year at the 76th session of U.N. General Assembly. Supporting implementation of the recommendations by the Global Survivors Fund at the next U.N. General Assembly in September will be a major step forward in the delivery of reparations globally.

All tribunals, including the ICC and regional courts such as the Inter-American Court of Human Rights, European Court of Human Rights, African Court on Human and Peoples’ Rights, and the Kosovo Specialist Chambers, should be staffed with trained lawyers and psychologists to work with witnesses who have suffered sexual violence. This is not a niche cohort as nearly all conflicts of the past 25 years have featured endemic sexual violence toward all genders.

There is a paucity of courts with jurisdiction over sexual violence committed during war.

The Kosovo Specialist Chambers and Specialist Prosecutor’s Office Court (KSC and SPO) is a Kosovo court with international judges and prosecutors that has jurisdiction to prosecute all war crimes that occurred in Kosovo during the war. The court can operate both in Kosovo and from a courtroom in the Hague. To date, however, the KSC and SPO has not charged or tried any Serbian perpetrators for crimes of rape in Kosovo. Legal scholar Paul Williams of American University’s Washington College of Law has suggested it expand its prosecutions to include war crimes such as rape and sexual violence committed during war.

Now, in response to Goodman’s plea for justice, Biden should direct the U.S. government to take immediate steps to support the prosecution of the perpetrators who carried out sexual violence against Albanian women during the Kosovo War through the auspices of the KSO and SPO. The United States should provide funds and staffing of lawyers and psychosocial staff to work with all victims, regardless of present nationality.

This requires the engagement of the Serbian government, a tall order given that Belgrade has refused to cooperate with the KSO and SPO in many cases. Serbia does not recognize Kosovo but has cooperated with the KSO and SPO in some cases involving Serbian victims. Vucic does not acknowledge that rape was a strategy of the Serbian military forces against Kosovars, and pushing him to do so will likely take significant pressure from the U.S. State Department.

The United States can begin by supporting the Serbia-Kosovo dialogue and pushing Serbia to recognize Kosovo, or at least halt its stonewalling that has prevented Kosovo from attaining membership in international bodies such as the United Nations and Organization for Security and Cooperation in Europe. Lack of membership in these groups impacts the forms of redress available to Kosovars. Washington must continue to put human rights at the center of its foreign policy, as well as in the strategic plans for the U.S. embassies in Pristina and Belgrade.

Goodman has been pressing her case with exceptional courage and deserves her day in court, along with hundreds of other women who were raped during the Kosovo War. More than 20 years after this miscarriage of justice, now is the time for accountability.