Following the breakup of Yugoslavia, the Bosnian society was divided between ethnic Muslim Bosniaks, ethnic Orthodox Serbs, and Croats of Catholic origins. In a violent surge of Serbian nationalism, the Serbian high officials claimed that, in fact, the south Bosnian region, which had Bosnian Muslims as the majority ethnic group, belonged to them and had to be purified of other ethnicities. This conflict, better known as the Bosnian War, lasted from 1992 to 1995 and was marked by extensive instances of gross human rights violations, involving acts of ‘systematic rape, torture, forced resettlement and mass killings’, most notoriously referred to as ethnic cleansing. The conflict culminated in the Srebrenica Massacre, which was considered the worst atrocity that happened on European territory since World War II, being classified as genocide by the United Nations.
Estimates say that between 20,000 and 50,000 women were subjected to acts of sexual violence during this conflict. Nonetheless, until that point in history, sexual violence had only received modest attention internationally, being “seldom prosecuted and rarely denounced”, and more often than not considered just a ‘byproduct of wartime activity’. The legal decisions coming from the International Criminal Tribunal for the former Yugoslavia (ICTY) and, subsequently, from the International Criminal Tribunal for Rwanda (ICTR) have helped define and characterize wartime rape and other types of sexual violence. As such, these harmful practices were recognized as violations of jus cogens norms, and their status within customary international law was also solidified. The ICTY and the ICTR recognized that acts of sexual violence can be constituent elements of other crimes. In Akayesu, the ICTR ruled, for the first time in history, that rape and other forms of sexual violence can be considered crimes against humanity but also genocide if committed with the intent to destroy wholly or in part a national, ethnic, racial, or religious group. In Kunarac, the ICTY established that sexual violence can also constitute forms of enslavement, torture or outrages upon personal dignity. Consequently, rape and sexual violence that occur during wartime can also raise erga omnes obligations, making it of concern to the whole international community to both prevent and prosecute such violations. This is also reflected in the Rome Statute that established the International Criminal Court (ICC), explicitly authorizing the prosecution of rape, sexual slavery, forced prostitution, forced sterilization, forced pregnancy, and other forms of sexual violence as war crimes and crimes against humanity, helping ensure that gender crimes are adequately prosecuted and the perpetrators are not benefitting from impunity.
However, this is only one step in achieving justice for the victims, wartime rape remaining the least condemned of war crimes. As Bakira Hasečić, the president of the Association of Women Victims of War, a survivor of wartime rape herself, explains:
In all our public appearances, the message to victims is to break the silence and speak out, publicly and loudly, about what they survived. Not just for us, for themselves and for future generations to know, if, God forbid, such evil happens again, how to stand up to it, protect themselves and how to fight for their dignity.
Despite the efforts to maintain peace, twenty-six years after the Dayton Agreement that ended the war in Bosnia and Herzegovina, the country seems to be once again in a menacing danger of breaking apart. The tensions between the ethnic groups prevail until the present day. This can be best observed from the most recent threats coming from the Bosnian Serb leaders that want to withdraw from the state-level institutions which they share with the Bosnian Muslims and Croats, contemplating the creation of a new separate military for the Serb forces, and facing an increasingly defiant Republika Srpska. As such, dishearteningly enough, it does not any more seem to be a question of if the evil will happen again, as Bakira Hasečić put it, but rather a matter of when it will happen again. Prevention through understanding is a dominant theme in the literature about gross human rights violations. As such, this essay will analyze the role and effects of rape as a form of gender-based violence against women in the larger context of gross human rights violations that occurred during the Bosnian War, aiming to provide a better understanding of these circumstances and their long-term effects which is essential both for prosecutions, as well as for redressing the victims. For this purpose, Farwell’s conceptualization of wartime rape as a strategy of war is generative for grasping the motives and functions of the mass rape perpetrated by the Serbian armed forces against the Bosnian Muslim women. Consequently, the research question guiding this essay is “What were the role and effects of using rape as a strategy in the context of the Bosnian War?”.
Rape as a Strategy of War
For a long time, war rape has been considered just a byproduct of wartime activity. However, as seen above, it is much more than that, and even the legal characterization of the term does not cover the complexity of the concept. In her comprehensive work on conflict-related sexual violence, Farwell defined rape as ‘a deliberate and strategic decision on the part of combatants to intimidate and destroy “the enemy” as a whole by raping and enslaving women who are identified as members of the opposition group’. In Bosnia, mass rape was part of the larger project of ethnic cleansing conducted by the Serbian troops in an attempt to establish nationalist domination. The attacks were widespread and systematic, covering ‘a very wide range of activity affecting many communities and individuals over an extensive area and over a long period’. Nonetheless, Bosnian Muslim women became, in an overwhelming majority, the targets of sexual violence perpetrated by the Serb forces. These women were raped, tortured, mutilated, sexually enslaved, forcefully impregnated and, sometimes, murdered in the process. Wartime rape can target women’s physical and emotional integrity. It leaves women traumatized, facing the stigma of rape within their communities, having to raise children that result from rape, but also facing a lack of solidarity and support from the state.
The story, however, does not end here. Farwell describes how rape can be used as a strategy of war. Conducted systematically, war rape can be used as ‘an instrument of terror, domination, political repression, torture, intimidation, and humiliation’, having ‘at their heart control, compliance of civilians, and even genocide’. Ethnic hatred is used to accomplish political ends-ethnic cleansing of the unwanted population, genetic imperialism of the perpetrator, and, inter alia, a destruction of the ‘cohesion, spirit, and identity’ of the enemy group. As such, under the premise that rape was used as a strategy of war during the Bosnian War, the following sections will address its use in the process of territorial and ethnic domination, and its role in humiliating and intimidating the Bosnian Muslim women, ultimately terrorizing the Bosnian Muslim community to the point of disintegration. Thus, the analysis focuses on how the effects at the individual level are reflected on the community as a whole.
Rape Used for Territorial and Ethnic Domination
The case of Bosnia and Herzegovina v. Serbia and Montenegro was tried in front of the International Court of Justice based on the application of the 1949 Genocide Convention. Srebrenica was classified as fulfilling the criteria of genocide. All other instances were condemned as ethnic cleansing perpetrated by the Bosnian Serb forces in ‘Banja Luka, Bijeljina and other areas of the Republic of Bosnia and Herzegovina’, but the Court recognized the ICTY conclusion that there are obvious similarities between a genocidal policy and ethnic cleansing. The Court also established that ‘massive killings and detention camps throughout the territory of Bosnia and Herzegovina were perpetrated during the conflict’, and that the people that were systematically targeted were in large majority part of the Bosnian Muslim community. As such, the modus operandi, and the intention behind the acts of the Serbian forces seem to be similar, if not identical, all-over the Bosnian territory that was affected during the war.
Genocidal rape was a prominent feature of the widespread and systematic attacks that occurred in Bosnia, aiming to destroy or, at least, forcefully remove the target population from the areas of interest of the Serb military. Therefore, the personal criminal liability was not limited to the soldiers carrying out the violence, but also to their superiors. As such, out of those who could be found responsible at the ICTY, almost half of them had charges of sexual violence included in their indictments. The sexual assaults took place in the homes of the victims, in their villages but also in so-called ‘rape camps’. These camps were there to facilitate the territorial control over the regions, by having the Muslim population confined there. There, prisoners were detained, interrogated, tortured, enslaved, raped and even murdered. Due to the large numbers of victims, it is clear that the perpetrators are in much higher numbers than the official ones, including police officers, soldiers and other low-ranking members of the Serb forces. As it often happens, only those who are highest in the chain of command end up in front of the court. The other types of perpetrators get lost along the often-blurry chain of command.
Rape as a Means of Humiliation and Intimidation
During the war, girls as young as four to women in their mid-fifties were detained under horrendous conditions in schools, hotels, sporting arenas, police stations and houses, being repeatedly subjected to rapes and beatings that would sometimes even result in death. Not only were the circumstances themselves humiliating for the victims, but also the treatment applied to the women there. Soldiers are known to have perpetrated terrible acts in relation to the rape itself. One victim described how her headscarf was always torn off before she was raped, which she perceived as a gesture of denigration of her faith. Another woman describes how she felt ‘like an animal’ when she was raped during her menstruation. The soldiers were also known to call these women denigrating names like ‘Balijska majka’, an insulting name used for Muslims from Bosnia. Sometimes, women would be forced to strip and perform sexual acts. These actions sometimes took the form of disgracing entertainment for the soldiers. One woman describes how gang rapes were perpetrated, having soldiers mocking and verbally abusing the women, but also hurting them by stubbing out cigarettes on their skin and joking about it. At other times, rape took the form of coercion into confessions, as it was the case, for instance, in Laśva Valley, in central Bosnia, where a witness recalls being threatened to have a knife inserted into her vagina if she did not tell the truth.
Rape was essentially motivated by deep ethnic hatred. The Kunarac case shows that wartime rape, torture, and mistreatment of women can ‘be understood according to the dominant narratives of the ethnic context of the overall conflict’. The strategy of intimidation enacted by the Serb forces was as follows: women were raped in front of their children or their spouses, and the information about it was made public to the community. In order to stop the humiliation, the Bosnian Muslims would often surrender, and offer safe passage to the Serb forces. Then, when women were captured and detained, they would be raped indiscriminately. When women were raped, both their bodies and the territory where they lived was considered colonized. The dehumanization of both the women and the soldiers is made clear through a witness statement that recalls the soldier leaning back and smoking a cigarette after raping her, confessing that he would have done worse, but he had a daughter her age at home, and this prompted him to hold back. Thus, as Branka Antic describes: ‘Women’s bodies literally became a battlefield. By destabilizing women: mothers, wives, sisters, grandmothers-they were destabilizing the entire society’.
Rape as a Means of Terrorizing the Community
Rapes represented just the first step of colonization. Repeated instances of rape led to impregnation. Women were then enslaved and detained until an abortion would not be feasible anymore. Multiple victims recall being told that they would bear ‘chetnik’ (pejorative term used for Serbs) babies. Some women attempted suicide, some denied their pregnancies until birth, some abandoned the babies, and some of those who raised the children still ask themselves whether it would have been better to give them away, to spare them the realization that they are children of rape. One victim confesses that sometimes her daughter’s facial expressions remind her of the man that raped her, and as much as she loves the child, that still instills a sense of hatred in her.
It can be argued that rape, in this context, served two functions. First, it created a demographic imbalance by ‘impregnating Muslim women with the sperm of Serb males’, thereby allegedly achieving genetic imperialism of the Serbs. Second, it destroyed the honor of the community by attacking its women and the purity of their ethnic lineage. Women are often traditionally seen as the protectors of the honor of the community, and especially in the Slavic culture the sexuality of the women is associated with the dignity of the family, and thus of the husbands of the victims. At the same time, Muslim wives and mothers also represent the moral center of the community, so their violation becomes an attack on the collective. Having their bodies ‘spoiled’ by rape, these women are seen to have lost their virtue among other Bosnian Muslim women, and aside from the shame and secrecy that usually surrounds such events, there is also a tendency to blame these women for the assault. Consequently, these women are left alone, estranged from their community, usually having had their brothers and husbands massacred. The children are often alienated from the community, as they are seen to have Serb blood flowing in their veins, which creates the inherent possibility for them to also become perpetrators. Thus, the entire identity of the group is shattered, leaving no solidarity for the victims of sexual violence. If there is solidarity, it is only for the ‘tragic figures of motherhood’, an image of suffering mothers that lost their sons to war shaped by the patriarchal taboos constructed around sexual violence. Sexual violence, especially in the form of rape, has thus the potential to permanently destroy an ethnic group, leaving the victims ashamed and the community permanently wounded.
Despite efforts to rebuild and reconstruct the Bosnian Muslim group cohesion, both social and legal obstacles fueled by an overwhelming sense of denial leave the communities and the victims wondering if they will ever be able to rise up. Denial goes as far as reopening the spa hotel Vilina Vlas in Višegrad, in the place of a former rape camp where hundreds of people have suffered excruciatingly painful experiences. At the same time, citizenship is based on the principle of jus sanguinis, which means that the father’s name has to be provided when requesting financial aid or the driver’s license. Thus, the children resulting from rape suffer an incredible social and institutional stigma. They are constantly exposed to the cruel reality, having to reiterate the story of their mother’s rape over and over again. In 2012, in a documentary, someone admitted that ‘if the government doesn’t acknowledge these children, we’ll have another conflict in the next 10 or 20 years’. In 2023, it seems like the situation is destabilizing again.
The effects of rape used as a strategy of war are thus not only limited to wartime. Sexual violence, among other crimes committed against the Bosnian Muslim population, left the community terrorized, humiliated, and disunited. This creates an inherent vulnerability to future attacks and a perpetual fear for the new generations. Hopefully, lessons from the past will have been learned, and current and future generations can be spared from the terrors of war and ethnic conflict.
 Katherine Ryken, ‘The role of physicians in transitional justice: combatting the aftermath of mass rape in Bosnia-Herzegovina’ (2015) 5 POG 3.
 Nancy Farwell, ‘War rape: New conceptualizations and responses’ (2004) 19 A 389, 389.
 Dean Adams, ‘The prohibition of widespread Rape as a Jus Cogens’ (2004) 6 SDILJ 357.
 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998.
 Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 22 February 2001.
 Adams (n 4).
 Kelly D. Askin, ‘A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003’ (2004) 11 HRB 16.
 Remembering Srebrenica, ‘Breaking the Silence – The Women of Bosnia’ (Remembering Srebrenica,14 June 2017) <https://www.youtube.com/watch?v=doUqTUkI1qk> 6:10.
 Julian Borger, ‘Bosnia is in danger of breaking up, warns top international official’ (The Guardian, 2 November 2021) <https://www.theguardian.com/world/2021/nov/02/bosnia-is-in-danger-of-breaking-up-warns-eus-top-official-in-the-state> accessed 10 September 2023.
 Alexandra Brozozowski, ‘EU warns Bosnia’s Republika Srpska over defiance’ (EURACTIV, 20 July 2023) <https://www.euractiv.com/section/enlargement-neighbourhood/news/eu-warns-bosnias-republika-srpska-over-defiance/> accessed 18 September 2023.
 Alette Smeulers & Fred Grünfeld, International crimes and other gross human rights violations: A multi-and interdisciplinary textbook (Brill 2011).
 Farwell (n 3).
 Gay J. McDougall, ‘Contemporary forms of slavery: Systematic rape, sexual slavery and slavery-like practices during armed conflict’ (1998). Geneva, Switzerland: UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 4-5.
 ICJ Reports, ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)’ (2007) Judgment, 128.
 Janet Jacobs, ‘The memorial at Srebrenica: gender and the social meanings of collective memory in Bosnia-Herzegovina’ (2017) 10 MS 423.
 Ryken (n 1).
 Farwell (n 3).
 Remembering Srebrenica (n 9).
 Farwell (n 3), 393.
 ICJ Reports (n 15).
 Ibid 154.
 Ibid 115.
 Laura Smith-Spark, ‘How did rape become a weapon of war?’ (BBC News, 8 December 2004) <http://news.bbc.co.uk/2/hi/4078677.stm> accessed 25 September 2023.
 UN ICTY, ‘Crimes of Sexual Violence – In Numbers’ (United Nations, September 2016) <https://www.icty.org/en/features/crimes-sexual-violence/in-numbers> accessed 13 September 2023.
 Jacobs (n 16).
 Wikigender, ‘Gender genocide in the Bosnian War’ (2015) <https://www.wikigender.org/wiki/gender-genocide-in-the-bosnian-war/> accessed 20 March 2022.
 Smeulers & Grünfeld (n 12).
 Doris E. Buss, ‘The curious visibility of wartime rape: Gender and ethnicity in international criminal law’ (2007) 25 WYBAJ 3; Ryken (n 1).
 Janine Natalya Clark, ‘Untangling rape causation and the importance of the micro level: Elucidating the use of mass rape during the Bosnian war’ (2017) 16 E 388, 400.
 Ryken (n 1).
 Buss (n 30) 15.
 Joshua Kepkay, ‘Gendericide in Bosnian War’ (2011) 5 OP 1.
 Ryken (n 1).
 Remembering Srebrenica (n 9) 1:09.
 Ryken (n 1).
 DrazavaBosna, ‘Bosniaks Genocide – Systematic rape of women and girls committed by Serbian Nazi fascists’ (DrazavaBosna, 16 December 2012).
 ICJ Reports (n 15), 153.
 Farwell (n 3).
 Maria B. Olujic, ‘Embodiment of terror: gendered violence in peacetime and wartime in Croatia and Bosnia‐Herzegovina’ (1998) 12 MAQ 31.
 Riki van Boeschoten, ‘The trauma of war rape: A comparative view on the Bosnian conflict and the Greek civil war’ (2003) 13 HA 41.
 Jacobs (n 15).
 David Walsh, ‘Suffering in silence: women in the shadow of Srebrenica’ (The Guardian, 10 June 2013) <https://www.theguardian.com/global-development-professionals-network/2013/jun/07/srebrenica-women> accessed 13 September 2023.
 Marwa Abdulahi, ‘Who are the ‘invisible children’ of Bosnian wartime rape?’ (Muslim Girl, 5 June 2015) <https://muslimgirl.com/every/> accessed 12 September 2023.
 Farwell (n 3).
 Jacobs (n 15) 432.
 Remembering Srebrenica (n 9).
 ‘Grim history of Bosnia’s “rape hotel”’ (BBC News, 8 April 2016) <https://www.youtube.com/watch?v=dPgK8wfbxTY> accessed 12 September 2023.
 Halime Pehlivan, ‘Genocidal rape and the invisible children of Bosnia’ (TRT News, 12 July 2021) <https://www.trtworld.com/perspectives/genocidal-rape-and-the-invisible-children-of-bosnia-48312> accessed 12 September 2023.
 DrazavaBosna (n 39).