Sexual Violence During the Kosovo War: How Acknowledging Rape as a Jus Cogens Violation and Other Steps Can Bring Justice to All Victims

• Publication year: 2015

Gonzaga Journal of International Law Volume 19 - Issue 1 (2015 - 2016)

Sexual Violence During the Kosovo War: How Acknowledging Rape As a Jus Cogens Violation and Other Steps Can Bring Justice to All Victims

Elizabeth Vulaj(fn*)

I. INTRODUCTION

A treaty can bring many positive things to the world at large. It can end wars, place a halt to violence, and most importantly, help re-create a civil society by demonstrating an expectation of appropriate and moral behavior towards people. A treaty can also give reprieve to a group that has, throughout various international civilizations, been continually disenfranchised, belittled, and traumatized.

Historically, women have been marginalized across cultures throughout the world. One of the most egregious examples of that treatment was during the 1990's in the Kosovo War. This war involved a jarring scene of crimes, especially rape, an issue still being remedied today.(fn1) Just this past May, Croatia passed a bill that would compensate the victims of rape during the Balkan conflict.(fn2) It wasn't until last year that Kosovo began to offer welfare benefits to wartime rape victims.(fn3) In June of this year, rape victims themselves donated their own dresses in order to create an art installation to raise awareness of the atrocities that occurred during the war; the installation was set up in Pristina, Kosovo's capital, by Alketa Xhafa-Mripa, a Kosovo-born artist.(fn4) Why has there been such a delay in offering victims a chance to rebuild their lives and obtain some sense of justice? This article explores that question and looks toward the future as to how the nation of Kosovo is moving forward in terms of gender equality, progression, and beyond.

Specifically, this article focuses on how identifying rape as a jus cogens violation will help bring peace and more justice to the victims of the war in Kosovo. First, this article discusses how rape was used as an instrument to attack women's dignity; then the focus shifts towards the reasons behind the delay in victims coming forward with their stories; the article then discusses an introduction to jus cogens; fourth, there is a discussion of how rape is able to be acknowledged as a jus cogens; and finally, the two last portions of the article focus on what will result from classifying rape as a jus cogens cause and the steps towards transitional justice.

II. THE BEGINNING OF THE KOSOVO CONFLICT

This section focuses on the beginning of the conflict arising in Kosovo and the Balkan area, the treaty that had assisted in ending the war, and how rape was used as an ultimate tool of war. The Military Technical Agreement between the International Security Force and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, also known as the "Military Technical Agreement" or the "Kumanovo Agreement," was a treaty put into effect on June 9, 1999.(fn5) This treaty was the driving force in ending the war in Kosovo, and, even though it did not address the violence and humiliation forced upon women directly, it still, as a consequence, served to empower the 20,000 women who were raped and subjected to inhumane treatment during that period.(fn6) The treaty's primary purpose was ending conflict among Serbian and Albanian civilians, placing a permanent halt to physical violence.(fn7) However, through it the natural corollary of the treaty was creating an awareness and affirmation in Albanian communities, most likely for the first time, that women have immense value as human beings within their own right.(fn8) Since this treaty has gone into effect, a continuing dialogue about the evolution of women's rights in Kosovo has occurred over the past fifteen years.(fn9)

The Kosovo War began officially on February 28, 1998 and lasted until June 11, 1999, but it was a conflict that had its origins dating back to the late 1980's.(fn10) In 1989, Slobodan Milosevic was elected as the president of Serbia and began to use his position to fight for more power for the Serbian (Serb) population. Milosevic believed that Albanian individuals had abused their power and dominated Kosovo, and the rights of Serbs in Kosovo were constantly being pushed to the side:"When Slobodan Milosevic rose to power, he stripped Kosovo of its autonomy and brought it under direct Serb control. This was an extremely unpopular decision with the Kosovar Albanians. By the mid-1990s, the Albanian majority had a strong sense of nationalism, which eventually led to widespread support for independence from Serbia. The Serb government opposed this desire for independence and tensions mounted between the two groups."(fn11)

In 1991, Yugoslavia began to break up when Slovenia and Croatia both declared their independence, widening the conflict to include even larger parts of the Balkan area.(fn12) As the years went on, in 1998, about "1,500 Kosovars were killed and 400,000 fled Serbia."(fn13) Yet, the most astonishing number is one that is monstrous, yet likely minimalized, due to cultural shame and an unwillingness of women to come forward.(fn14) "At least 20,000 women were raped prior to the NATO intervention. This number may be an underestimate, however, since many women were afraid to speak about their sexual assaults and did not come forward."(fn15)

As historians, case law, and organizations reveal more about the atrocious details of rape and the sexual crimes committed against women, it has become clear that the aim and goal of the Serbian troops was to take away the most important value from women that traditional Albanian laws placed upon them: their dignity. Yet the progress the country has made throughout the past fifteen years in remedying the barbarisms against women through sexual violence demonstrates that, in Kosovo, the way women are now perceived and treated has changed dramatically. Jose Ramos Horta, the United Nations' Special Representative, once said: "Sometimes, a war saves people."(fn16)

For years, violence against women was considered simply a gender-based crime that should not be spoken of: "The issues of domestic violence and rape had been wrongly isolated from the human rights normative framework. They were not seen as violence... but as personal and private matters, which were not embraced within the international legal discourse."(fn17) In 1996, in the midst of the brutal war between Kosovo and Serbia, the New York Times published an article about a decision made by a United Nations (UN) tribunal titled: "U.N. Court, for First Time, Defines Rape as War Crime."(fn18) The article stated that the indictment of eight Bosnian Serb military and police officers for the rape of several Muslim women was "the first time sexual assault has been treated separately as a crime of war."(fn19) Justice Richard Goldstone, who was the chief prosecutor for The International Criminal Tribunal for Yugoslavia, stated: "Rape has never been the concern of the international community. We have to deal openly with these abuses."(fn20) The irony of what occurred in Kosovo was that these 20,000 rapes brought major attention to Kosovo (both through news and the beginning stages of Internet journalism)(fn21), bringing to light how women were being treated for so long.

Yet to examine how these war crimes saved the future of women in Kosovo, it is critical to explore the seriousness of the rapes themselves. After all, author Chaim Potok once said: "If you don't know the past, you can't understand the present and plan properly for the future."(fn22)

III. RAPE: AN INSTRUMENT UTILIZED TO SEIZE WOMEN'S PRIOR SOLE FORM OF VALUE, THEIR DIGNITY

This section focuses on the origins of traditional Albanian law; how according to those obsolete laws, women's ultimate value was their dignity; and finally, how rape was used as an instrument to attack that dignity. The origins of Albanian law may be traced to the Kanun, a set of Albanian laws that were orally announced but published in the 20th century.(fn23) The laws in the Kanun were codified by Leke Dukagjini and reflected an extremely conservative view on gender equality and maintained that women's main goal was to preserve their personal dignity and to serve men.(fn24) Part of the Kanun states, "[a] woman is known as a sack, made to endure as long as she lives in her husband's house."(fn25)

One of the main driving forces behind Serb troops raping Albanian women was so they could harm their dignity, essentially "stealing" the women from their husbands, and demoralizing them.(fn26) Many scholars identified these victims as "simple women, women who have been degraded, disgraced, and will carry this trauma like a bullet for the rest of their lives."(fn27) Rape was primarily used as a way to capture and conquer what the Kanun states is the most important and prized possession in a woman: her virtue.(fn28) In fact, "[p]rotecting the victim's honor-considered a person's most important possession-was a central and reoccurring theme in the Kanun."(fn29)

Second, rape was used by the Serb troops not only to abuse the women themselves, but also to inflict harm and enrage their husbands.(fn30) By sexually assaulting these women, the Serb troops sought to spread animosity among Kosovar families and push husbands away from their wives.(fn31) Daughters were "gang-raped in front of their fathers, wives in front of their husbands... just to dehumanize, just to degrade."(fn32) While these rapes were conducted...