Jane Doe, on Behalf of Herself and All Others Similarly Situated: Radovan Karadzic in United States District Court

• Publication year: 1995

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 2WINTER 1996

ARTICLE

Jane Doe, On Behalf of Herself and All Others Similarly Situated: Radovan Karadzic in United States District Court

Susan L. Ronn(fn*)

And if she survives the assault, what does the victim of wartime rape become to her people? Evidence of the enemy's bestiality. Symbol of her nation's defeat. A pariah. Damaged property. A pawn in the subtle wars of international propaganda.(fn1)

The world vowed, "never again," and yet looked on as thousands were tortured and slaughtered in a systematic campaign terrifyingly reminiscent of Nazi Germany. In a stroke of brilliance befitting their leader's claimed profession of psychiatry, the Bosnian Serbs coined the phrase "ethnic cleansing"(fn2) to describe their conduct. This phrase is psychologically brilliant because it allows the rest of us to detach ourselves from the horror. When the press refers to ethnic cleansing, the phrase hardly conjures up images of children held at knifepoint for the equivalent of two hundred dollars,(fn3) men shot one by one in their own front yards while children watch,(fn4) or women and their daughters raped in their homes or hauled off to "rape camps" where they will endure repeated gang rapes.(fn5) Ethnic cleansing is not sanitary. It is the brutal removal of Muslims from their homes, accomplished in a manner that ensures they will never return. The campaign has been successful; the Bosnian Serbs, led by Radovan Karadzic, hold seventy percent of Bosnia-Herzegovina(fn6) after three years of terror. The number of dead totals nearly a quarter of a million, and well over two and a half million people have been displaced from their homes.(fn7)

In perhaps the only method available to respond with power to these horrors, Muslim women turned to a United States court for redress under the Alien Tort Claims Act (ATCA)(fn8) and the Torture Victim Protection Act (TVPA).(fn9) The district court denied jurisdiction. This Article examines the opinion of the United States District Court in Doe v. Karadzic(fn10) and concludes that Jane Doe and all others similarly situated should find redress in the courts of the United States for the brutalities inflicted upon them. Federal courts should not interpret the ATCA and the TVPA so narrowly as to preclude jurisdiction when a defendant acts under the authority of an unrecognized government. Rather, the courts should assert jurisdiction whenever a defendant acts under the authority of an entity that satisfies the requirements of statehood under recognized principles of international law.

Part I of this Article briefly summarizes the history of the conflict in Bosnia-Herzegovina and documents the extensive rapes of Muslim women by Bosnian Serbs. Part II sets out the district court's opinion in Doe v. Karadzic. Part III asserts that the Doe court erred in refusing to grant jurisdiction over the defendant under either the ATCA or the TVPA. Part IV discusses recognition of states and the elements of statehood under international law. This section concludes that the Bosnian Serb entity, led by Radovan Karadzic, meets the elements of statehood and should therefore be held to a state's obligations. Part V asserts that because Karadzic can be found to have acted under the authority of either his own state or that of Serbia, the requirements for state action under both the ATCA and the TVPA are met. The Doe court erred in ruling that it did not have jurisdiction; Jane Doe and all others similarly situated should not be turned away.

I. Introduction

A. The War in the Former Yugoslavia(fn11)

This photograph . . . captures the atmosphere of loneliness that, for me, is the essence of war and I realize that there is no one I can send it to who could understand the special kind of loneliness that enters your soul in the middle of war. It is like having a piece of ice inside my chest.(fn12)

Six republics (Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia) and two autonomous regions (Kosovo and Vojvodina) made up the former Socialist Federal Republic of Yugoslavia.(fn13) While each of these republics accommodated a mix of ethnic groups, Bosnia-Herzegovina was distinct in that no ethnic group claimed a true majority of the population.(fn14) Prior to the war, peoples of Western Slavic, Eastern Slavic, and Turkish cultures, and Catholic, Eastern Orthodox, and Islam faiths(fn15) coexisted in relative peace for centuries.(fn16)

In early 1990, the Communist Party under Tito disintegrated, heralding the first of Yugoslavia's democratic elections. By the end of that year, each of the six republics had held its own election; a Yugoslavia-wide election was never attempted.(fn17) Excepting Macedonia, each republic elected nationalist leaders who touted ethnic themes and supported separation.(fn18) These elections set the stage for the chain of referenda favoring independence that followed. The opportunity to create a federation of sovereign or semi-sovereign states was lost.

Meanwhile, Milosevic, the leader of Serbia, declared his intention to incorporate the Serb populations of the different republics into a single state.(fn19) Serbia and its ally, Montenegro, controlled the Serb-based Yugoslavian army. When Slovenia and Croatia declared independence, fighting broke out almost immediately between the Yugoslavian army and non-Serb combatants in these two territories.(fn20) International recognition of Slovenia and Croatia followed on the heels of the disruptions,(fn21) as did the fledgling states' membership in the United Nations.(fn22) Indeed, some commentators attribute much of the ongoing problem in the former Yugoslavia to the early recognitions of these states.(fn23)

In Bosnia-Herzegovina, a vote on independence was conducted. A sixty -four percent majority-all Muslim and Croat-voted in favor of independence;(fn24) the Serb minority in Bosnia-Herzegovina, under the leadership of Radovan Karadzic, boycotted the election.(fn25) In early March 1992, days after the vote on independence and before any international recognition of Bosnia-Herzegovina, the Bosnian Serbs declared the existence of the Republika Srpska.(fn26)

The Republika Srpska, led by the Serbian Democratic Party leader Karadzic, headquarters itself in Pale, a suburb of Sarajevo. A parliament has been established; a police and security structure exist; and a large army, inherited from the former Yugoslavia, is in place to carry out the goals of the Republic.(fn27) No international recognition has been extended to this entity. However, in April 1992, the United States formally recognized the Republic of Bosnia-Herzegovina.(fn28) Fighting in that country began a few days before this recognition.(fn29)

B. Rape as a Tool of War in Bosnia

And the women are left with their shame.(fn30)

Estimates of the numbers of rapes occurring in Bosnia vary widely. In 1993, the European Community team reported that upwards of 20,000 women and girls had been raped,(fn31) whereas the Bosnian Ministry of the Interior placed that figure at 50,000.(fn32) Knowing the full scope of the rapes may be impossible because speaking of these horrors would not be easy for any woman; these women are Muslim. A Muslim proverb highlights the unique shame of the Muslim family when read in context with what has happened to these women: "As our women are, so also is our community."(fn33)

The language used in reporting the rapes ranges from Catharine MacKinnon's impassioned outcries against the seeming impotence of the international community,(fn34) to the State Department's sterile assertion in 1994 that a "reliable source" reported five rapes, including those of two teenage girls, occurring at a detention camp.(fn35) But regardless of how the rapes are characterized, no source denies that these rapes have occurred and that the raping continues.

Women are raped in their homes. Women are raped in camps specifically created for this lurid purpose. Women are raped by strangers or by men they know; the scene does not vary much depending on their acquaintance with the men involved. These rapes are gang rapes, inflicted on the same women over and over again. Many of these women are virgins; many are not women at all, but mere children.(fn36) Those who become pregnant are kept at the camps until it is too late to obtain abortions.(fn37) Those raped in their homes flee, and seldom return. Those who do return keep their silence for fear that their husbands will reject them if they know.(fn38) This is genocide.(fn39)

It is generally reported that the Republika Srpska has ordered this conduct as part of its policy of ethnic cleansing.(fn40) The testimony of the victims themselves indicates that these rapes are part of a strategic, deliberate scheme, intended not only to terrorize the individual women, but to effectively wipe out an entire culture.(fn41) A few of the men who have raped have spoken of orders,(fn42) journalists have heard about orders,(fn43) and the State Department has asserted that the ethnic cleansing is conducted at the order of the Republika Srpska's leadership.(fn44) As for Radovan Karadzic, he claims that ethnic cleansing is simply not his policy.(fn45) Karadzic denies allegations of systematic rape by the soldiers under his command,(fn46) and he has made clear his refusal to cooperate with the United Nations War Crimes...