From Bosnian Rape Camps to the US Court: The Story of Kadic v. Karadzic
Transcript of From Bosnian Rape Camps to the US Court: The Story of Kadic v. Karadzic
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From Bosnian Rape Camps to the U.S.
Court: The Story of Kadic v. Karadzic
Ayesha Umar
May 7, 2011
"My husband and son were taken away during the war and I was put in a camp. The soldiers
would taunt me, calling me a Turkish whore. Then they began to rape me. I would cry every time
and when I passed out I would wake up with a different soldier in the room and they would keep
going until I didn't come round any more. When they found out I was pregnant they put me on a
truck and I arrived in Sarajevo. I had to take medicines to calm me down and I think this is why
my son is so nervous and has to have therapy. I love my son. Sometimes I look at him and feel
very angry though - I see him as a focus for what has gone wrong with my family and our lives."1
I. Introduction
THIS is one of those countless tales of terror that Bosnian and Croat women went through
during the armed conflict in Bosnia in early 1990s. The atrocities against the general population,
especially sexual violence against women, came to the notice of the nongovernmental
organizations as early as 1992. However, despite doing their best to attract the attention to the
ongoing human rights abuses, the international community couldn‟t act in timely manner to put
such an extreme violation of the laws of war and of women‟s rights to an end.
One reason for helplessly observing the systematic mass rape in Bosnia could be attributed to
the fact that rape was never considered a grave crime under international norms. Furthermore,
legally speaking, there was no precedent on the international level for the prosecution of rape as
a war crime. The Serb armed forces, without fearing any consequences for their crimes,
1The Independent: Bosnia's rape babies: abandoned by their families, forgotten by the state. Kate Holt in Sarejevo
and Sarah Hughe, 13 December 2005 at http://www.independent.co.uk/news/world/europe/bosnias-rape-babies-
abandoned-by-their-families-forgotten-by-the-state-519257.html (Unlike several other victims, Nadia decided to
keep her 10-year old son, who was a “rape baby”).
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engineered the policy of mass or genocidal rape under the orders of Karadzic to ethnically
cleanse the territory they had claimed.
The primary objective of this paper is to narrate the story of the landmark civil action filed in
1995, in the U.S. court on behalf of Bosnian rape victims. The first part of this paper will answer
basic questions about how these cases came to trial in the U.S. court when neither the victim, the
perpetrator, nor even the crime itself occurred in the U.S. The significance of the Kadic case in
bringing war-time rape within the folds of international human rights law, expanding the
application of the Alien Tort Claims Act and thereby enabling victims of serious war crimes to
sue for damages in the U.S. court, is discussed.
The second part of the paper briefly discusses the background of the Bosnian conflict which
led to genocidal rape and the subsequent filing of the civil suit in the U.S. court. The third part
presents a detailed analysis of how the Alien Tort Claim Act, the case law Filartiga v. Pena-
Irala, and the Torture Victim Prevention Act, applied to the Kadic case. The fourth part
discusses the opinion of the trial and the appellant court. The fifth part goes through the history
of international norms and treaties, exploring the question of rape as a crime against humanity.
The sixth part lays out the consequent development of the case and the possibility of recovering
the damages awarded by the U.S. court. The seventh part briefly goes through the public/private
dichotomy of rape. The eight part discusses the prevailing honor culture in conservative Muslim
societies and how linking rape with honor burdens women. The ninth part concludes with the
importance of the Kadic case and its impact on the future of women‟s human rights struggle.
II. Background of the Bosnian Conflict
The Bosnian conflict was a result of the disintegration of the former Yugoslavia into small,
new entities such as, Croatia, Serbia, Montenegro, Slovenia and Bosnia. The European
Community recognized the independence of Croatia and Slovenia in December 1991, and on
May 22, 1992 the two states became the members of the United Nations. The case of Bosnia,
however, was a little more intricate. The European Community had invited Bosnia to apply for
recognition. Following this proposal, the referendum for independence was held and despite
Karadzic‟s effort to block a referendum in the Serb-populated areas, the majority voted in favor
of independence on April 7, 1992. Soon after this vote, Radovan Karadzic, proclaimed a new
Serbian Republic called Srpska and declared himself the President.
After recognition of Bosnia by the United States, the Serbian paramilitary forces and the
Yugoslavian military units attacked Sarajevo and several other towns and began driving out the
Muslim population through a coordinated scheme, known as “ethnic cleansing” to create a
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homogeneous „Greater Serbia‟.2 Among other atrocities such as torture and summary execution,
the mass rape of Bosnian and Croat women was also part of the policy to demoralize the
population and force them to leave the place of their origin that was strategically important for
the Serbs.
It is worth noting that Serb and Croat women were also raped, however, the Bosnian Muslim
women were the main victims with an estimated 20,000 reported rapes that took place from
1992-1995.3 The personal narratives of the rape victims from Bosnia are heartrending. As a part
of an organized campaign the victims would be dragged to the rape camps where they would be
raped repeatedly for weeks and months until they would get pregnant. Some of the witnesses
narrated their stories of immense pain, shock and horror in front of the International Criminal
Tribunal for the former Yugoslavia (ICTY) during the Foca rape trial.4
The victims were identified by codes during the trial; one of them narrated her ordeal in those
words:
“Almost every night in the summer and fall of 1992, Serb soldiers would enter the detention
centers and select their victims from among the female prisoners lying on gym mats, the
witnesses testified. The women were taken to classrooms and private apartments where they
were sexually assaulted, forced to dance nude and then compelled to perform degrading domestic
chores. Some were kept as personal sex slaves…”5
Before the commencement of trial of the Bosnian war criminals in the ICTY, a class action
was brought on behalf of the Bosnian rape victims against Radovan Karadzic, the self
proclaimed President of the newly found state Srpska, in the United States District Court. Kadic
v. Karadzic was filed in the Court of Appeals following District Court‟s dismissal of the action
due to lack of subject matter jurisdiction. The Kadic case acted as a small ray of hope for
thousands of those women who were indiscriminately raped during the Bosnian armed conflict
but had no access to a suitable forum for filing their complaints.
The victims in the first case were unnamed. Jane Doe I was a teenager prisoner of the rape
camp. She was raped and abused as one of the soldiers slashed her breasts. Eighteen-year old
Jane Doe II was beaten by the soldiers and her mother was raped. Jane Doe II managed to escape
2 Bosnian Conflict: Encyclopedia Britannica, at http://www.britannica.com/EBchecked/topic/1365562/Bosnian-
conflict/281168/Independence-and-war 3 MSNBC.Com. Bosnian children born of rape asking questions. George Jahn. May 31, 2005, at
http://www.msnbc.msn.com/id/8007740/ns/world_news-europe/ 4 The Trial Chamber in Prosecution v. Kunarac, Kovac, & Vukovic, heard those testimonies by the victims. Foca, a
town located south-east of Sarajevo in Bosnia-Herzegovina, came under the control of Serb forces on April 7, 1992.
Soon after gaining control over Foca, detention centers for men and women were set up. Most of the women
detention centers served as the military barracks cum rape camps (or rape factories as some called them) for the
Bosnian Serb forces. 5 Womenenews.org. Bosnian Rape Camp Survivors Testify in The Hague. Jerome Socolovsky. July 19, 2000, at
http://www.womensenews.org/story/rape/000719/bosnian-rape-camp-survivors-testify-the-hague
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from the scene. She brought a suit on behalf of herself and countless other similarly situated
women.6
S. Kadic‟s ordeal began when her son was decapitated by the Serbian soldiers while she held
him in her arms. She managed to escape with her other son but was captured later by the Bosnian
Serbs forces and was sent to detention center. She was repeatedly raped for 28 days until she
became pregnant. Kadic brought an action in the U.S. court on behalf of herself, her deceased
son and on behalf of survivors of mass rape.7
The noted feminist Catharine A. MacKinnon (through the U.S. Center for Constitutional
Rights) brought the suit on behalf of the plaintiffs under the Alien Tort Claims Act (ATCA) and
the newly drafted statute, Torture Victim Protection Act (TVPA). When the Kadic court ruled
that it had subject matter jurisdiction, several critics objected to it. The main objection was the
fear that the U.S. courts may become the battleground for international litigation which might
complicate the foreign relations. United States by no means was in position to play the role of
“global court of equity”.8 The other thing that the counsel for Karadzic objected to was that the
plaintiffs had not exhausted their remedy under their local law as was provided in the TVPA.
From the various news sources it was evident that the courts and the judicial system in the war-
torn Bosnia were not fully functional. Moreover, the chances of seeking redress are always
minimal when there is a possibility of courts to be influenced by the architect of the crimes.
The enactment of the TVPA in 1990 also reflects the direction in which the U.S.
administration was heading. The signs were that the United States intended to keep the doors of
its courts open to entertain the grievances of aliens under both ATCA and TVPA. On political
grounds, the United States had recognized the statehood of Bosnia and as a world power had
condemned the human rights violation going on in the Balkans. In such circumstances when the
suit was filed in the U.S. court, the Clinton administration extended its support for women‟s
rights. Drew S. Days, the Solicitor General and Conard K. Harper, a State Department legal
advisor submitted a Statement of Interest. The U.S. government issued this letter upon the
request of the plaintiff‟s attorney who argued for not allowing immunity to Karadzic from suit in
the United States.9 These developments were quite encouraging for the victims as well as for
Chief Judge Newman to decide the case on its merits instead of refusing to hear it under the
political question doctrine.
6 Rachel Bart, Using the American Courts to Prosecute International Crimes against Women: Jane Doe v. Radovan
Karadzic and S. Kadic v. Radovan Karadzic, 3 Cardozo Women‟s L.J. 467, 471 (1996). (citing Plaintiff K‟s
Complaint at 7, Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994). 7 Id.
8 David S. Bloch, Dangers of Righteousness: Unintended Consequences of Kadic v. Karadzic, 4 Tulsa J. Com. &
Int‟l L. 35, 48 (1996). 9 Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995).
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III. Legal Basis for Jurisdiction
In order to claim jurisdiction in the U.S. court, the case Kadic v. Karadzic relied on three
basic legal pillars. First, the Alien Tort Claims Acts of 1789. Second, the 1980 decision of the
Second Circuit in Filartiga v. Pena-Irala10
, the case that recognized jurisdiction under ATCA
and held that torture comes under the umbrella of the law of nations. The third pillar is the
Torture Victim Protection Act, which codified the Filartiga decision.
1. The Alien Tort Claims Act
The Alien Tort Claims Act (ATCA) is one of those unusual statutes that provides original
jurisdiction to aliens in the U.S. district courts to seek recovery for torts committed in violation
of international law or a treaty.
The ATCA was enacted by the first congress in 1789 as part of the Judiciary Act. It only
asserted that the “district courts shall have original jurisdiction of any civil action by an alien for
a tort only, committed in violation of the law of nations or a treaty of the United States”.11
Having remained in oblivion for almost 200 years, the ATCA captured the attention of the legal
scholars in 1980 after the Second Circuit‟s decision in Filartiga v. Pena-Irala.12
Despite
generating a great amount of interest and investigation, the scholars‟ quest for the relevant
legislative history of the ATCA didn‟t yield much in terms of results because the historical
records hardly presented any definite rationale behind legislating ATCA. Judge Friendly
appropriately commented on the background of this statute in 1975 that it was “a kind of legal
Lohengrin, no one seems to know whence it came.”13
One of the most prominent international law experts of eighteenth century, Emmerich de
Vattel opined that „denial of justice‟ to aliens abroad could justify the war of reprisal by the
alien‟s home nation.14
The Founding Fathers may have had this concern in mind so in order to
avoid hostility with other nations they enacted the ATCA to ensure justice for aliens.
Accordingly, this „denial of justice to aliens‟ thought was also reflected in The Federalist No. 80
by Alexander Hamilton who wrote, “As the denial or perversion of justice by the sentences of
courts, as well as in any other manner, is with reason classed among the just causes of war, it will
10
Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980). 11
28 U.S.C. § 1350 12
See supra note 10. 13
Anthony D‟Amato, The Alien Tort Statute and the Founding of the Constitution, 82 Am. J. Int'l L. 62 (1988).
14 Id. at 64.
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follow that the federal judiciary ought to have cognizance of all causes in which the citizens of
other countries are concerned.”15
The intent of the Framers to incorporate certain aspects of the international law in
Constitution is reflected in Article III of the Constitution that extends the judicial power to all
cases in “Law and Equity arising under the Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their authority…” 16
Article VI, the supremacy
clause, further consolidates the importance of an international law in the Constitution by
providing that all “Treaties made, and which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land…”17
The federal courts clearly have jurisdiction to
hear cases that arise out of the violation of treaty law. However, under the Constitution it is
unclear whether the customary international law is a source of a federal law and whether the
ATCA provides jurisdiction for every violation of such law.18
The ATCA was passed as part of the Judiciary Act of 1789. Section 9 of the Act was about
establishing the jurisdiction of the newly formed federal courts. It provided that, [The district
court] “shall also have cognizance concurrent with the courts of the several States, or the circuit
courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law
of nations or treaty of the United States.” With time, a number of minor amendments were made
to the ATCA, but there is no legislative record or debate available that could shed light on the
exact nature of the cases that were to be covered under this statue. 19
Some of the commentators are of the view that drafters of Section 9 didn‟t intend to entertain
the claims of two aliens in foreign countries as the main aim of the ATCA was to address actions
implicating foreign affairs.20
The judicial history of the ATCA reveals that the first case Bolchos v. Darrell,21
was filed in
1795. In this case, a Spanish ship with slaves onboard was captured and taken to an American
port. The slaves were the property of a Spanish subject but they were mortgaged to a British
citizen. The agent of the British citizen called Darrell sold the slaves in the United States and was
sued for this act by Blochos, who claimed the ownership of the slaves. The court held that the
jurisdiction existed under the ATCA and that Darrell had violated rights of Blochos that were
guaranteed to him by a treaty of the United States.
15
Alexander Hamilton, The Federalist No. 80, in The Federalist Papers at 475 (Clinton Rossiter ed., Signet Classic
2003). (Also Id. at 64). 16
U.S. CONST. art. III, § 2, cl. 1. 17
Id. art. VI, cl. 2. 18
Jennifer K. Elsea, The Alien Tort Statute: Legislative History and Executive Branch Views, at
http://www.policyarchive.org/handle/10207/bitstreams/1864.pdf 19
Id. at 7 20
Charles F. Marshall, Re-Framing the Alien Tort Act After Kadic v. Karadzic, 21 N.C. J. Int‟l L. & Com. Reg. 591,
598 (1996). (stating that the D.C. Circuit Court in Tel-Oren case noted that “as best we can tell, the aim of § 1350
was to place, in federal courts, actions implicating foreign affairs”.) 21
Bolchos v. Darrell 3 F. Cas. 810 (D.S.C. 1795).
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The second suit that successfully claimed jurisdiction under the ATCA was the 1961 case
Adra v. Clift.22
A Lebanese national brought a suit against his ex-wife and her husband, a U.S.
citizen, alleging that they brought his children to the U.S., used forged passports and interfered
with his rights of custody. The court found interference with the custody of his children to be
tortious and the forging of the passport to be a violation of the law of nations.
Several other cases were brought in the U.S. courts claiming jurisdiction under the ATCA,
but none of them succeeded until the landmark human rights case Filartiga came forth in 1980.
Due to the scarce and indefinite history behind the Act, the interpretation of the ATCA was left
to the courts and hence, Filartiga, where the court found jurisdiction against deliberate torture
committed outside the U.S. in violation of an international law, emerged as the important
precedent for future cases.
2. Filartiga v. Pena-Irala
Filartiga is well known for causing ripples among legal scholars and researchers and due to
this case the ATCA sprang to life after being dormant for almost two centuries. Filartiga was
unique in its own way since both the accused and victims were foreigners. Moreover, the act of
torture was also committed outside the U.S. The court seemed to have some ideas about the main
purpose of ATCA, but it set them aside and focused on whether the tort committed in the case
was a violation of the law of nations.23
The suit was brought by the citizens of Paraguay. Dr. Joel Filartiga identified himself as the
vociferous critic of the government of President Alfredo Stroessner, which had been in power
since 1954. Dr. Filartiga‟s daughter, Dolly Filartiga, arrived in the United States in 1978 on a
visitor‟s visa and claimed political asylum.
Filartigas brought suit in the Eastern District of New York against another citizen of
Paraguay, Pena-Irala, the Inspector General of Police, for wrongfully torturing and causing the
death of Dr. Filartiga‟s teenage son, Joelito in custody. The district court dismissed the case for
lack of subject matter jurisdiction. The plaintiffs appealed and the Court of Appeals reversed.
The Court of Appeals grappled with the core jurisdictional issue of whether torture violates
the law of nations. In order to solve this issue the court reasoned that despite being a common
practice, the torture and killing of a person, when done under the color of state authority, violates
the set norms of the international law of human rights as well as the law of nations. The court
held that “the constitutional basis for the Alien Tort Act is the Law of Nations, which has always
been part of the federal common law.”24
On this basis the court ruled that torture was actionable
under the ATCA.
22
Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961). 23
Marshall, supra note 20, at 602. 24
Filartiga v. Pena-Irala 630 F.2d 876, 885 (2d Cir. 1980).
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In Filartiga the court discussed in detail the sources of international law by referring to the
1820 Supreme Court case, United States v. Smith.25
The law of nations “may be ascertained by
consulting the works of jurists, writing professedly on public law; or by the general usage and
practices of nations; or by the judicial decisions recognizing and enforcing that law.”26
Furthermore, the court, citing certain international instruments such as U.N. Declaration of
Human Rights, the Universal Declaration against Torture and certain international treaties
proclaiming that torture was prohibited by the law of the nations ruled that the federal courts
could hear the alleged violation of international law, irrespective of where the tort was
committed.27
Filartiga opened up new avenues for the cases involving violation of the law of nations.
However, when everyone thought that Filartiga had dismantled the hurdle of sovereign
immunity, the D.C. Circuit Court of Appeals dismissed Tel-Oren v. Libya.28
Plaintiffs in that
case were seeking redress against the terrorist attack that took place on an Israeli highway and
was allegedly carried out by the members of the Palestine Liberation Organization (PLO), with
an assistance of Libya.
The three judges, Judge Edwards, Judge Bork and Senior Judge Robb jointly agreed on
dismissing the case. However, their rationale for dismissal was totally different. Judge Edwards
agreed that ATCA provides jurisdiction over certain violations of the law of nations such as
genocide, slavery and the systematic racial discrimination. However, according to Judge
Edwards, terrorism wasn‟t part of that list. He said that although several countries were averse to
terrorism, for some other countries, terrorism was a legitimate act of aggression and hence,
immune from condemnation. He also clarified that the PLO was not a state and therefore the
alleged act could not have been committed under the color of law.29
Judge Bork, on the other hand, delved into the original intent of the framers of § 1350 and
said that in 1789 there was no concept of the international human rights. Also customary
international law was silent about the rights of private parties to recover. According to Judge
Bork‟s analysis, because there was no concept of terrorism at the time of drafting ATCA and,
hence, the parties had no right to sue in the U.S. court for such violation committed outside the
U.S.30
Finally, Judge Robb dismissed the suit on the grounds of “nonjusticiability” saying that
politically sensitive issues such as terrorism should be left for the executive branch to resolve.31
25
United States v. Smith, 18 U.S. 153, 5 L.Ed. 57 (1820). 26
Id. at 160, 161. 27
Filartiga, F.2d 876 at 885. 28
Tel-Oren v. Libya, 726 F.2d 774 (D.C. Cir. 1984). 29
Id. at 781. 30
Id. at 801-23. 31
Id. at 823-27.
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Generally, although scholars and judges have been divided on the scope of ATCA, in the
Kadic case, Filartiga proved to be an important precedent.
3. The Torture Victim Prevention Act
In 1990, Congress enacted Torture Victim Protection Act (TVPA) to codify the holding of
Filartiga. The TVPA provided a cause of action for citizens and aliens to seek recovery from an
individual for acts of torture and extrajudicial killing committed abroad. The Act provided that
the accused person must be in the U.S. for the purpose of serving process.32
The enactment of TVPA invited criticism from several circles, including then President Bush. He
expressed concern that the TVPA could cause friction in international relations for acts that
United States has nothing to do with and, moreover, that it may place a burden on the local
judicial resources.33
The TVPA did come with certain restrictions such as imposing liability only on individuals
acting under the color of law of any foreign state. It requires exhaustion of local remedies before
approaching the U.S. courts and the action has to be brought within ten years of its occurrence.
Diplomats are also immune from the Act. 34
Prior to Kadic, only two appellate courts had discussed the TVPA. Kadic was the first
appellate case where the TVPA provided a cause of action and hence it became yet another
turning point in the history of ATCA and the newly drafted statute, TVPA.35
IV. The Kadic Cases
1. The Decision of the District Court
The first case in the series of cases filed on behalf of Bosnian rape victims was decided in
1994 by the District Court for the Southern District of New York.36
The court dismissed the
action for lack of subject matter jurisdiction, stating that, under the ATCA, an act committed by
the non-state actor does not violate the law of nations because such private actor do not act under
the color of the state authority. This reasoning was clearly along the same lines as expounded by
Judge Edwards in the Tel-Oren v. Libya case. Judge Leisure was not keen to give recognition to
32
Elsea, supra note 18, at 7. 33
Pamala Brondos, International Law – The Use of the Torture Victim Protection Act as an Enforcement
Mechanism, 32 Land & Water L. Rev. 221 (1997). 34
Id. at 228. 35
Id. at 228, 229. (The court in Hiola v. Estate of Marcos held that the ATCA section 1350 creates a cause of action
for violations “of specific, universal and obligatory international human rights standards.” In Trajano v. Marcos, the
court mentioned the TVPA but didn‟t apply it because the decision was made before the enactment of the said
statute. 36
Doe I v. Karadzic, 866 F. Supp. 734 (1994).
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the warring Bosnian-Serb military faction. In his view, they held more or less the same status as
the Palestine Liberation Organization did. Hence, he reasoned that the army acting under
Karadzic‟s order did not act under color of the state‟s law.37
The court also declined to assert jurisdiction in pursuant to the Torture Victim Protection
Act. The court reasoned that the Act applied to an action carried out under the color and
authority of “an entity recognized by the United States as a foreign nation”38
. Citing the Senate
Report, the court said that the TVPA does not extend to purely private criminal acts by
individuals or nongovernmental organizations. The phrase „under color of law‟ meant torture and
extrajudicial killing by a government official within or outside the scope of their authority.39
In the end, the court dismissed the case for non-justiciability because according to Judge
Leisure, there was a chance that Karadzic might receive recognition as the head of the state of
Republic Srpska by the United States. Judge Leisure based this reasoning on the cases in which
the Executive asked the court to grant head-of-state immunity to the defendants. 40
This was
perhaps an extra cautious effort on the part of the Doe court because Karadzic was never given
such recognition by the United States.
2. The Decision of the Court of Appeals
Basically, the Doe court dismissed the case because it was not convinced that the gruesome
act of mass rape in Bosnia was committed under the state authority. In 1995, the plaintiffs
appealed and the Second Circuit reversed and remanded the case.41
The Kadic court set the
record straight by analyzing all the relevant issues.
First of all, the court found jurisdiction under ATCA stating that the application and reach of
law of the nations is not limited to state action. The court looked back at the Filartiga holding
which said that the courts must interpret international law by looking into various sources, such
as the work of jurists or the general practice and usage of nations. According to Kadic decision,
the acts of genocidal rape, forced pregnancy, enforced prostitution, torture and murder were
within the realm of crimes which are prohibited by the established norms of international law.
In response to Karadzic‟s assertion in his brief that, as a private individual he could not
violate the law of nations, the court reasoned that Karadzic constantly contradicted his position.
He asserted that he wasn‟t an official, while on the other hand he called himself the elected
President of the newly proclaimed state of Srpska. Keeping that in view, the court stated that
Karadzic was presenting himself as the head of the state. Further, the court held that certain
forms of conduct violate the law of nations irrespective of whether they are committed under the 37
Id. at 741. 38
Id. 39
Id. at 742. 40
Id. at 738. 41
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
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authority of the state or only as a private individual. The court presented an example of piracy as
one such act committed by private individuals without an authority of the state. Under the law of
nations pirates were declared hostis humani generis (an enemy of all mankind).42
The court
reasoned that if Karadzic was considered a private individual acting without the authority of
state, even then his conduct would be considered a violation of the law of nations under the
ATCA based on the judgments of two cases, Bolchos v.Darrel and Adra v. Clift where ATCA
was applied to the action of the private individuals.
The court also cited Restatement (Third) of the Foreign Relations Law of the United States to
bolster its assertion that “individuals may be held liable for offenses against international law,
such as piracy, war crimes and genocide.” The Restatement put forth two types of violations: the
one committed by the state, and the other falling within the category of a violation of „universal
concern‟ – that includes piracy and slave trade from earlier times, as well as airplane hijacking
from modern times.43
After determining that there was jurisdiction under the ATCA, the court turned to discuss the
TVPA and the issue of statehood of the newly independent state, Srpska. The District Court had
held that the Torture Victim Protection Act (TVPA) provides a private cause of action against an
individual who is acting under color of law. In other words, the court meant that the state against
which the action has been brought must be recognized by the United States. In case of Srpska,
the United States had not recognized its statehood. However, the appellants in their brief asserted
that Srpska satisfied the definition of a “state” for the purposes of international law violations.
Srpska was said to be in control of definite territory and population. It had its own currency
and was alleged to have entered into agreements with other governments.44
The appellants also
stressed the fact that Karadzic did not act independently. In fact, he acted together “with the
official Serbian regime in the recognized state of Yugoslavia”.45
The court acknowledged this
fact by saying that “an individual acts under color of law within the meaning of section 1983
when he acts together with state officials or with significant state aid.”46
When the issue of personal jurisdiction and process was raised, the appellants affirmed that
Karadzic had been duly served with process when he was personally present in the Southern
District of New York.47
The affidavit in Doe detailed the account of February 11, 1993 when
42
Id. at 239. 43
Id. (citing Restatement Third of the Foreign Relations Law of the United States (1987)). 44
Id. at 245. 45
Rachel Bart, Using the American Courts to Prosecute International Crimes against Women: Jane Doe v. Radovan
Karadzic and S. Kadic v. Radovan Karadzic, 3 Cardozo Women‟s L.J. 467 (1996). (citing Brief for Plaintiffs-
Appellants at 37-39, Karadzic, 70 F.3d 332 (2d Cir. 1995). 46
Karadzic, supra note 9, at 245. (The court referred to the „color of law‟ jurisprudence of 42 U.S.C. § 1983, saying
that it was an appropriate guide to determine whether a defendant was engaged in official action for purposes of
jurisdiction under the ATCA). 47
Id. at 246.
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process was served to Karadzic in the lobby of hotel.48
In response, Karadzic claimed immunity
as an invitee of the United Nations under the Headquarters Agreement, but the court rejected this
argument for immunity from service.
Lastly, the court touched upon the matter of justiciability that was one of the reasons for
which the District Court had dismissed the case. The Kadic court looked at the political question
doctrine, doctrine which often discourages the court from taking the matters involving
international relations and laws. Judge Newman concluded that “not every case touching foreign
relations is non-justiciable.”49
Further, he stated that judges shouldn‟t invoke this doctrine so
freely to avoid sensitive decisions in the context of human rights. In explaining the political
doctrine question, the court discussed the political question doctrine test of Baker v. Carr, where
Justice Powell held that a non-justiciable political question would have any of these features:
a) A textually demonstrable constitutional commitment of the issue to a coordinate political
demand.
b) A lack of judicially discoverable and manageable standard for resolving it.
c) The impossibility of deciding without an initial policy determination of a kind clearly for
non- judicial discretion.
d) The impossibility of a court‟s undertaking independent resolution without expressing lack
of the respect due coordinate branches of government.
e) An unusual need for unquestioning adherence to a political decision already made.
f) The potentiality of embarrassment from multifarious pronouncements by various
departments on one question.50
The court brought the Filartiga decision into focus once again and concluded that
“universally recognized norms of international law provide judicially discoverable and
manageable standards for adjudicating suits brought under the Alien Tort Claims Act, which
obviates any need to make initial policy decisions of the kind normally reserved for non-judicial
discretion.”51
Despite detailed reasoning by the Second Circuit, it was felt that the court evaded discussing
the full scope of § 1350. Many argued that the Alien Tort Claims Act wasn‟t designed to address
the violation of the law of nations committed outside the boundaries of the United States. The
48
Id. (According to affidavit the process servers called Karadzic‟s name upon seeing and attempted to hand him the
complaint from distance of two feet. The security guard seized the papers and the papers fell to the floor. In the
Kadic action the appellants requested Judge Owen for an alternate means of service. The court directed to deliver the
complaint to the security detail who would give it to the defendant. Karadzic confirmed that during his second visit
between February 27 and March 8, 1993 he received the complaint). 49
Id. at 249. 50
Id. (citing Baker v. Carr, 369 U.S. 186, 217 (1962); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994)). 51
Id.
13
original intent of the Framers in 1789 seemed to extend the alienage jurisdiction to safeguard
peaceful relations with the foreign nations instead of jeopardizing them.52
Generally, the overall impact of the Kadic case was quite impressive. The appellate court
followed the footsteps of Filartiga and recognized the jurisdiction of a violation of the law of
nations that had totally happened outside the boundaries of the United States. It also set a new
precedent that propelled awareness regarding a grave issue of mass rape during war.
3. The Denial of Certiorari
On April 4, 1996, Karadzic filed a petition for a Writ of Certiorari. The appellant put forward
six basic questions that the Court of Appeals had decided regarding the statehood of Srpska, the
status of Karadzic, the doctrine of „color of law‟, justiciability, service of process and personal
jurisdiction. The appellant contended that the Court of Appeals erred in reaching decision on
those issues.
On May 12, 1996, Catharine A. MacKinnon filed a brief on behalf of Kadic in opposition to
the petition for Writ of Certiorari. In response to a question by appellant of whether Karadzic
acted under color of law, Catharine MacKinnon said that “Karadzic‟s actions are analogous to
those of an off-duty police officer who dons his uniform and flashes his badge, and with racial
animus falsely arrests a person, then brutally rapes them and beats them to death”. She said that
Karadzic had seized the instrumentalities of state power and under this authority he acted to
cleanse the non-Serbian civilian population by force in order to achieve an “ethnically pure
entity.” 53
Moreover, she added that “throughout the litigation Karadzic has been private when
avoiding liability under international law, public when seeking immunity from it.” 54
Despite Karadzic‟s effort to push the Supreme Court to review and resolve the fundamental
issues relating to the decision of Kadic case, that in their words was “rife with confusion”55
the
Supreme Court denied Certiorari.
The denial of Certiorari, on one hand, meant an achievement for Kadic and several other
similarly situated women since the Court of Appeals‟ decision opened up a new forum for them
to bring their grievances and those class actions could now move forward on the merit. On the
other hand, the decision of Kadic court raised genuine concerns for certain people who believed
that allowing Kadic like causes of action will have adverse consequences for the United States
both at home as well as in the realm of foreign relations due to sensitivity of the issue.
52
Tel-Oren, supra note 28, at 808-20. 53
Brief for Appellant at 16, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (No.95-1599), cert. denied, 116 S. Ct.
2524 (1996). 54
Id. at 22. 55
Brief for Respondent, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (No.95-1599), cert. denied, 116 S. Ct. 2524
(1996).
14
In February 1997 Karadzic requested his attorney not to participate in further proceedings. In
his absence, a default judgment was entered in favor of victims.56
An important aspect of the
civil suit brought against Karadzic was the award of compensation. In August 2000, the victims
were awarded $745 million in judgment. There was no hope of recovering that amount for as
long as Karadzic was in hiding. Karadzic was indicted by the ICTY in 1993 but the U.N.
inspectors were clueless about his whereabouts. For almost a decade he evaded an arrest and was
living as a doctor of alternative medicine. With his heavily bearded face and longish hair it was
nearly impossible to recognize him from his appearance. Finally, he was arrested in Belgrade in
July 2008. The ICTY charged Karadzic with 15 counts of genocide, war crimes, crimes against
humanity and other atrocities committed from 1992 to 1996. With the arrest of Karadzic, the
possibility of recovering the damages awarded by the Kadic court become a possibility. Senior
U.S. diplomat Raffi Gregorian also indicated that after Karadzic‟s arrest, the courts would start
demanding payments.57
V. Rape as a War Crime: The International Law
Since time immemorial rape has been employed as a weapon of war. It is not hard to discern
that by using rape as a tactic of war, the enemy terrorizes the local population in order to gain
effective control. Rape acts as a double edged sword; it not only destroys a woman
psychologically and physically because rape is a brutal form of torture and a woman may get
pregnant as a consequence. It also severely affects a woman‟s life and family relations. It is a
well documented fact, that for many women, life after rape is not the same because she is
constantly reminded of the shame that befell her and this may lead her to take her life.
In historical context of armed conflict, it had been a widespread practice for forces to plunder
resources and rape or sexually enslave women, regarding them as a spoil of battle. It was due to
this practice that Rajput women in the medieval Rajasthan would prefer to die (or be killed by
their relatives) to avoid the dishonor that follows capture and rape58
. Similar stories emerged
during the Indo-Pak partition in 1947 when numerous women preferred to die by consuming
poison or by jumping into well than to be raped by opponent groups rampaging in the streets on
both sides of the border.
56
Rumna Chowdhury, Kadic v. Karadzic – Rape as a Crime against Women as a Class, 20, 116 Law and Ineq. 91
(2002). 57
ABC News: Karadzic‟s Lawyer to Fight Extradition. July 25, 2008, at
http://abc.com.au/news/stories/2008/07/25/2315136.htm 58
M.S. Naravane, V. P. Malik, The Rajputs of Rajputana: A Glimpse of Medieval Rajasthan, 44 at
http://books.google.com/books?id=lF0FvjG3GWEC&pg=PA44&lpg=PA44&dq=the+custom+of+jauhar&source=bl
&ots=OhzVlQTbhl&sig=loj-4g5qeZ-PqLyrLaZN1e4Jz3I&hl=en&ei=Y--
wTeyCKdO2tgegvI2HDA&sa=X&oi=book_result&ct=result&resnum=3&ved=0CCsQ6AEwAg#v=onepage&q=th
e%20custom%20of%20jauhar&f=false
The medieval Rajput custom was called „Jauhar‟. The Rajput men would fight in the battlefield and the women
would embrace death by self immolation in case of an imminent defeat and looming threat of rape by an enemy.
15
In the Twentieth century the idea of establishing normative principles based on the laws of
humanity, to limit armed warfare and to set up an international court of justice, surfaced during
The Hague Convention of 1899 and 1907. These international instruments, however, failed to
contain the outbreak of massive wars. Keeping the experience of World War I in view, the idea
of individual liability began to develop after the World War II. The discouraging aspect of this
entire affair for the women‟s human rights proponents was overlooking the rape of women
during the World Wars.
This concept of individual liability was the core of Nuremburg Trials post World War II,
where the Nazi officials were tried for the newly coined term „crimes against humanity”.
However, the definition of both “war crimes” and “crimes against humanity” contained no
reference to rape as a crime against humanity. The charter which established the International
Military Tribunal for the prosecution of Nazi officials defined the “war crimes” and “crimes
against humanity” in Article 6 as follows:
“War crimes: namely, violations of the laws or customs of war. Such violations shall include,
but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public or private property, wanton destruction
of cities, towns or villages, or devastation not justified by military necessity;
Crimes against humanity: namely, murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population, before or during the war, or
persecutions on political, racial or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of
the country where perpetrated.”59
The only reference to the trial of military officials for the war time rape was reported in the
Tokyo trials after the World War II, where the Japanese generals were held responsible for rape
committed by their subordinates.60
It was not until the adoption of the Fourth Geneva Convention, which entered into force in
1950, that rape was clearly outlawed in international law. Article 27(2) of the Convention states,
“Women shall be especially protected against any attack of their honour, in particular against
rape, enforced prostitution, or any form of indecent assault.”61
The expansive scope of Article 27(2) made its application quite ambiguous. As some
commentators noted, that this Article applied to the enemy forces alone and there was no
59
Yale Law School: The Avalon Project, Documents in Law, History and Diplomacy, at
http://avalon.law.yale.edu/imt/imtconst.asp#art6 60
Catharine A. MacKinnon, Sex Equality: Rape Law, 897 University Casebook Series Foundation Press (2001). 61
Chowdhury, supra note 56 at 104 (citing Geneva Convention Relative to the Protection of Civilian Persons in
Times of War, Oct. 21, 1950, art. 27(2), 75 U.N.T.S. 287, 287).
16
protection against the victims‟ own nationals – relevant in case of civil war – or nationals of a
neutral state. Moreover, the absence of women in the international discourse about violence and
safety was felt severely as only a woman can truly understand the horror of rape during the times
of an armed conflict and peace.62
In the early 1990s, the incidents of former Yugoslavia and Rwanda gave birth to a new
phenomenon called „genocidal rape‟, as distinguished from peace time rape. In 1993, law
professor and renowned feminist Catharine A. MacKinnon explained genocidal rape in the
former Yugoslavia as:
“It is not rape out of control. It is rape under control. It is also rape unto death, rape as
massacre, rape to kill and to make victims wish they were dead. It is rape as an instrument of
forced exile, to make you leave your home and never want to come back. It is also rape to be
seen and heard by others: rape orchestrated as spectacle. It is rape to shatter a people and to drive
a wedge through a community. It is the rape of misogyny liberated by xenophobia and unleashed
by official command. It is rape as genocide.”63
After compelling reports of genocide and gruesome mass, systematic rapes in Rwanda
(1994) and former Yugoslavia (1992), the international community realized a pressing need for
trying perpetrators for sexual violence in the context of armed conflict. In 1993, pursuant to U.N.
Resolution 827 the International Criminal Tribunal for the former Yugoslavia (ICTY), and in
November 1994, pursuant to U.N. Resolution 955, the International Criminal Tribunal for
Rwanda (ICTR) was established. Those tribunals had binding authority to prosecute the
individuals for violation of Geneva Conventions of 1949, violation of the laws of war, genocide,
crimes against humanity and sexual violence against women.
In Prosecution v. Akayesu (1998), a case before ICTR the tribunal defined rape as a “physical
invasion of a sexual nature, committed on a person under circumstances which are coercive.”64
In Prosecution v. Kunarac, Kovac, & Vukovic, (2002) ICTY explicitly held that systematic
rape of women during an armed conflict constitutes a war crime. Moreover, the tribunal held that
“rape is a crime against humanity regardless upon whom it is perpetrated upon.”65
Unlike other
international treaties, the gender-neutral definition of ICTY extended protection from rape to
both women and men.
At the regional level, in 1998 the European Court of Human Rights issued a verdict in Aydin
v. Turkey, holding that rape could constitute torture. This decision was warmly welcomed by the
62
Id. at 104, 105. 63
Id. at 105. (citing Catharine. A. MacKinnon, Comment: “Theory is not a Luxury,” in Reconceiving Reality:
Women and International Law 83, 87 (Dorinda G. Dallmeeyer ed., 1993). 64
MacKinnon, supra note 60 at 905 (citing the case Prosecution v. Akayesu from ICTR). 65
Christopher Scott Maravilla, Rape as a War Crime: The Implications of the International Criminal Tribunal for
the Former Yugoslavia’s decision in Prosecutor v. Kunarac, Kovac, and Vukovic on International Humanitarian
Law, 13 Fla. J. Int‟l. 321, 340 (2001).
17
international community because the need for establishing a legal framework had been long felt
for bringing the perpetrators of rape to justice.66
A step forward was taken in recognizing and criminalizing sexual violence against women in
2002 when the Rome Statute established the permanent International Criminal Court and
included rape as a crime against humanity among other offences. Article 7 of the Rome Statute
reads:
“For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;”67
Keeping the centuries-old tradition of war-time rapes in view, this step seems like a modest
offering – something that should have been done long ago. It is quite unfortunate that it took so
long for the international community to wake up to the ugly reality of war-time rape despite
knowing that sexual violence had always been part of an armed conflict. After prolong apathy,
the inclusion of rape as a crime against humanity in international law does raise a hope that the
perpetrators may not go unpunished.
VI. The Legacy of Kadic v. Karadzic
The Kadic decision can rightly be called an unusual decision that, on the one hand, upset
many at home for stretching the limits of both the Alien Tort Claims Act and the Torture Victim
Prevention Act, while on the other hand, it served to recognize the efforts for human rights and
women‟s rights activists to bring rape under the definition of a grave war crime. The significant
step taken by the Second Circuit was to extend the ATCA coverage to include acts of a “private
actor” who violates the set principles of international law, declaring that violence cannot be a
private matter of a state. If Filartiga provided an important footing for such a cause of action in
Kadic, similarly, it too will prove to be a precedent for future cases even where both the parties
are alien, and the crime takes place outside the United States as long as the wrong against the
victim causes the violation of international norms.
Although the International Criminal Tribunal for the former Yugoslavia was established in
1993, but it wasn‟t until February 2001 when the ICTY delivered its verdict in the Foca rape
66
McGlynn, Clare (2009) ‟Rape, torture and the European convention on human rights.‟ International and
comparative law quarterly, 58 (3). pp. 565-595, at
http://dro.dur.ac.uk/6167/2/6167P.pdf?DDC117+DDC72+DDC71+DDD19+dla4jap+d65fxy 67
Rome Statute of the International Criminal Court, Part 2: JURISDICTION, ADMISSIBILITY AND
APPLICABLE LAW, art. 7, at http://untreaty.un.org/cod/icc/statute/romefra.htm
18
case, holding rape to be a crime against humanity. Kadic case is notable because in 1995 it
recognized rape as a grave violation of international law.
VII. The Public/Private Dichotomy: Rape in Peace Time
At the end of the day, winning compensation in the U.S. court or the indictment and trial of
some of the soldiers responsible for raping Bosnian women in the ICTY is only symbolic. There
is no denying that raising such grave issues in international forums is of utmost importance.
However, beneath all that hoopla, the core issue is the prevention of rape and the protection of
women, which realistically speaking seems a herculean task given the traditional or perceived
roles of men and women – the strong versus the weak, the authoritative versus the submissive. If
we go through the lives of those countless Bosnian rape victims it is hard to ignore that they
haven‟t been able to get rid of the specter of their past. Most women who were impregnated as a
result of rape have shunned their offspring because it is impossible to bring themselves to care
for those unwanted children who are the constant reminder of pain and humiliation those women
went through.68
As for those children who came into being through no fault of their own, they
are forced to live a life with no identity or parental affection. Indeed, it is crucial to declare rape
as one of the gravest crimes against humanity but the most important step should be to prevent
the occurrence of such horrendous acts during an armed conflict as well as in the peace time.
The Bosnian mass rape managed to gain the attention of the world; however, feminists urged
that it is time to end the private/public dichotomy that exists regarding the issue of rape. Law
Professor and the Counsel of Record for Kadic, Catherine A. MacKinnon noted that Bosnian
mass rape would have never taken place if rape was accepted as an everyday occurrence.69
“What is happening to Bosnian and Croatian women at the hands of the Serbian forces is
continuous both with this ethnic war of aggression and with the gendered war of aggression of
everyday life. For most women, this is to everyday rape what the Holocaust was to everyday
anti-Semitism: without the everyday, you could not have the conflagration . . . . This acceptance
of everyday rape and its relegation to the “private” realm allow for the use of rape as a tool of
war while maintaining the private categorization and avoidance of liability for egregious
violence against women. The Kadic action, which held Karadzic liable for his ordered violence
against women, is an example of the removal of rape from its private categorization.”70
In the broader picture, violence against women is not limited to war time alone. Sexual
violence against women extends through the course of their lives whether they are home-makers
or work outside the home. In context of Pakistan, sexual violence against women is embedded in
68
The Independent, supra note 1. 69
Chowdhury, supra note 56, at 103. 70
Id. (citing Catharine A. Mackinnon, Comment: „Theory is not Luxury‟, in Reconceiving Reality: Women and
International Law 83, 87 (Dorinda G. Dallmeyer ed., 1993).
19
the simple fact that women are seen as easy targets. It is worth noting that women bear twofold
burden; the burden of being victims of sexual violence and the burden of tolerating it without any
prospect of seeking justice. Justice remains elusive even for those who are courageous enough to
stand up and knock on the doors of a court. For example, Mukhtar Mai71
, Pakistan‟s well known
rape victim, was ganged raped and paraded naked after the decision of the village council to
settle a dispute between two tribes in 2002. Upon the urging of the local mosque prayer leader,
she and her father filed the case. Had the federal government of Pakistan not intervened, this case
most certainly would have lost in the labyrinth of intricate legal procedures in the initial stages.
She was compensated by the government and several of her rapists were imprisoned. However,
nine years later, her case is still pending in the Supreme Court of Pakistan. She is fighting to
prevent the release of her rapists.72
Since Mukhtar Mai‟s case, two more rape cases have been widely reported in the local media
in 2005 but the courts have totally failed to deliver justice.73
One of those victims74
was offered
asylum in the UK. When interviewed by the Washington Post, then President General Pervez
Musharraf infamously remarked, "A lot of people say that if you want to go abroad and get a visa
from Canada or citizenship and be a millionaire, get yourself raped."75
This tells a lot about the
existing insensitivity regarding an issue as serious as rape. In circumstances like this, it is quite
understandable why women prefer to bear the pain silently instead of registering a complaint and
running a risk of being constantly harassed by the police officials and rape perpetrators.76
There
is no denying that the authorities and judiciary will have to take concrete steps in order to quell
prevailing sexual violence against women in the Pakistani society.
71
BBC News: Mukhtar Mai – History of Rape Case. 28 June 2005, at http://news.bbc.co.uk/2/hi/4620065.stm 72
The New York Times: Mukhtar Mai‟s Case in Pakistan. Nicolas Kristof. March 2, 2009, at
http://kristof.blogs.nytimes.com/2009/03/02/mukhtar-mais-case-in-pakistan/
Update: In its verdict on April 21, 2011, the Supreme Court of Pakistan upheld an acquittal of the five of six accused
in Mukhtar Mai gang rape case. The Supreme Court‟s decision reflects that Pakistan‟s justice system is quite hostile
towards the rape victims. http://tribune.com.pk/story/153641/mukhtaran-mai-case-5-of-6-accused-acquitted/ 73
BBC News: Pakistan‟s Real Problem with Rape. Aamer Ahmed Khan. 8 September, 2005, at
http://news.bbc.co.uk/2/hi/south_asia/4223436.stm 74
On January 2nd
2005, Dr. Shahzia Khalid was raped by a masked intruder. Several people suspected the
involvement of an army officer appointed at the heavily guarded natural gas plant. Dr. Shahzia Khalid left country
due to threat to her life. Talking to BBC, she articulated her suffering in those words, “Instead of getting justice, I
was hounded out of Pakistan.” BBC News: Raped Doctor: I‟m still terrified. 29 June, 2005, at
http://news.bbc.co.uk/2/hi/south_asia/4633849.stm 75
CNN: Musharaff Rape Claim. September 24, 2005, at
http://edition.cnn.com/2005/WORLD/asiapcf/09/23/pakistan.musharraf/ 76
According to Human Rights Commission of Pakistan, every two hours a woman is raped and most of these cases
are never filed with the police.
20
VIII. The Honor Culture and Rape
Legal challenges aside, there is a cultural dimension related to the loss of honor of a rape
victim and her family. Pakistan is predominantly a Muslim country that is governed by the
amalgamation of social and culture norms with deep religious influence. However, when we talk
about rape in a Muslim society, we must understand that a reaction to rape and a rape victim is
driven more by the centuries-old traditional and cultural norms than the religion itself. It is
evident from the fact that a rape of a Hindu, Sikh or even a Christian woman living in a Muslim
society and indeed through the whole Asian sub-continent would draw the same kind of reaction
from the victim‟s family as that from a family of the Muslim victim.
Like other religious, Islam stresses upon the chastity of both men and women and strictly
prohibits adultery and fornication. However, in a patriarchal society – where women are
considered totally subordinate to men – the dishonoring of a woman is taken as dishonoring a
man.77
On the other hand, while the religion emphasis the chastity of a man too but culturally the
rape of a man (sodomy) is not considered a blow to the entire family. The incident of sodomy
certainly traumatizes the victim on a personal level but it does not render him as „a damaged
good‟, in the eyes of his family and society like a female rape victim.
In the “honor culture”, the honor of a woman is linked with the honor of a man. Since women
are considered weaker their protection and well being is the responsibility of men. Therefore,
often times, in the tribal society women are attacked, maligned and raped for setting a score. By
doing so the attacker not only seeks satisfaction by denigrating a woman but is also considered a
slap on the face of a man as his failure to protect his woman proves him to be weak and
unmanly. The similar kind of motivation could be observed behind the mass rape of Bosnian
women. Many victims reported being raped in front of their husbands, fathers and sons in order
to maximize the torture. Moreover, the belligerent forces did not rape women for pleasure alone
but the main focus was to impregnate women, so that they could bear Chetnik children – again a
huge stigma for a helpless man for not being able to protect his woman while her purity was
trampled by an enemy.78
Culturally and religiously, a Muslim woman is considered “pure” and “chaste”, and she is
expected to bear children of a man she is legally wedded to. The Bosnian women abandoned
their rape babies not only due to their own dismal economic situation and failure to fulfill the
responsibilities of their children in the post-war Bosnia but the underlying reason might have
been linked with honor.79
It would have been harder for those women, who were reunited with
77
See Orit Kamir, Honor and Dignity in the Film Unforgiven: Implication for Sociolegal Theory, 40 Law & Soc‟y
Rev. 193 (2006). 78
See Tamara L. Tompkins, Prosecuting Rape as a War Crime: Speaking the Unspeakable, 70 Notre Dame L. Rev.
845, 868 (1995). 79
The Independent, supra note 1.
21
their families and husbands to give recognition to a rape baby and yet live with their heads held
high in a sexually conservative community. According to a report published by UNICEF, most
of rape children who remained with their families faced ostracism and bore trauma when their
birth circumstances were revealed to them. The report said,
“One family taught their daughter‟s child to explicitly identify his existence as a mistake,
forcing him to introduce himself to household guests as, “I am the product of my mother‟s
shame.”80
The study of such reports and testimonies make it easy to discern why the children born out
of a massive campaign of hate could not be accepted by their biological mothers.
The convoluted cycle of cultural norms where rape is connected with dishonor and shame, is
hard to break. While, the U.S. society managed to shun the age-old stereotype of rape/honor
connection; the sexually conservative Muslim and sub-continent societies, where honor killing
and rape/honor notion keep surfacing on daily basis, are far from achieving such enlightenment.
Noted feminist and Professor of Law, Martha Chamallas notes that rape is not perceived as a
stigma for a woman in the contemporary U.S. society, “While a woman‟s reputation can still be
hurt by being raped, particularly if her account in not fully credited, the shame and injury of rape
to its victims can no longer be captured by the concept of dishonor.”81
On the other hand, there is no progress made to ease off the plight of rape victims in the
conservative Muslim and sub-continent societies. There is no concept of using the term
„survivor‟ instead of „victim‟ for such women because she is considered worthless and an object
of shame. If married, she may be divorced and if not, the prospect of her marriage diminishes as
she struggles to keep herself from further falling apart emotionally and psychologically.
Unfortunately, there is no end in sight for the rape/honor notion in the sexually conservative
and patriarchal society. There may be some hope for a breakthrough if men stop basing their
honor code on the lives and bodies of women.
IX. Conclusion
In conclusion, the Kadic case, despite facing criticism, can be viewed as a sincere effort by
the U.S. courts to address the issue of Bosnian mass rape. This case managed to ascertain that
rape is torture and that it violates the law of nations. Moreover, it also set the broader standard of
liability for the private individual conduct.
80
See supra note 3. 81
Martha Chamallas, Lucky: The Sequel, 80 Ind. L.J . 441, 468 (2005).
22
Many people question the practicability of the cases brought into the U.S. court for the
violation of international human rights and norms. Their main argument is that in most situations
it is hard to effectively serve process and after hearing the case, the enforcement of judgment is
impossible because of the inaccessibility of defendant. The Filartigas never received a cent of
their judgment against Pena.82
Similarly, the Bosnian women are still awaiting $ 745 million they
had won in judgment. However, it could be said that cases like Filartiga and Kadic made an
impact on several other fronts – such as these cases defined the doctrinal framework regarding
certain grave issues that violate the law of nations. Kadic specifically brought the international
community closer for making war time rape punishable under the charter of international
criminal tribunals.
In the realm of international law, the verdict against the rape perpetrators in the International
Tribunal for the former Yugoslavia set a crucial precedent.83
Also in 2002, the inclusion of rape
as a crime against humanity in the Rome Statute of International Criminal Court indicates that
the international community began realizing the gravity of the issue of rape during an armed
conflict. There are two aspects of cardinal importance that need to be addressed. First, the
victims of such atrocities should not be left without remedy. Second, there should be an effective
enforcement mechanism so that violations don‟t take place at least on such a massive scale.
Whenever the war or a civil conflict breaks out, it is predictable that every effort by an enemy
will be made to dishonor women in order to mollify resistance and terrorize the opponent. It is,
however, the collective responsibility of the international community to make certain that no
more rape camps are set up – no more generations are destroyed.
82
Marshall, supra note 20, at 617. 83
Maravilla, supra note 65, at 326.