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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JANE DOE I, on behalf of herself and all others similarly situated, and JANE DOE II, on behalf of herself and as administratrix of the estate of her deceased mother, and on behalf of all others similarly situated, Plaintiffs - Appellants, - against - RADOVAN KARADZIC, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF AMICI CURIAE of Alliances - An African Women's Network, Asian Women Human Rights Council, Autonomous Women's House, B.a.B.e., C.E.A.D.E.L., Center for Women War Victims, Center for Women's Global Leadership, Centro de la Mujer Peruana Flora Tristan, Coalition Against Trafficking in Women-Asia Pacific, Committee on Feminism and International Law of the International Law Association, Coordination of Women's Advocacy, Dcutscher Frauenrat e.V., Infoteka, Isis International, Korean Council for the Women Drafted for Military Sexual Slavery by Japan, (interested organizations continued on inside) NANCY KELLY Women Refugee Project Harvard Immigration and Refugee Program Cambridge and Somerville Legal Services 432 Columbia Street Cambridge, MA 02142 (619) 494-1800 Attorney for Amici (interested organizations continued) Latin American and Caribbean Network Against Domestic and Sexual Violence - Southern Cone Region, Lila Pilipina on Task For Pilipina Victims of Military Sexual Slavery by Japan, MADRE, National Alliance of Women's Organizations, Network of East-West Women, Red Feminista Latinoamericana y del Caribe Contra la Violencia Domestica y Sexual: Region del Caribe, Reproductive Rights Project of the Columbia School of Public Health, Shirkat Gah - Women's Resource Centre, Women and Laws Programme, Women in Black, Women in Nigeria, Women Living Under Muslim Laws, Women for Women's Human Rights, Women Refugees Project, Women's Education, Development, Productivity and Research Organization, Women's Environment and Development Organization, Zagreb Women's Lobby. TABLE OF CONTENTS INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 16 I. KARADZIC IS ACCOUNTABLE AS A NON-STATE ACTOR OR AS A DEFACTO HEAD OF STATE FOR RAPE AND OTHER SEXUAL AND REPRODUCTIVE ABUSE WHICH CONSTITUTE VIOLATIONS OF HUMANITARIAN LAW INCLUDING THE LAWS AND CUSTOMS OF WAR, WAR CRIMES UNDER THE GENEVA CONVENTIONS, AND CRIMES AGAINST HUMANITY. 19 A. Karadzic is responsible for violations of centuries-old prohibitions against rape and other sexual and reproductive abuse prohibited by the laws and customs of war. 19 B. Karadzic, as a non-state actor or as a military commander and head of a de facto state, has violated customary humanitarian law as codified in the Fourth Geneva Convention and the Protocols 22 C. Karadzic is responsible as either a non-state actor or the head of a de facto state for crimes against humanity based on the widespread or systematic practice for rape and other sexual and reproductive assaults of which defendant was aware and had an obligation to prevent 26 D. The Statute of the International Criminal Tribunal for the Former Yugoslavia Makes Clear the Responsibility of Individuals as Perpetrators and Commanders for Violations of Humanitarian Law and the Prohibitions on Genocide. 29 II. KARADZIC, AS A MILITARY COMMANDER AND AS A HEAD OF A DE FACTO STATE HAS VIOLATED THE INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW PROHIBITIONS AGAINST RAPE AND OTHER SEXUAL AND REPRODUCTIVE ABUSE. 31 A. Rape and other sexual and reproductive assault are violations of the prohibition against torture in treaty and customary international human rights law 31 (1) Severe Physical and/or Mental Suffering 36 (2) The Purposes that Render Violence Torture 38 (a) The purpose of obtaining information or confession. 39 (b) The purpose of punishment or as a penalty 40 (c) The purpose of intimidation or coercion. 41 (d) For any reason based on discrimination of any kind 41 (3) The Official Involvement Requirement. 42 III. RAPE AND OTHER FORMS OF SEXUAL AND REPRODUCTIVE ABUSE OF WOMEN CONSTITUTE INSTRUMENTS OF GENOCIDE FOR WHICH KARADZIC IS RESPONSIBLE UNDER THE GENOCIDE CONVENTION AND THE PROHIBITION AGAINST GENOCIDE IN CUSTOMARY INTERNATIONAL LAW. 43 IV. CONCLUSION 46 CERTIFICATE OF SERVICE (following page 47)
Amici are organizations concerned about the violations of women in or from the former Yugoslavia. They represent organizations throughout the world which range from women's grassroots organizations providing direct assistance for individual victims of violence to international nongovernmental human rights organizations. The work of a number of the amici is directly related to the atrocities which give rise to this lawsuit: it includes providing humanitarian assistance to victims remaining in the former Yugoslavia and to refugees who have fled the Balkan region; monitoring human rights violations; and educational efforts to raise international awareness about the level of atrocities in the former Yugoslavia and to hold the violators accountable and provide the victims redress. Others work with women victims of similar atrocities in other parts of the world and/or engage in the advocacy of the human rights of women in domestic and international fore.
Amici believe that this pending civil action against Radovan Karadzic is a step towards justice for those they work with or advocate for, that there is currently no comparable legal recourse in any other court and that this action will be a constructive step to prevent such atrocities from recurring in both the former Yugoslavia and throughout the world. Providing a means of redress is of singular importance not only to victims of this war, but to all victims.
As a result of the gender-specific crimes perpetrated against them, women suffer both tangible and intangible losses. They often lose their bodily integrity; their physical and mental health; their self-esteem; their sexuality; their sense of personal security; and their right of sexual, ethnic, and religious equality. They have lost or been forced to separate from family members; they have lost or fear the loss of their capacity to form families or bear children in the future. They have been rejected by their communities on account of the crimes against them. They have been forced to leave behind their homes, their work, their possessions, and their sense of belonging to a community. They have been rejected by their communities on account of the crimes against them.
In filing this civil lawsuit against one of the men most responsible for the most egregious human rights and humanitarian law violations in Bosnia-Herzagovina, the victims ask that the court refuse impunity to inhumanity. They ask that the court find the appellee responsible for these atrocities and award damages to the victims. Lawsuits such as these also send a message to war criminals and human rights violators that they can be held accountable. The exercise of jurisdiction in this case is critical not only to ensure the accountability of the perpetrators but also to vindicate and assist women survivors attempting to rebuild their lives, and to build a legal system which fully respects the rights of women to live in dignity and free from physical and psychological violence.
Amici focus their attention in this brief on the importance of holding the appellee accountable for the atrocities against women committed under his command and control. We focus on the violations of women--and particularly on the use of sexual violence against women--not because they are more important or more terrible than atrocities committed against both men and women and not because they are the only violations committed against women, but because they are the most likely to be minimized, overlooked or covered over. They are violations which have been recognized yet not redressed and this court has an historic opportunity to right this wrong.
Notwithstanding that rape, forced prostitution, forced impregnation and other sexual and reproductive abuse of women have been historically condemned under humanitarian and human rights law, these crimes have rarely been effectively prosecuted or redressed. The conjunction of the brazen use of widespread sexual violence against women with the powerful recognition by the 1993 World Conference on Human Rights in Vienna of the obligation to redress violence against women contributed to the establishment and the inclusion of these crimes within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia and makes this case an historic vehicle for articulating and enforcing the rights of women to be free from gender-based violence and other prohibited forms of violence under international law. For all these reasons, the following organizations and individuals have joined together to emphasize that the recognition and fair and expeditious exercise of jurisdiction in this case is of paramount importance to the vindication not only of women victims and survivors, but also of the universality of the law of nations itself.
Signatories are listed in alphabetical order, by the name of the organization commonly used (usually in the original language):
Alliances -- an African Women's Network, New York, NY, was established with the purpose of linking African women's groups across disciplines and areas of expertise. The participating women's organizations in Africa work in the areas of human rights, health, education, development, economic empowerment, legal literacy and services, and environment. Their current activities focus on the collection of reliable information on the women's groups and the work they are doing. They have also been able to give technical support to groups in Kenya, Niger, Mali, Cameroon, Chad, Tanzania and Senegal. It draws parallels and works for change in countries such as Liberia and Somalia, which have patterns similar to that of the former Yugoslavia.
Asian Women Human Rights Council, Manila, Philippines, consists of both individual and organizational members. It focuses on violence against women, particularly in armed conflict. Working toward this end, it gathers documentation of rape in war and organizes public hearings, conferences, seminars and training on women's human rights. It also works to obtain redress for the victims of sexual slavery during World War II and opposes continued sexual slavery and trafficking of women in Southeast Asia.
The Autonomous Women's House, Zagreb, Croatia, provides shelter and counseling for victims of domestic violence. It is currently the only shelter in the former Yugoslavia; women stay from a few days until more than one year. Because of the war, problems of domestic violence have increased: levels of aggression are higher and there has been an increased use of weapons in domestic abuse, including bombs, grenades, and firearms. The Autonomous Women's House has worked with women raped by members of the military or paramilitary.
B.a.B.e. ("Be active, Be emancipated") is located in Zagreb, Croatia. It was founded in April 1994 to improve the social, political and economic status of women in Croatian society and to raise awareness through advocacy, monitoring and education about women's human rights. B.a.B.e is working to assure the recognition of gender violence under the laws of war and that women are provided fair trials, vindication, redress and reparations. B.a.B.e. conducts educational outreach campaigns and disseminates information through the local media.
C.E.A.D.E.L. Buenos Aires, Argentina, is a local advocacy organization that advocates on behalf of women about reproductive rights, domestic violence and family planning policies. It conducts educational seminars to raise awareness about the environment's impact on women as well as on legislative actions relating to women's human rights issues.
The Center for women for Victims (Center za Zene Zrtve Rata), Zagreb, Croatia, was established in November 1992. It is an independent, feminist, non-nationalist, anti-war organization which educates, trains and sends activists to refugees camps in and around Zagreb. Teams of activists visit each of the refugee camps twice weekly. Their work includes facilitating self-help groups, purchasing and distributing humanitarian aid and helping the women in the camps resolve logistical problems with educational, medical and legal systems. In addition, the Center establishes seminars and educational workshops for the activists and coordinates the relocation of the women and their families to third countries.
The Center for Women's Global Leadership, Douglas. College, Rutgers University, New Brunswick, NJ, works to deepen the understanding of the ways in which gender affects both the exercise of power and the conduct of public policy internationally. It promotes the leadership of women in their local communities and the development of an international network of women leaders. For the past five years, the Center has focused on a global campaign against violence against women. A crucial piece of the Center's work has been to work with women's groups around the world to expand the conceptualization of human rights to include genderbased violations.
Centro de la Mujer Peruana Flora Tristan, founded in 1979 is one of the largest and best known multi-purpose women's organizations in Latin America. Among its activities are research, legal representation and advocacy of women's rights locally and globally. It has contributed to the on-going transformation of social policy and laws respecting women's rights in Peru, has been active in the regional network against violence against women and the global campaign for human rights, and has participated in a series of UN Conferences which have advanced the human rights of women, including, most pertinently, the 1993 World Conference of Human Rights in Vienna.
The Coalition Against Trafficking in Women-Asia Pacific, Manila, Philippines,is part of an international network with individual and organizational members in most countries in Asia. It works to end violations of women's human rights and carries out information, education and advocacy work on the issues of prostitution and trafficking in women, documents cases of trafficking, organizes services for survivors of trafficking and lobbies for legislative and policy reforms.
The Committee on Feminism and International Law is the International Law Association's body which provides a global focus and network on women's issues for its members.
The Coordination of Women's Advocacy of Ancien-College, Givrins, Switzerland, monitors the prosecution of gender-based crimes by the International Criminal Tribunal for the Former Yugoslavia and Rwanda, and also advocates on behalf of witnesses and victims. It is a group of professional women from the former Yugoslavia, as well as from asylum countries such as Austria, Denmark, France, Germany, Italy, Netherlands, Norway, Switzerland, the United Kingdom, and the United States. It focuses on women's rights as human rights in times of war and internal conflict, on witness and victim protection, on physical and psychological healing, and on documentation of abuses.
The Deuscher Frauenrat e.V. (National Council of German Women's organizations), Bonn, Germany, is an umbrella organization representing more than 11 million women in Germany. Members of the Deutscher Frauenrat are 50 different women's organizations. Its goals and purposes include promoting the equal status of women in all social sectors, safeguarding democracy, promoting international understanding and working for the recognition of women's rights as human rights. It has worked with organizations of women who are refugees of the former Yugoslavia; for example, member organizations sponsor self-help projects for war rape victims.
Infoteka (Information and Documentation Center), Zagreb, Croatia, founded in 1993, is a documentation center focused on the victims of the war in the former Yugoslavia. It documents the conditions of refugees, the conditions of the lives of women, the history of women in Croatia and human rights violations against women.
Isis International, Santiago, Chile, was created in 1974. It is an international non-governmental organization that promotes networking, communication and cooperation among women and groups working for women's development. Isis provides training and services principally for Third World women and groups. The Isis International network reaches over 50,000 women and groups in 150 countries in the South and North that are working at planning and policymaking levels, and in the provision of support and services to grassroots women in rural and urban areas. It has focused intensively on research and advocacy strategies concerning violence against women in the Latin American region.
The Korean Council for the Women Drafted for Military Sexual Slavery by Japan, Seoul, Korea, consists of 23 women's organizations. The Council focuses on redress for survivors of the sexual slavery by the Japanese army during World War II. This includes acknowledgement by the Japanese government for its crimes, an apology, public education, punishment of the criminals and reparations for the victims. The Korean Council lobbies the Japanese government, conducts educational outreach and factfinding, and provides support services for survivors.
The Latin American and Caribbean Network Against Domestic and 8exual Violence -- Southern Cone Region, Santiago, Chile, was created in 1990 as a regional network to raise awareness of gender violence in the region and to work toward its eradication. Activities of the organization include the publication of a quarterly newsletter and fact sheets as a way to challenge gender violence. Including the issue of violence against women in the development plans and programs of each country and collaborating in the design, execution and evaluation of public policies and legal reforms are goals of the organization.
Lila Pilipina on Task For Pilipina Victims of Military Sexual Slavery by Japan, Manila, Philippines, was created as a vehicle to demand compensation and reparations for the human rights violations committed against Filipino "comfort women." It filed a lawsuit against the Japanese government based on the serious violations of humanitarian law such as rape, detention, torture and sexual slavery of women in Asia by the members of the Japanese Army during World War II.
MADRE, New York, NY, is a national U.S. women's organization with 20,000 members which was founded in 1983. It supports the work of groups in the former Yugoslavia which provide crisis intervention and long-term emotional and psychological counseling, address health care needs, and provide shelters and safe homes for women victims of violence. It has sponsored speaking tours of women from around the world, including from the former Yugoslavia, to educate the American public about violence against women during armed conflict, and has been active in promoting links between women's groups throughout the world. It is opposed to all forms of violence against women, and believes that the prosecution of cases against human rights violators will assist all victims and prevent such violations from recurring.
National Alliance of Women's organisations, London, England, is an umbrella for over 200 women's organizations, which together represent more than six million women. It is a nongovernmental alliance which brings together a wide diversity of women's organizations working to end all forms of discrimination against women. Its efforts include the sponsorship of seminars and conferences and the publication of newsletters. Member organizations work against the violation of the international human rights of women; the National Alliance has a strong policy against violence against women such as rape. It works in international fora such as the recent World Conference on Human Rights (Vienna, June 1993) and has focused attention on the UN Convention on the Elimination of All Forms of Discrimination Against Women.
The Network of East-West Women, New York, New York, is a communication network to create international discussion among feminists. Among its activities are support for feminist, nonnationalist groups in Croatia, Serbia, and Slovenia, which are working to help women in each of the countries. It also works with refugees who have been victims of rape during war or victims of domestic violence as a result of the war and works directly with groups in the former Yugoslavia which provide services for women refugees. It promotes dialogue and information exchange among women and efforts such as this lawsuit to assist the victims in their efforts to hold violators accountable and work through their individual healing processes, as well as deter future violations.
Red Feminista Latineamericana y del Caribe Contra la Violencia Domestica y Sexual: Region del Caribe (Latin American and Caribbean Feminist Network against sexual and Domestic Violence: Caribbean subregion), Rio Piedras, Puerto Rico, is a network of nongovernmental organizations in Latin America and the Caribbean. The organization develops and monitors local, regional and international policy proposals to eliminate and confront violence against women. Raising awareness about violence against women, it publishes educational materials and a quarterly newsletter, and also organizes campaigns to report and monitor cases of violence against women and to support women's action in the region and internationally. Participating in regional and international forums, they develop legislation and policy proposals, international proclamations and pacts about the defense of women's human rights.
The Reproductive Rights Project of the Columbia school of Public Health, New York, NY, promotes an understanding of reproductive rights as human rights and works for the implementation and defense of those rights though multiple channels, including national and international legal systems. Toward this end the Reproductive Rights Project does research and writing on reproductive rights and human rights; participates in projects designed to identify, monitor, and correct violations of reproductive rights; and works internationally with policy makers, program managers, and health care providers to ensure that human rights are respected in population and health policies and programs. Through their contacts with women's human rights activists and health care providers from many parts of former Yugoslavia, they have become aware of massive violations of women's human rights, and particularly their reproductive rights.
Shirkat Gah - Women's Resource Centre, Lahore and Karachi, Pakistan, works to support and organize the participation of women at all levels of national development, supports and works with grassroots organizations, and advocates for change at the level of policy formation. Its activities range from serving as a resource center for human rights campaigns, to research, policy evaluation and formulation. and training. It has conducted campaigns against the systematic rape and other violence against women.
The Women and Laws Programme - Region West of Solidarity Network of women Living Under Muslim Laws, Dakar, Senegal, seeks to document and analyze the laws and customary practice" for Muslim women in the Muslim world, and the circumstances, forces, and strategies underlying trends. It aims to assist grassroots and activist women by assisting them with their development strategies. It works on women's issues in the former Yugoslavia, Rwanda, Nigeria, Bangladesh and Pakistan. These projects have included research, networking, action alerts and other publications.
Women in Black, Belgrade, Yugoslavia, is an organization of women that maintains a large network of groups working toward the eradication of violence against women and the promotion of women's equality. Toward this end, it organizes international conferences, provides direct assistance to women victims of violence and organizes non-violent anti-war protests. The group is opposed to the basic human rights violations perpetuated by the Serbian government based on ethnicity, ideology and gender.
Women In Nigeria, Ahmadu Bello University, Zaria, Nigeria, is an organization of women and men committed to eradicating gender and class discrimination as well as abuses of human rights. WIN engages in research and documentation, advocacy and policymaking, dissemination of information, and action aimed at improving the conditions of women.
Women Living Under Muslim Laws, Grabels, France/Lahore, Pakistan/Dakar, Senegal, is an international network of women in Muslim countries and communities in 97 countries in Asia, Africa and the Americas. It provides information services and support for women whose human rights have been violated in the public and the private spheres, by the state, the community or the family, in times of peace and in times of wars and other armed conflict. It disseminates information through publications and through its international network.
Women for Women's Human Rights, Istanbul, Turkey, is an organization that examines codified, customary, and religious laws and practices. It initiates grass-roots participatory workshops, and other types of outreach programs to mobilize around key local issues and develops grass-roots projects in legal education. It also works to enhance regional and international networking between women's groups and individuals.
The Women Refugees Project of the Harvard Immigration and Refugee Program and Cambridge and Somerville Legal Services, Cambridge, MA, has worked with hundreds of women refugees from around the world since its founding in 1992. The WRP combines representation of individual women asylum applicants with the development of theories, policy and national advocacy. In addition, the Project provides advice, support, and related back-up services to advocates around the United States representing women seeking asylum. The Project is committed to promoting an understanding of refugee law informed by international human rights law and in particular by the international and domestic law on women's human rights. The Project has focused especially on asylum claims based on gender, and recently has begun to advocate for the claims of women refugees and related women victims in human rights fora.
Women's Education, Development, Productivity and Research organization, Quezon City, Philippines, conducts research and provides direct services to women in prostitution and survivors and victims of sex trafficking as well as to other marginalized groups in the Philippines. WEDPRO advocates for legislative change on women's rights issues in the Philippines and advocates and networks on various gender and human rights issues nationally, regionally and internationally.
The Women's Environment and Development Organization, New York, NY, works at the UN on behalf of equal rights and human rights for women in all nations. Its purpose is to further the equality of women in public life, as participants, policy-makers, and leaders.
The Zagreb Women's Lobby, Zagreb, Croatia, was organized to decrease public attacks on women in Croatia. It publishes articles about abuses against women and analyzes laws as they pertain to women, attempting to increase awareness about abuses and discrimination against women. Because of these activities, it is aware of the high level of human rights abuses committed by the forces under Karadzic's command and does not believe there would be any ability to try him in the former Yugoslavia.
Rape and other forms of sexual and reproductive abuse committed by the Bosnian Serbs under the command of defendant-appellee Radovan Karadzic have been well-documented by the United Nations and other intergovernmental organizations, and governmental bodies, as well as by nongovernmental human rights organizations and journalists. Sexual violence against women -- including rape, forced prostitution, forced impregnation, forced maternity, and other gender-specific atrocities -- constitutes genocide, war crimes, crimes against humanity and violations of other international human rights law such as the prohibitions against torture. As the Doe appellants' brief demonstrates, under humanitarian law and the Genocide Convention, Karadzic is responsible as a private or non-state actor as well as in his role as the ultimate military commander of the Bosnian-Serbs. Moreover, as the self-proclaimed leader of Srpska, the de facto Bosnian-Serb state, as well as in his role as military commander, he is responsible for these and other violations of international human rights law, including torture, summary execution, and arbitrary detention. As international torts in violations of the law of nations, all these atrocities are actionable under the Alien Tort Claims Act, 28 U.S.C. '1350, the Torture Victims Protection Act of 1991, 28 U.S.C. '1350, the Genocide Convention Implementation Act, 18 U.S.C. '1091(1988) and/or 28 U.S.C. '1331.
In dismissing this case, the district court did not question the status of these crimes against women under humanitarian or human rights law, but rather focussed exclusively and erroneously on the view that as a private actor, Karadzic is immune under international law. Since this issue is amply briefed by the appellants and other amici, this brief is submitted to emphasize the significance of the district court's dismissal for the rights of the women plaintiffs and the women victims and survivors who are among the members of their class.
Amici do so in order to underscore the singular significance of this case as a vehicle for redressing the ineffable and universally condemned wrongs that these women have suffered. Rape and other forms of sexual and reproductive abuse, while long recognized as violations have been rarely prosecuted or redressed. At the 1993 World Conference on Human Rights in Vienna, the international community recognized these crimes as "violations of the fundamental principles of international human rights and humanitarian law" and emphasized the "call that perpetrators of such crimes be punished and such practices stopped. While the Security Council recognized these crimes as within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, that Tribunal is likely to consider very few cases and does not have jurisdiction to provide damages for the violations of human dignity at issue in this case. The civil action provided by the federal jurisdiction statutes applicable herein, is specifically designed to enable victims and survivors of customary and treaty-based international violations to take the issue of redress into their own hands. Accordingly, amici submit this brief to underscore the significance of this case for women and the necessity of reversing the district court in order to avert impunity and to provide the abused women, as well as other victims and survivors, with fullest possible vindication of their terrible suffering and losses.
Part I examines the explicit longstanding prohibition of rape and other forms of sexual and reproductive abuse of women under the evolving laws and customs of war, the Geneva Conventions, and, when committed on a widespread or systematic basis, as crimes against humanity. All these violations constitute wrongs which apply to appellee Karadzic whether he is deemed a private or non-state actor or the leader of a de facto state.
Part II examines rape and other sexual and reproductive violence as a form of torture to underscore the particular heinousness of these offenses under both human rights and humanitarian law. In addition to individual responsibility under humanitarian law, Karadzic is responsible as the self-styled leader of a de facto regime for violations of human rights law which require the involvement of a state or state-like entity.
Part III examines the role of sexual and reproductive abuse of women as an instrument of genocide against the Boanian-Muslim people. Applying the criteria of the Genocide Convention which explicitly apply to private as well as state actors, amici demonstrate that rape, forced prostitution and forced pregnancy were used as an essential element of the genocidal campaign of "ethnic cleansing."
Rape and other forms of sexual and reproductive abuse have traditionally been explicitly prohibited by the evolving laws and customs of war both as crime aqainst honor and as a gross crime of violence. Sources of the first codes prohibiting sexual assault date back to Richard II and Henry V. Bilateral and multilateral treaties which dealt with the protection of women in armed conflicts include the Treaty of "Amity and Commerce" Between the United States and Prussia (1785) (Article XXIII: "all women and children... shall not be molested in their persons"). Major developments beginning in the 19th century were General Order No. 20 pursuant to the U.S. Rules and Articles of War (Article 2 provided for the punishment of assassination, murder, malicious stabbing or maiming, rape); Lieber Code ('rape'), Oxford Manuel ('family honour '), the Declaration of Brussels ('honour and rights of the family'), and the 1907 Hague Convention.
In context of war, sexual violence against women violates the principle that violence against civilians and prisoners must be limited to military necessity. The Declaration of St. Petersburg of 1868 states that "the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy. This rule... constitutes one of the foundations of international humanitarian law applicable in armed conflict."
A further indication of the universal prohibition against rape is that it is prohibited in the penal law of all nations. In particular, the former Yugoslavia specifically penalized rape as a war crime.
The Indictment for the International Military Tribunal for the Far East included in the description of charges against the defendants indicted for the "violation of recognized customs and conventions of war" the following offenses: "mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population of the over-run countries." This indictment had a separate provision for subjecting civilians to "indignities," and included rape with other "barbaric cruelties" such as mass murder and torture. Evidence of rape was used to support convictions of war criminals for charges of war crimes and crimes against humanity.
Contemporary jurists stress the long-standing and universal condemnation. A member of the U.N. Commission of Experts, who was appointed by the Secretary General to investigate war crimes in the former Yugoslavia, recently concluded: "That protection against rape and other sexual assaults is a topic under customary international law applicable in armed conflict can be deduced from the history of international law.
The Fourth Geneva Convention and their Protocols further codified this long-standing customary international law with respect to crimes of sexual violence against women. In Nicaragua v. United States of America, the International Court of Justice confirmed that "the obligation to respect and ensure respect for the Geneva Conventions does not only derive from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression. "Given the absolute nature of the prohibitions and the consensus reflected by the breadth of those bound, these norms can be viewed as peremptory norms which are universally binding irrespective of treaty obligation and cannot be excluded by agreement to the contrary." The United Nations Security Council has repeatedly treated the Geneva Conventions as applicable to the violations in the former Yugoslavia. The warring parties, including Radovan Karadzic, have agreed to abide by the Geneva Conventions and the Security Council has treated the Conventions as applicable to the violations in the former Yugoslavia and to the Bosnian-Serbs. See Appellants' brief at 43.
Rape is prohibited by the Fourth Geneva Convention relating to the protection of civilians and the two Protocols in the context of both internal and international war, and, as developed in appellants' brief, these prohibitions are applicable to private or non-state actors. The Fourth Geneva Convention contains a number of explicit and implicit references to rape. Rape and related assaults are prohibited under common article 3 which prohibits "violence to life and person," "cruel treatment," "torture" or "outrages upon personal dignity," in situations of internal conflicts (those occurring within one state's territory).
Article 4(2)(e) of Protocol II makes explicit the prohibition in situations of non-international armed conflict against "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault" when committed against persons who do not take a direct part or who have ceased to take part in hostilities.
In the context of international war, Article 27 of the Fourth Geneva Convention specifies that "[w]omen shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." This provision applies to women who are "protected persons," which Article 4 of the Convention defines as "those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." Article 76(1) of Protocol I, which applies to international armed conflicts, provides: "Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault."
Finally, rape and other sexual and reproductive violence are implicitly prohibited as "grave breaches" under Article 147 of the Fourth Geneva Convention, which are regarded as the most serious forms of war crimes and are subject to universal criminal Jurisdiction. Article 147 designates as a "grave breach" inter alia, "willfully causing great suffering or serious injury to body or health' and "torture or inhuman treatment" when committed against "protected persons." The United States, the International Committee for the Red Cross, international legal scholars, and the United Nations Commission of Human Rights have all stated that rape and related violations should be considered grave breaches. Similarly, forced pregnancy and forced maternity resulting from rape constitute crimes within the grave breach provisions . In Part II, amici underscore the character of rape as a form of torture as it is understood in both customary and conventional international human rights law. This analysis applies as well to the prohibitions of torture under the Geneva Conventions, including the "grave breach" article.
As defined under customary international law, "crimes against humanity" include rape and other sexual and reproductive abuse committed on a widespread or systematic scale. The first authoritative recognition and implementation of the concept of "crimes against humanity" came in the wake of World War II and was a prominent feature of the Charters of the International Military Tribunals at Nuremberg and Tokyo. These Charters provided jurisdiction over "war criminals who as individuals or members of organizations" are charged with "crimes against humanity, defined as follows:
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. Leaders, organizers, instigators and accomplices participating in the formulation of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.
The Allied Control Council for Germany promulgated Law No. 10 to govern trials of war criminals which could not be handled by the International Military Tribunal at Nuremberg. Law No. 10 expanded the concept of "crimes against humanity" by explicitly naming rape and eliminating the necessity that such crimes be committed in execution of crimes against the peace or war crimes.
According to the original definition as well as subsequent UN proposals such as the Draft Code of Offenses cited above, certain forms of egregious violence committed on a widespread or systematic basis constitute "crimes against humanity" whether or not they are intended as persecution based on political, religious or racial grounds. Thus, where committed on a widespread or systematic scale, rape, forced impregnation and forced maternity are inhumane acts on the same level of severity as murder and torture and constitute "crimes against humanity."
Crimes committed for the purpose of persecution on specified grounds also constitute crimes against humanity. In the wars in the former Yugoslavia, rape and other sexual and reproductive crimes are tactics of genocide or "ethnic cleansing," and therefore constitute persecution based on racial or religious grounds. Indeed, it was genocide which precipitated the concretization of the concept of crimes against humanity. Moreover, these crimes should also be recognized as persecutions based on gender, which has heretofore been invisible as a category of persecution under international law.
Most recently, Article 5(g) of the Statute of the International Criminal Tribunal for the Former Yugoslavia followed Law No. 10 and explicitly identified rape as a crime against humanity irrespective of whether it is committed in an international or internal war. Article 5 gives the Tribunal the power to prosecute persons responsible for the following crimes when committed in armed conflict whether international or internal in character and directed against any civilian population:...(f) torture; (g) rape; (h) persecutions on political racial and religious grounds; and (i) other inhumane acts.
Given the use of mass violence, including rape and other forms of sexual and reproductive assault, as instruments of ethnic cleansing or genocide, the commentary to the Statute of the current International Criminal Tribunal explicitly links them.
In addition to the extensive arguments presented by appellants for the principle that individuals are liable for violations of customary and conventional international law as well as for the crime of genocide, it should also be underscored that the Statute for the International Criminal Tribunal for the Former Yugoslavia makes clear that, as to all the offenses under the jurisdiction of the Tribunal, including violations of the laws and customs of war, grave breaches of the Geneva Conventions, genocide and crimes against humanity, individuals are liable without reference to any state involvement. Article 6 limits the jurisdiction of the Tribunal to "natural persons" and is explicitly intended to exclude organizational or membership responsibility. Article 7, entitled "Individual criminal responsibility" declares the responsibility of any "person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute..." Far from requiring state action, Article 7, section 2 specifically provides that one's official position as a head of state or governmental official "shall not relieve such person of criminal responsibility nor mitigate punishment," and in section 4 provides that acting according to orders may mitigate punishment but cannot relieve the individual perpetrator of liability. And, most pertinent to the responsibility of the defendant in this case, section 3 states the rule of command responsibility with no reference to one's position as a state actor:
The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to Punish the perpetrators thereof.
The commentary to the Statute, pares. 53-59 underscore the intention of the Security Council to focus on individual liability. This, in turn, underscores the error, if not the absurdity, at the heart of the District Court's opinion dismissing this case.
Rape and other gender-specific crimes violate treaty and customary international law prohibitions as set forth in international human rights law such as the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In recent years, rape in detention or under military occupation has been recognized as torture or comparable thereto by United Nations officials charged with the implementation of the norm against torture, by non-governmental human rights organizations, and by international scholars. The comparability of rape and torture and the frequency of rape as one of the most effective forms of torture against women has been brought to world attention by the testimonies of courageous survivors as well as the investigations of feminist scholars, and human rights physicians, therapists and other counselors who work with victims of torture and rape. Sexual torture involves a range of sexual abuse involving physical, psychological and verbal methods, against the person or against persons close to the person, including forced threats of or sexual assaults on others close to the person, forced nudity and other forms of exposure designed to punish, humiliate, degrade, and intimidate the subject.
The forces under the command and control of Radovan Karadzic have perpetrated sexual and reproductive atrocities which amount to torture and thus, U.S. courts are obligated to exercise jurisdiction over him. See discussion of Karadzic's command responsibility in Appellants' brief at 5. Women have been raped, stripped naked and otherwise subjected to sexual and reproductive abuse in front of family members, neighbors and community members. They have been detained specifically "for the purpose of sexual abuse by Bosnian Serb Army soldiers." They have been raped until they have become pregnant and detained until it was too late for them to have an abortion.
In the former Yugoslavia, sexual and reproductive abuse are used to destroy the women's identity and standing in her community, her family relationships, and the community itself. As such, they constitute attacks based on gender and based on ethnicity or religion. Rape and other sexual and reproductive abuse are used disproportionately against women and thus the use of rape is a form of discrimination against women. They express in part the view of women as property, as women are raped as part of a rampage through the conquered communities. These atrocities are also used to attack women based on their role as women in maintaining the community through biological and social reproduction, disrupting women's family relations and forcing them to flee, often with children, and thereby destroying the identity and integrity of the civilian community. Rape or threats of rape are designed to shame, humiliate and destroy the resistance of her husband or partner, which is an attack on the socially sanctioned view that his worth or manliness depends on being the sole possessor and protector of "his" woman. Documentation of the atrocities in the Former Yugoslavia demonstrates that the vast majority of rape and other sexual and reproductive atrocities have been committed against Bosnian Muslims by Bosnian Serbs and thereby combine the attack on gender with the attack on ethnicity and community.
The definitions contained in the United Nations Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment provide a framework for assessing the enormity of rape and the applicability of the prohibition against torture and establish, beyond doubt, the character of rape and other sexual abuse in this context as torture. Article 1 of the United Nations Convention Against Torture identifies three key elements of torture: (1) the willful infliction of severe physical and/or mental pain and suffering; (2) for specified purposes; (3) by a person acting in an official capacity. Each of these elements is addressed below.
The words of Jane Doe I and Jane Doe II and the descriptions of human rights monitors and journalists are sufficient testament to the ineffable pain and suffering --immediate and continuing -entailed by the victims. The essence of rape is the "sexual invasion of the body by force, an incursion into the private, personal inner space without consent..." As a consequence of rape, women have died, suffered vaginal lacerations and extensive bleeding, become pregnant or have abortions. Some have committed suicide. Many of the survivors were subjected to repetitive gang rapes, multiplying the immediate physical suffering as well as aggravating the long-term consequences. Some have been forced to have children. Some have lost their capacity to bear children.
The international definition of torture reflects the recognition of the inseparability of the physical and mental elements of torture, and the sufficiency of psychological abuse standing alone. Beyond the immediate and continuing physical suffering, the most undermining and lasting aspect of torture is often the continuing terror, humiliation and psychological debilitation of the personality which is produced by this most devastating violation of basic bodily integrity. The violation of physical integrity and security of person accomplished by rape is likewise inseparable from its assault on mental integrity: "[Rape]... constitutes a deliberate violation of emotional, physical and rational integrity and... a hostile, degrading act of violence." A survey of the literature concluded, "sexual abuse is usually the core element of torture because it attacks the human being,s most intimate parts." The impact of rape and sexual abuse is heightened when inflicted in the presence of others, particularly children, partners, and other family members -- a common element in the reports from the former Yugoslavia.
Rape and other gender-based attacks on women cause enduring psychological suffering involving the common sequelae of torture: ever-present fear, insecurity, nightmares, dread, hopelessness, depression, and sleeplessness. Women who have been raped or sexually abused suffer terrible feelings about their bodies which they experience as dirty, separated from them, and vulnerable to repeated attack. Testimonies also provide evidence of loss of family, relationships with partners and children, and of the ability to engage in normal social life. The fact that sexual and reproductive violence are instruments of genocide heightens the effect of rape in destroying women's identity and integrity.
The United Nations Torture Convention identifies torture as severe violence inflicted as a means to accomplish a particular end. Whereas torture was originally seen as a means to test innocence and, more recently, to extract confessions and information, the Torture Convention recognizes the broader political purposes of torture as a form of terror and an instrument of illegitimate power designed to subordinate and destroy the capacity for resistance of an individual or group. The element of Purpose under the Convention does not require examining the intent of the torturer, but rather the function of the violence. While the violence visited upon women in the former Yugoslavia has included killing, mutilation, imprisonment, and other forms of violence also visited upon men, rape and sexual abuse have been, according to the available reports, used almost exclusively against women and have been extremely effective in accomplishing the terroristic purposes of torture. The rape of women in the former Yugoslavia illustrates the range of prohibited purposes recognized in the UN Convention Against Torture.
(a) The purpose of obtaining information or a confession. In a number of cases, women were raped or threatened with rape and other sexual and reproductive abuse as part of an effort to arrest or obtain information about a companion, family member or other associate. The U.N. Torture Convention is not based on the notion that the essential purpose of torture is to obtain information or a confession. Rather, in the practice of torture, this supposed "purpose" is often a pretext for the use of torture as an instrument of intimidation, humiliation and destruction of the personality. The testimonies and reports of torture collected by Amnesty International clearly demonstrate that interrogation is an expression of domination. "[I]t is not primarily the victim's information, but the victim, that the torturer needs to win or reduce to powerlessness." The dominant use in the former Yugoslavia to attack women who are Bosnian Muslims reflects this goal of reducing individuals to powerlessness.
(b) The purpose of punishment or as a penaltv. The testimonies and documentation illustrate the use of rape as an instrument of extra-judicial punishment visited upon women largely because of their gender, reproductive capacity, their ethnicity, political and community identity and status. Soldiers, paramilitaries and neighbors recruited into this vicious effort have invaded and ransacked people's homes have sexually dominated and punished the women through rape. Women have been rounded up and held in detention camps.
(c) The purpose of intimidation or coercion. The rape of women in the former Yugoslavia has been a routine aspect of the campaign of terror against women and the civilian population. The ultimate goals of rape have been to terrorize women, make them constantly fearful in their homes or on the streets, prevent them from engaging in any form of political or community activity, undermine their capacity for resistance and for continuing their daily work sustaining their families and community, isolate them from family and community, and send them into hiding or flight. The frequency of the use of rape intensifies the climate of fear for all women.
(d) for any reason based on discrimination of any kind. The sexual torture and other abuses of women reflect discrimination and persecution based on gender, ethnicity or religious or national identity and power. When the victim is a woman, gender and these other dimensions are usually intertwined. Here, as developed in Part III, sexual violence against women is one of the most effective tools of "ethnic cleansing/genocide.
(3) The official involvement requirement. Under the Convention Against Torture, which states the customary definition, the concept of official involvement sufficient to render violence torture is very broad. Article 1 of the Convention provides that torture requires the "instigation of or...consent or acquiescence of a public official or other person acting in an official capacity." This definition is comparable through the concept of acquiescence, to command responsibility applicable under humanitarian law and adopted by the Statute of the International Criminal Tribunal discussed above. See supra ' II, D. In his capacity as military commander in addition to self-styled leader of a de facto state, Karadzic's failure to acknowledge or take any meaningful steps to punish or prevent these notorious crimes satisfies the official involvement criteria of the prevailing international definition of torture. There is, as previously noted, no comparable requirement of official involvement with respect to the prohibitions on torture in humanitarian law.
Human rights investigations show that rape and forced prostitution are employed in the former Yugoslavia to shatter a woman's physical and mental integrity, destroy her family relations and force her to flee her home and community. The woman is rendered [potentially] unfit for reproduction or participation in the reconstruction of social economic, political, cultural and religious life of her community. According to the human rights organization Human Rights Watch/Helsinki:
"Whether a woman is raped by soldiers in her home or is held in a house with other women and raped over and over again, she is raped with a political purpose -- to intimidate, humiliate, and degrade her and others affected by her suffering. The effect of rape is often to ensure that women and their families will flee and never return."
Helsinki Watch, War Crimes in Bosnia-Hercegovina Volume II 21-22 (1993).
In addition to rape, gang rape and repeated rape (e.g., forced prostitution or sexual slavery), reports and testimonies indicate that regular and irregular military forces and those collaborating with them, under the appellee's control and command, have deliberately sought to impregnate Boanian-Muslim women in order that they should bear Serbian children.
Governmental, intergovernmental and nongovernmental sources have documented forced impregnation and forced maternity apparently designed to destroy the ethnicity of the Bosnian-Muslim population. In November 1992, the U.S. Department of State reported:
At least 150 Muslim women and teen-age girls -- some as young as 14 -- who have crossed into Boanian Government-held areas of Sarajevo in recent weeks are in advanced states of pregnancy, reportedly after being raped by Serbian nationalist fighters and being imprisoned for months afterwards in an attempt to keep them from terminating their pregnancies. 'When we let you go home you'll have to give birth to a Chetnik [a Serbian soldier],' Serb fighters supposedly repeated to some of the women. "We won't let you go while you can have an abortion."
U.S. Department of State Dispatch, 3, 46 (November 16, 1992), at 830.
The U.S.-based Human Rights Watch/Helsinki has documented other examples:
J., a thirty-nine-year-old Croatian woman, was detained in Omarska, a detention camp where Serbian forces tortured and summarily executed scores of Muslims and Croats. She recounted her rape by a reserve captain of the self-proclaimed 'Serbian republic:" " He threw me on the floor, and someone else came into the room.... Both Grabovac and this other man started to beat me. They said I was an Ustasa and that I needed to give birth to a Serb -- that I would then be different." War Crimes. Vol. II, supra at 163-165.
....."It was their aim to make a baby. They wanted to humiliate us. They would say directly, looking into your eyes, that they wanted to make a baby. Id. at 215.
As discussed in appellants' brief, the Genocide Convention,implemented in the U.S. by the Genocide Convention Implementation Act, defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures designed to prevent births within the group; (e) complicity in genocide. (Emphasis added.)
Rape, forced prostitution, impregnation and/or forced maternity have been committed as part of a campaign "to destroy, in whole or in part," a national, religious or ethnic group "as such." These acts are instruments of as well as constitute genocide as defined under the Convention on the Prevention and Punishment of the Crime of Genocide and under customary international law. In the context of the war in the former Yugoslavia, the wide scale rape and sexual abuses are among the most potent means of accomplishing genocide. These crimes "caus[e] serious bodily and mental harm to the members of the group" and "deliberately inflict. . . on the group conditions of life calculated to bring about its physical destruction in whole or in part." Such acts are perpetrated on women and through women with the intent to destroy the group. The specific threats to impregnate women with children of another ethnicity and the use of rape to drive them from their families and community are measures "intended to prevent births within the group" and a form of "forcibly transferring children to another qroup.
Genocidal rape and other sexual assaults are integral to the policy, and the pattern and practice of the regime led by appellee Radovan Karadzic. The acts of sexual violence include repeated episodes of mass rape in towns and villages across Bosnia, rapes committed in public, and gang rapes of women held in detention centers. No Serbian leader has condemned the rapes, and the Serbian authorities have neither punished any of the perpetrators nor removed them from positions of authority. The Serbian authorities deny that rapes have even occurred. These acts, when sanctioned by permission at the highest levels, become a policy of genocidal rape.
Radovan Karadzic is responsible for these crimes as head of the de facto state of "Srpska," and he is also liable as an individual under the Genocide Convention and the proscription of genocide under customary international law.
This appeal will determine whether the only judicial tribunal in the world to whose jurisdiction the defendant Karadzic is currently subject can provide a remedy to the victims and survivors of the terrible atrocities for which he is responsible. On its ruling depends the possibility of vindication and redress as there is no other meaningful remedy at law. Amici stress the importance of vindication and redress particularly for women given the historic failure to punish crimes against women and the profound importance of recognizing the egregiousness of these offenses to the long process of personal healing and reconstruction. Amici emphasize as well as the importance of denying impunity to atrocity to the process of building justice, respect for human rights and peace.
For all these reasons, we urge the Court to reverse and remand this case to the district court.
Nancy Kelly, Esq.
Women Refugees Project
Cambridge and Somerville Legal Services
432 Columbia Street
Cambridge, MA 02141
DATED: January 17, 1995
Amici gratefully acknowledge the help on the brief of Elizabeth Brownback (CUNY Law School), and Mary McClenahan and Deborah Solomon (Harvard Law School).
JANE DOE et al. v. KARADZIC
Civil Action No. 94-9035
I hereby certify that service of the attached MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE and the accompanying BRIEF OF AMICI CURIAE was made this 17th day of January 1995 by first-class mail
36 E. 12th Street
New York, NY 10003
and by hand delivery to:
Center for Constitutional Rights
666 Broadway, 7th floor
New York, NY 10012
DATE: January 17, 1995
Women Refugees Project
Harvard Immigration and Refugee Program
Cambridge and Somerville Legal Services
432 Columbia Street
Cambridge, MA 02141
1.In signing this amicus curiae brief, the Center for Women's Global Leadership represents only the views of the Center and not necessarily the views of Rutgers University.
2.United Nations. World Conference on Human Rights: The Vienna Declaration and Programme of Action. A/CONF.157/23, pares 28 and 38. (June 25, 1993).
3.Theodor Meron, Henry's Wars and Shakespeare's Laws, chs. 6, 8 (1993).
4.See also Yougindra Khushalani, The Dignity and Honour of Women as a Basic and Fundamental Human Right (1982).
5.International Committee of the Red Cross, Draft Additional Protocols to the Geneva Conventions of August 12. 1949. Commentary 53 (1973).
6.Christine P.M. Cleiren and Melanie E.M. Tijssen, Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992). Annex II. Rape end Sexual Assault: A Legal Study (April 1, 1994), at 2.
7.Rhonda Copelon, et. al., "Proposals Relating to the Prosecution of Rape and Other Gender-Based Violence to the Judges of the International Criminal Tribunal for the Former Yugoslavia," Hastings Women's Law Journal (forthcoming, 1995).
8.R.J. Pritchard and S. Maghanua Zaide, eds. 20 Tokyo War Crimes Trial (1981) Vol. 1 (Indictment).
9.For example, Defendant Matsui was found guilty of violations of the laws of war because as head of the capture of Nanking, he knew of the atrocities, including the rape of thousands of women, and "did nothing or nothing effective to abate these horrors." Pritchard and Zaide, supra, note 8, Vol. 20 at 49, 814-816. Defendant Hirota was found guilty of violations of the laws of war because "he was content to rely on assurances which he knew where not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. Id. at 49, 791-792. In the trial of Admiral Toyoda, specification 1 charged him with: "wilfully and unlawfully disregarding and failing to discharge his duties by ordering, directing, inciting, causing, permitting, ratifying and failing to prevent Japanese naval personnel or units and organizations under his command, control and supervision from abusing, mistreating, torturing, raping, killing and committing other atrocities." W.H. Parks, "Command Responsibility for War Crimes," Mill L. Rev, 1, 69-70 (Fall 1993). See generally Shana Swiss and Joan E. Giller, "Rape as a Crime of War: A Medical Perspective, 270 Journal of the American Medical Association 612 (August 4, 1993).
10.Cleiren & Tijssen, supra. note 6 at 2. See also Khusalani, note 4, and Meron, Rape as a Crime Under International Humantarian Law, 87 Am. J. Int'l L. 424 (1993).
11.See. e.g. Pictet, Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958).
12. 25 I.L.M. 1023 (1986). See discussion in Cleiren, supra, note 6 at 10-11.
13.See Theodor Meron, "The Case for War Crimes Trials in Yugoslavia," Foreign Affairs 122, 129 (Summer 1993). According to the International Committee of the Red Cross, in 1994, the Conventions were considered binding for 185 states, i.e., virtually the entire international community. International Committee of the Red Cross, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977. Signatures Ratifications. Accessions and Successions: Addendum (July 1994).
14.Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]; Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978); Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non International Conflicts, opened for signature December 12, 1977, 1125 U.N.T.S. 609, 16 I.L.M. 1442 (1977) (Protocol II}. The Additional Protocols to the Geneva Conventions were developed in order to supplement the 1949 Geneva Conventions and to address new types of warfare and political contexts. They also codify existing customs and laws of war, such as those protecting civilians from the Hague Conventions. See Khusalini supra, note 4.
15.Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflict, 16 I.L.M. 1442 (1977).
16.Provisions which apply only to situations of international armed conflict apply to the war in the former Yugoslavia. Various resolutions of the United Nations Security Council and other U.N. documents relating to ongoing violations in Bosnia appear to assume that these violations are governed by provisions of the Geneva Conventions applicable in situations of international armed conflict. See. e.g., U.N. Doc. S/RES/771 (1992); U.N. Doc. S/RES/780 (1992); U.N. Doc. S/RES/808 (1993); Letter Dated 9 February 1993 from the Secretary-General Addressed to the President of the Security Council, U.N. Doc. S/25274 (1993); U.N. Commission of Experts, Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) Annex I, at 14, pare. 45, U.N. Doc. S/25274 (1993); International Committee of the Red Cross, Aide Memoire, Dec. 1992. See also Human Rights Watch/Helsinki, War Crimes in Bosnia-Hercegovina Vol. II, at 20 (1993); Amnesty International, Justice & Fairness in the War Crimes Tribunal for the Former Yugoslavia, Apr. 1993, at 15; see further Letter from Robert A. Bradtke Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter (Jan. 27, 1993) (recognizing that all parties to the conflict in the former Yugoslavia are bound by the Geneva Conventions and customary international law principles applicable to an international conflict).
17.See, Meron, supra note 10, at 426; Rhonda Copelon, Surfacing Gender: Crimes Against Women in Time of War. Mass Rape: The War Against Women in Bosnia-Herzecovina, (1994) (Alexandra Stiglmayer (ed)).
18.Letter from Robert A. Bradtke, Acting Assistant Secretary for Legislative Affairs, to Senator Arlen Specter (Jan. 27, 1993).
19.See International Committee of the Red Cross, Aide Memoire, Dec. 1992. As indicated in footnote 10, supra. the Aide Memoire recognized that the act of rape is an extremely serious violation of international humanitarian law, as it violates the mandate in Article 27 of the Fourth Geneva Convention providing special protection for women against "any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." In addition, the ICRC explicitly acknowledged that the "grave breaches" definition in Article 147 "obviously covers not only rape, but also any other attack on a woman's dignity Aide Memoire, at f 2. (emphasis added). As acts which clearly attack a woman's dignity and "willfully caus[e] great suffering or serious injury to body or health," forced impregnation and forced maternity would qualify as "grave breaches" when committed against "protected persons."
20.Meron, supra, note 10, at 426. ("[S]urely rape --in certain circumstances-- can rise to the level of such other grave breaches as torture or inhuman treatment"); Copelon, supra note 17.
21. In a resolution condemning the rape of women in the former Yugoslavia, the Commission referred to rape as a "grave breach" under the Geneva Convention. Resolution on Integrating the Rights of Women into the Mechanisms of the United Nations, UN ESCOR Hum. Rts. Com. 50th Sess., at 2, 4, UN doe. E/CN.4/1994/L.8 rev. 1 (1994).
22. See Center for Reproductive Law & Policy, Recognizing Forced Impregnation as a War Crime Under International Law (prepared by Anne Tierney Goldstein) (1993).
23. See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, 2587-2588 (1991).
24.Article VI(c) of the London Charter (Agreement by the U.S.. France, Britain and U.S.S.R,, 59 Stat. 1544, 82 U.N.T.S. 279) and Article 5 of the Charter of the International Military Tribunal for the Far East (XIV, No. 349 Department of State Bulletin 362) (emphasis supplied).
25. Article 2 of the Draft Code of Offenses Against Peace and Security of Mankind, prepared by the International Law Commission at the request of the UN General Assembly, expanded the forbidden categories of persecution to include "social" or "cultural" grounds. While the Code has not been formally approved, it is used as a standard. UN GAOR, Sixth Sess., Suppl. 9, UN Doc A/1858 art. 2(11) and pare. 58, discussed in Khusalani, supra, note 4, at 1336. See Copelon, supra, note 17.
26.The commentary on this aspect of the Tribunal's jurisdiction explains crimes against humanity as "inhumane acts of a very serious nature, such as willful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds." Article 5, Statute of the International Tribunal, reproduced in 14 Human Rights Law Journal 211 (1993).
27.The Tribunal Statute, therefore, clearly rejects the proposal in Article 2 of the Draft Code of Offenses that crimes against humanity be limited to acts carried out "by the authorities of a state or by private individuals acting at the instigation or with the toleration of such authorities."
28.Statute of the Tribunal, supra, note 26, Article 6, commentary, pare. 50-52.
29.Adopted Dec. 16, 1966, art. 7, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16), at 52, 999 U.N.T.S. 171, reprinted in 6 I.L.M. 368 (1967) [hereinafter ICCPR].
30.Opened for signature Feb. 4, 1985, reprinted in 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1984), 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987) [hereinafter, "Torture Convention"]
31.Professor Peter Kooijmans, as Special Rapporteur on Torture of the UN Commission on Human Rights, defined rape as torture in his 1986 Report. Torture and Other Cruel. Inhuman or Degrading Punishment: Report by the Special Rapporteur, UN ESCOR Hum. Rts. Comm. pare. 119, UN Doc. E/CN.4/1986/15(1986)(hereinafter "Special Rapporteur"). See also Preparatory document submitted by Ms. Linda Chavez on the question of systematic rape. sexual slavery and slavery-like practices during wartime, UNESCOR Sub-Comm. on Prevention of Discrimination and Protection of Minorities,. 45th Sess. E/CN.4/Sub.2/1993/44 (7 September 1993), Sub-commission Forty-fifth sess. pare. 1 ("Although rape occurs most frequently in a criminal context and is punishable by domestic criminal law, systematic rape can also be used as an instrument of torture or as an abhorrent instrument of warfare").
32. For example, Amnesty International,the leading force behind the campaign against torture in the world, in its first comprehensive and influential report focusing on the abuses of women, recognized that rape in detention is a "common method of torture" used against women:
[Rape is] both a physical violation and injury, and an assault on a woman's mental and emotional well-being. Interrogators and other government officials have used rape as a form of torture in attempts to intimidate women from pursuing particular activities and to extract information or 'confessions' from them. Rape constitutes an especially humiliating assault [and] often carries traumatic social repercussions. Amnesty International, Women In The Front Line 18 (1990). See also, Amnesty International, Rape and Sexual Abuse: Torture and Ill-Treatment of Women in Detention (1991); Dorothy Thomas and Regan Ralph, Rape in War: Challenging the Tradition of Impunity, SAIS Review (Winter-Spring 1994) (and reports cited therein); International Human Rights Law Group, No Justice. No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia 5-10 (June 1993).
33.See, Meron, supra note 10; Copelon, supra, note 17; For example, Amnesty International, the leading force Deborah Blatt, Recognizing Rape as a Method of Torture, XIX N.Y.U. Rev. of Law and Social Change 821 (1992); Adrien Katherine Wing & Sylke Merchan, Rape. Ethnicity. and Culture: Spirit Injury From Bosnia to Black America, 25 Columbia Hum. Rts. Law Review 1 (1993); Khusalani, supra, note 4.
34.Among the ground-breaking early works examining the history, nature and impact of rape are Susan Brownmiller, Against Our Will (1975) (examining rape in both war and peace); and Ximena Bunster-Burroto, Surviving Beyond Fear: Women and Torture in Latin America, in June C. Nash & Helen Icken Safa (ed.), Women and Change in Latin America 297 (1986) (examining specifically the use of rape as an instrument of torture in prisons in the southern cone countries).
35.See e.g., Ximena Fornazzari and M. Freire, Women As Victims of Torture, 82 Acta Psychiatr Scand 257-260 (1990); F. Allodi and S. Stiasny, Women As Torture Victims, 35 Canadian J. Psychiatry 144-148 (1990); Inge Lunde and Jorge Ortmann, Prevalence and Sequelae of Sexual Torture, 336 The Lancet 289-191 (1990); Mia Groenenberg, The Treatment of Mental Problems of Female Refugees (1991); Judith Herman, Trauma and Recovery (1992); Anne E. Goldfeld, MD, Richard F. Mollica, MD, Barbara H. Pesavento, MSW, Stephen V. Faraone, PhD, The Physician and Psychological Sequelae of Torture Symptomatology and Diagnosis 259 Journal of the American Medical Association 2725, 2726 (May 13, 1988) (n[N]umerous observations from health practitioners world-wide reveal that sexual abuse and rape figure predominantly in the torture of women... The mutilation of female genitalia, pregnancy, venereal disease, infertility, miscarriage, and serious social and psychological impairments are reported to be the common consequences of the torture of women"); Richard F. Mollica and Linda Son, Cultural Dimensions in the Evaluation and Treatment of D: Sexual Trauma: An Overview, I2 Psychiatric Clinics of North America 363 (June, 1989); Inge Agger, The Female Prisoner: A Victim of Sexual Torture, presented at the Eighth World Congress for Sexology Heidelberg/FRG June 14-20, 1987.
36.U.N. Commission of Experts, Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 46 (1992) U.N. Doc. S/1994/674 (1994) (elements indicating "at least a policy of encouraging rape" include large number of rapes in detention and "common elements in the commission of rape, maximizing shame and humiliation to not only the victim, but also the victim's community.")
37.U.N. Commission on Human Rights, Fifth Periodic Report on the Situation of Human Rights in the territory of the former Yugoslavia submitted by Special Rapporteur Mr. Tadeusz Mazowiecki, at 6. U.N. Doc. E/CN.4/1994/47 (Nov. 17, 1993).
38.Center for Reproductive Law and Policy, supra note 22.
39.Brutal atrocities have also been reported against men. See,e.g.. Application for Deferral by the Federal Republic of Germany in the Matter of Dusko Tadic. International Criminal Tribunal for the Former Yugoslavia, Case No. 1 of 1994.
40.Brownmiller, supra note 34, at 8.
41. See, e.g., Commission of Experts, Final Report, supra, note 36; Mazowiecki, Fifth Periodic Report, supra. note 37; Helsinki Watch, War Crimes. Vol II., supra, note 16, Amnesty International, supra, note 32.
42.See Swiss, supra note 9.
43.See also Pictet, supra, note 11. See. J. Herman Burgers and Hans Danelius, The United Nations Convention Against Torture -Handbook on the Convention Against Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment (1988) at 199-78; Barry M. Klayman, The Definition of Torture in International Laws, 51 Temp. L.O
. 449, 458-68, 483 (1978). The United Nations Human Rights Committee, ruling on several cases under the Optional Protocol to the International Covenant on Civil and Political Rights, has identified threats of death or grave physical harm as psychological torture. See e.g., Report of the Human Rights Committee (Muteba v. Zaire), UN GAOR Hum. Rts. Comm., 39th Sess., Supp. No. 40, Annex 13, at 187, UN Doc. A/39/40 (1984) (mock executions as a form of torture); Report of the Human Rights Committee (Estrella v. Uru.), UN GAOR Hum. Rts. Comm., 38th Sess., Supp. No. 40, Annex 12, pares. 1.6, 8.3, UN Doc. A/38/40 (1983).
44.Amnesty International, Report on Torture 52 (1975). The severity of long-term harm has been recognized recently by Ms. Linda Chavez of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, who is responsible for the Sub-Commission's inquiry into "systematic rape, sexual slavery and slavery-like practices during wartime:" While the immediate harm and anguish to victims caused by rape is readily apparent, we are only now coming to understand better the long-term emotional and/or physical consequences for victims. Recent publicity concerning the continued deleterious effects suffered by Chinese, Dutch, Filipino, Indonesian and Korean women forced into sexual slavery during the Second World War confirms that systematic rape can have a devastating impact on its victims, which lasts years beyond the immediate horror of the act itself.
45.Brownmiller, supra note 34, at 5.
46. Mollica and Son, supra note 35 at 364 citing Agger, supra, note 35.
47.Fornazzari & Freire, supra note 35 at 257.
48.See also Herman, supra, at 35, 48-50.
49.Copelon, "Intimate Terror-Understanding Domestic Violence," in Human Rights of Women (Rebecca Cook ed.) (1994), citing Burgers & Danelius, supra.
50.See Tadic case, supra note 39.
51.Dutch investigators who evaluated more than 1250 refugee women from diverse backgrounds identified five major political uses of sexual violence: (1) Torture, that is, sexual violence designed to destroy a woman's personal identity; (2) Punishment of a woman who did not conform to cultural norms; (3) Revenge on an entire subsegment of a population; (4) Exploitation of a woman's vulnerability in unprotected circumstances; and (5) Information gathering of a husband's activities and whereabouts. Mollica and Son, supra, note 3 at 364, (citing Dutch Medical Group, Medical Treatment of Refugees/Torture Victims. Presented at the International Meeting on Amnesty International Medical Work, London, England, March 22-24, 1985, (Amnesty International, 1985).
52.See See Alexandra Stiglmayer, "The Rapes in Bosnia -Herzegovina," in Mass Rape: The War Against Women in Bosnia -Herzegovina 97-98, 129 (1993) (women were raped during interrogation of women to locate brother of one and to pressure another to provide information on the location of weapons). In most cases however, the perpetrators were retaliating against or intimidating the women irrespective of any purpose of obtaining information about the specific whereabouts of others.
53. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World 28-38 (1985).
54.Edward Peters, Torture 164 (1985).
55.Moreover, a growing number of international documents explicitly recognize that gender-based violence can be a violation of the right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. In its Recommendation No. 19 on Violence Against Women, the Committee on the Elimination of alI Forms of Discrimination Against Women recognizes that violence against women, in all its aspects, is a form of discrimination. pare. 7(b); Convention of Belem do Para. (signed and opened for signature, June 1994), art. 4(d): Declaration on the Elimination of Violence Against Women, GA.Res. 104, UN GAOR, 48th Sess., Supp. No. 49, U.N. Doc. a/48/49 (1993), note 110, art. 3(h). See, also, e.g., Thomas & Ralph, supra, note 32; Copelon, supra note 17, Wing, supra, note 33.
56.See also Burgers and Danelus, supra, note 43, at 119-120.
57.It is also significant that the plain language of the Convention does not restrict official action to that of representatives of formal states. It is, of course, true that the Convention is operative only against States Parties. Since the Convention codifies the pre-existing norm against torture, see Filartiga v. Pena, 630 F. 2d. at 888 (discussion of torture as a customary norm), however, the concept of torture as an official act--whether or not the act of a State Party or a formal state--is actionable under the federal jurisdictional statutes here involved, apart from the argument that Karadzic heads a de facto state. 58.Genocide Convention Implementation Act of 1987, 18 U.S.C.'1091 (1988).
59."Recognizing Forced Impregnation as a War Crime Under International Law," supra note 22.
60.Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, adopted by the U.N. General Assembly on Dec. 9, 1948, G.A. Res. 2670, 3GOAR, Part 1, U.N. Doc. A/810, 174, entered into force on Jan. 12, 1951. Article 1.
61.id., Art. II(a)(b)(c)(d)(e).
62.U.N. Commission of Experts, Final Report, supra, note 36.