Presentation by Ms. Erika Feller, Director, Department of International Protection, UNHCR: Rape is a War Crime. How to Support the Survivors: Lessons from Bosnia - Strategies for Kosovo (Vienna 18 - 20 June 1999)

Minister Prammer, Commissioner Gradin, Madam Secretary of State, dear colleagues.

Let me join my thanks to those of Commissioner Gradin for the timely organization of this meeting on a subject of considerable concern to the UNHCR. I received recently a deeply disturbing and thought-provoking interview report with a Serbian army deserter asylum-seeker who had approached UNHCR's office in Skopje, in the former Yugoslav Republic of Macedonia. I thought I would begin by sharing an excerpt of this account with you, because it is surely a most graphic illustration of why we are meeting here today:

According to this man - and here I am quoting directly from the report: "After NATO bombings started, ill treatment by the army of Kosovo civilians intensified. Paramilitary forces would bring civilians as prisoners - the men were made to perform forced labour for the soldiers (e.g. digging bunkers) and the asylum-seeker - Mr. Ersad says these prisoners were not killed. Women were brought to be raped - each one by 3, 5 or sometimes 10 soldiers and they were kept for 5-6 days at a time for this purpose. The best looking women were chosen by the officers and the rest were given to the soldiers to rape. On the first day, the soldiers were under command to take part in the rapes. On the second and subsequent days, things were "more relaxed" and soldiers had a choice about whether to participate or not. The asylum-seeker himself raped a woman on the first day. The commanders who ordered him to do this were (Major ----- and Platoon Commander -----). He said he 'would have had a bullet in the head' if he did not 'do this nasty thing'. A young twenty-year old soldier who had refused to rape was nearly killed. The asylum-seeker witnessed individuals in his platoon raping women on about 10 occasions when they were not under command to do so. 'Rape had become normal, like taking a shower and having breakfast'".

It is both ironic and tragic that, fifty years after the establishment of an international system of rights protection aimed at "saving generations from the scourge of war" and "reaffirming faith in fundamental human rights, the dignity and worth of the human person, and in the equal rights of men and women" we are here today to develop strategies to support women who are survivors of sexual violence in a conflict characterized, chillingly, by terror, persecution and abuse.

The fact that these horrendous crimes have so recently been taking place in Kosovo, as they did only a few years ago in Bosnia and Herzegovina and Rwanda, reveals not least the weaknesses of that system. I commend the organizers of this Conference for having provided us with this timely opportunity to consider together a practice characterized by one observer as "an integral part of the process of destruction committed with the specific intent to destroy" entire groups.

The aim of this conference is to develop strategies to support women who have survived sexual violence and rape in Kosovo. While much of this support will be of a non-legal nature, can international law, despite its significant shortcomings also play a role? This is the issue I have been asked to address.

I believe that it can, and I believe that all of us here today - as representatives of Governments, United Nations organizations and international or national NGOs, and as individuals - must work together to ensure it does. I will focus my remarks on two issues: ending the impunity of the perpetrators and the entitlement of the survivors to international protection.

Ending Impunity: Rape and Sexual Violence as War Crimes
The Context: Rape as a Weapon of War

Violence against women in armed conflict, including rape and sexual violence, has been a widespread and persistent practice over the centuries. However, sexual violence and rape in the context of war have tended to be characterized as private acts or inevitable if regrettable excesses of the military in which women were the invisible victims.

The invisibility of women and sexual violence ended with the war in Bosnia and Herzegovina. This war, and the genocide in Rwanda, made it all too clear that rape and sexual violence, far from being isolated acts, are more and more frequently used as strategic weapons of war.

The widespread prevalence of rape as an instrument of persecution in the conflict in Bosnia and Herzegovina was documented in the findings of the Special Rapporteur of the Commission of Human Rights in reporting on the conflict:

"Rape of women, including minors, has been widespread in both conflicts. There are victims of all ethnic groups and there are rapists among the armed forces of all parties to the conflict. In addition, rape has been deliberately used as an instrument of ethnic cleansing.

Rape is an abuse of power and control in which the rapist seeks to humiliate, shame and degrade the victim. In this context, rape has been used not only as an attack on the individual victim, but is intended to humiliate, shame, degrade and terrify the entire ethnic group."

The use of sexual violence as a weapon of destruction was also highlighted by the ICTR in a recent decision which convicted the defendant of the crime of genocide. The Tribunal concluded that:

"Rape crimes constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group targeted as such ... Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and the destruction of the Tutsi group as a whole."

While the nature and extent of rape and sexual violence in Kosovo is still being assessed, it is clearer every day that the conflict has been characterized by abduction of women, collective and repetitive rapes, imprisonment and sexual torture of women. In FYR Macedonia, at the Blace border crossing, I had the occasion to speak to a number of refugees who, visibly shaken by their experiences, confirmed this fact to me. As a further indignity, some added, they had been propositioned by the aggressors - payment in large sums of Deutsch Marks for return of their abducted women and girls. According to a recent UNFPA Assessment Report on Sexual Violence in Kosovo:

"Rape is the primary act of taboo being used by the Serbians. It is an act of sacred violation. By raping women [and] taking possession and totally exploiting the female body - the Serbians are violating even those Kosovar men who are inaccessible and hidden in the mountains. It appears as though ancestral and latent hate has been exacerbated to its highest point and reigns among the soldiers - The women who are violated say that they are forever dead for having been subject to absolute defilement."

The Legal Framework: International Humanitarian Law

Let me turn now to the international legal framework relevant to sexual violence in the context of armed conflict. In so doing, I am under no illusions that legal principles, on their own, can provide an effective answer to this insidious and developing manifestation of conflict. But they are an important part of the answer, in making those responsible internationally accountable for their crimes and in giving the victims - or possible victims - a measure of protection against further trauma and abuse.

The starting point is international humanitarian law, which broadly includes treaty law, customary international law, and the practice of international war crimes tribunals.

The Four Geneva Conventions and their two Additional Protocols contain provisions aimed at preventing rape and sexual violence in armed conflict. Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) provides that "women shall be especially protected against any attack on their honour, in particular rape, enforced prostitution or any form of indecent assault." The two Additional Protocols also proscribe outrages on personal dignity which explicitly include rape, enforced prostitution and any form of indecent assault. However, these provisions are not free of problems.

Important among them is that, while the above-mentioned provisions proscribe rape and sexual violence, these acts are not explicitly specified to be grave breaches of the Geneva Convention or their Additional Protocols. As a result, States are not obligated under these instruments to prosecute those who commit rape or other forms of sexual violence in armed conflict, or otherwise to ensure that they are brought to justice.

Important steps have, though, been taken over recent years to end the impunity of assailants. The Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 to prosecute war crimes committed during the Yugoslav conflict and the International Criminal Tribunal for Rwanda (ICTR) in 1994 to prosecute war crimes during the Rwandan civil war. For the first time in history, rape during wartime was explicitly stated to be a crime against humanity.

Furthermore, although rape and sexual violence were not specifically termed as war crimes, or grave breaches, the Office of the Prosecutor has charged specific defendants with crimes of sexual violence in these terms. Convictions by both Tribunals on these bases have resulted.

The ICTY has jurisdiction to prosecute war crimes committed in Kosovo, including crimes of sexual violence, and the Office of the Prosecutor is actively engaged in gathering evidence in Albania and FYR Macedonia. It is essential that the ICTY be given the resources to carry out its work, and governments and other organizations are urged to support these efforts.

In practical terms, a number of organizations have been gathering evidence for the ICTY in Albania and FYR Macedonia. While this work is extremely important, it must be done in a more coordinated and sensitive manner with respect for confidentiality and protection concerns. Information on war crimes including those of sexual violence is being gathered through questionnaires distributed and completed by NGOs and other groups. There are too many different interviewers interviewing the same refugees, without sufficient sensitivity to the traumas lying behind the stories. UNHCR and NGOs have reported serious psychological repercussions for a number of refugees. This leads me to suggest that this Conference would be performing a useful function in recommending some practical guidelines for those who are interviewing or working with survivors of sexual violence. UNHCR's Guidelines on the Prevention of and Response to Sexual Violence Against Refugees can serve as one guide for this work. UNHCR is also developing a training programme for its staff members and governmental and non-governmental partners in this area.

Another promising development in international humanitarian law was the adoption of the Statute of the International Criminal Court, in Rome, in July of last year. Although not yet in force, this Statute addresses many of the shortcomings in the Statutes of the ICTY and the ICTR. In particular, it explicitly provides that rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity is a crime against humanity when "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".

UNHCR would urge Governments to ratify this treaty in order to ensure that the ICC is established as soon as possible. In addition, the NGO community, which played such an important role in ensuring that sexual violence was recognized as a war crime and crime against humanity in this Statute, should continue lobbying efforts in national and international forums to encourage the speedy entry into force of this treaty.

The Relevance of International Refugee Law

Criminalizing certain types of rape and other forms of sexual violence under international law extends the reach of States against the perpetrators. International refugee law also makes a contribution in this area. The Statute of UNHCR as well as the 1951 Convention Relating to the Status of Refugees not only define those who are entitled to international protection, but also specify those who are not. In particular, persons in respect of whom there are serious reasons for considering that they have committed certain crimes including a crime against peace, a war crime or a crime against humanity are excluded from international protection and can find no safe haven under the asylum umbrella.

This is important not least in the context of Kosovo. The resources of the ICTY are limited, and not all those who have committed such crimes will be prosecuted by the Tribunal. States are though obligated to search for, prosecute and bring to justice those who have committed grave breaches of international humanitarian law. This obligation is both reinforced and facilitated by refugee law which, if properly applied, precludes States from extending the protection of refugee status to the non-deserving.

As is clear from the foregoing, ending impunity and ensuring criminals are brought to justice, either at the national or international level, is well on the way to being realized under international law. With a framework in place, it is now for States genuinely to commit themselves to going that last step.

Supporting the Survivors: Entitlement to International Protection

Mr. Chairman, let me change tack a little at this point and move from the aggressors to the victims themselves.

Much of the work at this Conference will aim at ensuring that survivors of sexual violence in Kosovo receive the important and essential support they need in terms of health, psycho-social support and therapy, both immediately and in the long term. This is fundamental, but again it is not enough. I would like to focus the balance of my remarks on necessary support of a different nature, namely that offered through the proper application of refugee law to extend enduring protection to women terrorized and victimized through sexual violence.

UNHCR has consistently characterized the population leaving Kosovo during 1998 and 1999 as composed overwhelmingly of refugees. They are displaced on account of a well-founded fear of persecution based principally on their ethnicity. Notwithstanding that a resolution of the conflict is now within our grasp, I would now like to highlight considerations relevant to the determination of claims for refugee status made by refugee women from Kosovo. In so doing, however, while rape and violence against Kosovar women is the impetus for my comments, they are in no way particular to the Kosovo situation alone. Wherever such violence against women is a weapon of war - and that is in a disturbing number of situations - the same consideration must apply.

The 1951 Convention Relating to the Status of Refugees defines a refugee as someone who,

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of origin of [her] nationality and is unable, or owing to such fear is unwilling to avail herself of the protection of that country."

This Convention, like the 1949 Geneva Conventions, is to some extent a reflection of the Cold War climate in which it was drafted. As noted somewhat flippantly in one commentary, "the drafters of the Geneva Convention bequeathed to history a critical, male, intellectual political activist with a high profile in the resistance movement, organized and ideologically motivated as the classic example of the refugee."

If this comment is somewhat exaggerated, it highlights nevertheless that the Convention itself, and refugee law generally, has been interrupted within a male paradigm, which tends to reflect the factual circumstances of male applicants, but does not always respond to the protection needs of women.

The challenge is to make the refugee definition - or more important its application - gender neutral. Certain acts have traditionally been outside the realm of its application, being classified as a regrettable act of human excess, a failure in personal judgement rather than a contemptible violation of fundamental rights, capable of incalculable if invisible harm.

The drafters of the Convention failed singularly to reflect in words what has long been a reality - that crimes with a basis in gender are as persecutory in Convention terms as any other crimes when the harm inflicted is sufficiently serious and when they are part of a carefully calculated effort to achieve a political end. AND it does not matter in this regard that the Convention is silent on gender as a ground for persecution. AND it does not matter that the crime is gender specific with women as its victims. Of most singular importance is the fact that women ARE persecuted and that this persecution is a deliberate part of a more broadly based policy of spreading terror to destabilize populations for political ends, having their roots in deep ethnic, religious or political divisions. While we can debate an incidence of domestic violence - or even a pattern - as a ground for refugee status, surely not rape as a weapon of war.

I cannot underline this point too strongly as, while there is no debate on this for UNHCR, Governments are not (yet) so sure.

For many States, it is on one hand a fear of opening the flood gates, which have led them to question the legal correctness and the desirability of protecting women victims of sexual violence through the grant of refugee status under a Convention (1951 Convention) where the word "gender" is not mentioned. This debate has led to the introduction of what can be described as "imaginative" ways in which the international protection, recognized as necessary, could be extended - here I am referring to so-called "subsidiary forms of protection" legislatively created by a number of States, in preference to reliance on Convention protections which are more exigent as regards individual rights and State responsibilities.

Such subsidiary forms of protection mechanisms are useful for cases of indiscriminate violence arising in the context of war and conflicts. However, their use has also resulted in marginalizing the refugee claims of women, with some States extending protection under alternative mechanisms to refugee women clearly deserving of protection under the 1951 Convention.

It is of paramount importance to refrain from approaching refugee claims by women along the lines of the more traditional and familiar situation of refugee men.

In 1993, UNHCR's Executive Committee, which is the advisory body of the UNHCR made up of over 50 member States, did recognize that women often experience persecution differently from men, and that sexual violence has indeed been a cause of refugee movements. Some States have since accepted that rape and other forms of sexual violence committed on Convention grounds justify the grant to women of refugee status. A 1995 order by the Austrian Ministry of Interior regarding the granting of asylum for victims of rape is welcome in this regard. It specifies that:

"on the basis of the Geneva Convention and the 1991 Asylum Law, rape, just like any other violation of the persons integrity, is a ground for asylum, provided that it was motivated by one of the reasons enumerated in the Geneva Convention."

More widespread acceptance of sexual violence, including rape, as persecution within the refugee definition should be one goal of this Conference. You will want to consider, in your subsequent deliberations, how you go about this, in the face of the number of interpretative obstacles courts in several jurisdictions have already put in the way. One such obstacle is the view, prevalent in certain countries, that unless the State itself is the sexual aggressor, the regime of refugee protection cannot be invoked. To this, UNHCR has consistently and unequivocally responded that

"where ... offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer protection." To protect refugee women, the notion of "public" - at the hands of State - and "private" has to be broken down.

Closely related to the problem of perceiving many of the abuses against women as somehow "private" matters is the feeling that certain practices are sanctioned through having a basis in cultural or religious beliefs. To this, UNHCR would respond that this approach is inconsistent with the universality of human rights. Under the Declaration on the Elimination of Violence against Women, States are required to exercise due diligence to prevent, investigate and punish acts of violence against women perpetrated by the State or by private persons. Failure by the State to exercise that diligence, and to provide a secure environment for women, incurs State responsibility.

Proper protection of refugee women, including refugee women from Kosovo, not only requires a gender-sensitive interpretation of the refugee definition, but also a gender-sensitive asylum procedure.

A female asylum-seeker can face particular difficulties in presenting her story, and very much so where that story involves acts of sexual violation:

• She may not always be given the necessary separate interview if she is accompanied by her spouse;

• yet she may be reluctant to speak freely in front of her spouse or a male interviewer, either because of cultural mores or past experiences;

• she may feel embarrassed or humiliated when relating information about sexual assaults she has had to endure;

This Conference may also wish to consider recommendations it might make to States to ensure not only that due weight is given to the particularized experiences of women asylum-seekers exposed to sexual violence, but also that due sensitivity is paid to constraints women may experience in telling their story. Female interpreters, confidentiality of records, trained female interviewers and country of origin information, - including on the role, status and treatment of women, are all important issues here.

In conclusion, Mr. Chairman, let me reiterate that an important outcome of this Conference would be any impetus it could give at this point to the adoption by States of comprehensive guidelines on women asylum-seekers.

Conclusion

In October 1995 UNHCR's Executive Committee,

"Called upon the High Commissioner to support and promote efforts by States towards the development and implementation of criteria and guidelines on responses to persecution specifically aimed at women.... In accordance with the principle that women's rights are human rights, these guidelines should recognize as refugees women whose claim to refugee status is based upon well-founded fear of persecution for reasons enumerated in the 1951 Convention and 1967 Protocol, including persecution through sexual violence or gender-related persecution."

A European Parliament Resolution of 14 November 1996, urged all Member States to adopt guidelines on women asylum-seekers as agreed by the UNHCR Executive Committee, and emphasized that it is "crucial that sexual violence be recognized as a form of torture, particularly given the use of rape as a weapon of war and the cultural traditions of certain countries which involve gender persecution"

As the reality of what has gone on in Kosovo starts now to unfold in grim detail, it is UNHCR's strong hope that, among other responses, European countries will feel it incumbent on them to frame national refugee policies inter alia around guidelines which quite specifically address the particular experiences and needs of women asylum-seekers and refugees.