1

From Bosnian Rape Camps to the U.S.

Court: The Story of Kadic v. Karadzic

Ayesha Umar

May 7, 2011

"My husband and son were taken away during the war and I was put in a camp. The soldiers

would taunt me, calling me a Turkish whore. Then they began to rape me. I would cry every time

and when I passed out I would wake up with a different soldier in the room and they would keep

going until I didn't come round any more. When they found out I was pregnant they put me on a

truck and I arrived in Sarajevo. I had to take medicines to calm me down and I think this is why

my son is so nervous and has to have therapy. I love my son. Sometimes I look at him and feel

very angry though - I see him as a focus for what has gone wrong with my family and our lives."1

I. Introduction

THIS is one of those countless tales of terror that Bosnian and Croat women went through

during the armed conflict in Bosnia in early 1990s. The atrocities against the general population,

especially sexual violence against women, came to the notice of the nongovernmental

organizations as early as 1992. However, despite doing their best to attract the attention to the

ongoing human rights abuses, the international community couldn‟t act in timely manner to put

such an extreme violation of the laws of war and of women‟s rights to an end.

One reason for helplessly observing the systematic mass rape in Bosnia could be attributed to

the fact that rape was never considered a grave crime under international norms. Furthermore,

legally speaking, there was no precedent on the international level for the prosecution of rape as

a war crime. The Serb armed forces, without fearing any consequences for their crimes,

1The Independent: Bosnia's rape babies: abandoned by their families, forgotten by the state. Kate Holt in Sarejevo

and Sarah Hughe, 13 December 2005 at http://www.independent.co.uk/news/world/europe/bosnias-rape-babies-

abandoned-by-their-families-forgotten-by-the-state-519257.html (Unlike several other victims, Nadia decided to

keep her 10-year old son, who was a “rape baby”).

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engineered the policy of mass or genocidal rape under the orders of Karadzic to ethnically

cleanse the territory they had claimed.

The primary objective of this paper is to narrate the story of the landmark civil action filed in

1995, in the U.S. court on behalf of Bosnian rape victims. The first part of this paper will answer

basic questions about how these cases came to trial in the U.S. court when neither the victim, the

perpetrator, nor even the crime itself occurred in the U.S. The significance of the Kadic case in

bringing war-time rape within the folds of international human rights law, expanding the

application of the Alien Tort Claims Act and thereby enabling victims of serious war crimes to

sue for damages in the U.S. court, is discussed.

The second part of the paper briefly discusses the background of the Bosnian conflict which

led to genocidal rape and the subsequent filing of the civil suit in the U.S. court. The third part

presents a detailed analysis of how the Alien Tort Claim Act, the case law Filartiga v. Pena-

Irala, and the Torture Victim Prevention Act, applied to the Kadic case. The fourth part

discusses the opinion of the trial and the appellant court. The fifth part goes through the history

of international norms and treaties, exploring the question of rape as a crime against humanity.

The sixth part lays out the consequent development of the case and the possibility of recovering

the damages awarded by the U.S. court. The seventh part briefly goes through the public/private

dichotomy of rape. The eight part discusses the prevailing honor culture in conservative Muslim

societies and how linking rape with honor burdens women. The ninth part concludes with the

importance of the Kadic case and its impact on the future of women‟s human rights struggle.

II. Background of the Bosnian Conflict

The Bosnian conflict was a result of the disintegration of the former Yugoslavia into small,

new entities such as, Croatia, Serbia, Montenegro, Slovenia and Bosnia. The European

Community recognized the independence of Croatia and Slovenia in December 1991, and on

May 22, 1992 the two states became the members of the United Nations. The case of Bosnia,

however, was a little more intricate. The European Community had invited Bosnia to apply for

recognition. Following this proposal, the referendum for independence was held and despite

Karadzic‟s effort to block a referendum in the Serb-populated areas, the majority voted in favor

of independence on April 7, 1992. Soon after this vote, Radovan Karadzic, proclaimed a new

Serbian Republic called Srpska and declared himself the President.

After recognition of Bosnia by the United States, the Serbian paramilitary forces and the

Yugoslavian military units attacked Sarajevo and several other towns and began driving out the

Muslim population through a coordinated scheme, known as “ethnic cleansing” to create a

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homogeneous „Greater Serbia‟.2 Among other atrocities such as torture and summary execution,

the mass rape of Bosnian and Croat women was also part of the policy to demoralize the

population and force them to leave the place of their origin that was strategically important for

the Serbs.

It is worth noting that Serb and Croat women were also raped, however, the Bosnian Muslim

women were the main victims with an estimated 20,000 reported rapes that took place from

1992-1995.3 The personal narratives of the rape victims from Bosnia are heartrending. As a part

of an organized campaign the victims would be dragged to the rape camps where they would be

raped repeatedly for weeks and months until they would get pregnant. Some of the witnesses

narrated their stories of immense pain, shock and horror in front of the International Criminal

Tribunal for the former Yugoslavia (ICTY) during the Foca rape trial.4

The victims were identified by codes during the trial; one of them narrated her ordeal in those

words:

“Almost every night in the summer and fall of 1992, Serb soldiers would enter the detention

centers and select their victims from among the female prisoners lying on gym mats, the

witnesses testified. The women were taken to classrooms and private apartments where they

were sexually assaulted, forced to dance nude and then compelled to perform degrading domestic

chores. Some were kept as personal sex slaves…”5

Before the commencement of trial of the Bosnian war criminals in the ICTY, a class action

was brought on behalf of the Bosnian rape victims against Radovan Karadzic, the self

proclaimed President of the newly found state Srpska, in the United States District Court. Kadic

v. Karadzic was filed in the Court of Appeals following District Court‟s dismissal of the action

due to lack of subject matter jurisdiction. The Kadic case acted as a small ray of hope for

thousands of those women who were indiscriminately raped during the Bosnian armed conflict

but had no access to a suitable forum for filing their complaints.

The victims in the first case were unnamed. Jane Doe I was a teenager prisoner of the rape

camp. She was raped and abused as one of the soldiers slashed her breasts. Eighteen-year old

Jane Doe II was beaten by the soldiers and her mother was raped. Jane Doe II managed to escape

2 Bosnian Conflict: Encyclopedia Britannica, at http://www.britannica.com/EBchecked/topic/1365562/Bosnian-

conflict/281168/Independence-and-war 3 MSNBC.Com. Bosnian children born of rape asking questions. George Jahn. May 31, 2005, at

http://www.msnbc.msn.com/id/8007740/ns/world_news-europe/ 4 The Trial Chamber in Prosecution v. Kunarac, Kovac, & Vukovic, heard those testimonies by the victims. Foca, a

town located south-east of Sarajevo in Bosnia-Herzegovina, came under the control of Serb forces on April 7, 1992.

Soon after gaining control over Foca, detention centers for men and women were set up. Most of the women

detention centers served as the military barracks cum rape camps (or rape factories as some called them) for the

Bosnian Serb forces. 5 Womenenews.org. Bosnian Rape Camp Survivors Testify in The Hague. Jerome Socolovsky. July 19, 2000, at

http://www.womensenews.org/story/rape/000719/bosnian-rape-camp-survivors-testify-the-hague

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from the scene. She brought a suit on behalf of herself and countless other similarly situated

women.6

S. Kadic‟s ordeal began when her son was decapitated by the Serbian soldiers while she held

him in her arms. She managed to escape with her other son but was captured later by the Bosnian

Serbs forces and was sent to detention center. She was repeatedly raped for 28 days until she

became pregnant. Kadic brought an action in the U.S. court on behalf of herself, her deceased

son and on behalf of survivors of mass rape.7

The noted feminist Catharine A. MacKinnon (through the U.S. Center for Constitutional

Rights) brought the suit on behalf of the plaintiffs under the Alien Tort Claims Act (ATCA) and

the newly drafted statute, Torture Victim Protection Act (TVPA). When the Kadic court ruled

that it had subject matter jurisdiction, several critics objected to it. The main objection was the

fear that the U.S. courts may become the battleground for international litigation which might

complicate the foreign relations. United States by no means was in position to play the role of

“global court of equity”.8 The other thing that the counsel for Karadzic objected to was that the

plaintiffs had not exhausted their remedy under their local law as was provided in the TVPA.

From the various news sources it was evident that the courts and the judicial system in the war-

torn Bosnia were not fully functional. Moreover, the chances of seeking redress are always

minimal when there is a possibility of courts to be influenced by the architect of the crimes.

The enactment of the TVPA in 1990 also reflects the direction in which the U.S.

administration was heading. The signs were that the United States intended to keep the doors of

its courts open to entertain the grievances of aliens under both ATCA and TVPA. On political

grounds, the United States had recognized the statehood of Bosnia and as a world power had

condemned the human rights violation going on in the Balkans. In such circumstances when the

suit was filed in the U.S. court, the Clinton administration extended its support for women‟s

rights. Drew S. Days, the Solicitor General and Conard K. Harper, a State Department legal

advisor submitted a Statement of Interest. The U.S. government issued this letter upon the

request of the plaintiff‟s attorney who argued for not allowing immunity to Karadzic from suit in

the United States.9 These developments were quite encouraging for the victims as well as for

Chief Judge Newman to decide the case on its merits instead of refusing to hear it under the

political question doctrine.

6 Rachel Bart, Using the American Courts to Prosecute International Crimes against Women: Jane Doe v. Radovan

Karadzic and S. Kadic v. Radovan Karadzic, 3 Cardozo Women‟s L.J. 467, 471 (1996). (citing Plaintiff K‟s

Complaint at 7, Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994). 7 Id.

8 David S. Bloch, Dangers of Righteousness: Unintended Consequences of Kadic v. Karadzic, 4 Tulsa J. Com. &

Int‟l L. 35, 48 (1996). 9 Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995).

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III. Legal Basis for Jurisdiction

In order to claim jurisdiction in the U.S. court, the case Kadic v. Karadzic relied on three

basic legal pillars. First, the Alien Tort Claims Acts of 1789. Second, the 1980 decision of the

Second Circuit in Filartiga v. Pena-Irala10

, the case that recognized jurisdiction under ATCA

and held that torture comes under the umbrella of the law of nations. The third pillar is the

Torture Victim Protection Act, which codified the Filartiga decision.

1. The Alien Tort Claims Act

The Alien Tort Claims Act (ATCA) is one of those unusual statutes that provides original

jurisdiction to aliens in the U.S. district courts to seek recovery for torts committed in violation

of international law or a treaty.

The ATCA was enacted by the first congress in 1789 as part of the Judiciary Act. It only

asserted that the “district courts shall have original jurisdiction of any civil action by an alien for

a tort only, committed in violation of the law of nations or a treaty of the United States”.11

Having remained in oblivion for almost 200 years, the ATCA captured the attention of the legal

scholars in 1980 after the Second Circuit‟s decision in Filartiga v. Pena-Irala.12

Despite

generating a great amount of interest and investigation, the scholars‟ quest for the relevant

legislative history of the ATCA didn‟t yield much in terms of results because the historical

records hardly presented any definite rationale behind legislating ATCA. Judge Friendly

appropriately commented on the background of this statute in 1975 that it was “a kind of legal

Lohengrin, no one seems to know whence it came.”13

One of the most prominent international law experts of eighteenth century, Emmerich de

Vattel opined that „denial of justice‟ to aliens abroad could justify the war of reprisal by the

alien‟s home nation.14

The Founding Fathers may have had this concern in mind so in order to

avoid hostility with other nations they enacted the ATCA to ensure justice for aliens.

Accordingly, this „denial of justice to aliens‟ thought was also reflected in The Federalist No. 80

by Alexander Hamilton who wrote, “As the denial or perversion of justice by the sentences of

courts, as well as in any other manner, is with reason classed among the just causes of war, it will

10

Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980). 11

28 U.S.C. § 1350 12

See supra note 10. 13

Anthony D‟Amato, The Alien Tort Statute and the Founding of the Constitution, 82 Am. J. Int'l L. 62 (1988).

14 Id. at 64.

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follow that the federal judiciary ought to have cognizance of all causes in which the citizens of

other countries are concerned.”15

The intent of the Framers to incorporate certain aspects of the international law in

Constitution is reflected in Article III of the Constitution that extends the judicial power to all

cases in “Law and Equity arising under the Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under their authority…” 16

Article VI, the supremacy

clause, further consolidates the importance of an international law in the Constitution by

providing that all “Treaties made, and which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land…”17

The federal courts clearly have jurisdiction to

hear cases that arise out of the violation of treaty law. However, under the Constitution it is

unclear whether the customary international law is a source of a federal law and whether the

ATCA provides jurisdiction for every violation of such law.18

The ATCA was passed as part of the Judiciary Act of 1789. Section 9 of the Act was about

establishing the jurisdiction of the newly formed federal courts. It provided that, [The district

court] “shall also have cognizance concurrent with the courts of the several States, or the circuit

courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law

of nations or treaty of the United States.” With time, a number of minor amendments were made

to the ATCA, but there is no legislative record or debate available that could shed light on the

exact nature of the cases that were to be covered under this statue. 19

Some of the commentators are of the view that drafters of Section 9 didn‟t intend to entertain

the claims of two aliens in foreign countries as the main aim of the ATCA was to address actions

implicating foreign affairs.20

The judicial history of the ATCA reveals that the first case Bolchos v. Darrell,21

was filed in

1795. In this case, a Spanish ship with slaves onboard was captured and taken to an American

port. The slaves were the property of a Spanish subject but they were mortgaged to a British

citizen. The agent of the British citizen called Darrell sold the slaves in the United States and was

sued for this act by Blochos, who claimed the ownership of the slaves. The court held that the

jurisdiction existed under the ATCA and that Darrell had violated rights of Blochos that were

guaranteed to him by a treaty of the United States.

15

Alexander Hamilton, The Federalist No. 80, in The Federalist Papers at 475 (Clinton Rossiter ed., Signet Classic

2003). (Also Id. at 64). 16

U.S. CONST. art. III, § 2, cl. 1. 17

Id. art. VI, cl. 2. 18

Jennifer K. Elsea, The Alien Tort Statute: Legislative History and Executive Branch Views, at

http://www.policyarchive.org/handle/10207/bitstreams/1864.pdf 19

Id. at 7 20

Charles F. Marshall, Re-Framing the Alien Tort Act After Kadic v. Karadzic, 21 N.C. J. Int‟l L. & Com. Reg. 591,

598 (1996). (stating that the D.C. Circuit Court in Tel-Oren case noted that “as best we can tell, the aim of § 1350

was to place, in federal courts, actions implicating foreign affairs”.) 21

Bolchos v. Darrell 3 F. Cas. 810 (D.S.C. 1795).

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The second suit that successfully claimed jurisdiction under the ATCA was the 1961 case

Adra v. Clift.22

A Lebanese national brought a suit against his ex-wife and her husband, a U.S.

citizen, alleging that they brought his children to the U.S., used forged passports and interfered

with his rights of custody. The court found interference with the custody of his children to be

tortious and the forging of the passport to be a violation of the law of nations.

Several other cases were brought in the U.S. courts claiming jurisdiction under the ATCA,

but none of them succeeded until the landmark human rights case Filartiga came forth in 1980.

Due to the scarce and indefinite history behind the Act, the interpretation of the ATCA was left

to the courts and hence, Filartiga, where the court found jurisdiction against deliberate torture

committed outside the U.S. in violation of an international law, emerged as the important

precedent for future cases.

2. Filartiga v. Pena-Irala

Filartiga is well known for causing ripples among legal scholars and researchers and due to

this case the ATCA sprang to life after being dormant for almost two centuries. Filartiga was

unique in its own way since both the accused and victims were foreigners. Moreover, the act of

torture was also committed outside the U.S. The court seemed to have some ideas about the main

purpose of ATCA, but it set them aside and focused on whether the tort committed in the case

was a violation of the law of nations.23

The suit was brought by the citizens of Paraguay. Dr. Joel Filartiga identified himself as the

vociferous critic of the government of President Alfredo Stroessner, which had been in power

since 1954. Dr. Filartiga‟s daughter, Dolly Filartiga, arrived in the United States in 1978 on a

visitor‟s visa and claimed political asylum.

Filartigas brought suit in the Eastern District of New York against another citizen of

Paraguay, Pena-Irala, the Inspector General of Police, for wrongfully torturing and causing the

death of Dr. Filartiga‟s teenage son, Joelito in custody. The district court dismissed the case for

lack of subject matter jurisdiction. The plaintiffs appealed and the Court of Appeals reversed.

The Court of Appeals grappled with the core jurisdictional issue of whether torture violates

the law of nations. In order to solve this issue the court reasoned that despite being a common

practice, the torture and killing of a person, when done under the color of state authority, violates

the set norms of the international law of human rights as well as the law of nations. The court

held that “the constitutional basis for the Alien Tort Act is the Law of Nations, which has always

been part of the federal common law.”24

On this basis the court ruled that torture was actionable

under the ATCA.

22

Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961). 23

Marshall, supra note 20, at 602. 24

Filartiga v. Pena-Irala 630 F.2d 876, 885 (2d Cir. 1980).

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In Filartiga the court discussed in detail the sources of international law by referring to the

1820 Supreme Court case, United States v. Smith.25

The law of nations “may be ascertained by

consulting the works of jurists, writing professedly on public law; or by the general usage and

practices of nations; or by the judicial decisions recognizing and enforcing that law.”26

Furthermore, the court, citing certain international instruments such as U.N. Declaration of

Human Rights, the Universal Declaration against Torture and certain international treaties

proclaiming that torture was prohibited by the law of the nations ruled that the federal courts

could hear the alleged violation of international law, irrespective of where the tort was

committed.27

Filartiga opened up new avenues for the cases involving violation of the law of nations.

However, when everyone thought that Filartiga had dismantled the hurdle of sovereign

immunity, the D.C. Circuit Court of Appeals dismissed Tel-Oren v. Libya.28

Plaintiffs in that

case were seeking redress against the terrorist attack that took place on an Israeli highway and

was allegedly carried out by the members of the Palestine Liberation Organization (PLO), with

an assistance of Libya.

The three judges, Judge Edwards, Judge Bork and Senior Judge Robb jointly agreed on

dismissing the case. However, their rationale for dismissal was totally different. Judge Edwards

agreed that ATCA provides jurisdiction over certain violations of the law of nations such as

genocide, slavery and the systematic racial discrimination. However, according to Judge

Edwards, terrorism wasn‟t part of that list. He said that although several countries were averse to

terrorism, for some other countries, terrorism was a legitimate act of aggression and hence,

immune from condemnation. He also clarified that the PLO was not a state and therefore the

alleged act could not have been committed under the color of law.29

Judge Bork, on the other hand, delved into the original intent of the framers of § 1350 and

said that in 1789 there was no concept of the international human rights. Also customary

international law was silent about the rights of private parties to recover. According to Judge

Bork‟s analysis, because there was no concept of terrorism at the time of drafting ATCA and,

hence, the parties had no right to sue in the U.S. court for such violation committed outside the

U.S.30

Finally, Judge Robb dismissed the suit on the grounds of “nonjusticiability” saying that

politically sensitive issues such as terrorism should be left for the executive branch to resolve.31

25

United States v. Smith, 18 U.S. 153, 5 L.Ed. 57 (1820). 26

Id. at 160, 161. 27

Filartiga, F.2d 876 at 885. 28

Tel-Oren v. Libya, 726 F.2d 774 (D.C. Cir. 1984). 29

Id. at 781. 30

Id. at 801-23. 31

Id. at 823-27.

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Generally, although scholars and judges have been divided on the scope of ATCA, in the

Kadic case, Filartiga proved to be an important precedent.

3. The Torture Victim Prevention Act

In 1990, Congress enacted Torture Victim Protection Act (TVPA) to codify the holding of

Filartiga. The TVPA provided a cause of action for citizens and aliens to seek recovery from an

individual for acts of torture and extrajudicial killing committed abroad. The Act provided that

the accused person must be in the U.S. for the purpose of serving process.32

The enactment of TVPA invited criticism from several circles, including then President Bush. He

expressed concern that the TVPA could cause friction in international relations for acts that

United States has nothing to do with and, moreover, that it may place a burden on the local

judicial resources.33

The TVPA did come with certain restrictions such as imposing liability only on individuals

acting under the color of law of any foreign state. It requires exhaustion of local remedies before

approaching the U.S. courts and the action has to be brought within ten years of its occurrence.

Diplomats are also immune from the Act. 34

Prior to Kadic, only two appellate courts had discussed the TVPA. Kadic was the first

appellate case where the TVPA provided a cause of action and hence it became yet another

turning point in the history of ATCA and the newly drafted statute, TVPA.35

IV. The Kadic Cases

1. The Decision of the District Court

The first case in the series of cases filed on behalf of Bosnian rape victims was decided in

1994 by the District Court for the Southern District of New York.36

The court dismissed the

action for lack of subject matter jurisdiction, stating that, under the ATCA, an act committed by

the non-state actor does not violate the law of nations because such private actor do not act under

the color of the state authority. This reasoning was clearly along the same lines as expounded by

Judge Edwards in the Tel-Oren v. Libya case. Judge Leisure was not keen to give recognition to

32

Elsea, supra note 18, at 7. 33

Pamala Brondos, International Law – The Use of the Torture Victim Protection Act as an Enforcement

Mechanism, 32 Land & Water L. Rev. 221 (1997). 34

Id. at 228. 35

Id. at 228, 229. (The court in Hiola v. Estate of Marcos held that the ATCA section 1350 creates a cause of action

for violations “of specific, universal and obligatory international human rights standards.” In Trajano v. Marcos, the

court mentioned the TVPA but didn‟t apply it because the decision was made before the enactment of the said

statute. 36

Doe I v. Karadzic, 866 F. Supp. 734 (1994).

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the warring Bosnian-Serb military faction. In his view, they held more or less the same status as

the Palestine Liberation Organization did. Hence, he reasoned that the army acting under

Karadzic‟s order did not act under color of the state‟s law.37

The court also declined to assert jurisdiction in pursuant to the Torture Victim Protection

Act. The court reasoned that the Act applied to an action carried out under the color and

authority of “an entity recognized by the United States as a foreign nation”38

. Citing the Senate

Report, the court said that the TVPA does not extend to purely private criminal acts by

individuals or nongovernmental organizations. The phrase „under color of law‟ meant torture and

extrajudicial killing by a government official within or outside the scope of their authority.39

In the end, the court dismissed the case for non-justiciability because according to Judge

Leisure, there was a chance that Karadzic might receive recognition as the head of the state of

Republic Srpska by the United States. Judge Leisure based this reasoning on the cases in which

the Executive asked the court to grant head-of-state immunity to the defendants. 40

This was

perhaps an extra cautious effort on the part of the Doe court because Karadzic was never given

such recognition by the United States.

2. The Decision of the Court of Appeals

Basically, the Doe court dismissed the case because it was not convinced that the gruesome

act of mass rape in Bosnia was committed under the state authority. In 1995, the plaintiffs

appealed and the Second Circuit reversed and remanded the case.41

The Kadic court set the

record straight by analyzing all the relevant issues.

First of all, the court found jurisdiction under ATCA stating that the application and reach of

law of the nations is not limited to state action. The court looked back at the Filartiga holding

which said that the courts must interpret international law by looking into various sources, such

as the work of jurists or the general practice and usage of nations. According to Kadic decision,

the acts of genocidal rape, forced pregnancy, enforced prostitution, torture and murder were

within the realm of crimes which are prohibited by the established norms of international law.

In response to Karadzic‟s assertion in his brief that, as a private individual he could not

violate the law of nations, the court reasoned that Karadzic constantly contradicted his position.

He asserted that he wasn‟t an official, while on the other hand he called himself the elected

President of the newly proclaimed state of Srpska. Keeping that in view, the court stated that

Karadzic was presenting himself as the head of the state. Further, the court held that certain

forms of conduct violate the law of nations irrespective of whether they are committed under the 37

Id. at 741. 38

Id. 39

Id. at 742. 40

Id. at 738. 41

Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

11

authority of the state or only as a private individual. The court presented an example of piracy as

one such act committed by private individuals without an authority of the state. Under the law of

nations pirates were declared hostis humani generis (an enemy of all mankind).42

The court

reasoned that if Karadzic was considered a private individual acting without the authority of

state, even then his conduct would be considered a violation of the law of nations under the

ATCA based on the judgments of two cases, Bolchos v.Darrel and Adra v. Clift where ATCA

was applied to the action of the private individuals.

The court also cited Restatement (Third) of the Foreign Relations Law of the United States to

bolster its assertion that “individuals may be held liable for offenses against international law,

such as piracy, war crimes and genocide.” The Restatement put forth two types of violations: the

one committed by the state, and the other falling within the category of a violation of „universal

concern‟ – that includes piracy and slave trade from earlier times, as well as airplane hijacking

from modern times.43

After determining that there was jurisdiction under the ATCA, the court turned to discuss the

TVPA and the issue of statehood of the newly independent state, Srpska. The District Court had

held that the Torture Victim Protection Act (TVPA) provides a private cause of action against an

individual who is acting under color of law. In other words, the court meant that the state against

which the action has been brought must be recognized by the United States. In case of Srpska,

the United States had not recognized its statehood. However, the appellants in their brief asserted

that Srpska satisfied the definition of a “state” for the purposes of international law violations.

Srpska was said to be in control of definite territory and population. It had its own currency

and was alleged to have entered into agreements with other governments.44

The appellants also

stressed the fact that Karadzic did not act independently. In fact, he acted together “with the

official Serbian regime in the recognized state of Yugoslavia”.45

The court acknowledged this

fact by saying that “an individual acts under color of law within the meaning of section 1983

when he acts together with state officials or with significant state aid.”46

When the issue of personal jurisdiction and process was raised, the appellants affirmed that

Karadzic had been duly served with process when he was personally present in the Southern

District of New York.47

The affidavit in Doe detailed the account of February 11, 1993 when

42

Id. at 239. 43

Id. (citing Restatement Third of the Foreign Relations Law of the United States (1987)). 44

Id. at 245. 45

Rachel Bart, Using the American Courts to Prosecute International Crimes against Women: Jane Doe v. Radovan

Karadzic and S. Kadic v. Radovan Karadzic, 3 Cardozo Women‟s L.J. 467 (1996). (citing Brief for Plaintiffs-

Appellants at 37-39, Karadzic, 70 F.3d 332 (2d Cir. 1995). 46

Karadzic, supra note 9, at 245. (The court referred to the „color of law‟ jurisprudence of 42 U.S.C. § 1983, saying

that it was an appropriate guide to determine whether a defendant was engaged in official action for purposes of

jurisdiction under the ATCA). 47

Id. at 246.

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process was served to Karadzic in the lobby of hotel.48

In response, Karadzic claimed immunity

as an invitee of the United Nations under the Headquarters Agreement, but the court rejected this

argument for immunity from service.

Lastly, the court touched upon the matter of justiciability that was one of the reasons for

which the District Court had dismissed the case. The Kadic court looked at the political question

doctrine, doctrine which often discourages the court from taking the matters involving

international relations and laws. Judge Newman concluded that “not every case touching foreign

relations is non-justiciable.”49

Further, he stated that judges shouldn‟t invoke this doctrine so

freely to avoid sensitive decisions in the context of human rights. In explaining the political

doctrine question, the court discussed the political question doctrine test of Baker v. Carr, where

Justice Powell held that a non-justiciable political question would have any of these features:

a) A textually demonstrable constitutional commitment of the issue to a coordinate political

demand.

b) A lack of judicially discoverable and manageable standard for resolving it.

c) The impossibility of deciding without an initial policy determination of a kind clearly for

non- judicial discretion.

d) The impossibility of a court‟s undertaking independent resolution without expressing lack

of the respect due coordinate branches of government.

e) An unusual need for unquestioning adherence to a political decision already made.

f) The potentiality of embarrassment from multifarious pronouncements by various

departments on one question.50

The court brought the Filartiga decision into focus once again and concluded that

“universally recognized norms of international law provide judicially discoverable and

manageable standards for adjudicating suits brought under the Alien Tort Claims Act, which

obviates any need to make initial policy decisions of the kind normally reserved for non-judicial

discretion.”51

Despite detailed reasoning by the Second Circuit, it was felt that the court evaded discussing

the full scope of § 1350. Many argued that the Alien Tort Claims Act wasn‟t designed to address

the violation of the law of nations committed outside the boundaries of the United States. The

48

Id. (According to affidavit the process servers called Karadzic‟s name upon seeing and attempted to hand him the

complaint from distance of two feet. The security guard seized the papers and the papers fell to the floor. In the

Kadic action the appellants requested Judge Owen for an alternate means of service. The court directed to deliver the

complaint to the security detail who would give it to the defendant. Karadzic confirmed that during his second visit

between February 27 and March 8, 1993 he received the complaint). 49

Id. at 249. 50

Id. (citing Baker v. Carr, 369 U.S. 186, 217 (1962); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994)). 51

Id.

13

original intent of the Framers in 1789 seemed to extend the alienage jurisdiction to safeguard

peaceful relations with the foreign nations instead of jeopardizing them.52

Generally, the overall impact of the Kadic case was quite impressive. The appellate court

followed the footsteps of Filartiga and recognized the jurisdiction of a violation of the law of

nations that had totally happened outside the boundaries of the United States. It also set a new

precedent that propelled awareness regarding a grave issue of mass rape during war.

3. The Denial of Certiorari

On April 4, 1996, Karadzic filed a petition for a Writ of Certiorari. The appellant put forward

six basic questions that the Court of Appeals had decided regarding the statehood of Srpska, the

status of Karadzic, the doctrine of „color of law‟, justiciability, service of process and personal

jurisdiction. The appellant contended that the Court of Appeals erred in reaching decision on

those issues.

On May 12, 1996, Catharine A. MacKinnon filed a brief on behalf of Kadic in opposition to

the petition for Writ of Certiorari. In response to a question by appellant of whether Karadzic

acted under color of law, Catharine MacKinnon said that “Karadzic‟s actions are analogous to

those of an off-duty police officer who dons his uniform and flashes his badge, and with racial

animus falsely arrests a person, then brutally rapes them and beats them to death”. She said that

Karadzic had seized the instrumentalities of state power and under this authority he acted to

cleanse the non-Serbian civilian population by force in order to achieve an “ethnically pure

entity.” 53

Moreover, she added that “throughout the litigation Karadzic has been private when

avoiding liability under international law, public when seeking immunity from it.” 54

Despite Karadzic‟s effort to push the Supreme Court to review and resolve the fundamental

issues relating to the decision of Kadic case, that in their words was “rife with confusion”55

the

Supreme Court denied Certiorari.

The denial of Certiorari, on one hand, meant an achievement for Kadic and several other

similarly situated women since the Court of Appeals‟ decision opened up a new forum for them

to bring their grievances and those class actions could now move forward on the merit. On the

other hand, the decision of Kadic court raised genuine concerns for certain people who believed

that allowing Kadic like causes of action will have adverse consequences for the United States

both at home as well as in the realm of foreign relations due to sensitivity of the issue.

52

Tel-Oren, supra note 28, at 808-20. 53

Brief for Appellant at 16, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (No.95-1599), cert. denied, 116 S. Ct.

2524 (1996). 54

Id. at 22. 55

Brief for Respondent, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (No.95-1599), cert. denied, 116 S. Ct. 2524

(1996).

14

In February 1997 Karadzic requested his attorney not to participate in further proceedings. In

his absence, a default judgment was entered in favor of victims.56

An important aspect of the

civil suit brought against Karadzic was the award of compensation. In August 2000, the victims

were awarded $745 million in judgment. There was no hope of recovering that amount for as

long as Karadzic was in hiding. Karadzic was indicted by the ICTY in 1993 but the U.N.

inspectors were clueless about his whereabouts. For almost a decade he evaded an arrest and was

living as a doctor of alternative medicine. With his heavily bearded face and longish hair it was

nearly impossible to recognize him from his appearance. Finally, he was arrested in Belgrade in

July 2008. The ICTY charged Karadzic with 15 counts of genocide, war crimes, crimes against

humanity and other atrocities committed from 1992 to 1996. With the arrest of Karadzic, the

possibility of recovering the damages awarded by the Kadic court become a possibility. Senior

U.S. diplomat Raffi Gregorian also indicated that after Karadzic‟s arrest, the courts would start

demanding payments.57

V. Rape as a War Crime: The International Law

Since time immemorial rape has been employed as a weapon of war. It is not hard to discern

that by using rape as a tactic of war, the enemy terrorizes the local population in order to gain

effective control. Rape acts as a double edged sword; it not only destroys a woman

psychologically and physically because rape is a brutal form of torture and a woman may get

pregnant as a consequence. It also severely affects a woman‟s life and family relations. It is a

well documented fact, that for many women, life after rape is not the same because she is

constantly reminded of the shame that befell her and this may lead her to take her life.

In historical context of armed conflict, it had been a widespread practice for forces to plunder

resources and rape or sexually enslave women, regarding them as a spoil of battle. It was due to

this practice that Rajput women in the medieval Rajasthan would prefer to die (or be killed by

their relatives) to avoid the dishonor that follows capture and rape58

. Similar stories emerged

during the Indo-Pak partition in 1947 when numerous women preferred to die by consuming

poison or by jumping into well than to be raped by opponent groups rampaging in the streets on

both sides of the border.

56

Rumna Chowdhury, Kadic v. Karadzic – Rape as a Crime against Women as a Class, 20, 116 Law and Ineq. 91

(2002). 57

ABC News: Karadzic‟s Lawyer to Fight Extradition. July 25, 2008, at

http://abc.com.au/news/stories/2008/07/25/2315136.htm 58

M.S. Naravane, V. P. Malik, The Rajputs of Rajputana: A Glimpse of Medieval Rajasthan, 44 at

http://books.google.com/books?id=lF0FvjG3GWEC&pg=PA44&lpg=PA44&dq=the+custom+of+jauhar&source=bl

&ots=OhzVlQTbhl&sig=loj-4g5qeZ-PqLyrLaZN1e4Jz3I&hl=en&ei=Y--

wTeyCKdO2tgegvI2HDA&sa=X&oi=book_result&ct=result&resnum=3&ved=0CCsQ6AEwAg#v=onepage&q=th

e%20custom%20of%20jauhar&f=false

The medieval Rajput custom was called „Jauhar‟. The Rajput men would fight in the battlefield and the women

would embrace death by self immolation in case of an imminent defeat and looming threat of rape by an enemy.

15

In the Twentieth century the idea of establishing normative principles based on the laws of

humanity, to limit armed warfare and to set up an international court of justice, surfaced during

The Hague Convention of 1899 and 1907. These international instruments, however, failed to

contain the outbreak of massive wars. Keeping the experience of World War I in view, the idea

of individual liability began to develop after the World War II. The discouraging aspect of this

entire affair for the women‟s human rights proponents was overlooking the rape of women

during the World Wars.

This concept of individual liability was the core of Nuremburg Trials post World War II,

where the Nazi officials were tried for the newly coined term „crimes against humanity”.

However, the definition of both “war crimes” and “crimes against humanity” contained no

reference to rape as a crime against humanity. The charter which established the International

Military Tribunal for the prosecution of Nazi officials defined the “war crimes” and “crimes

against humanity” in Article 6 as follows:

“War crimes: namely, violations of the laws or customs of war. Such violations shall include,

but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose

of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or

persons on the seas, killing of hostages, plunder of public or private property, wanton destruction

of cities, towns or villages, or devastation not justified by military necessity;

Crimes against humanity: namely, murder, extermination, enslavement, deportation, and

other inhumane acts committed against any civilian population, before or during the war, or

persecutions on political, racial or religious grounds in execution of or in connection with any

crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of

the country where perpetrated.”59

The only reference to the trial of military officials for the war time rape was reported in the

Tokyo trials after the World War II, where the Japanese generals were held responsible for rape

committed by their subordinates.60

It was not until the adoption of the Fourth Geneva Convention, which entered into force in

1950, that rape was clearly outlawed in international law. Article 27(2) of the Convention states,

“Women shall be especially protected against any attack of their honour, in particular against

rape, enforced prostitution, or any form of indecent assault.”61

The expansive scope of Article 27(2) made its application quite ambiguous. As some

commentators noted, that this Article applied to the enemy forces alone and there was no

59

Yale Law School: The Avalon Project, Documents in Law, History and Diplomacy, at

http://avalon.law.yale.edu/imt/imtconst.asp#art6 60

Catharine A. MacKinnon, Sex Equality: Rape Law, 897 University Casebook Series Foundation Press (2001). 61

Chowdhury, supra note 56 at 104 (citing Geneva Convention Relative to the Protection of Civilian Persons in

Times of War, Oct. 21, 1950, art. 27(2), 75 U.N.T.S. 287, 287).

16

protection against the victims‟ own nationals – relevant in case of civil war – or nationals of a

neutral state. Moreover, the absence of women in the international discourse about violence and

safety was felt severely as only a woman can truly understand the horror of rape during the times

of an armed conflict and peace.62

In the early 1990s, the incidents of former Yugoslavia and Rwanda gave birth to a new

phenomenon called „genocidal rape‟, as distinguished from peace time rape. In 1993, law

professor and renowned feminist Catharine A. MacKinnon explained genocidal rape in the

former Yugoslavia as:

“It is not rape out of control. It is rape under control. It is also rape unto death, rape as

massacre, rape to kill and to make victims wish they were dead. It is rape as an instrument of

forced exile, to make you leave your home and never want to come back. It is also rape to be

seen and heard by others: rape orchestrated as spectacle. It is rape to shatter a people and to drive

a wedge through a community. It is the rape of misogyny liberated by xenophobia and unleashed

by official command. It is rape as genocide.”63

After compelling reports of genocide and gruesome mass, systematic rapes in Rwanda

(1994) and former Yugoslavia (1992), the international community realized a pressing need for

trying perpetrators for sexual violence in the context of armed conflict. In 1993, pursuant to U.N.

Resolution 827 the International Criminal Tribunal for the former Yugoslavia (ICTY), and in

November 1994, pursuant to U.N. Resolution 955, the International Criminal Tribunal for

Rwanda (ICTR) was established. Those tribunals had binding authority to prosecute the

individuals for violation of Geneva Conventions of 1949, violation of the laws of war, genocide,

crimes against humanity and sexual violence against women.

In Prosecution v. Akayesu (1998), a case before ICTR the tribunal defined rape as a “physical

invasion of a sexual nature, committed on a person under circumstances which are coercive.”64

In Prosecution v. Kunarac, Kovac, & Vukovic, (2002) ICTY explicitly held that systematic

rape of women during an armed conflict constitutes a war crime. Moreover, the tribunal held that

“rape is a crime against humanity regardless upon whom it is perpetrated upon.”65

Unlike other

international treaties, the gender-neutral definition of ICTY extended protection from rape to

both women and men.

At the regional level, in 1998 the European Court of Human Rights issued a verdict in Aydin

v. Turkey, holding that rape could constitute torture. This decision was warmly welcomed by the

62

Id. at 104, 105. 63

Id. at 105. (citing Catharine. A. MacKinnon, Comment: “Theory is not a Luxury,” in Reconceiving Reality:

Women and International Law 83, 87 (Dorinda G. Dallmeeyer ed., 1993). 64

MacKinnon, supra note 60 at 905 (citing the case Prosecution v. Akayesu from ICTR). 65

Christopher Scott Maravilla, Rape as a War Crime: The Implications of the International Criminal Tribunal for

the Former Yugoslavia’s decision in Prosecutor v. Kunarac, Kovac, and Vukovic on International Humanitarian

Law, 13 Fla. J. Int‟l. 321, 340 (2001).

17

international community because the need for establishing a legal framework had been long felt

for bringing the perpetrators of rape to justice.66

A step forward was taken in recognizing and criminalizing sexual violence against women in

2002 when the Rome Statute established the permanent International Criminal Court and

included rape as a crime against humanity among other offences. Article 7 of the Rome Statute

reads:

“For the purpose of this Statute, "crime against humanity" means any of the following acts

when committed as part of a widespread or systematic attack directed against any civilian

population, with knowledge of the attack:

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or

any other form of sexual violence of comparable gravity;”67

Keeping the centuries-old tradition of war-time rapes in view, this step seems like a modest

offering – something that should have been done long ago. It is quite unfortunate that it took so

long for the international community to wake up to the ugly reality of war-time rape despite

knowing that sexual violence had always been part of an armed conflict. After prolong apathy,

the inclusion of rape as a crime against humanity in international law does raise a hope that the

perpetrators may not go unpunished.

VI. The Legacy of Kadic v. Karadzic

The Kadic decision can rightly be called an unusual decision that, on the one hand, upset

many at home for stretching the limits of both the Alien Tort Claims Act and the Torture Victim

Prevention Act, while on the other hand, it served to recognize the efforts for human rights and

women‟s rights activists to bring rape under the definition of a grave war crime. The significant

step taken by the Second Circuit was to extend the ATCA coverage to include acts of a “private

actor” who violates the set principles of international law, declaring that violence cannot be a

private matter of a state. If Filartiga provided an important footing for such a cause of action in

Kadic, similarly, it too will prove to be a precedent for future cases even where both the parties

are alien, and the crime takes place outside the United States as long as the wrong against the

victim causes the violation of international norms.

Although the International Criminal Tribunal for the former Yugoslavia was established in

1993, but it wasn‟t until February 2001 when the ICTY delivered its verdict in the Foca rape

66

McGlynn, Clare (2009) ‟Rape, torture and the European convention on human rights.‟ International and

comparative law quarterly, 58 (3). pp. 565-595, at

http://dro.dur.ac.uk/6167/2/6167P.pdf?DDC117+DDC72+DDC71+DDD19+dla4jap+d65fxy 67

Rome Statute of the International Criminal Court, Part 2: JURISDICTION, ADMISSIBILITY AND

APPLICABLE LAW, art. 7, at http://untreaty.un.org/cod/icc/statute/romefra.htm

18

case, holding rape to be a crime against humanity. Kadic case is notable because in 1995 it

recognized rape as a grave violation of international law.

VII. The Public/Private Dichotomy: Rape in Peace Time

At the end of the day, winning compensation in the U.S. court or the indictment and trial of

some of the soldiers responsible for raping Bosnian women in the ICTY is only symbolic. There

is no denying that raising such grave issues in international forums is of utmost importance.

However, beneath all that hoopla, the core issue is the prevention of rape and the protection of

women, which realistically speaking seems a herculean task given the traditional or perceived

roles of men and women – the strong versus the weak, the authoritative versus the submissive. If

we go through the lives of those countless Bosnian rape victims it is hard to ignore that they

haven‟t been able to get rid of the specter of their past. Most women who were impregnated as a

result of rape have shunned their offspring because it is impossible to bring themselves to care

for those unwanted children who are the constant reminder of pain and humiliation those women

went through.68

As for those children who came into being through no fault of their own, they

are forced to live a life with no identity or parental affection. Indeed, it is crucial to declare rape

as one of the gravest crimes against humanity but the most important step should be to prevent

the occurrence of such horrendous acts during an armed conflict as well as in the peace time.

The Bosnian mass rape managed to gain the attention of the world; however, feminists urged

that it is time to end the private/public dichotomy that exists regarding the issue of rape. Law

Professor and the Counsel of Record for Kadic, Catherine A. MacKinnon noted that Bosnian

mass rape would have never taken place if rape was accepted as an everyday occurrence.69

“What is happening to Bosnian and Croatian women at the hands of the Serbian forces is

continuous both with this ethnic war of aggression and with the gendered war of aggression of

everyday life. For most women, this is to everyday rape what the Holocaust was to everyday

anti-Semitism: without the everyday, you could not have the conflagration . . . . This acceptance

of everyday rape and its relegation to the “private” realm allow for the use of rape as a tool of

war while maintaining the private categorization and avoidance of liability for egregious

violence against women. The Kadic action, which held Karadzic liable for his ordered violence

against women, is an example of the removal of rape from its private categorization.”70

In the broader picture, violence against women is not limited to war time alone. Sexual

violence against women extends through the course of their lives whether they are home-makers

or work outside the home. In context of Pakistan, sexual violence against women is embedded in

68

The Independent, supra note 1. 69

Chowdhury, supra note 56, at 103. 70

Id. (citing Catharine A. Mackinnon, Comment: „Theory is not Luxury‟, in Reconceiving Reality: Women and

International Law 83, 87 (Dorinda G. Dallmeyer ed., 1993).

19

the simple fact that women are seen as easy targets. It is worth noting that women bear twofold

burden; the burden of being victims of sexual violence and the burden of tolerating it without any

prospect of seeking justice. Justice remains elusive even for those who are courageous enough to

stand up and knock on the doors of a court. For example, Mukhtar Mai71

, Pakistan‟s well known

rape victim, was ganged raped and paraded naked after the decision of the village council to

settle a dispute between two tribes in 2002. Upon the urging of the local mosque prayer leader,

she and her father filed the case. Had the federal government of Pakistan not intervened, this case

most certainly would have lost in the labyrinth of intricate legal procedures in the initial stages.

She was compensated by the government and several of her rapists were imprisoned. However,

nine years later, her case is still pending in the Supreme Court of Pakistan. She is fighting to

prevent the release of her rapists.72

Since Mukhtar Mai‟s case, two more rape cases have been widely reported in the local media

in 2005 but the courts have totally failed to deliver justice.73

One of those victims74

was offered

asylum in the UK. When interviewed by the Washington Post, then President General Pervez

Musharraf infamously remarked, "A lot of people say that if you want to go abroad and get a visa

from Canada or citizenship and be a millionaire, get yourself raped."75

This tells a lot about the

existing insensitivity regarding an issue as serious as rape. In circumstances like this, it is quite

understandable why women prefer to bear the pain silently instead of registering a complaint and

running a risk of being constantly harassed by the police officials and rape perpetrators.76

There

is no denying that the authorities and judiciary will have to take concrete steps in order to quell

prevailing sexual violence against women in the Pakistani society.

71

BBC News: Mukhtar Mai – History of Rape Case. 28 June 2005, at http://news.bbc.co.uk/2/hi/4620065.stm 72

The New York Times: Mukhtar Mai‟s Case in Pakistan. Nicolas Kristof. March 2, 2009, at

http://kristof.blogs.nytimes.com/2009/03/02/mukhtar-mais-case-in-pakistan/

Update: In its verdict on April 21, 2011, the Supreme Court of Pakistan upheld an acquittal of the five of six accused

in Mukhtar Mai gang rape case. The Supreme Court‟s decision reflects that Pakistan‟s justice system is quite hostile

towards the rape victims. http://tribune.com.pk/story/153641/mukhtaran-mai-case-5-of-6-accused-acquitted/ 73

BBC News: Pakistan‟s Real Problem with Rape. Aamer Ahmed Khan. 8 September, 2005, at

http://news.bbc.co.uk/2/hi/south_asia/4223436.stm 74

On January 2nd

2005, Dr. Shahzia Khalid was raped by a masked intruder. Several people suspected the

involvement of an army officer appointed at the heavily guarded natural gas plant. Dr. Shahzia Khalid left country

due to threat to her life. Talking to BBC, she articulated her suffering in those words, “Instead of getting justice, I

was hounded out of Pakistan.” BBC News: Raped Doctor: I‟m still terrified. 29 June, 2005, at

http://news.bbc.co.uk/2/hi/south_asia/4633849.stm 75

CNN: Musharaff Rape Claim. September 24, 2005, at

http://edition.cnn.com/2005/WORLD/asiapcf/09/23/pakistan.musharraf/ 76

According to Human Rights Commission of Pakistan, every two hours a woman is raped and most of these cases

are never filed with the police.

20

VIII. The Honor Culture and Rape

Legal challenges aside, there is a cultural dimension related to the loss of honor of a rape

victim and her family. Pakistan is predominantly a Muslim country that is governed by the

amalgamation of social and culture norms with deep religious influence. However, when we talk

about rape in a Muslim society, we must understand that a reaction to rape and a rape victim is

driven more by the centuries-old traditional and cultural norms than the religion itself. It is

evident from the fact that a rape of a Hindu, Sikh or even a Christian woman living in a Muslim

society and indeed through the whole Asian sub-continent would draw the same kind of reaction

from the victim‟s family as that from a family of the Muslim victim.

Like other religious, Islam stresses upon the chastity of both men and women and strictly

prohibits adultery and fornication. However, in a patriarchal society – where women are

considered totally subordinate to men – the dishonoring of a woman is taken as dishonoring a

man.77

On the other hand, while the religion emphasis the chastity of a man too but culturally the

rape of a man (sodomy) is not considered a blow to the entire family. The incident of sodomy

certainly traumatizes the victim on a personal level but it does not render him as „a damaged

good‟, in the eyes of his family and society like a female rape victim.

In the “honor culture”, the honor of a woman is linked with the honor of a man. Since women

are considered weaker their protection and well being is the responsibility of men. Therefore,

often times, in the tribal society women are attacked, maligned and raped for setting a score. By

doing so the attacker not only seeks satisfaction by denigrating a woman but is also considered a

slap on the face of a man as his failure to protect his woman proves him to be weak and

unmanly. The similar kind of motivation could be observed behind the mass rape of Bosnian

women. Many victims reported being raped in front of their husbands, fathers and sons in order

to maximize the torture. Moreover, the belligerent forces did not rape women for pleasure alone

but the main focus was to impregnate women, so that they could bear Chetnik children – again a

huge stigma for a helpless man for not being able to protect his woman while her purity was

trampled by an enemy.78

Culturally and religiously, a Muslim woman is considered “pure” and “chaste”, and she is

expected to bear children of a man she is legally wedded to. The Bosnian women abandoned

their rape babies not only due to their own dismal economic situation and failure to fulfill the

responsibilities of their children in the post-war Bosnia but the underlying reason might have

been linked with honor.79

It would have been harder for those women, who were reunited with

77

See Orit Kamir, Honor and Dignity in the Film Unforgiven: Implication for Sociolegal Theory, 40 Law & Soc‟y

Rev. 193 (2006). 78

See Tamara L. Tompkins, Prosecuting Rape as a War Crime: Speaking the Unspeakable, 70 Notre Dame L. Rev.

845, 868 (1995). 79

The Independent, supra note 1.

21

their families and husbands to give recognition to a rape baby and yet live with their heads held

high in a sexually conservative community. According to a report published by UNICEF, most

of rape children who remained with their families faced ostracism and bore trauma when their

birth circumstances were revealed to them. The report said,

“One family taught their daughter‟s child to explicitly identify his existence as a mistake,

forcing him to introduce himself to household guests as, “I am the product of my mother‟s

shame.”80

The study of such reports and testimonies make it easy to discern why the children born out

of a massive campaign of hate could not be accepted by their biological mothers.

The convoluted cycle of cultural norms where rape is connected with dishonor and shame, is

hard to break. While, the U.S. society managed to shun the age-old stereotype of rape/honor

connection; the sexually conservative Muslim and sub-continent societies, where honor killing

and rape/honor notion keep surfacing on daily basis, are far from achieving such enlightenment.

Noted feminist and Professor of Law, Martha Chamallas notes that rape is not perceived as a

stigma for a woman in the contemporary U.S. society, “While a woman‟s reputation can still be

hurt by being raped, particularly if her account in not fully credited, the shame and injury of rape

to its victims can no longer be captured by the concept of dishonor.”81

On the other hand, there is no progress made to ease off the plight of rape victims in the

conservative Muslim and sub-continent societies. There is no concept of using the term

„survivor‟ instead of „victim‟ for such women because she is considered worthless and an object

of shame. If married, she may be divorced and if not, the prospect of her marriage diminishes as

she struggles to keep herself from further falling apart emotionally and psychologically.

Unfortunately, there is no end in sight for the rape/honor notion in the sexually conservative

and patriarchal society. There may be some hope for a breakthrough if men stop basing their

honor code on the lives and bodies of women.

IX. Conclusion

In conclusion, the Kadic case, despite facing criticism, can be viewed as a sincere effort by

the U.S. courts to address the issue of Bosnian mass rape. This case managed to ascertain that

rape is torture and that it violates the law of nations. Moreover, it also set the broader standard of

liability for the private individual conduct.

80

See supra note 3. 81

Martha Chamallas, Lucky: The Sequel, 80 Ind. L.J . 441, 468 (2005).

22

Many people question the practicability of the cases brought into the U.S. court for the

violation of international human rights and norms. Their main argument is that in most situations

it is hard to effectively serve process and after hearing the case, the enforcement of judgment is

impossible because of the inaccessibility of defendant. The Filartigas never received a cent of

their judgment against Pena.82

Similarly, the Bosnian women are still awaiting $ 745 million they

had won in judgment. However, it could be said that cases like Filartiga and Kadic made an

impact on several other fronts – such as these cases defined the doctrinal framework regarding

certain grave issues that violate the law of nations. Kadic specifically brought the international

community closer for making war time rape punishable under the charter of international

criminal tribunals.

In the realm of international law, the verdict against the rape perpetrators in the International

Tribunal for the former Yugoslavia set a crucial precedent.83

Also in 2002, the inclusion of rape

as a crime against humanity in the Rome Statute of International Criminal Court indicates that

the international community began realizing the gravity of the issue of rape during an armed

conflict. There are two aspects of cardinal importance that need to be addressed. First, the

victims of such atrocities should not be left without remedy. Second, there should be an effective

enforcement mechanism so that violations don‟t take place at least on such a massive scale.

Whenever the war or a civil conflict breaks out, it is predictable that every effort by an enemy

will be made to dishonor women in order to mollify resistance and terrorize the opponent. It is,

however, the collective responsibility of the international community to make certain that no

more rape camps are set up – no more generations are destroyed.

82

Marshall, supra note 20, at 617. 83

Maravilla, supra note 65, at 326.