Despite the high number of rapes, the judicial progress that has been made, and the judgements passed by international, national and local courts, most of the affected women are still far from receiving compensation, reparations, or recognition as a victim.
Ajna Jusić has brought about an important change in the law in Bosnia and Herzegovina. She is the founder and president of the association Zaboravljena djeca rata (“Forgotten Children of War”). Ajna herself was such a child, born of wartime rape – though she did not discover that about herself until she was in high school. For years now, she has been speaking openly about the issue, holding lectures and workshops, talking to other young people. Her organisation fights to get laws and rules changed – for instance the obligation to give the name of one’s father on so many different occasions, be it opening a bank account, getting added to the class register, applying for a grant, or obtaining an ID card. In cooperation with the Sarajevo office of TRIAL International, Forgotten Children of War successfully campaigned for the adoption of a new law in Brčko District that officially recognises children born of wartime rape as civilian victims of war, regardless of whether or not their mothers already have that status.
There are no official figures on how many women (and men) were raped during the Bosnian war from 1992 to 1995. Estimates range from 20,000 to 50,000, although most publications put the figures at around 20,000. The International Criminal Tribunal for the former Yugoslavia (ICTY) recognised rape as a crime against humanity, a war crime, and a form of genocide and torture. No proof of force or threat of violence is required in each individual case, and no causal effect must be established between the war or conflict and the act of sexual violence. This United Nations tribunal therefore contributed greatly to tightening up judicial theory and practice in the area of wartime sexual violence and improving the situation for victims. Since 2002 the International Criminal Court (ICC) has been empowered to prosecute conflict-related sexual violence because its statutes define rape as a war crime and a crime against humanity.
Ajna is convinced that sexual violence is also being employed as a means of war in the current conflict in Ukraine. It is the “cheapest weapon of war”, she says in this interview, and the easiest to obtain.
Despite the high number of rapes, the judicial progress that has been made, and the judgements passed by international, national and local courts, most of the affected women are still far from receiving compensation, reparations, or recognition as a victim. To date, fewer than 1,000 women in Bosnia and Herzegovina have been granted that status – a little over 800 in the Federation of Bosnia and Herzegovina and almost 100 in Republika Srpska. There are two main reasons why they number so few: on the one hand the bureaucratic hurdles are high; on the other many of the women fear stigmatisation if their neighbours, families or partner were to find out that they had been raped.
It was a long battle even to get rape victims recognised as civilian victims of war in theory. Progress was made thanks to the efforts of regional and international organisations, and to filmmaker Jasmila Žbanić, whose film Grbavica, based on Ajna’s story, won the Golden Bear at the Berlin International Film Festival in 2006. The broad international attention that the film drew ultimately led to the Federation recognising survivors of rape as civilian victims of war. They were thus able to apply for monthly benefits. A similar situation prevails in Republika Srpska, although the criteria there are different. But while affected women in Republika Srpska can apply for a recuperative stay at a health spa, the women in Brčko District (a self-governing district under the joint control of Bosnia’s two administrative entities) are not even entitled to psychological care. There are no relevant laws at state level, as is so often the case in Bosnia and Herzegovina: there is no health ministry that could have ordered vaccines during the worse moments of the Covid-19 pandemic; no agriculture ministry to safeguard the supply of food in the face of climate, energy and security crises; no environment ministry; no ministry for youth, family and senior citizens. Instead there are those two entities – the Federation of Bosnia and Herzegovina, and Republika Srpska – and their “condominium” Brčko District. The Federation consists of ten autonomous cantons, each with their own rules and laws – which means they each have their own criminal procedures, too. In March 2021, Republika Srpska made it illegal to question victims of sexual violence about their sexual behaviour. TRIAL lobbied long and hard to achieve that ruling and is continuing to do so elsewhere, because the ban does not as yet apply in the Federation and in Brčko District. There, women still face questioning about their lifestyle choices.
The weakness of the state, with everything divided into two, three or even more administrative units, and the fragmentation of state institutions and society are a direct result of the war and the post-war settlement. The country’s constitution is nothing more than an appendix to the Dayton Agreement, which was very successful as a peace agreement but does not represent suitable foundations for a system that considers the needs of all its citizens. There is a big risk of ethnic and territorial divisions, of reforms being blocked, and of the abuse of “national interests” – something that ethnocratic parties and politicians have exploited to expand their power. In recent months and years, they have been asserting with increasing volume and frequency that Bosnia and Herzegovina is a state with “three constituent peoples” rather than a single, united state of citizens with inherent political rights. Instead, those rights are awarded just to “peoples”. In this politically charged, antagonistic atmosphere of demarcation and exclusion, war crime survivors become objects, bargaining chips: “our” victims as opposed to “their” victims. Or a mentality prevails that there are only victims on “our” side and only perpetrators on “theirs”. Ajna Jusić and the members of the Forgotten Children of War, all of whom identify as one ethnicity or another, vigorously dismiss such nationalistic attitudes: “I regret that in the past 27 years there has been this dominant idea that only Bosnian women were being raped and only Serbian men were committing rape. That simply isn’t true,” says Ajna – whose mother was actually raped by a soldier of the Croatian Defence Council (HVO). Ultimately, it was never really a matter of ethnicity, but of power and patriarchal structures.
Ajna adds that the fragmentation and polarisation in Bosnia and Herzegovina is largely to blame for her organisation’s inability to have the same impact in Republika Srpska as in the Federation and Brčko. “I would like to apologise for that to all survivors,” says Ajna. “We will work hard to rectify that situation in the near future, so that our organisation has a strong presence there too.”
There is still much to be done. That is demonstrated by the findings of a joint study by TRIAL, Vive Žene and Global Survivors Fund on the opportunities for reparations for survivors of conflict-related sexual violence. Due, once again, to the fragmented structure of the state, Bosnia and Herzegovina is still far from providing adequate, prompt and effective reparation to survivors according to international standards.
It seems that Ajna Jusić, her organisation, TRIAL, and all the other civil society actors involved will have to fight a good while longer before state institutions in Bosnia and Herzegovina really start taking care of their citizens in need.