BIRN Ivana Radovic FINAL Edited 1
BIRN Ivana Radovic FINAL Edited 1
BIRN Ivana Radovic FINAL Edited 1
Published by
Ivana Radovic
December, 2020
Table of contents
Introduction 3
Involvement of war criminals in trafficking in human beings after the war 18
Conclusion 22
2
Introduction
Among the horrors and atrocities of any war, sexual violence has a specific role. Forbidden by
international humanitarian law, sexual violence is a tactic and weapon of war affecting primarily women,
in addition to violence and devastation that generally come with any war. As Gay J. McDougall, UN Special
Rapporteur put it in her 1998 report:1 “while the prosecutorial framework exists, and has existed since
before the Second World War, there has been a troubling scarcity of prosecutions with respect to acts of
sexual violence committed in armed conflict.” Before the Yugoslav wars of the 1990s, war-related sexual
violence had been rather overlooked and rarely discussed outside feminist circles, as it seemed to be
effectively irrelevant. The Yugoslav wars took place in Europe in the time of technological peak of
traditional media, for which reason it was extensively reported on. Under such circumstances, sexual
violence that occurred in the wars in former Yugoslavia drew large global attention. It coincided with the
interest in and focus on sexual violence against women of the second-wave feminism, because feminists
from the whole world worked hard on not letting sexual violence in these wars be neglected or side-lined.
As a result, we now have interesting and rich practice of the International Criminal Tribunal for former
Yugoslavia (ICTY) in prosecuting war-related sexual violence. Also there is the practice of domestic
courts, plenty of documents, standards and guidelines on how to prosecute such cases, reducing as much
as possible re-victimisation and re-traumatisation of victims.
In this paper, I am going to look into the practice of ICTY and courts in Bosnia and Herzegovina and
Serbia with regard to the cases that are qualified or actually amount to sexual slavery in the war in Bosnia
and Herzegovina. Many women were raped in the wars in Croatia and Kosovo as well, but cases of sexual
slavery have not been officially documented there. This is because of the characteristics of warfare in
these territories and the absence of “rape camps”. However, any repeated rape or gang rape within
detention facilities and camps during war could be observed as a sort of sexual slavery as the captors and
rapists are practically masters of life and death of their prisoners, or, as the Slavery Convention puts it,
“[exercise] any or all of the powers attaching to the right of ownership”. The cases of sexual enslavement
in the war in Bosnia and Herzegovina will be observed in the context of human trafficking for the purpose
of sexual exploitation, since these two phenomena have many common characteristics, from their
definition and manifestations, to judicial treatment and perpetrators’ defence. In the end, three cases of
war criminals who were later convicted for human trafficking for sexual or labour exploitation in Serbia
and Bosnia and Herzegovina will be presented.
1
UN Sub-Commission on the Promotion and Protection of Human Rights, Systematic rape, sexual slavery and
slavery-like practices during armed conflict: final report / submitted by Gay J. McDougall, Special Rapporteur, 22
June 1998, E/CN.4/Sub.2/1998/13, available at: https://www.refworld.org/docid/3b00f44114.html [accessed 6
November 2020]
3
Trafficking in human beings for the purpose
of sexual exploitation
Trafficking in human beings is a widespread phenomenon today and is considered to be present in every
country in the world. Its most prevailing form is trafficking for the purpose of sexual exploitation –
popularly known as ‘sex trafficking’, with women constituting the majority of victims.2 Although it is
often discussed as a modern-day phenomenon, it actually drew global attention more than hundred
years ago, when the International Agreement for the Suppression of the “White Slave Traffic”3 was
adopted and subsequently modified and supplemented with another international instrument of the
same title signed in 19104, as well as the International Convention for the Suppression of Traffic in
Women of Full Age adopted within the auspices of the League of Nations in 1933.5 These are the first
international instruments which dealt with this issue and were passed in response to growing migration
of people, including unaccompanied ‘white’ women, who were believed to have been deceived or forced
into sex work against their will. The UN Convention on the Elimination of all Forms of Discrimination
Against Women (CEDAW) of 1979 requires from its signatories to suppress trafficking in women and
exploitation of prostitution of women.
With regard to Global North, trafficking in human beings for the purpose of sexual exploitation had not
been considered a matter of greater concern until the end of the 20th century. The fall of the Berlin wall in
1989 brought deep and far reaching changes in the former Eastern Bloc. The collapse of the system made
many people from East European countries try their luck in the West, part of the world previously closed
to them they knew nothing about. Instead of stability, good jobs and generally better life, many women,
especially young women, found themselves in forced prostitution or other situations of sexual
exploitation, often in slavery-like conditions.
Such developments prompted international community to react and, as a result, in 2000 the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol
or Trafficking Protocol)6 was adopted accompanying the UN Convention against Transnational Organised
Crime. The negotiations of the Protocol started in 1998.7
The Palermo Protocol contains a contemporary and internationally binding definition of trafficking in
human beings which, unlike the previous ones, is not reduced to sexual exploitation and women alone. It
prohibits any form of exploitation, resulting from the recruitment, transportation, transfer, harbouring
or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over another person. Such
exploitation may include at a minimum forced prostitution or other forms of sexual exploitation, forced
labour or services, slavery or practices similar to slavery, servitude or the removal of organs. It is
important that victim’s consent to the intended exploitation is irrelevant for qualifying some practice as
human trafficking.
2
UNODC Global Report on Trafficking in Persons 2018, United Nations Office for Drugs and Crime, United Nations,
New York, 2018.
3
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VII-8&chapter=7&clang=_en
4
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VII-9&chapter=7&clang=_en
5
https://ec.europa.eu/anti-trafficking/legislation-and-case-law-international-legislation-united-nations/1933-intern
ational-convention_en
6
https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx
7
Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, Travaux
Preparatoires, https://www.unodc.org/unodc/en/treaties/CTOC/travaux-preparatoires.html
4
Trafficking in human beings for the purpose
of sexual exploitation in Serbia
As one of the signatories of the Palermo Protocol, Serbia criminalised trafficking in human beings in
2003. However, the building of anti-trafficking responses in Serbia seems to be slow and rather reactive
to pressures from the international community.
On the other hand, and to much more visible extent, Serbia became a destination country for women
recruited in Russia, Ukraine, Romania, Moldova, Bulgaria. Women from Eastern Europe were coming to
Serbia to work or ended in Serbia although initially promised to go to West Europe. Some of them
knowingly chose sex work and were deceived about the conditions, while others were after other kinds of
employment. Although not recognised as human trafficking, it had not gone unnoticed, although sex
work was not – and is still not – a legal activity in Serbia. It was not rare at that time to see newspaper
headlines and stories about ‘Russian’ women working as ‘dancers’, in spite of having university
education, at obscure facilities in the suburbs of Serbian towns, but this was not considered to be a
problem, but a subject of jokes.8
Unfortunately, the fact of Serbia being both a country of origin and destination in terms of trafficking in
human beings long before it was officially recognized is not documented or supported with more than
anecdotal evidence. It was the 1990s, when prevention of sexual exploitation of women – or violence
against women in general – was not among the state priorities. For this reason, it may seem that ‘sex
trafficking’ came to Serbia with democratic changes of October 5, 2000, and not before. It is interesting
that the events and developments before 2000 are quite rarely discussed or even mentioned when
discussing trafficking in human beings in our region, neither in public nor in professional discourses.
However, sexual exploitation of women, which amounts to sexual slavery, was quite widespread
especially in Eastern Bosnia at the beginning of the war. This territory was under control of Bosnian Serbs
who had political, material and all other kinds of support from Serbia, and for years Serbia sheltered war
crimes suspects.
8
https://vukajlija.com/tri-crvene. For details, please see: ASTRA, Human Trafficking in Serbia 2000-20110, ASTRA,
Belgrade, 2011. https://drive.google.com/file/d/1W34SUkf435hEAScK5aPTBXt5PFOyHmdO/view
5
Conflict-related sexual exploitation
From ancient times, women were victims of sexual violence during the time of armed conflicts. Ranging
from rape to sexual slavery, such sexual violence was implied and until quite recently, it did not attract
much attention. From the Abduction of the Sabine Women, where actual enslavement was legitimised
through marriages, to the Old Testament and other religious texts, enslavement – including sexual
enslavement of women, has been present throughout history. Before the war in Bosnia and Herzegovina,
the most infamous example of conflict-related sexual slavery was the system of ‘comfort stations’ in the
territory under Japanese occupation during the Second World War.
The 1949 Fourth Geneva Convention10 provides that women shall be especially protected in particular
against rape, enforced prostitution or any form of indecent assault, considered to be attacks on their
honour. The 1977 Protocol11 also states that women shall be the object of special respect and shall be
protected in particular against rape, forced position and any form of indecent assault. The words
“indecent” and “honour” disappeared from the definitions of this type of crimes in later international
humanitarian law documents, although they should be kept in mind as a potential reason why
conflict-related sexual violence is among the most denied war crimes.
UN Special Rapporteur Gay J. McDougall defined sexual slavery as “the status or condition of a person
over whom any or all of the powers attaching to the right of ownership are exercised [definition of slavery
from the 1926 Slavery Convention], including sexual access through rape or other forms of sexual
violence. Slavery, combined with sexual violence, constitutes sexual slavery.”12 She stresses that the
status or condition of being enslaved is what differentiates sexual slavery from other crimes of sexual
violence, such as rape.
9
Carmen M. Argibay, Sexual Slavery and the “Comfort Women” of the World War II, 21 Berkeley J. INT’I L 375
(2003).
10
https://ihl-databases.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5
11
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=5FB5CC7AD1C3A
AF7C12563CD0051E08C
12
Ibid, p. 9.
6
The Roma Statute of the International Criminal Court,13 adopted in 1998, contains definitions of a series
of crimes of sexual violence, including rape, enforced prostitution, forced pregnancy, enforced
sterilization and sexual violence. As far as sexual slavery is concerned, it shall have the following
elements:
It is interesting that Roma Statute’s definition of sexual slavery put emphasis on commercial aspects of
sexual exploitation instead of on exploitation itself. Consequently, many cases that have been qualified as
sexual slavery – based on the combination of legal elements of slavery and of sexual violence - in relation
to the war in Bosnia and Herzegovina would not be recognised as such under the Roma Statute.
The Statute of the International Criminal Tribunal for Former Yugoslavia (ICTY)14 lists both rape and
enslavement as crimes against humanity, but not sexual slavery. However, the ICTY managed to find
grounds to prosecute it as a crime against humanity. Its landmark judgment Kunarac et al. is the first
judgment to treat sexual enslavement and rape as crimes against humanity. In the absence of definition
of sexual slavery in international criminal and humanitarian law at that time, the ICTY made reference to
numerous international instruments, including the 1926 Slavery Convention, the 1956 Supplementary
Convention on the Abolition of Slavery, CEDAW, the Convention on the Rights of the Child, and the
above-mentioned international convention addressing trafficking in women in the past.
With exception of assertion of exclusivity, all these factors are also present in trafficking in human beings
for the purpose of sexual exploitation. For human trafficking, it is not necessary to use and exploit
exclusively the enslaved person, but to organise sexual exploitation of such person by others. 15
13
Roma Statute, Elements of Crimes,
https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf
14
https://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
15
Kunarac et al. judgment, ICTY IT-96-23 & 23/1.
7
Sexual slavery in the war in Bosnia and
Herzegovina
There are various estimates on the number of women and girls who experienced some form of sexual
violence during the war in Bosnia and Herzegovina 1992-1995, ranging from 20,000 to 50,000. In
addition to rape, in terms of conflict-related sexual violence, the war in Bosnia and Herzegovina is also
known for “rape camps” and other forms of sexual slavery which sometimes involved effectively forced
marriages, as well as significantly less examined forced pregnancy.
The cases presented below are observed based on the judgments of the ICTY, Court of Bosnia and
Herzegovina and the War Crimes Department of the Higher Court in Belgrade. Although local courts in
Bosnia and Herzegovina processed wartime sexual violence, the cases of sex slavery have not been found.
It should be borne in mind that they are not examined in legal terms or in terms of the characteristics of
the proceedings, but the judgments served as a source of information about the phenomenon and
manifestations of conflict-related sexual slavery. It is important to note that many actual cases have
remained out of the reach of international or national judiciary for various reasons, especially those that
ended up in marriage between the victim and the perpetrator.
Although sexual violence, i.e. rape, is recognised as crime against humanity in ICTY Statute, the ICTY
established jurisprudence recognising that various forms of conflict-related sexual violence, including
rape, could be prosecuted as torture, persecution, and other inhumane acts under the crimes against
humanity provision, as well as under the provisions prescribing other criminal offences, such as grave
breaches of the Geneva Conventions. The ICTY also established that conflict-related sexual violence
crimes are punishable under both commission and omission criminal liability and that both indirect and
direct conflict-related sexual violence perpetrators can be held accountable.17
As ITCY states: “In a number of landmark judgements, the Tribunal advanced the development of
international justice in the realm of gender crimes by enabling the prosecution of sexual violence as a war
crime, a crime against humanity and genocide. Ultimately, rape ceased to be perceived as the
unrestrained sexual behaviour of individuals and was recognised as a powerful tool of war, used to
intimidate, persecute and terrorise the enemy.”18
ICTY landmark cases with regard to wartime sexual violence are the following:19
16
https://www.icty.org/en/features/crimes-sexual-violence/in-numbers
17
Jasenka Ferizović and Gorana Mlinarević, “Applying International Experiences in National Prosecutions of
Conflict-related Sexual Violence, A Case Study of Application of the ICTY Law, Findings and Practices in Prosecution
before the Court of Bosnia and Herzegovina”, Journal of International Justice, 18 (2020), pp. 325-348.
18
https://www.icty.org/en/features/crimes-sexual-violence/landmark-cases
19
Ibid.
8
- Dusko Tadic (ICTY IT-94-1) – the first international war crimes trial involving charges of sexual
violence and first-ever trial for sexual violence against men;
- Mucic at al. (Zdravko Mucic, Hazim Delic, Esad Landzo) (ICTY IT-96-21) - milestone in international
justice by recognising rape as a form of torture; further, Mucic as the camp commander was found guilty
of these and other crimes committed by his subordinates; this is the first judgment in which suffering of
two women raped in order to obtain information from them and to punish them for not providing
information had a discriminatory purpose, that is, it was inflicted on them because they were women;
- Furundzija (ICTY IT-95-17/1) – The first at the ICTY case concentrated entirely on charges of sexual
violence;
- Kunarac at al. (Dragoljub Kunarac, Radomir Kovac, Zoran Vukovic) (ICTY IT-96-23 & 23/1) – also
dealing entirely with charges of sexual violence, this is the first judgment to treat sexual enslavement and
rape as crimes against humanity;
- Radislav Krstic (ICTY IT-98-33) – the first judgment to establish a link between rape and ethnic
cleansing.
In addition, in order to respond to specific needs of sexual violence survivors and reduce their
re-traumatisation to minimum, the ICTY developed a number of innovative procedures, including special
guidelines for the presentation of evidence, protective measures for vulnerable witnesses, and
professional support and counselling. This includes Rule 96 of the Rules of Procedure and Evidence,
which, inter alia, provides that corroboration of the testimony of a victim of sexual violence is not
required. Also, according to this rule, evidence concerning the prior sexual conduct of the victim will not
be admitted as evidence. Further, it sets rules regarding the evidence of consent and in what way
non-consent may be proven (“when the victim: a. has been subjected to or threatened with or has reason
to fear violence, duress, detention or psychological oppression, or b. reasonably believed that if the victim
did not submit, another might be so subjected, threatened or put in fear”, Kunarac et al.). It is interesting
that such ICTY position elaborated in the judgment in the Kunarac et al. case is often quoted and
elaborated in discussions about the concept of consent with regard to trafficking in human beings.20
Putting aside some obvious shortcomings and mistakes, compared with earlier track-record of
international criminal and humanitarian law, the ICTY’s legacy with regard to wartime sexual violence
and procedural protection of survivors is really substantial and invaluable. Especially innovative
victim-protection procedures should be adopted by national legislations worldwide when it comes to the
crimes of rape and other forms of sexual violence, whose victims are traditionally and routinely exposed
to institutional harassment and traumatisation when seeking justice.
20
E.g. UNODC Issue Paper: The Concept of ‘Exploitation’ in Trafficking in Persons Protocol, Vienna 2015; UNODC
Issue Paper: The Role of Consent in Trafficking in Persons Protocol, Vienna 2014, etc.
9
Although not qualified that way, one judgment contains the elements of sexual slavery.
The case of Kunarac and others25 was the first ICTY conviction of rape and enslavement as crimes against
humanity. The three accused – Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were part of the
Bosnian Serb forces’ campaign against Bosniak civilian population in the municipality of Foca in the
spring of 1992. After the take-over of Foca, Serb forces started arresting the local Bosniak population
from that area. While men were detained in the local prison, women and children were kept on various
locations (Buk Bijela, Partizan Sports Hall, High School, Karaman’s house etc.), where they were exposed
to constant rape and from where they were occasionally taken by soldiers to other places, private houses
and flats to be raped and sexually exploited and abused in the most horrifying ways. In addition to being
treated like slaves, these women were kept in terrible living conditions, without sufficient food, exposed
to beatings, threats, humiliation and degradation. Any men were allowed to enter places where women
were kept and just do whatever they wanted with them. Some of the women were as young as 12 and 15.
Since none of them exercised any control of their lives, they all can be considered to be in slave-like
positions. Some of the women were additionally displaced from the collective facilities and kept detained
for days or months in private houses and flats and raped on a regular basis by men who took them,
21
Humanitarian Law Centre, Report on War Crimes Trials in Serbia during 2019,
http://www.hlc-rdc.org/?p=37339&lang=de
22
Humanitarian Law Centre, Policy Paper: Prosecution of Crimes of Sexual Violence during Armed Conflicts before
the Courts of the Republic of Serbia,
http://www.hlc-rdc.org/wp-content/uploads/2019/12/Policy_paper_Prosecution_of_Crimes_of_Sexual_Violence_
during_Armed_Conflicts_before_the_Courts_of_the_Republic_of_Serbia.pdf
23
Jasenka Ferizović and Gorana Mlinarević, “Applying International Experiences in National Prosecutions of
Conflict-related Sexual Violence, A Case Study of Application of the ICTY Law, Findings and Practices in Prosecution
before the Court of Bosnia and Herzegovina”, Journal of International Justice, 18 (2020), pp. 325-348.
24
Ibid.
25
ICTY 96-23 & 23/1.
10
including the three accused, or to whom they rented them. The accused on occasions kept some women
exclusively to themselves, pretending that they were in a relationship. While being detained in those
smaller facilities, they were also forced to do the cooking, cleaning and other household chores.
Like in many similar cases that will be presented in this paper, the defence attempted to present the
incidents of rape and factual enslavement as voluntary intimate relationships. Kunarac’s defence even
claimed that one of the witnesses actually seduced him.
In view of traditional consideration of mitigating circumstances in the cases of sexual violence by
national courts, it is interesting that ICTY expressly stated that the fact that Zelenovic has a wife and a
son does not constitute a mitigating factor for the crimes he committed and admitted.
Another man convicted, inter alia, for the enslavement and rape women and girls in Foca, including a
12-year-old, together with Dragoljub Kunarac, is Gojko Jankovic27, Serb paramilitary leader. His case was
transferred from ICTY to the Court of Bosnia and Herzegovina, which sentenced him to the imprisonment
of 34 years. With regard to the enslavement charges, he was convicted for keeping two minor girls in
slavery for the period of one year. These girls had no control over their lives or any freedom of choice,
although technically they could leave, and Jankovic and his co-perpetrators exercised all powers of
ownership over them. They raped the girls on a regular basis and forced them to do household chores.
Jankovic and Kunarac also changed their names and called them by Serbian names. One of the victims
said at the trial that she was raped approximately 150 times during the war. One of the ways of making
the enslaved girls obedient and cooperative was a threat that they would be otherwise brought back to the
collective detention centres, actually brothels, where they would be raped by an indefinite number of
soldiers. Jankovic’s defence claimed that the girls were there voluntarily and even begged to be permitted
to stay there. Further, he claimed that he and the girl he had been raping for six months were actually in
love.
26
ICTY 96-23/2.
27
Court of Bosnia and Herzegovina, X-KRŽ-05/161.
11
The first case the ICTY transferred to the Court of Bosnia and Herzegovina was the case of Radovan
Stankovic28, member of the Miljevina Battalion and another man who participated in the enslavement
and rape of women and girls in Foca, together with Kunarac. He was sentenced to the imprisonment of 20
years. Stankovic refused to attend the trial and in 2007 managed to escape from the prison in Foca, but
was arrested in 2012. He participated in the establishment of a detention facility for women called
“Karaman’s House”, also known under the name “brothel”. At least nine women and girls were held
there, the majority of whom underage, even children. Stankovic was in charge of “Karaman’s House” and
he had a main role in ‘assigning’ particular girls to the soldiers. He was raping several detainees himself
and forcing them to work in and outside the facility for a longer period of time, while insulting and
beating them. He kept in particular one girl in detention on several locations, during which time he was
raping her, alone or in presence of other persons; the girl was also forced to cook, clean and do the
laundry. Once, Stankovic raped her underage sister in front of her. The defence claimed that victims’
statements were ‘manipulated’ and ‘prepared’, and that the witnesses gave such testimonies “for the
reasons of personal, political or emotional nature”. In deciding on the sentence, the Court of Bosnia and
Herzegovina took the fact that he has a wife and three underage children as mitigating factor, at the same
time considering the number of women who were sexually abuse and their age, including the fact that
some of them were between 12 and 16 years old, as an aggravating factor.
Nedjo Samardzic29 was also prosecuted before the Court of Bosnia and Herzegovina for sexual slavery and
sexual violence against women and girls in Foca. He was finally convicted to the imprisonment of 24
years. Samardzic was convicted for keeping Bosniak women and girls enslaved in “Karaman’s House” in
Miljevina, together with Radovan Stankovic, torturing, raping and forcing them to work, as well as
making them available to other solders to rape them. Further, he kept one women and sexually exploited
her for his own purposes. Here also the court of first instance weighted the fact that Samardzic had a wife
and two children as a mitigating factor, at the same time considering the age and minority of victims to
be the aggravating factor.
Ratko Bundalo, Nedjo Zeljaja and Djordjislav Askraba31 were convicted before the Court of Bosnia and
Herzegovina, as participants in a joint criminal enterprise, for planning, initiating, inciting, assisting and
committing persecution of the entire Bosniak population from the municipality of Kalinovik and
neighbouring municipalities. They were sentenced to the imprisonment of 22, 15 and 7 years respectively.
In the territory of their responsibility, Bosniak women were systematically raped in the primary school in
which they were detained. They were raped by various soldiers of the ‘Serb Armed Forces’ whom some of
the policemen responsible for guarding the prisoners were allowing to enter the school and rape women,
and sometimes even watching such rapes. The women were not raped only in the pace of their detention,
but were sometimes taken out to other private premises for that purpose. In August 1992, members of the
28
Court of Bosnia and Herzegovina, X-KRŽ-05/70.
29
Court of Bosnia and Herzegovina, X-KRŽ-05/49.
30
Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges. An
analysis of criminal proceedings before the Court of Bosnia and Herzegovina between 2005 and 2013. OSCE
Mission to Bosnia and Herzegovina, February 2014.
31
Court of Bosnia and Herzegovina, X-KRŽ-07/419.
12
Foca Tactical Group, including Kunarac, took at least seven women, mostly underage girls, from the
school and transferred them to Miljevina and Foca. Two of them were kept in sexual slavery there for a
longer period of time. The court of first instance found Bundalo and Zeljalja responsible for this, but in
the appellate process, Bundalo was acquitted of responsibility for sexual enslavement, while Zeljaja’s
actions were qualified as unlawful detention and rape, but not sexual slavery.32
In the case of Krsto Savic and others33, Krsto Savic Kico, commander of the Trebinje Centre of Security
Services, was charged with participation in a joint criminal enterprise on the part of Serb forces, which
included sexual enslavement of women by unidentified members of paramilitary groups in Kalinovik. The
Public Security Unit of Kalinovik was under his jurisdiction. The crime of sexual enslavement refers to the
above-described events in the primary school in Kalinovik, where imprisoned women were brutally
raped, and younger ones taken to Miljevina, Foca, the Pavlovac farm and a summerhouse in the
neighbourhood of Mjehovina, where they were raped.
For this reason, Savic was found guilty of persecution through sexual slavery by the court of first
instance. However, the appellate court found that he could not be considered responsible for this count,
as there was no link between what he did and the offence. For the remaining offences (murders,
deportation or forcible transfers, detaining, torture and other inhumane acts), he was sentenced to
imprisonment of 17 years.
Skocic34 – Members of Serb paramilitary group “Simo’s Chetniks” were accused before the War Crime
Department of the Higher Court in Belgrade for blowing up a mosque in the village of Skocic in Eastern
Bosnia in July 1992, the murder of 27 local inhabitants of Roma nationality and torture and rape of three
women, two of whom were 13 and 15 years old on several locations until January 1993. The girls were kept
effectively enslaved; they were forced to cook, clean houses, wash soldiers’ uniforms and do whatever
they were told under the threat of murder. At the same time, they were severely beaten, raped and
sexually humiliated (e.g. made to dance naked in front of the soldiers, or watch each other being raped).
There were three other girls that were kept under similar conditions who had been captured earlier in the
war. Three of these six women married their captors. In a repeated trial, Tomislav Gavric, Zoran Alic and
Zoran Djurdjevic were sentenced to the imprisonment of eight, five and eight years respectively, and this
only for rape and physical abuse as crimes against civilian population, while the court found that the
prosecution failed to prove that the defendants were responsible for the murders and demolition of the
mosque.
It is interesting that six accused were acquitted in the first instance judgment in the repeated
proceedings. With regard to sexual slavery, the court did not take into consideration victims’ age, the fact
that they had no liberty to consent their situation and that they were factually enslaved.
“In connection with the circumstances that the victims prepared food, made pancakes and doughnuts
occasionally and nobody prohibited them to eat that food, that they did laundry for other persons,
whereby it is logical that under given conditions they certainly had to wash their own clothes, and that
they took care of the hygiene of the houses in which they were also staying themselves, it is the view of
this court that there is no proof that such activities caused serious mental suffering.”
Josip Tolic35 was accused and sentenced for participating, as a member of the Croatian Defence Council,
in inhumane treatment and murders of Serbian civilians in detention facilities in Odzaci and Bosanski
32
Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges. An
analysis of criminal proceedings before the Court of Bosnia and Herzegovina between 2005 and 2013. OSCE
Mission to Bosnia and Herzegovina, February 2014.
33
Court of Bosnia and Herzegovina, X-KRŽ-07/400.
34
K-Po2 11/14 War Crimes Department of the Higher Court in Belgrade of 16 June 2015, Po2 5/15 War Crimes
Department of the Belgrade Court of Appeal of 28 March 2018 (second-instance), Po2 1/18 15 War Crimes
Department of the Belgrade Court of Appeal of 13 February 2018 (third-instance).
35
Court of Bosnia and Herzegovina, S1 1 K 013929 13 Krž.
13
Brod where he was a guard in the period between May and November 1992, as well as for coercing
unlawfully detained Serbian women into sex. He was sentenced to the imprisonment of ten years by the
court of first instance.
In the context of this paper, Tolic was found guilty of taking several Serbian women from the facility in
which they were detained in July 1992 and bringing them to the flats where they were raped. It was not a
gang rape, but Tolic and two other men (Ante Golubovic and Jurica Bozic, currently indicted before the
Court of Bosnia and Herzegovina) would take one woman each. The victim stated that Tolic had been
persuading her to have sex with him, threatening that if she refused, he would have her raped by ten
soldiers, after which she ‘consented’. She and other women were also required to clean the apartment in
which they were raped. He was also going out with her, taking her to cafes and restaurants, to the
swimming pool etc. Simulation of romantic relationship is not rare in slavery-like relationships both in
the time of peace and war. Thus, it is not surprising that, in his defence, Tolic claimed that they knew
each other from before and that they resumed their relationship when the war started, since she called
him for help and he actually helped her and her family by taking them to a safe place. He said that they
were actually dating, “there was love between them, that [victim’s name] meant a lot to him, they were
very close and they were planning a future together”.
Mitigating circumstances in his case included the fact that he did not have previous convictions, that he
is a family man and a father of two, one of whom is underage, that he helped certain detainees and that
he showed remorse for everything he had done.
Radivoje Soldo37 concluded a plea agreement and was sentenced to the imprisonment of five years for a
crime that amounts to sexual slavery. Namely, in the period between the end of June and end of July 1992,
in the municipality of Konjic, he, as a member of so-called Red Berets of the Republika Srpska Army
(VRS), raped a Bosniak woman whom he taken from the police station in Nevesenje, unlawfully detained
her in a bungalow in the tourist camp occupied by VRS members, where he kept her locked and under
guard. He was violently raping her for the period of one month; he also forced her to clean his and the
bungalows of others, clean their uniforms and footwear. During this period, she was abused, humiliated
and raped by VRS soldiers and soldiers from Serbia on their way from the frontlines. He told her that he
would let her live only if she got baptised and changed her Bosniak name into Serbian name.
Predrag Kujundzic Predo38 was sentenced to imprisonment of 17 years (initially 22) for committing,
inciting and assisting murders, sexual slavery (“by the use of force, he established exclusive right of
ownership of the victim, control of her movement, psychological control and control of her sexuality”),
rape, grave deprivation of physical liberty, persecution of non-Serbian civilian population and other
36
ICTY 94-2-9.
37
Court of Bosnia and Herzegovina, S1 1 K 018201 15 Kri.
38
Court of Bosnia and Herzegovina, X-KRŽ-07/442.
14
inhumane acts in the territory of Doboj municipality since the summer of 1992 until the autumn of 1993
in the capacity of the commander of paramilitary unit “Predo’s Wolves”.
Defence claimed that their relationship was consensual and that he helped her obtain new documents at
her request, and that whatever she accused him of, he did not do it but another man. Defence also
requested forensic examination of Kujundzic’s sexual functions, claiming that he was not physically
capable of committing the said crimes, but no dysfunction was found.
Further, defence tried to question victim’s credibility by stressing that soon after the war she stared her
music career, without showing signs of depression or trauma, although it is not very clear what this
should mean – that sex slavery did not happen or that its consequences are not serious.
Sasa Baricanin39 was sentenced to the imprisonment of 18 years for inhumane treatment of unlawfully
detained Bosniak civilians in Sarajevo in July 1992, together with Veselin Vlahovic Batko (sentenced to 42
years in prison for his crimes in Sarajevo), aimed at inflicting grave physical and psychological injuries,
robbing and killing three Bosniak civilians, members of one family. Further, he raped one female member
of that family, whom he kept forcefully locked in one flat in Grbavica, during which period he enabled one
unidentified person to rape her, too. He acted as a member of the forces of the Serbian Republic of Bosnia
and Herzegovina.
While the victim was locked in the flat, she was cleaning and doing housework in order to “avoid more
rapes”. She also testified that he acted as if she was living there voluntarily and that they were a couple.
39
Court of Bosnia and Herzegovina, S1 1 K 004648 12 Krž.
15
Common characterises of wartime sexual
slavery cases
All cases that are in this paper considered to amount to sexual slavery have several characteristics in
common, many of which apply on cases of sexual violence in the war of Bosnia and Herzegovina in
general.
Second, sexual exploitation rarely went alone; in most cases, it was combined with the labour
exploitation of sexually abused women, who were required to clean, cook, do the laundry etc.40
Further, at the time of prosecution, the defence usually insisted on victims’ consent and on the fact that
sex was not forced.41 Some even claimed that they were in a relationship with the victim42, that they
helped the victim43, especially in one-on-one cases, where the perpetrators sexually exploited one
woman on a regular basis for his own purposes. Kunarac even claimed that the victim seduced him. The
extreme outcome of this sort of sexual exploitation are effectively forced marriages between the rapists
and victims. This served as defence in cases that were prosecuted, that is, a proof of consent and
voluntariness, although it is claimed that many cases of this type of sexual violence have never been
prosecuted because of such marriages, as victims were not ready to testify.44
Although these cases involve the gross forms of sexual violence against women, wherever it was possible,
the courts weighted the fact that the perpetrator is a married family man and father as mitigating
circumstances.46
The defence usually tries to question victims’ credibility, among others, by presenting their alleged
promiscuity in the period before or after the offence as a proof of consent to the sexual act.47 Thanks to
the practice of the ICTY, questions about victims’ previous sexual life are treated as inacceptable and are
not allowed, which was adopted by the Court of Bosnia and Herzegovina. However, some researchers48
claim that judges in Bosnia and Herzegovina fail to consistently stop such questions. Moreover, questions
about victims’ sexual behaviour in their later life are not forbidden in Bosnia and Herzegovina, which is
also used to undermine victims’ credibility, but also perpetuate the stereotypes about and expectations
40
E.g. Tolić, Baričanin, Soldo, Court of Bosnia and Herzegovina, Skočić, War Crimes Department of the Higher
Court in Belgrade.
41
E.g. Tolić, Kujundžić, Court of Bosnia and Herzegovina, Skočić, War Crimes Department of the Higher Court in
Belgrade.
42
E.g. Tolić, Janković, Court of Bosnia and Herzegovina, Skočić, War Crimes Department of the Higher Court in
Belgrade.
43
E.g. Tolić, Court of Bosnia and Herzegovina.
44
E.g. Skočić, War Crimes Department of the Higher Court in Belgrade.
45
E.g. Kujundžić, Janković, Court of Bosnia and Herzegovina, indirectly Kunarac, ICTY.
46
E.g. Tolić, Kujundžić, Stanković, Court of Bosnia and Herzegovina.
47
E.g. see: Clare McGlynn, Rape Trials and Sexual History Evidence: Reforming the Law on Third Party Evidence.
The Journal Of Criminal Law 2017, Volume 1, Issue 85.
https://journals.sagepub.com/doi/pdf/10.1177/0022018317728824
48
Kyle Delbyck, Mitovi o silovanju na suđenjima za ratno seksualno nasilje: prebacivanje tereta sa preživelih na
počinitelje, Trial International, 2017.
16
from victims, that is, victims are expected to be “ideal victims”, to look and act certain ways, otherwise
their suffering is not recognised.49
49
E.g. Kujundžić, Court of Bosnia and Herzegovina.
50
E.g., Baričanin, Court of Bosnia and Herzegovina.
51
E.g. Skočić, War Crimes Department of the Higher Court in Belgrade, Stanković, Court of Bosnia and
Herzegovina.
17
Involvement of war criminals in trafficking in
human beings after the war
There are a few cases that can be documented of the involvement of persons convicted or mentioned in
relation to the war crimes in Bosnia and Herzegovina in trafficking in human beings. It is interesting that
judgments for one crime do not mention convictions for the other, although courts as a rule list previous
convictions in their judgments and their absence or presence weigh as mitigating or aggravating factor
when deciding on the sentence.
Stanko Savanovic/Kojic
Stanko Savanovic called Geza was arrested in 2003 as a member of criminal gang of Milivoje Zarubica,
nicknamed Puja, known at that time as “the Balkan Master of Human Trafficking” and subsequently
sentenced by the court in Bologna to the imprisonment of 17 years which he never served.52 Zarubica and
his accomplices were recruiting women, mostly from Moldova, tricking them by attractive job offers that
did not involve sex work and, via Serbia, transferring them to Italy where they were forced into
prostitution. For many, Serbia and not Italy was the actual final destination, while others were sexually
exploited in Serbia during the transit period. In Serbia, Zarubica and his gang were never convicted for
human trafficking because it was not criminalised at the time of the offence. Instead, after a lengthy
process, members of this gang were sentenced to symbolic prison sentences for a variety of offences,
including facilitation of prostitution, rape, documents forgery, deprivation of liberty.
Supreme Court of Serbia sentenced Savanovic in second instance to the imprisonment of five years53.
Together with another man, known under the name of Aleksandar Putnik, he was guarding and raping
several girls awaiting their transfer to Italy in a flat in one Belgrade suburb. At some point, only one girl
was left, and Savanovic and his accomplice raped her in the cruellest possible ways. After two weeks, the
girl tried to escape through the window using bed sheets as a rope, but she fell and hurt herself severely.
She managed to crawl to the street and ask for help. She still suffers consequences of spine injury
sustained from jumping through the window. Aleksandar Putnik was at large at the time of Savanovic’s
conviction and separate proceedings were conducted against him
Savanovic denied all the charges, trying to explain, among other things, that he could not have raped
anybody because of the injuries he sustained in the war that made him sexually incapacitated. The Court
did not accept such defence.
Changing his family name from Savanovic to Kojic, in 2010 Geza found himself in detention in Bosnia
and Herzegovina. In 2012, together with Franc Kos, Vlastimir Gorijan and Zoran Goronja, he was
convicted before the Court of Bosnia and Herzegovina for genocide in Srebrenica and sentenced to the
imprisonment of 43 years, subsequently reduced to 32 by the appellate court.54
After the conquering of the town, it was not an easy task for Serbian forces to organise the killing of
Srebrenica men and boys because many refused to take part in it. However, Savanovic was among those
who took part in the killings.
52
https://www.astra.rs/serbian-boss-of-prostitutes-sentenced-to-17-years-of-imprisonment-zarubica-exploited-hun
dreds-of-women-now-on-the-run/
53
Vrhovni sud Srbije, Kž 11656/04.
54
S1 1 K 003372 10 Krž - Kos Franc i dr.
18
When listing previous convictions of Stanko Kojic/Savanovic in the judgment for genocide, the Court of
Bosnia and Herzegovina only makes reference to the conviction for murder attempt in Bijeljina, but not
the one from Serbia relating to human trafficking offences.
In his defence against the crime of genocide, Kojic pointed out to his difficult childhood and growing up
in a family that suffered mental illnesses. He added that he was not aware of the rules of how prisoners of
war should be treated because he never served the army. It is interesting that in the proceedings for
human trafficking offences presented as facilitation of prostitution, rape and deprivation of liberty, the
Supreme Court in Serbia weighted the fact that he was of poor health for which reason he was retired
early as a mitigating circumstance when deciding about the sentence. His poor health was the reason for
him not to attend all the sessions before the court of Bosnia and Herzegovina. It is also interesting that
Kojic’s counsel in his closing practically used the defence of “what they did to us”, stressing that the
attack on Srebrenica was a result of previous attacks on surrounding Serbian villages from Srebrenica. He
also questioned the number and status of murder inhabitants of Srebrenica.
In 2014, Kojic was questioned about his alleged involvement in the murder of journalist Milan Pantic.
Milan Pantic was a journalist working for the Vecernje novosti daily who particularly reported on crime
scenes in Jagodina. He was killed on 11 June 2001 near his home and his murderers were never found.
Nearly 20 years later, this case is still unresolved.55
Sasa Lipovac
In 2010, Sasa Lipovac was arrested in Georgia on his way to Moscow based on the wanted notice from the
Court of Bosnia and Herzegovina issued as early as in 2008. He was travelling back from Azerbaijan where
he spent a couple of years as a part of the group involved in human trafficking for the purpose of labour
exploitation at more or less state-sponsored construction sites. The victims of this exploitation were
construction workers of various profiles, some 700 of them, mainly from Bosnia and Herzegovina, but
also from Serbia and North Macedonia, employed by Dutch-Azerbaijani company SerbAz of ownership
somewhat linked to high ranking Azerbaijani officials, as well as managed by Bosnian citizens Milan and
Bozidar Vucenovic. The workers were engaged in the construction of the Exposition Centre near the
airport, a shopping mall near the Central Bank, the Butu Palace, all in Baku, as well as the Olympic Centre
in Mingachevir.56
The workers had to hand over their documents upon arrival, allegedly for work permit procedures, but
did not have them back until their departure; for the whole time, they worked illegally, on tourist visa,
and such position made them vulnerable to threats of being reported to immigration authorities. The
workers were accommodated in overcrowded collective accommodation facilities, 12 to 24 of them per
room, with no hot or drinking water and insufficient number of bathrooms. Their freedom of movement
was limited – not allowed to move from the accommodation – while guarded by uniformed guards.
55
http://www.politika.co.rs/sr/clanak/288469/Hronika/Novo-ime-u-istrazi-ubistva-novinara-Milana-Pantica#!
56
Information used for the SerbAz case are based on OCCRP series Slaves to Progress https://www.occrp.org and
ASTRA – Anti Trafficking Action which provided support to the workers after their return to Serbia.
19
They had to work for 12 or more hours, without safety-at-work equipment and were not paid for
overtime. They had to work also in the case of illness. There was no organised medical care; one worker
died of heart attack, while two identified workers got sick and died as well.
When the story became public thanks to one local NGO and OSCE, the workers were quickly returned to
the Balkans, having to sign before departure that the company fulfilled all obligations towards them and
owed them nothing.
This is the largest case of human trafficking for the purpose of labour exploitation in the Balkans. After
years of denying jurisdiction and trying to cover up the case – not least for its complexity and absence of
co-operation from the Azerbaijani side, in 2014 the Court of Bosnia and Herzegovina confirmed the
indictment against Bozo Vucenovic, Rade Ljubicic, Sasa Lipovac, Safet Turanovic, Rasim Turanovic,
Nenad Tatic, Slavisa Kojic, Zoran Dmitrovic, Zoran Kalajdzic, Novak Ciric, Nedeljko Vucenovic and
Miroslav Vucenovic for the offence of organised crime in connection with trafficking in human beings.
In 2019, they were acquitted and the case is currently in the process of appeal.57
Sasa Lipovac was a man close to director Bozo Vucenovic, responsible for receiving and accommodating
workers. He was the one to take away workers’ passports at arrival. The workers claimed that he was very
cruel to them. Lipovac was also superior to the so-called janitors who managed accommodation facilities
and took care of the discipline there, punishing workers and proposing punishments to Lipovac.
In February 2017, Lipovac concluded a plea agreement with the Prosecutor’s Office, admitted his guilt
and was sentenced to the imprisonment of one year and nine months.58
Wanted notice against Lipovac was issued in 2008, when he failed to appear at the trial before the
Supreme Court in Banja Luka in the second-instance proceedings relating to the war crime against
Bosniak civilians in the village of Liskovac near Gradiska, for which Lipovac was initially acquitted in
2007. In 1993, Lipovac, together with four other persons came to Bosniak village of Liskovac in the night
of August 1-2 and in a horrifying way killed three members of the Rizvanovic, wounded a four-year old
and raped a twenty-year old woman multiple times; after that, they shot in head a woman and her son in
another house. For these crimes, Lipovac was sentenced to the imprisonment of 10 years and six
months.59 His previous convictions were taken as aggravating circumstances. His youth at the time of the
crime and the fact that he is married and a father of two children were considered to be mitigating
circumstances.
S.K./Aleksandar Putnik
One of the victims of human trafficking for the purpose of labour exploitation in Azerbaijan, tortured
among others by Sasa Lipovac, and identified as trafficked person in Serbia, was a man who presented
himself as S.K. There was also a wanted notice issued against him from Serbia, but apparently nobody
noticed as he travelled from Serbia to Bosnia to Azerbaijan. While receiving assistance as a victim of
trafficking in Serbia, at the moment of applying at the police for humanitarian temporary residence to
which foreign victims of trafficking are entitled, it was discovered – rather by accident – that S.K. was
Aleksandar Putnik, a run-away co-perpetrator of Milivoje Zarubica and accomplice of Stanko Savanovic/
57
Court of Bosnia and Herzegovina, S1 2 K 008235 20 Kž - Vučenović Božo i dr.
58
Court of Bosnia and Herzegovina, S1 2 K 024459 17 K.
59
Supreme Court of Republika Srpska, 118-0- Kžk-07-000 004, 8 June 2010.
20
Kojic whose crimes were described at the beginning of this section. Born in Bugojno, this man used
several names – pretty much a combination of Aleksandar, S., K. and Putnik.
S.K. has not been prosecuted for war crimes. However, the name like his was mentioned by Dzevad Doslic,
witness in the Brdjanin case before the ICTY. As a former prisoner in the Warehouse of Territorial Defence
in Donji Vakuf and the Vrbaspromet camp in the summer of 1992, Doslic mentioned S.K.’s name among
the most brutal ones in beating and torturing Bosniak prisoners. It is interesting that S.K. did not serve
compulsory military service because of “psychological problems”.
A. The most brutal man, I told you already, both in the first and the second camp, the most brutal men were
those I had already enumerated. If you want me, I can tell you their names again.
A. All those who were in the first camp, who I named as the most brutal were also in the second camp.
Q. So you saw them at both camps? That's the important point I want the Court to understand.
A. Correct, yes. They are two separate men, Svemir is one man,Jordan Ilic is the second man. There is the third
man Krivosija, there was also Vojo Ilic, then Balaban.
21
Conclusion
While numerous acts of sexual violence in the war in Bosnia and Herzegovina were prosecuted and
punished, many were not. Some of the alleged perpetrators died before the end of the trial. Sometimes
these incidents were dropped out of the indictments in order to focus on ‘larger’ crimes, as in the case of
Milan Lukic. However, many names can be read in victims’ testimonies and transcripts of the trials of
men who were raping sexually enslaved women, but they have never been brought to justice.
Putting aside some obvious shortcomings and mistakes, compared with earlier track-record of
international criminal and humanitarian law, the ICTY’s legacy with regard to wartime sexual violence
and procedural protection of survivors is really substantial and invaluable. Especially innovative
victim-protection procedures should be adopted by national legislations worldwide when it comes to the
crimes of rape and other forms of sexual violence, whose victims are traditionally and routinely exposed
to institutional harassment and traumatisation when seeking justice.
Although women and girls were principal victims of sexual violence in wars in Bosnia and Herzegovina,
Croatia and Kosovo, many incidents of sexual violence against men and boys have been recorded,
documented and prosecuted alongside other war crimes. However, sexual violence against men is still a
taboo, both on the part of rapists and victims. This is because the emphasis is still on the part of “sexual”
and not on “violence”. The factor of abuse of person’s sexuality in this sort of violence is important,
because it is unnecessarily humiliating and damaging, but as long as it is primarily connected with sexual
identity and sexual behaviour, and not with violence, victims will be ashamed to talk about it, to report it,
to persist in their fight for justice, because their “contribution”, “enjoyment”, “consent” will be
questioned.
22