Bosnian Wartime Rape Sentences 'Arbitrary', Experts Warn

Sentences of just one year for the rape of minors, and fines of 18,000 euros replacing prison time, sit at one end of a sentencing range that stretches to 42 years for wartime sexual violence in Bosnia and Herzegovina. A Balkan Investigative Reporting Network (BIRN) analysis of hundreds of cases has found stark inconsistencies in how the country's courts punish these crimes, with experts warning that lenient and arbitrary outcomes are eroding survivors' trust in the judiciary.

What did the analysis find?

BIRN examined cases handled by the Court of Bosnia and Herzegovina, district courts in the Serb-run Republika Srpska entity and cantonal courts in the Federation entity.

The numbers show sharp divergence:

• The state court reached 49 final verdicts for crimes against humanity, 29 involving rape; 49 people convicted, sentenced to between five and 42 years.
• For crimes against the civilian population, the same court delivered 59 final verdicts, 31 involving rape; 40 people received terms of four to 13 years, most commonly six or seven.
• Federation cantonal courts imposed sentences from one year to 13 years and six months, averaging just over six years.
• Republika Srpska courts sentenced offenders to between two and 15 years.
• The autonomous Brcko District handed down terms of four to 15 years, most commonly four to six, even for multiple rapes.

Some state-court victims were minors aged 12, 15 and 16, according to the analysis. Some survivors were held for months on end and raped daily.

"If a sentence is not proportionate to the gravity of the offence, then it not only undermines the rule of law but also fails to fulfil its primary goal, which is creating a society in which such acts will not be repeated," said Ajna Mahmic Catic, legal coordinator at TRIAL International. "An inconsistent sentencing policy that is fundamentally inadequately established directly undermines survivors' trust in the judiciary."

How do courts justify leniency?

Across the entities, judges routinely cited mitigating circumstances while giving them more weight than aggravating factors. In the Federation, cantonal courts cited the accused's marital status, his children, his lack of prior convictions and his conduct at trial; in one case, the court treated the fact that the accused had not committed any other offence since the crime as mitigating. The passage of time and the accused's advanced age also counted in his favour.

In Republika Srpska, courts imposing the shortest sentences cited mitigating circumstances such as the accused being an older juvenile at the time of the offence. In some cases, the courts cited no aggravating circumstances at all, despite the crimes involving sexual violence.

The Brcko case of Monika Karan illustrates the pattern. Convicted in 2013 of the psychological and sexual humiliation of detainees in the 'Luka' camp — including forcing a detainee to strip naked and touching his genitals under threat of death — she received four years, below the statutory minimum. The court cited her age at the time, 26, her family circumstances and her clean record.

"Unfortunately, sexual violence leaves lasting consequences on victims, and such lenient sentences do not reflect the seriousness of that crime," said Midheta Kaloper, head of the Association of Victims of War – Foca 92-95.

Plea agreements have produced the most striking outcomes. In the Federation, some perpetrators whose victims were minors received one-year terms under such deals, and a one-year sentence can be converted into an 18,000-euro fine, meaning the convicted person never enters prison.

"As a consequence of such conduct by the courts, some convicted war criminals do not spend a single day in prison," Mahmic Catic said. She added that injured parties have almost no influence over the conclusion of an agreement, its terms, or the court's acceptance of it.

Why do prosecutors say the cases are hard?

Ivan Matesic, Bosnia's Deputy Chief Prosecutor and head of the war crimes department, told BIRN the cases are extremely sensitive and difficult to prosecute. He cited the passage of time, the trauma and vulnerability of survivors and witnesses, and a lack of witnesses and evidence. Investigations are also hampered because, in the period immediately after the crimes, investigative actions were mostly not taken, so police and investigative reports from that time largely do not exist, he said.

The cases BIRN analysed invariably featured threats involving weapons, knives and bombs; survivors often said they did not resist out of fear they might be killed. Sexual violence did not occur as an isolated act but as a means of control and intimidation.

How did sexual violence become a war crime category?

The International Criminal Tribunal for the Former Yugoslavia convicted 32 people of crimes including sexual violence committed during the 1992-1995 war. Those cases established that rape, enslavement and mutilation were part of a broader campaign of persecution used to sow fear and force people from their homes, the Office of the Prosecutor and the International Residual Mechanism for Criminal Tribunals told BIRN — a finding "not accepted right away". Earlier, sexual violence was often treated as a personal act motivated by lust, or wrongly characterised as "incidental" or "opportunistic", detached from the context of the war.

The Court of Bosnia and Herzegovina notes it was the first court, international or national, to establish that sexual violence constitutes a crime against humanity in the form of gender-based persecution.

What is the court's response?

The Court of Bosnia and Herzegovina defended its record. "The number of prosecuted cases and convictions, the sentencing policy, and the value and number of awarded property-related claims send a clear message that wartime sexual violence will not go unaddressed," it told BIRN.

The court said it protects witnesses through pseudonyms, voice and image distortion during testimony, and a Witness Support Section that assisted around 80-100 witnesses per year over the past two years, roughly one third of them in sexual violence cases.

Kaloper and victims' associations are calling for a serious review of sentencing policy and for such cases to be tried exclusively before the state court. "When courts impose minimal sentences for proven sexual violence, an extremely dangerous message is sent that the gravity of this criminal offence of war crimes has not been adequately recognised and punished," she said.