Policy Paper on Reparations for Civilian Victims
of War Related Sexual Violence
Prepared by
Maja Munivrana Vajda
With support from
Ruth Rubio Marin
Authors of thematic studies for this Policy Paper
Davor Derenčinović, Ivana Dijanić Plašč, Ivana Milas Klarić, Maja Munivrana Vajda and Sunčana Roksandić Vidlička
December 2013
United Nations Development Programme in Croatia
Table of Contents
I.
Introduction
II.
Basic Principles
III.
Definition of Victim and Beneficiaries
IV.
Reparations Measures
(a) Monetary Compensation
(b) Services - Rehabilitation
(c) Symbolic Reparations
(d) Collective Reparations
(e) Guarantees of Non-repetition
V.
Reparations Procedure
(a) Reparations Commission
(b) Functions
(c) Evidentiary and Procedural Rules
(d) Implementation and Monitoring
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I.
1.
Introduction
This policy paper is the final outcome of the UNDP project “Addressing the
needs of wartime victims of sexual violence in Croatia: An unresolved legacy of the
1991-95 war”. It reflects and builds on two analytical reports of the national expert
team (one focusing on psychosocial aspects and the other on existing and
recommended legislative framework). In particular, this policy paper further
develops the guidelines which were drafted with the assistance of an international
expert, based on the findings of the two reports.1 It also incorporates the report and
findings of the sociological team, whose members have carried out a research into the
number of victims, forms of sexual violence that took place during the conflict, types
of harm experienced by the victims and their expectations.2
2.
The sociological research identified three main patterns of sexual violence: (a)
sexual violence in detention camps, (b) sexual violence as an immediate consequence
of conquest and entry into inhabited civil areas and (c) sexual violence committed
during occupation against remained civilians. The research estimated that
approximately 1500-2200 persons were victims of serious forms of sexual violence,
which is a number that roughly corresponds to some NGO’s assessments.3 Women
were mostly raped unlike men, who were predominantly victims of genital violence
(beatings aimed at the testicles or penis) leading to their sterility. Only a minority of
men was forced to engage in different forms of sexual conduct or was raped.4
Members of Croatian expert team were: Dr. Ivana Dijanić Plašć, Dr. Ivana Milas Klarić (psychosocial
aspects), Prof.dr. Davor Derenčinović, Dr. Maja Munivrana Vajda, Sunčana Roksandić Vidlička, LL.M.
(experts in criminal justice). Prof.dr. Ruth Rubio-Marin provided international expertise and assisted
with the formulation of the guidelines.
2 Members of this research team were Prof. dr. Ozren Žunec, Dr. Dragan Bagić, Prof. dr. Branka Galić
and their students Luka Bulian, Marija Gašpar, Iva Ivanković, Marko Katavić, Kristina Pavlović and
Maja Weisglass.
3 See the report of the legal team. page 14.
4 Research shows that men were victims in 10.88 % of reported cases. Sexual violence against men took
place prevalently in detention camps. See the report of the sociological team, pages 19-25.
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3.
The UNDP in Croatia has created this policy paper with a view to propose an
adequate and applicable legislative and institutional framework necessary for
securing an effective reparation process. It is hoped that, by proposing concise and
concrete legislative steps based on comprehensive analysis of national legislation and
comparative experiences, this document will serve as a foundation of the new law.
As such, this paper would assist the Working Group of the Ministry of War Veterans
tasked to draft a Law on Protection of Victims of Sexual Violence in War. This
document reflects the internal policy of the UNDP and as such does not give rise to
legal rights.
II.
4.
Basic Principles and Guidelines
There is no need to further elaborate on the need to secure rights of victims of
sexual violence committed during the Homeland war, as this has been done
elsewhere.5 After years of neglect, this need has finally been recognized by Croatian
Government and the Ministry of War Veterans, which has initiated the process of
enacting new legislation to specifically redress victims of wartime sexual violence.
The decision to enact lex specialis seems to be reasonable, foremost as it raises social
awareness and contributes to public condemnation of (wartime) sexual violence. 6
5.
Drafting of this law should be governed by the so-called ‘no-harm’ principle.
In other words, this, as all other reparations initiatives, should, by all possible means,
avoid generating further harm to victims.7 This is why the legislator should ensure
voluntariness and confidentiality. Protection of confidentiality is crucial and, hence,
not surprisingly, emphasized in comparative literature on the subject matter.8 The
See the (attached) reports.
In addition, some other categories of war affected population have already received protection and
benefits through subject-matter specific acts.
7 Ruth Rubio Marin, Reparations for Conflict-Related Sexual Violence: A Decalogue, William & Mary
Journal of Women and the Law, vol. 19, p. 11. et seq.
8 Comp. United Nations Entity for Gender Equality and the Empowerment of Women, A Window of
Opportunity: Making Transitional Justice Work for Women, October 2012 (second ed.), pages 17 and
21., Rubio-Marin, page 40.
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need to grant full public anonymity is not contentious, yet opinions differ on the
necessity to report and, consequently, initiate criminal proceedings. Criminal
Procedure Act places a duty on everyone to report commission of a criminal offence
and failure to do so may constitute a criminal offence.9 On the other hand, healthcare
workers, psychologists and other professionals have a duty to keep the secrecy of
personal information confided to them in performance of their profession and failure
to do so may also constitute a criminal offence. 10 Whereas it is clear that ending
impunity through criminal proceedings is a central component of reparation policies
and a requirement under international law,11 one should also bear in mind the need
to protect confidentiality and, equally important, autonomy of victims of such
sensitive crimes. Therefore, it is respectfully submitted, criminal path should be
pursued only with consent of victims.12
6.
In this context, it is important to emphasize that the Trial Chamber of the
International Criminal Court in the case of Prosecutor v. Lubanga Dyilo made clear
that all the victims deserve equal treatment irrespective of whether they took part in
the (criminal) proceedings or they applied only for reparations.13 The same approach
should be applied in Croatian settings, where over the course of approximately
See art. 302 of the Croatian Criminal Code, Official Gazette no. 125/11, 144/12 and art. 204 of Croatian
Criminal Procedure Act, Official Gazette no. 152/08, 76/09, 80/11, 121/11, 91/12, 143/12, 56/13, 145/13.
10 Art. 145. of Croatian Criminal Code. Disclosing such secrets in the public interest (possibly
including that of prosecuting serious crimes) constitutes a complete defense.
11 See Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, 3B – key aspects
of reparations for women and girls, available at
http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf
12 This conclusion is further supported by the fact that even though reporting the offence by members
of commission, acting as professionals, would probably not constitute an offense neither would failure
to do so (lead to their criminal responsibility). See art. 302(5) of the Criminal Code and Derenčinović et
al., Posebni dio kaznenog prava, Zagreb, 2013, p. 248.
13 ICC, Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, Decision establishing procedures and
principles to be applied to reparations, ICC-01/04-01/06, 7 August 2012, para. 187.
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twenty years only a small number of victims filed a criminal report or sued for
damages.14
7.
Further on, in line with the UN Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law,15 comparative
experiences and writings of distinguished scholars, the new law should rest on
holistic, integrated and multidisciplinary approach and combine individual
reparations with collective, community based programs, symbolic reparations and
guarantees of non-repetition.16 Such diverse measures can achieve multiple objectives
by targeting not just individual victims (which may have different needs and
expectations themselves), but also by addressing structural societal inequalities,
discrimination and stigma attaching to sexual victimization.
8.
For numerous reasons already explained in the reports (e.g. inadequate
legislation in force at the time of the commission of the criminal offences, reduced
flexibility, procedural obstacles etc.) the procedure should be administrative and
entirely independent of criminal proceedings. Opting out for administrative scheme
in comparison to criminal proceedings would, in addition, have the advantage of
setting forth a simplified procedure and producing lesser costs, lowering evidentiary
threshold and sparing the victims of unnecessary trauma and secondary
victimization. 17 It would also allow victims, victims’ groups and civil society in
According to official records, there are (only) 67 victims of sexual violence perpetrated during the
Homeland War. At the same time the State Attorney's Office estimates point to 200 victims and NGO's
estimate that there are 2000 victims.
15 These principles were adopted and proclaimed by General Assembly resolution 60/147 of 16
December 2005 (hereinforth: UN Basic Principles and Guidelines),
16 Only such measures can address multi-dimensional and long-term consequences of these crimes to
women and girls, their families and their communities. See, e.g. Nairobi Declaration on Women’s and
Girls’ Right to a Remedy and Reparation, available at
http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf (10 December 2013, hereinforth:
Nairobi Declaration).
17 Rubio-Marin, page 13. Similar approach has been taken before the ICC as well, which has found the
standard „balance of probabilities“ to be appropriate (see para. 253. of the Decision, ICC-01/04-01/062904).
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general to get involved in the process more proactively and it would offer a platform
for focusing on information relevant for understanding the structural component of
the violations and, hence, relevant for defining collective reparations.18
9.
That does not mean that victims would be denied access to criminal justice.
Yet, it is important to emphasize that Croatian criminal legislation in force tempore
criminis was not adequate, which is another reason why reparations should be
addressed through an administrative program. 19 Although in the meanwhile new
standards in understanding sexual violence have become applicable and definitions
of international crimes have been harmonized with the Rome statute and
international customary law, applying the new standards (at least in the context of
criminal proceedings) could be seen as violating the principle of legality and
prohibition of retroactivity. Nevertheless, when defining sexual violence one should
also take into account rules of international law that were in force at the time of
commission, which makes clear that what perhaps would have been be characterized
only as a minor ‘crime against individual dignity and moral’ under the thenapplicable Criminal Code, could have been punished as a war crime or crime against
humanity under international (customary) law. Even though linking the definition of
sexual violence with international law in order to broaden its interpretation may not
be seen as crucial from the perspective of reparations, which should be awarded
through separate administrative proceedings, such an approach (if accepted by
Croatian criminal judiciary) would enable Croatia to effectively investigate,
See the Report of the Special Rapporteur on violence against women, its causes and consequences,
Rashida Manjoo; (last visited 28 December 2013, herinforth: SP Report), http://daccess-ddsny.un.org/doc/UNDOC/GEN/G10/131/09/PDF/G1013109.pdf?OpenElement paras 35-39.
19 Only a limited circle of sexually abusive conduct would constitute an international crime. See the
report of the legal team.
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prosecute and punish persons responsible for international sex crimes, 20 which in
itself may be seen as a remedy.21
10.
Redressing victims of wartime sexual violence would reinforce principles of
social solidarity and justice.22 It would also implement international and European
standards and documents that enshrine victims’ rights, including the right to
reparations.
23
Reparations to victims of wartime sexual violence should be
equivalent, to the extent possible, to the benefits provided to other categories of
wartime victims as well as ex-combatants. 24 At least with regard to the former
category, the society should strive to avoid creating different categories of victims
thereby establishing a hierarchy of harms and recognition. This policy paper will,
therefore, take into account the existing legislation providing protection and benefits
to war veterans and war and civilian disabled persons.25
Otherwise, prosecution of most forms of sexual violence committed during the war would be statute
barred by now (unless it could be qualified under the restrictive definition of war crime).
21 According to part. VII., para. 11. of the UN Basic Principles and Guidelines, remedies for gross
violations of international human rights law and serious violations of international humanitarian law
include the victim's right to effective access to justice.
22These principles have also been highlighted in art. 2 of the Act on financial compensation to victims
of criminal offences, Official Gazette no. NN 80/08, 27/11. and art. 3. of draft Act on (rights of) victims
of torture in Bosnia and Herzegovina (on file with the authors).
23 EU Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012,
establishing minimum standards on the rights, support and protection of victims of crime, and
replacing Council Framework Decision 2001/220/JHA, UN Basic Principles and Guidelines, Nairobi
Declaration. Victims’ right to remedy and reparations has been affirmed in a number of international
human rights and humanitarian instruments. For a list see SP Report, para. 13 (with further references
in footnote 3). Moreover, a number of documents spell out the obligation to provide reparations to
women subjected to violence. See SP Report, para. 23.
24 United Nations Entity for Gender Equality and the Empowerment of Women, A Window of
Opportunity: Making Transitional Justice Work for Women, October 2012 (second ed.), page 22. When
it comes to the latter category, it is important to try to avoid the impression that those involved in
violence benefit more than those who were victims of violence.
25 See Act on Protection of Military and Civil Disabled Victims of War, Official Gazette no. NN 33/92,
NN 77/92, NN 27/93, NN 58/93, NN 2/94, NN 2/94, NN 76/94, NN 108/95, NN 108/96, NN 82/01, NN
103/03; Act on the Rights of Croatian Homeland War Veterans and their Families, Official Gazette no.
174/04, 92/05, 02/07, 107/07, 65/09, 137/09, 146/10, 55/11, 140/12, 18/13. However, it is desirable to avoid
the notion of invalidity/disability in cases of rape victims for it does not adequately capture the nature
of the direct and indirect harms, both material and psychological that victims of sexual violence
typically experience.
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11.
When drafting the law, it is also important to bear in mind that the harm
suffered by the victims of any, including sexual violence cannot be measured and
compensated proportionally.26 Moreover, while the (economic) needs of immediate
victims must be the focal point, the purpose of reparations goes beyond addressing
individual harm. In cases of gender based human rights violations, such is wartime
sexual violence, reparations “must aim to address the political and structural
inequalities that negatively shape women’s and girls’ lives”. 27 Gender sensitive
approach is essential for making transitional justice work for women - predominant
victims of sexual abuse.28 Yet, it is important to emphasize that men were sexually
abused too. In addition, both women and men of different ethnic origin were abused.
In line with the principle of non-discrimination, neither sex nor ethnicity and other
personal traits should exclude victims of sexual violence from the scope of the new
legislation.29
12.
Finally, it is submitted, before enacting the new law consultations with victims
and a thorough research must be carried out.30 The importance of research cannot be
overemphasized. In order to be successful in achieving its goals, the new law must be
realistic and its provisions must reflect the economic reality and the number of
victims and their needs.31 The research must ensure understanding of not just the
number and types of violations, but also of how this experience affected the quality
of life and current status of the victims. As has been noticed,32 the implementation of
Ruth Rubio Marin, , p. 7.
Nairobi Declaration (2007). That reparations should seek to have a transformative effect has further
been emphasized in SP Report, para. 31. It has also been recognized by the Inter-American Court of
Human Rights it the case Cotton Field v. Mexico from 2009 (for a summary, see SP Report paras 77
and 78).
28 The need to include women in all aspects of post-conflict reconstruction and peace building has
been stressed by the Security Council in its resolution 1325 (S/RES/1325) on women and peace and
security from 31 October 2000.
29 Principle of non-discrimination is the first basic principle of the Nairobi Declaration.
30 On the need to include the victims in the process see SP Report, para. 29.
31 Comparative experiences, such is the one of South Africa, show that the government failure to fulfill
its promise may trigger anger, dissatisfaction and frustration, see Priscilla Hayner, Unspeakable
Truths: Transitional Justice and the Challenge of Truth Commissions, Routledge 2010, page 163.
32 E.g. report of the legal team.
26
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reparation program may turn to be difficult even if there is enough political will for
its implementation as basic capacities and available funds may not be sufficient.
Grounding the law on research will also help avoid future amendments of the law
and reduce the associated costs (both financially speaking and in terms of potentially
reduced legitimacy and undermined public trust). According to Venice Commission
Report on the Rule of Law, legal certainty also means that actions or promises given
by the state to individuals should in general be respected and that the laws are
implementable (the notion of ‘legitimate expectation’).33 As a first step, the legislator
could rely on the sociological research carried out under the auspices of the UNDP in
Croatia, and the victims views expressed therein.
III.
13.
Defining the victim and the circle of potential beneficiaries
Bearing in mind everything stated above, the new law should, it is submitted,
define victims in a broad manner as persons who, individually or collectively
suffered harm including physical or mental injury, emotional suffering, economic
loss or substantial impairment of their rights through war-related acts of serious
sexual violence.34 Explicit reference should be made to men and women, and perhaps
even to children born as result of rape.35 At the same time, it should be emphasized
European Commission on Democracy Through Law (Venice Commission) Report on the Rule of Law (2011),
adopted on 86th Plenary session, 25-26 March 2011, Study No 512/2009, CDL-AD(2011)000rev, para
48.
34 This definition closely follows the definition laid down in part 5. para. 8. of the UN Basic Principles
and Guidelines. A very similar definition was adopted in the EU Directive which considers as a victim
„a natural person who has suffered harm, including physical, mental or emotional harm or economic
loss which was directly caused by a criminal offence” (art.2). Yet, having in mind that the EU Directive
is only concerned with victims of crimes, instead of referring to sexual violence that constituted
international crimes, the law should in more simplistic manner, state that harm must result from warrelated sexual violence Although this may not be manifest at first glance, economic loss may entail not
just from complex health issues but also from ostracism, spousal and communal rejection. See RubioMarin, page 27.
35 The latter category is particularly sensitive and further research is necessary. Some reparations
programs include children born out of rape as explicit beneficiaries, yet caution should be exercised
not to declare those children as victims. Neither can they be labelled as ‘survivors of wartime sexual
violence’. On one hand. the legislator could opt to increase the amount of compensation given to their
mothers (who have raised them). On the other, explicit right to compensation for these children could
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that a person should be considered a victim regardless of whether the perpetrator of
the violation is identified, apprehended, prosecuted, or convicted and regardless of
the familial relationship between the perpetrator and the victim.36
14.
A difficult question is should the law define the notion of war-related sexual
violence. While leaving the notion undefined would have the advantage of flexibility
and avoiding the problems identified above, it would also give broad discretion to
the commission applying the law.37 Therefore, it is submitted, the law should spell
out in a comprehensive manner the most serious forms of sexual violence that took
place during the conflict, possibly including an open clause that refers to acts of
comparable gravity. 38
15.
The law should also specify the period and the territory to which the right to
reparations applies. When defining the time frame, the law should, taking into
account different sources setting different starting dates, take the broadest approach
and set 17 August 1990 as a beginning of victimization period (whereas 30 June 1996
should be the end date).39 The right to reparations should be guaranteed to persons
victimized not just on the territory of the Republic of Croatia, irrespective of their
be seen as an alimentation to which they are entitled (this seems to be the position of experts
interviewed by the sociological team, see page 52.)
36 See UN Basic Principles and Guidelines, para. 9.
37 The danger stemming from such discretion lies perhaps not in over, but in under-inclusion.
38 In any event, the reference to rape should specify that the notion of rape encompasses situations in
which perpetrators and victims were of the same sex as well as situations of male victimization.
Specific reference should be made to other forms of serious sexual violence including sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence of
comparable gravity that took place during the conflict. The open clause would leave the door ajar for
including other forms such as forced nudity, whenever the circumstances of a case would render it a
form of sexual violence of comparable gravity (although some authors wonder if such practices can
ever be seen as comparable in gravity See Kai Ambos, Sexual Offences in International Criminal Law,
with a special focus on the Rome Statute of the ICC, in M. Bergsmo et al. (eds.), Understanding and
Proving International Sex Crimes, Beijing 2012, page 167. In any case, the law should also specify a
nexus between sexual violence and either international or non-international armed conflict or
widespread or systematic attack (or genocidal intent in cases of genocide).
39 The same approach has been taken in the Act on Liability of the Republic of Croatian for Damage
Caused by Members of the Croatian Military and Police Forces during the Homeland War and
Official Gazette no. 117/03 (art. 3) and Act on Protection of Military and Civil Disabled Victims of War
(articles 5 and 8). For different dates see the report of the legal team.
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nationality, ethnicity and sex, but also to Croatian nationals and persons with
permanent residence in Croatia who were victimized outside the Republic of Croatia
within the relevant time-frame (e.g. victims held in detention camps in Serbia). 40
16.
Finally, in addition to victims, the law should also define the circle of
beneficiaries (indirect victims) and give them a more limited access to a remedy. This
would recognize the fact that close relatives can also experience harm, especially if
forced to witness sexual violence, 41 and should therefore be entitled to some
reparations programs (foremost to psycho-social measures).
These beneficiaries
could be defined in the same way as in Art. 5(6)-(8) of the Act on Financial
Compensation to Victims of Criminal Offences.
IV.
17.
Reparations Measures
Reparations measures should be diverse and holistic and should be designed
in consultation with the victims. 42 Involving victims in designing reparations
measures is healing in itself as it empowers the victims, respects their autonomy and
gives them a voice.43 All the reparative measures should be specified as much as
possible by the law in advance for the reasons of legal certainty, transparency and in
Similarly, in the framework of victims of crimes Act on Financial Compensation to Victims of
Criminal Offences ties the right to compensation to (Croatian or EU Member State's) citizenship and
permanent residence (in the EU) in all cases (art. 7). Yet, the EU directive clearly instructs states to take
measures to ensure that the rights set out in it are not made conditional on the victim’s residence
status or citizenship/nationality (see para. 10 of the Preamble). The fact that the crime and ensuing
victimization occurred on Croatian territory should be seen as sufficient for establishing State
responsibility to investigate and prosecute as well as for allowing victims’ access to remedies.
41 For one account see a newspaper article published on 5 September 2013 in Jutarnji list, titled „The
whole family had to watch their daughter being raped“.
42 On the importance of consultative processes see United Nations Entity for Gender Equality and the
Empowerment of Women, A Window of Opportunity: Making Transitional Justice Work for Women,
October 2012 (second ed.), page 17-19. The research conducted by the sociological team (page 49-50 of
the report) suggests that victims are familiar with different forms of reparations and believe all should
be implemented.
43 Comp. Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, 3B – key
aspects of reparations for women and girls, available at
http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf and United Nations Entity for
Gender Equality and the Empowerment of Women, page 22.
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order to increase the likelihood that these measures will be fully implemented. 44
Funding should be secured through general budgetary line, as “States are
responsible for their failures to meet their international obligations even when
substantive breaches originate in the conduct of private persons”. 45 In addition, State
should encourage voluntary contributions, for instance by providing for a tax relief,
inviting donations through public campaigns, etc.). The Government should also
analyze the possibility and apply for EU support funding, following the example of
Morocco.46
(a) Monetary compensation
18.
Monetary compensation should be awarded only to direct victims of wartime
sexual violence. While pensions in (at least) the average amount of war civilian
pensions would be preferable,47 if due to lack of budgetary resources such measure
could not be implemented in reality, a more realistic lump sum payment should be
considered. In that case, the legislator should consider an amount that is substantial
enough to make a qualitative change in victims’ lives (e.g. enable them to start a
small business, move, etc.), which is why the suggested amount is, at least, 15,000
Euros.48 In any case, caution should be exercised so that the payment should not
devaluate the suffering of victims.49
According to the sociological report, both the measures and procedures should be spelled out in
advance as they will influence the decision of the victims to come forward. See page 37.
45 SP Report, para. 16.
46 See,
e.g. http://www.moroccotomorrow.org/experience-of-community-reparation-in-morocco-isunique-and-unprecedented-in-the-maghreb-eu-senior-diplomat/ (available 10 December 2013).
47 This view is shared by the majority of interviewed victims (See the report of the sociological team,
page 50.)
48 When it comes to exact (minimal) amounts, further research could prove helpful to estimate victims’
expectations. Research carried out by the sociological team indicates that some women, victims of
sexual violence, feel shame about receiving financial compensation for their trauma; yet, they need the
money and would use it. Others emphasize symbolic dimension of monetary compensation and see it
as a form of recognition of their status of civilian victims (page 50.)
49 Ruth Rubio-Marin, page 18., rightly warns that sexual and reproductive violence can be
symbolically undervalued if it is considered less serious than other violations when quantifying
compensation.
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19.
Given that sexual violence is a broad category involving different forms of
violence and practices that cause different degrees of harm, drafters of the new law
should consider identifying different categories for the purpose of creating different
compensation regimes. Women that were forcefully impregnated, gave birth as a
result of rape and those which have lost their reproductive rights should receive
higher amounts of compensation as well as those that were younger than 18 at the
time of sexual abuse. 50 The new law should envisage another additional, aggravated
category of victims – victims of sexual violence that have experienced long-term
sexual abuse (in concentration camps). All of these victims should receive an added
percentage (it is suggested of at least 30%), irrespective of whether the payments are
made in monthly pensions or in a lump sum. Interestingly, women interviewed by
the sociological team seemed to be against differential treatment of women
depending on the duration of violence and abuse.
51
In order to avoid the
disaggregation of reparations efforts as well as the division among victims, the state
may consider giving similar compensation payments to different categories of
victims but putting into place services to address the specific needs of the most
severely affected victims.
(b) Services - Rehabilitation
20.
Although financial compensation may be seen as the most important form of
redress, social-service packages provided to victims with a view of contributing to
their rehabilitation are probably of paramount importance for successfulness of
reparation programs.52
21.
Benefits provided to victims of wartime sexual violence should, to the largest
extent possible, reflect the benefits already given on different grounds to other
On different forms of violence that should be specified, see Rubio-Marin, page 20.
See page 50 of the Report. Yet, given that the sample size was very small (six), the issue should be
further researched.
52 Research shows that female victims actually often prioritize services for themselves and their
children. See Rubio-Marin, page 25.
50
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categories of victims (in particular civilian disabled persons) in order to avoid
creating the implication that the victims of wartime sexual violence are less worthy
than other war-related victims. The law should, however, take into account specific
needs of this category of victims.
22.
Focus should be on medical and psychological care which should be offered to
other beneficiaries (i.e. family members) as well. Due to the lapse of time, medical
assistance will not be needed in the same manner as in cases of immediate responses
to sexual violence and emphasis should be given to psychological assistance. The
importance of psychological assistance has been stressed by the victims themselves,
and the pilot program of psychological assistance set up by the UNDP could serve as
a model.53 Yet, the need to provide medical assistance should not be neglected as
sexual violence, depending on the degree of its brutality, may have long-lasting
health effects, such as infertility, urinary dysfunctions, and even AIDS. 54 That is why
the new law should provide for the right to primary and supplementary medical
insurance, medical rehabilitation and an annual medical check-up examination.
23.
In addition to health-care services, the law should contemplate different
measures. It should enable professional rehabilitation, 55 including less formal forms
of skills training, and other employment measures, such as giving priority in
employment in state institutions and legal entities in the (preponderate) ownership
of the State as well as giving the right to special service accrual.56 Such measures
would, it is hoped, provide the women with sustainable work opportunities and,
thus, promote their meaningful role in the society. The legislator should also consider
supporting education of victims’ children (by providing free textbooks, scholarships,
Psychosocial assistance should be offered at a local level to enable victims to access the service more
easily. See the report of the sociological team, page 51,
54 In order to be able to specify these services as much as possible, documentation, research and
consultations with victims are necessary.
55 See art. 20.a of the Act on Protection of Military and Civil Disabled Victims of War, art. 23 of the Act
on the Rights of Croatian Homeland War Veterans and their Families.
56 See art. 48.f and 48.i of the Act on Protection of Military and Civil Disabled Victims of War, art. 33
and 35 of the Act on the Rights of Croatian Homeland War Veterans and their Families
53
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advantages regarding the right to student residence) and giving priority in
placement to retirement and nursing homes.57 Housing or privileged loan programs
should be given, especially/at least to victims caring for children born out of rape.58
24.
The law should also provide for free legal aid (both during criminal
proceedings as an injured party and during other judicial and administrative
proceedings initiated in relation to wartime sexual violence).59
(c) Symbolic reparation
25.
An apology letter signed by the Croatian president and sent together with the
monetary compensation) seems like a good example of symbolic reparations to the
extent that it helps to convey the proper meaning of compensation. In order to raise
the public awareness and impact wider audience, an apology should also be made
publicly as a form of collective reparation (described below), as was done in Sierra
Leone. 60 Such public apology should include acknowledgment of the facts and
acceptance of responsibility, without exposing individual victims.
26.
Other types of potentially applicable symbolic measures include, for example:
building a memorial center, setting up commemoration or remembrance days,
establishing a documentary center on war and women, etc. Symbolic measures in
general are often focused on establishing the truth, inasmuch as such measures do
not cause further harm to victims and their relatives. 61 Comparative experience
Comp. articles 48a., 48.d and 48.e. of the Act on Protection of Military and Civil Disabled Victims of
War with articles 54, 56 and 57 of the Act on the Rights of Croatian Homeland War Veterans and their
Families. Advantage in enrollment in educational institutions, set forth in article 53 of the latter act,
has been abolished by the Constitutional Court, and should not be taken over in the new law.
58 See art. 36-50 of the Act on the Rights of Croatian Homeland War Veterans and their Families.
59 To an extent, legal aid could be provided by students through legal clinics (see new Act on free legal
aid, Official Gazette no. 143/13), but such outsourcing should not relieve the state from its primary
responsibility.
60 On 27 March 2010, the President of Sierra Leone publicly stated that the State fell short in the
obligation to adequately protect women from the brutalities of armed conflict and apologies for the
wrongs done to Sierra Leone women. See United Nations Entity for Gender Equality and the
Empowerment of Women, A Window of Opportunity: Making Transitional Justice Work for Women,
October 2012 (second ed.), page 18.
61 See para 22(b) of the UN Basic Principles and Guidelines.
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shows that the victims were less eager to accept and support programs which were
poorly incorporated into broader efforts to establish the truth. 62 In line with that,
efforts should be intensified to bring perpetrators to justice;63 since a greater number
of reported and prosecuted cases will help shed light on the frequency with which
these violations took place and distribution of the consequences in the community.
However, this should not be done at the expense of victims’ safety and autonomy, as
will be explained infra. As with other measures, symbolic reparations should be
determined in consultations with the victims.
(d) Collective reparations
27.
In addition to different forms of individual reparations, the law should also
provide for collective reparations for war affected women in general so as not to
single out, and possibly stigmatize, victims of sexual violence. Their advantage is
that they allow for broader range of beneficiaries and achieve wider impact, while at
the same time minimizing individual exposure of victims.64 However, when thinking
out these measures caution should be exercised to avoid the danger of turning
reparations into general development measures.65 Due to different reasons victims
may not form a cohesive group, which could also be a hindrance for effective
implementation of collective reparations. This is another reason why (prior) research
must be carried out – to identify communities and needs of victims which could be
addressed collectively.66 Arguably, collective reparations may serve to re-establish
Hayner, table 5 in Appendix 2.
See para 22(f) of the UN Basic Principles and Guidelines. The Trial Chamber in Lubanga case
specified that conviction and sentence are types of reparations likely to have significance for victims
(para. 237 of the Decision establishing principles of reparations).
64 See Rubio Marin, page 34. She also discusses different meanings, types and advantages of collective
reparations (pages. 32-35).
65 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, 3B – key aspects of
reparations for women and girls, available at
http://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf
66 For one such effort, see page 27 of the Sociological report.
62
63
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social solidarity if designed together with victims’ communities and may help
overcome imbedded inequality and exclusion.67
28.
One of the forms of collective (symbolic) reparations is a public apology,
already mentioned above. Other measures that should be thought through are: (i)
intensified
financing
of
NGOs
and
associations
providing
support
and
encouragement, including rehabilitation, to war affected women in general; 68 (ii)
funding of locally decided projects (either through open call, tender or decided
through a bottom up approach; (iii) support for civil society truth telling initiatives
(e. g. providing public broadcast for Women´s Court). 69 The government could also
provide technical assistance and necessary skills which would enable women victims
to apply for different grants and EU funded projects.
(e) Guarantees of non-repetition
29.
The significance of structural reforms which could help transform society,
rebuild hope and ensure that the harms will not be repeated has been emphasized in
research and victims’ surveys.70 Different measures could be implemented under this
rubric and they could, perhaps, be used as a main force to combat underlying
structural causes of sexual violence. Probably the most important is education on
anti-discrimination, human rights in general and in particular on women’s rights. 71
Such education should be carried out at different levels, e.g. through public
campaigns, mass media, etc. Continuous education on these issues should, with
cooperation of the Ministry of Science, Education and Sport, also enter mandatory
See the Trust Fund for Victims submissions in Lubanga case, ICC-01/04-01/06-2872, para. 72-77, 102.
See also ICC-01/04-01/06-2803-Red, paras 20-26.
68 The need for active engagement of NGOs which can provide a more informal and private settings
has been highlighted by six interviewed women, See the report of the sociological team, page 52.
69 More about the Women's Court initiative as a platform for alternative justice for women at
http://www.citsee.eu/citsee-story/trial-women%E2%80%99s-court-gender-violence-justice-andcitizenship and http://www.zenskisud.org/en/2012.html (10 December 2013).
70 See country case study: Uganda in United Nations Entity for Gender Equality and the
Empowerment of Women, A Window of Opportunity: Making Transitional Justice Work for Women,
October 2012 (second ed.), page 17.
71 See Rubio-Marin, pages 35-38.
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school curriculum, 72 and workshops should be organized for state officials and
agencies on regular basis.
30.
Government should also initiate changes in the normative framework, and
amend the framework that has enabled or tolerated structural gender inequalities. In
this regard, it is essential to emphasize that over the past twenty years Croatian
(criminal) legislation has been amended in line with international standards, both in
terms of substance (e.g. incrimination of different forms of sexual violence, with
emphasis on the lack of genuine consent instead of force) and procedure (e.g.
enhanced victim protection in criminal proceedings, specifying that facts regarding
former sexual behavior of the victim cannot be used as evidence in the proceedings,
etc.).73 Positive normative development per se can be seen as constituting a form of
reparation. 74 Therefore, victims (and where possible society at large) should be
familiarized with these developments and understanding of the changes could
contribute to their (voluntary) participation in criminal proceedings.
31.
Last, but not least, efforts should be made to further train police and judiciary
on sensitive issues of gender-based violence, in order to ensure effective
implementation of the (newly enacted) legislation in practice. The need for training
and education of police officers and various state institutions and civil society
organizations on different issues connected with sexual violence (in general) has
already been foreseen by Protocol for Handling Sexual Violence Cases.75 Still, specific
training on the issue of wartime sexual violence should be carried out. In this context
special attention should be paid to male victims of sexual violence as “[e]ntrenched
gender norms combined with cultural and religious taboos, and scarce services,
make it very difficult for males to disclose that they are survivors of sexual violence,
72
Possibly through the Civic Education Programs which should be introduced in all the elementary
and high schools next academic year.
73 For a more detailed overview of these changes, see the report of the legal team.
74 See para. 23. of the UN. Basic Principles and Guidelines
75 http://public.mzos.hr/Default.aspx?art=12121, Protocol has been adopted on 29 November 2012.
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while service providers may not recognize the male experience of SGBV.
Communities are frequently reluctant to acknowledge the experience of male
survivors because it may be seen, among other things, as conceding weakness and
bringing shame to the community.“76
V.
Reparations Procedure
(a) Reparations Commission
32.
Commission should be established as a victim- friendly, mobile reparations
commission. Members of the commission, it is suggested, should be: a psychiatrist,
psychologist, social worker, criminal lawyer,77 an expert on human rights and a war
expert. Such mixed composition would facilitate fulfillment of a wide range of
purposes described below and would contribute to a rehabilitative effect of the
process itself. Presence of a war expert would enable the commission to estimate
whether a testimony of a victim fitted within the war patterns and their regional
specificities. The legislator should also consider inclusion of a medical expert with
experience on gender violence, who would be able to assess medical records where
available. Moreover, the legislator should think about including at least one former
victim or a member of a NGO working with victims in the commission, as that could
contribute to its acceptance by the victims and the overall success of its work. 78 In
any case, all members should be widely acknowledged professionals with high moral
integrity, appointed through a transparent procedure, with participation of civil
society. In addition, members should either have expertise in working with psycho
traumatisation and war trauma or/and receive special training in direct work with
victims of sexual violence. Furthermore, it is essential to pay attention to gender
76
United Nations High Commissioner for Refugees, Working with men and boy survivors of sexual
and gender-based violence in forced displacement, 2012, page 4. (available at
http://www.refworld.org/pdfid/5006aa262.pdf 10 December 2013).
77 Due to the fact that this is a commission for compensation for human rights abuses and not for
assessing criminal responsibility, the main task of a criminal law expert would be to inform victims
about prospects for criminal prosecution.
78 Morroco’s Equity and Reconciliation Commission was composed out of several former political
prisoners. See http://www.usip.org/publications/truth-commission-morocco (last visited 30 December
2013).
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composition and allow victims to testify in front of a member of the chosen sex.79
Victims should have professional assistance and support throughout the process, and
should be enabled to come before the commission together with a person of trust if
they so choose.
(b) Functions
33.
The Reparations Commission should be tasked with several, equally relevant
purposes:
-
to listen to the victims as a way of ensuring victims´ rehabilitation and satisfaction
(‘let them speak their story’) when victims so choose80;
-
to assess the victims’ needs for recommendation of services, rehabilitation
measures and compensation amounts;
-
to assess the need for legal aid (including for prosecutorial purposes in case
victims may want to undertake criminal actions );
-
to screen out potential fraudulent cases;
-
to come up with further recommendations concerning mechanisms and measures
of collective reparations as well as guarantees of non-repetition.
(c) Evidentiary and Procedural Rules
34.
In accordance with recommendations in comparative literature and
proceeding set in place for recognizing the status of other categories of victims in
Croatia,81 reparations proceedings should be administrative in nature, simple and
79
At least 40 % of all the members should be women. According to the report of the sociological team,
an oral testimony should be given in front of a psychologist or a psychiatrist, who would be able to
assess its validity (p.49.). Whenever an oral testimony is required, victims should testify in front of just
one member of commission, who could share the main points with the other members of the
commission. Another alternative would be to video record the testimony. See the report of the
sociological team, pages 48-49.
80 Victims should not be forced to speak if they do not wish to do so, except when there is a suspicion
of fraud and no other way to of addressing the question. In any event, one testimony should be
sufficient for all purposes, See the report of the sociological team, page 48.
81 See e.g. Rubio Marin, page 13. with further references and existing reparation legislation in Croatia.
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accessible, 82 with the possibility of appeal.83 The law should explicitly enshrine a
victim-friendly bona fidae principle; yet it should also include a provision on
procedure and consequences in cases of (attempted) fraud.84
35.
Victims should be required to submit a written statement and fill a
questionnaire targeting information that is needed for victims´ needs assessment
plus assessment of prosecutorial possibilities in case victims would like to pursue
this option. Together with the application victims should submit personal data,
(approximate) date and nature of sexual violence and its location, identity of
perpetrator if known (disclosure should be optional), effects and harms on
themselves and others ensuing from the violence, data on victim’s residence at the
relevant time and data on criminal proceedings if available. Whenever possible,
application should be supported with additional documents. An exemplary list of
documents that victims can, but must not produce to support their application
should include medical records, witness information, International (or local) red
cross confirmation documents or documents from other bodies that have kept official
records during war, NGO statements, etc.
85
The main tool to determine victim
statuses would be victims’ testimony which could be corroborated by expert
witnesses (on war and sexual violence). This is why it is necessary to carry out prior
research and mapping of victims, patterns of violations and locations.86
Otherwise, victims could decide not to come forward. See the report of the sociological team, pages
37-38.
83 By analogy with art. 71 of the Act on Protection of Military and Civil Disabled Victims of War,
Ministry of War Veterans could be placed in charge with appellate proceedings.
84 Providing false testimony is a criminal offence. Based on negative experience and a considerable
number of fraudulent claims to war veteran status, concerns have been raised with regard to victims
of wartime sexual violence as well. Yet, it should be emphasized that war veteran status, unlike that of
victim of sexual violence, has not been associated with comparable stigma and shame.
85 For a similar list see article 7 of the draft Act on (rights of) victims of torture in Bosnia and
Herzegovina (on file with the authors).
86 On importance of mapping see United Nations Entity for Gender Equality and the Empowerment of
Women, A Window of Opportunity: Making Transitional Justice Work for Women, October 2012
(second ed.), page 16.
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36.
The law should set a long, preferably open or at least extendable application
deadline in order to allow victims who may in principle hold back because of fear of
reprisal or stigmatization to come out when they feel psychologically ready to do
so. 87 Open or sufficiently long application deadline would, moreover, enable the
victims to get all the necessary information about procedure, benefits and risks
(possible undesirable consequences of their participation in the reparations
proceedings).88 In order to reach the victims, an outreach strategy should be devised
including a broad publicity campaign should follow the enactment of the law and
NGOs should be included to the extent possible to assist victims in the early
application stage if necessary. A public campaign should actually start during the
drafting stage as a part of the mapping process.
(d) Implementation and Monitoring
37.
Implementation of the law should be monitored. The Ministry of War
Veterans should become the focal point which will coordinate implementation with
all the other ministries which will have to be involved (e.g. Ministry of Health,
Ministry of Social Policy and Youth, etc.). In order to make sure that all reparations
measures are duly implemented, the law itself should include a provision setting up
a monitoring body (possibly within the Ministry of War Veterans) to draft periodic
reports on implementation. This would enable potentially necessary amendments
and facilitate fulfillment of the purposes of this reparation program. This body could
also be tasked with collection and analysis of statistical data for the purposes of
creating project and programs of enhancement of victims’ rights, education, scientific
Having in mind the lapse of time that has already occurred, an alternative would be to set up a
precise but not restrictive deadline, e.g. at least two years from the entry into force of the new
legislation (such a deadline is envisaged in art. 7 of the draft Act on (rights of) victims of torture in
Bosnia and Herzegovina (on file with the authors).
88 It is important for the victims who have not shared their experience so far to gain trust in the
procedure and perceive it as safe, i.e. procedure that will not cause further emotional suffering or
social stigma. This may happen only after a while, once the other victims (probably those who have
already initiated other procedures and publicly recounted their stories) have gone through the
procedure and have shared their experience with other victims. See the report of the sociological team,
pages 38-39.
87
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research, etc. Such data should be used without revealing individual identities of
victims.
24