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International Tribunals & Special Courts

Rape in War: Challenging the Tradition of Impunity

Citation:

Thomas, Dorothy Q., and Regan E. Ralph. 1994. “Rape in War: Challenging the Tradition of Impunity.” SAIS Review 14 (1): 81–99.

Authors: Dorothy Q. Thomas, Regan E. Ralph

Abstract:

Despite the prevalence of rape in conflicts throughout the world, wartime rape often has been mischaracterized and dismissed by military and political leaders, with the result that this abuse goes largely unpunished. The fact that rape is committed by men against women has contributed to its being portrayed as sexual or personal in nature, a portrayal that depoliticizes sexual abuse in conflict and results in it being ignored as a human rights abuse and a war crime. Documentary efforts reveal where and how rape functions as a tool of military strategy. Soldiers rape to subjugate and punish individual women and to terrorize communities and drive them into flight. Whenever committed by a state agent or an armed insurgent, whether a matter of policy or an individual incident of torture, wartime rape constitutes an abuse of power and a violation of international law.

Topics: Armed Conflict, Combatants, Gender, International Law, Justice, Impunity, International Tribunals & Special Courts, War Crimes, Military Forces & Armed Groups, Militaries, Rights, Human Rights, Sexual Violence, Male Perpetrators, Rape, SV against women

Year: 1994

Shouting from the Bottom of the Well: The Impact of International Trials for Wartime Rape on Women’s Agency

Citation:

Mertus, Julie. 2004. “Shouting from the Bottom of the Well: The Impact of International Trials for Wartime Rape on Women’s Agency.” International Feminist Journal of Politics 6 (1): 110-28.

Author: Julie Mertus

Abstract:

This article critically examines the presumption that international adjudication of wartime rape cases advances the interests of survivors. It argues that just as national women's rights advocates recognize the futility of relying on court testimony alone for the production of a narrative that reflects women's experiences, promotes their agency and addresses their need for closure and healing, international women's rights advocates should explore the limitations of international tribunals and examine complementary and alternative mechanisms. Using the landmark 'Foca case' as an illustration, the author explains that although women may still exercise agency in the context of the adversarial process, their ability to do so is stunted. Moreover, I argue that, although witnesses may actively resist the legal meta-narrative of Woman Victim, adversarial processes serve to reinforce gender essentialism and cultural essentialism. This analysis has important implications for women human rights advocates seeking to bring cases before all international courts, including the permanent International Criminal Court.

Keywords: gender and conflict, wartime rape, human rights, humanitarian law, international criminal trial for Former Yugoslavia (ICTY), Bosnia, truth commissions, law and society, impunity

Topics: Gender, Women, Justice, International Tribunals & Special Courts, Sexual Violence, Rape

Year: 2004

An Element of Genocide: Rape, Total War, and International Law in the Twentieth Century

Citation:

Schiessl, Christoph. 2002. “An Element of Genocide: Rape, Total War, and International Law in the Twentieth Century.” Journal of Genocide Research 4 (2): 197–210.

Author: Christoph Schiessl

Abstract:

The rape of women during wartime and genocide serves several functions. Beyond the purely sexual aspect, soldiers use rape not only to dominate and demoralize women, but also their male relatives, friends, and neighbors. In addition, a group power develops that has no comparison to civilian life, enlarging the power of men alone. Despite attempts to limit total war and genocide in the 20th c., until the International Criminal Tribunals for the Former Yugoslavia and Rwanda were formed in the 1990s, rape did not play an overly important role in international law regarding warfare. The Hague Conventions and the Nuremberg and Tokyo trials did not even mention violence against women, until the Fourth Geneva Convention finally included rape into its regulations.

Topics: Armed Conflict, Gender, Gender-Based Violence, Genocide, International Law, Justice, International Tribunals & Special Courts, Sexual Violence, Male Perpetrators, Rape, SV against women

Year: 2002

Gender and Sexual Crimes Before Ad Hoc International Criminal Tribunals

Citation:

Szpak, Agnieszka. 2011. “Gender and Sexual Crimes Before Ad Hoc International Criminal Tribunals." International Journal of Public Law and Policy 1 (3): 284-298.

Author: Agnieszka Szpak

Abstract:

Rape has been regarded as a weapon of war, a tool used to achieve military objectives such as ethnic cleansing, genocide, spreading political terror, breaking the resistance of a community, intimidation or extraction of information. The 1949 Geneva Conventions do not refer to acts of sexual violence as a 'grave breach'. The 1990s saw the establishment of the two flagship international criminal institutions – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as well as codification of rape and other sexual violence as among the gravest international crimes in the Rome Statute of the International Criminal Court. The purpose of this paper is on the one hand to point to the achievements of the ad hoc international criminal tribunals in the recognition of gender crimes as war crimes, crimes against humanity and genocide and on the other, to indicate that there have been some mischaracterisations and misunderstandings in their jurisprudence, particularly as to the issue of consent of the victim of rape as definitional element of that crime.

Keywords: genocide, war rape, ICC, war crimes

Topics: Armed Conflict, Ethnic/Communal Wars, Ethnicity, Gender-Based Violence, International Law, International Criminal Law, Justice, Crimes against Humanity, International Tribunals & Special Courts, War Crimes, Sexual Violence, Rape, SV against women Regions: Africa, Central Africa, Europe, Balkans, Eastern Europe Countries: Bosnia & Herzegovina, Rwanda

Year: 2011

Mobilizing the Will to Prosecute: Crimes of Rape at the Yugoslav and Rwandan Tribunals

Citation:

Haddad, Heidi Nichols. 2011. "Mobilizing the Will to Prosecute: Crimes of Rape at the Yugoslav and Rwandan Tribunals." Human Rights Review 12 (1): 109-132.

Author: Heidi Nichols Haddad

Abstract:

Widespread and systematic rape pervaded both the genocides in Bosnia–Herzegovina in 1992 and in Rwanda in 1994. In response to these conflicts, the Yugoslav Tribunal (ICTY) and the Rwandan Tribunal (ICTR) were created and charged with meting justice for crimes committed, including rape. Nevertheless, the two tribunals differ in their relative success in administering justice for crimes of rape. Addressing rape has been a consistent element of the ICTY prosecution strategy, which resulted in gender-sensitive investigative procedures, higher frequencies of rape indictments, and more successful prosecutions. In contrast, rape has not been a central focus of the ICTR prosecution strategy, which resulted in a sporadic approach to gender-sensitive investigative procedures, inconsistent rape indictments, and few successful prosecutions. What accounts for this disparity in rape prosecutions between the Rwandan and Yugoslav tribunals? Building off the existing literature that discusses factors such as legal instruments and resource capacity of the tribunal, this article argues that transnational advocacy helped generate the necessary political will to adopt and implement legal norms regarding crimes of sexual violence at the ICTY and the ICTR. Following the importance of transnational advocacy as agents of norm change, this paper also explores the antecedent conditions of advocacy mobilization that conditioned different levels of mobilization vis-à-vis the ICTY and the ICTR, including media attention and framing, connections and interest match with local groups, and geopolitical context.

Keywords: sexual violence, international law

Annotation:

Quotes:

"Following the importance of transnational advocacy in generating political will for rape prosecutions, this article articulates why transnational advocacy groups did not mobilize around the issue of conflict rape evenly, as seen by different levels of mobilization against the ICTY and the ICTR. Three antecedent conditions affected the mobilization of transnational advocacy campaigns for rape prosecution: prior connections and matched interests with local women’s and human rights groups, geopolitical factors, and media attention and symbolic framing. Together, these three antecedent variables conditioned the mobilization of transnational advocacy, and therefore affected the pressure and leverage transnational advocacy coalitions exerted upon the ICTY and the ICTR to address conflict rape." (111)

"In terms of adoption of gender-sensitive policies at the ICTY, the initial chief prosecutor, Richard Goldstone, appointed Patricia Viseur Sellers as “Legal Advisor for Gender-related Crimes” to the Office of the Prosecution to formulate a prosecution approach to rape and other sex crimes at both the ICTY and the ICTR (Copelon 2000; Engle 2005). While technically this position was to inform both the prosecution strategies of the ICTY and the ICTR, the position was located at The Hague, the location of the ICTY, and Sellers’s influence on the ICTR was limited." (114)

"At the ICTR, gender-sensitive policies have been intermittent in adoption and implementation. Not until 1996, 2 years after the ICTR’s establishment and at the end of the tenure of the first chief prosecutor Richard Goldstone, was a sexual assault unit of the investigative team of the Office of the Prosecutor created. The sexual assault unit consisted of three officers, one psychologist, one nurse, two lawyers, two policewomen, and one policeman and was charged with preparing victims for testimony, working with NGOs, and providing safe travel for witnesses (UN Commission on Human Rights 1998). In 2000, the third chief prosecutor, Carla Del Ponte, dismantled the sexual assault unit. However, at the end of her term in 2003, when she was seeking a second term and was under pressure from women’s groups, the sexual assault unit was reinstated. Apart from the sexual assault unit, investigators at the ICTR received no training in interviewing rape victims, most of the investigators were male, and many investigators espoused the belief that rape is not worthy of investigation (Nowrojee 2005)." (115-116)

"As with the ICTY, the ICTR Rules of Prosecution and Evidence provides for creation of a Victims and Witness Protection Unit; however, a witness protection program was not created until 1997–1998, almost 4 years after the tribunal’s inception (MADRE 1997; UN Commission on Human Rights 1998). Investigators at the ICTR also misrepresented privacy protection to women in order to facilitate getting testimony at trial by not telling the victim that her name would be given to the defense team. Besides the betrayal of institutional trust that this creates, women are often at risk for reprisals for testifying or encounter hostility by her family or community, who may not know that she was raped. One rape victim, who testified on the basis of confidentiality, had her testimony leaked, and she was subsequently left by her fiancée after returning from Arusha because of the stigma of her rape (Coalition for Women's Human Rights in Conflict Situations 2002; Nowrojee 2005). In the Butare case, sensitivity to sexual crimes was also lacking. During one defendant’s trial, a victim of rape was asked 1,194 questions by the defense, with many of the questions repeating detailed aspects of the rape. In addition, rape victims were asked offensive questions such as if the victim had bathed—implying that she could not have been raped if she smelled (Nowrojee 2005)." (116)

"In terms of rape convictions, a total of five rape convictions as a crime against humanity, as a form of genocide (Akayesu), and as a violation of the Geneva Conventions have survived appeal. When viewed in comparative terms, 25% of completed rape cases resulted in successful convictions at the ICTR and 92% of completed rape cases resulted in successful convictions at the ICTY (see Table 1). While this contrast is markedly different, the disparity of rape convictions is even more exaggerated when rape conviction statistics are discussed relative to the number of rapes that occurred in the conflicts. There were more than 20 times as many rapes during the genocide in Rwanda than occurred in Bosnia: approximately 20,000 women were raped in the genocide in Bosnia and approximately 250,000 women were raped in the Rwandan genocide." (117)

"In the first few years of operation, the ICTY received almost double the funding of the ICTR—the ICTY spent about $75 million and the ICTR spent about $42 million (Neuffer 1996). In addition to receiving fewer monetary resources, the ICTR was also plagued with gross administration failures and mismanagement. An audit report of the United Nations Office of Internal Oversight Services detailed large shortcomings in all areas of the Tribunal, especially with the Registry and Office of the Prosecutor. These shortcomings included incomplete and unreliable financial records, payroll problems, underqualified staff and staff vacancies, inadequate security and witness protection, and lack of leadership (UN Office of Internal Oversight Services 1997)." (119)

"Transnational advocacy networks pressuring for rape prosecution did not mobilize around the ICTR to the extent that they mobilized around the ICTY. Transnational advocacy networks did not actively pressure the ICTR until 2 years after the establishment of the tribunal. This is not to say that transnational advocacy was absent, but it was slow to mobilize and never generated the broad-base mobilization that surrounded the issue of rape in Bosnia. Because of this, the campaign was never able to generate the sustained advocacy to force the ICTR to produce the political will to shift the default strategy from marginalization and devaluation of sexual violence prosecution. Initially, human rights groups assumed that the gains made within the ICTY about sexual violence would travel to the ICTR, especially since the two tribunals shared the same prosecutor." (123)

"In the case of Bosnia, the media actively engaged in informational politics by gathering and disseminating information and constructing a narrative about the widespread rapes and rape camps. The initial media reports on rape in Bosnia (in the summer of 1992) were largely ignored, but the continuous reports eventually sparked further governmental investigations, public debate, and mobilization by women’s and human rights groups on the issue (Stanley 1999). In the 18-month period between April 1992 (when the mass rapes began) and September 1993 (6 months after the creation of the ICTY), 139 media stories ran in major world publications with “rape” in Bosnia in the headline of the story.14 The media reports ran continuously from July 1992 through the entire 18-month period covered in the analysis and ranged in types of stories from editorials about intervention to stop the rapes, an op-ed piece by Geraldine Ferraro, harrowing testimonials by survivors of rape camps, discussions about rape as a weapon of war, Vatican pronouncements about the use of birth control for nuns living in the former Yugoslavia, and international adoption policies for the children born of rape." (125)

"In contrast to the profusion of media attention to the rapes in Bosnia, only eight media stories with headlines of “rape” about the Rwandan genocide appeared in major world publications in the 18-month period between April 1994 (the beginning of the conflict) and September 1995 (11 months after the creation of the ICTR). All of these eight media stories discussed the widespread rapes during the genocide through the subject of the thousands of children born of rape. In addition, all stories were reported between February and August of 1995, which is about 9 months after the genocidal period and coincides with the birth of the children born of the rapes." (126)

"One frame that the rapes in Bosnia were embedded within is the larger analogy of the genocide in Bosnia to the Holocaust and the Nazi concentration camps. Out of the 139 media articles that discuss the rapes in Bosnia, 20 of them directly reference the Nazis, the Holocaust, or death camps. This analogy not only pertains to the mass killings in Bosnia but also extends to the rape camps and their similarity to the Nazi 'joy division' of female concentration-camp inmates where mass rapes occurred (Branson 1993)." (126)

"While the analogy between the Holocaust and the genocide in Bosnia may be apt in many ways, using this analogy, or framing the conflict as akin to the Holocaust, attaches meaning to the conflict in Bosnia beyond merely reporting information. When embedded within this Holocaust narrative, the Bosnian conflict evokes the guilt and historical memory of the horrific consequences of delayed world action and the promises of 'never again' occurring again in Europe. In essence, using this analogy frames the killings and mass rapes in Bosnia as an issue that demands and requires world attention and action." (126)

"Rather, the conflict in Rwanda was not in the sphere of interest of the mainstream media. During the height of the genocide, information was gathered and disseminated about the killings and rapes by advocacy groups such as Human Rights Watch, UN peacekeepers, and newspaper journalists (Power 2003). The lack of prioritization of the conflict in Rwanda by the media reflected the larger apathy by the world community and the U.S. government to prioritize Rwanda as part of the national interest. In the spring of 1994, an officer of the U.S. Defense Department’s African Affairs Bureau was told by his boss, 'Look, if something happens in Rwanda-Burundi, we don’t care. Take it off the list. U.S. national interest is not involved and we can’t put all these silly humanitarian issues on lists... Just make it go away' (Power 2003, 342). In addition to viewing Rwanda as outside of the national interest, implicit racism fueled by deep prejudices and misconceptions about long-standing bloody ethnic wars in Africa, also altered people’s values and expectations about the comparative worth of human life and suffering." (126)

“In the former Yugoslavia, relationships between local movements and transnational organizations were strong and had long established ties with women’s and feminist movements in Europe (Benderly 1997). In 1991, local and transnational feminist and peace organizations mobilized against the Yugoslavian conflict and the ethnic cleansing by staging marches, antiwar protests, as well as providing social services to affected women through shelters and hotlines (Benderly 1997). In addition, local women’s groups quickly embraced the international criminal tribunal; during the conflict, these groups actively documented abuses and gathered evidence to be used at the ICTY (Benderly 1997). Connections between Yugoslav feminists, NGO workers, and prominent U.S. feminists such as feminist attorney Catherine MacKinnon also helped establish notable relationships within the transnational advocacy network that sparked increased attention to a broad base of U.S. feminists." (127)

"In Rwanda, local women’s organizations did not have the same depth of connections with transnational organizations as the Yugoslav groups and did not have issue alignment over the prioritization of sexual violence justice through the mechanism of the international criminal tribunal. Rape was not an issue that Rwandan women’s groups initially mobilized around. After the genocide, AVEGA, the largest women’s organization in Rwanda, mobilized around the issue of widowhood and chose not to focus on sexual violence (Rombouts 2006). In 1996, when women’s and human rights advocacy organizations began to document the sexual violence that occurred during the genocide, women’s groups were not interested in the issue of rape, but in social and economic issues such as healthcare and reparations." (127)

Topics: Gender, Women, Gender-Based Violence, International Law, International Criminal Law, Justice, International Tribunals & Special Courts, Peace Processes, Security, Sexual Violence, Rape, SV against women Regions: Africa, Central Africa, East Africa, Europe, Balkans, Eastern Europe Countries: Bosnia & Herzegovina, Rwanda

Year: 2011

The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights

Citation:

Khadiagala, Lynn. 2001.”The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights.” Development and Change 32: 55-76.

Author: Lynn Khadiagala

Abstract:

Advocates of alternative dispute resolution argue that informal, community-based institutions are better placed to provide inexpensive, expedient and culturally appropriate forms of justice. In 1988, the Ugandan government extended judicial capacity to local councils (LCs) on similar grounds. Drawing on attempts by women in southwestern Uganda to use the LCs to adjudicate property disputes, this article investigates why popular justice has failed to protect the customary property rights of women. The gap between theory and practice arises out of misconceptions of community. The tendency to ascribe a morality and autonomy to local spaces obscures the ability of elites to use informal institutions for purposes of social control. In the light of women's attempts to escape the 'rule of persons' and to seek out arbiters whom they associate with the 'rule of law', it can be argued that the utility of the state to ordinary Ugandans should be reconsidered.

Keywords: local councils, customary law, informal institutions, gender inequality, Property Rights, women's rights

Annotation:

  • The article finds that in the adjudication process, increasing emphasis is being placed on the social role of women, which has impacted the information considered relevant in land claims adjudication. Successful claims by women are often tied to community relations and the fulfillment of social obligations to husbands, kin and family members.

Topics: Gender, Women, Gender Roles, Gendered Power Relations, Gender Equality/Inequality, Justice, International Tribunals & Special Courts, Rights, Property Rights, Women's Rights Regions: Africa, East Africa Countries: Uganda

Year: 2001

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