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International Criminal Law

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, Media, 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

Rape as a Weapon of War in Libya: New Permutations on an Old Theme

Citation:

Marshall, Lucinda. 2011. "Rape as a Weapon of War in Libya: New Permutations on an Old Theme." Peace and Freedom 71 (2): 24.

Author: Lucinda Marshall

Abstract:

Earlier this year, when reports began to surface alleging the use of Viagra-like drugs to encourage Libyan troops to rape women as a tactic in their fight with Libyan rebels, the chief prosecutor of the International Criminal Court (ICC) called for a complete investigation into the charges, and U.S. Secretary of State Hillary Clinton said she was "deeply concerned." In Iraq, the number of honor killings rose dramatically after the U.S. invasion and, more recently, in Tehran, women protesting the government have been attacked. In Congo, women in refugee camps are gang-raped with impunity. In Burma, the army uses rape as a weapon of terror in their fight with Shan forces. In Bosnia and Rwanda, there were mass rapes. In the U.S. military, female soldiers are more likely to be attacked by male soldiers than by any enemy. One hundred forty-eight countries signed The Rome Statute, which established the Court. Seven nations voted against it, including the U.S. and Libya. It is therefore supremely ironic that the U.S. pushed for the ICC s prosecution of Libyan war crimes. But make no mistake, the U.S. does not consider itself bound by the ICC s jurisdiction, which would leave it quite obviously vulnerable to prosecution for such things as Abu Ghraib, Guantanamo, and the rape of servicewomen within the ranks of its own military.

Keywords: sexual violence, international criminal court, rape, war rape

Annotation:

 
 

Topics: Armed Conflict, Displacement & Migration, Refugee/IDP Camps, Gender, Women, Gender-Based Violence, International Law, International Criminal Law, Justice, Impunity, War Crimes, Military Forces & Armed Groups, Militaries, Security, Sexual Violence, Rape, SV against Women Regions: Africa, North Africa, Americas, North America Countries: Libya, United States of America

Year: 2011

Empowering Victims of Human Trafficking: The Role of Support, Assistance and Protection Policies

Citation:

Jorge-Birol, Alline P. 2008. "Empowering Victims of Human Trafficking: The Role of Support, Assistance and Protection Policies." HUMSEC Journal 2: 163-78.

Author: Alline P. Jorge-Birol

Abstract:

According to the ‘push and pull’ factors of human trafficking, traffickers and recruiters take advantage of the legal vacuum and of socio-economic problems present in post-conflict areas. Unemployment, poverty, lack of education, gender discrimination and family violence are conditions that turn recruitment into an easy task ― especially when future victims are often recruited under false pretenses and with false promises. Once recruited, these human beings are most frequently turned into traffickers’ commodities and end up as victims of forced labour and sexual exploitation. Besides primary victimization, practice shows that when ‘caught’ by law enforcement officers these human beings, are often identified as illegal migrants and neither recognized nor protected as victims. This paper intends to show the importance of proper help and protection for trafficked victims. ‘Best practices’ such as reflection delay, the permit to stay in the country, psychological and social assistance both before and after repatriation to the country of origin, may help to empower victims and to convince them to contribute to the criminal justice system. Trafficked victims who are sufficiently supported and protected are more likely to report the crime and to contribute to investigations by identifying and testifying against the offenders. If trafficked victims are not recognized as such, criminal justice systems lose important evidence and are unable to enforce criminal law against traffickers. Moreover, the promotion of victims’ needs is essential for the promotion of human security, which should also be a target of the counter-trafficking policies.

Keywords: criminal justice, accountability, migration, human trafficking, forced labour, push-factors, pull-factors

Topics: Gender, Humanitarian Assistance, Context-Appropriate Response to Trauma, International Law, International Criminal Law, Justice, Sexual Violence, Sexual Exploitation and Abuse, Trafficking, Human Trafficking, Sex Trafficking

Year: 2008

Seeking Gender Justice in Post-Conflict Transitions: Towards a Transformative Women's Human Right's Approach

Citation:

Reilly, Niamh. 2007. "Seeking Gender Justice in Post-Conflict Transitions: Towards a Transformative Women's Human Right's Approach." International Journal of Law in Context 3 (2): 155-72.

Author: Niamh Reilly

Abstract:

This article critically examines the prospects for achieving a comprehensive vision of gender justice in post-conflict transitional contexts.  It is divided into three main sections. The first reviews the gendered limits of mainstream approaches to transitional justice and highlights gender biases in related dominant discourses, which shape how conflict, and transitions from conflict, are understood and enacted to the detriment of women.  The second focuses on the benefits and limitations of engendering wartime criminal justice with particular reference to the International Criminal Court.  The third considers the prospects for a more comprehensive approach to gender justice that shifts the emphasis from ‘women as victims’ of conflict to women as agents of transformation, through an examination of the significance of Security Council Resolution 1325.  Ultimately, the author argues that achieving gender justice in transitions is inextricably tied to wider bottom-up efforts by women’s movements to realize a comprehensive vision of women’s human rights within a framework of critically-interpreted, universal, indivisible human rights.

Keywords: post-conflict transition, transitional justice, gender biases

Annotation:

  • In her article, Reilly examines the extent to which feminists engage with international law in order to achieve their ends. She focuses on two instances of feminist engagement with international law in post-conflict situations; the first is the initiative to incorporate gender-sensitive provisions into the procedures of the International Criminal Court, and the second is the implementation of Security Council Resolution 1325. She concludes that the incorporation of gender-based policies into post-conflict reconstruction is intrinsic to the successful realization of women’s rights worldwide.

  • As she assesses “the gendered limits of traditional approaches to transitional justice,” (7), Reilly explains that because of the changing nature of conflict (with more contemporary wars being internal and involving non-state actors than previously), gender has only recently come to the forefront of discussion surrounding conflict and reconstruction. She writes that political transitions provide unique potential for countries to incorporate gender into their legal and political systems, particularly through feminist engagement with international law.  In her sub-section “Contesting gender bias in dominant discourses,” Reilly writes that the innate gender inequalities in the public and private spheres are particularly apparent in times of transition. While women play critical roles in peace initiatives, they are oftentimes excluded from positions of political power thereafter.

  • The second section of Reilly’s paper focuses on violence against women in times of conflict and post-conflict. Crimes committed against women during wartime have only recently begun to receive international attention, as more women are routinely making efforts to mainstream gender into the ICC and dismantle entrenched gender biases. Sexual violence in wartime has largely been dismissed as an inevitable reality; however, women’s movements that emerged in the 1990s have mobilized around the issue and called attention to its importance. She highlights the need to “shift the focus from women as victims of war to women as agents of change in transitions” (23), using international law as a tool to facilitate this shift in roles.

  • In section three, entitled “Women’s participation and gender equality in transitions” (24), Reilly notes that transitions oftentimes open up a window of opportunity for improvements in gender justice. She writes that feminist peace-building entails efforts for gender equality in the domestic sphere, such as the treatment of economic inequalities, which disproportionately affect women. Reilly cites SCR 1325 as an example of the way in which international law can be used to aid women in their struggle for gender equality in times of post-conflict transition. Resolution 1325, which calls for “the increased representation of women at all decision-making levels” (28), marks an important step for the transnational women’s movement; however, its successful implementation remains minimal. Because women’s economic and social equally may be a necessary precursor to their equal political participation, the traditional culture of many states prevent the concrete realization of SCR 1325.

  • In her conclusion, Reilly recaps her assessment of feminist engagement with the ICC and the adoption of SCR 1325. She argues that the efforts to expose war crimes against women are part of a larger effort for gender equality on the global scale. The “gender biases”—a term that she uses to characterize the male-centric models of democracy that govern many states—prevent women from making their voices heard in the post-conflict reconstruction process. Moreover, these gender biases result in the disregard for social and economic inequalities, which disproportionately disadvantage women in conflict and post-conflict periods.

Topics: Gender, Women, Gender-Based Violence, Gendered Power Relations, Gender Equality/Inequality, International Law, International Criminal Law, Justice, Post-Conflict, Post-Conflict Reconstruction, Rights, Human Rights, Women's Rights, UN Security Council Resolutions on WPS, UNSCR 1325

Year: 2007

The Absence of Justice: Private Military Contractors, Sexual Assault, and the U.S. Government's Policy of Indifference

Citation:

Snell, Angela. 2011. "The Absence of Justice: Private Military Contractors, Sexual Assault, and the U.S. Government's Policy of Indifference." University of Illinois Law Review, no. 3, 1125-64.

Author: Angela Snell

Abstract:

As the United States remains in Iraq and Afghanistan, stories of abuse by private military contractors (PMCs) have flooded the news. This Note focuses on an area of PMC crime that has garnered less public attention and censure: sexual crimes against civilians in non-war zones. Emphasizing the lack of legal recourse for victims of sexual crime by PMCs and the systematic failure of the United States to punish sexual crime perpetrated by its own PMCs, the author argues that the United States should be held liable for the sexual crimes that its contractors commit, including those that occur outside of war zones.

This note first explains the exponential growth in the United States' use of PMCs and highlights that governmental supervision of PMCs has not kept pace with the number of contractors that the United States employs. Noting that PMCs generally employ former members of the military, the author traces a culture of violence against women back to attitudes learned in the U.S. military, and then shows that PMCs are even more likely to be involved in crimes of sexual violence than U.S. soldiers.

The Note details and analyzes the possibility of responding to PMC sexual violence against civilians outside of war zones under U.S. military law, U.S. criminal law, criminal law where the crime occurs, International Human Rights Law, International Criminal Law, and the U.S. Alien Tort Statute (ATS). The author determines that these methods, as they stand now, are inadequate because of problems of limited jurisdiction, U.S. reluctance to prosecute contractors and willingness to protect U.S. nationals from prosecution abroad, requirements that violence be widespread or systematic before triggering international prosecution, and the absence of state liability for the actions of private individuals, unless the state condones the activities. The author calls for a three-fold solution: first, victims should file complaints against the United States in international courts, under the theory that the United States is liable for its contractors' acts, because it has condoned them by failing to punish them and even actively discouraging their prosecution; second, victims should sue individual perpetrators in the United States under the ATS, both to compensate victims and to deter contractors from future violence; third, and finally, the United States must act to close the jurisdictional gap that allows PMCs to escape prosecution by signing and supporting international treaties, developing its own stricter system of criminal liability for PMCs, and using contract mechanisms to enforce standards of conduct for PMCs.

Keywords: private security, sexual assault, accountability

Topics: International Law, International Criminal Law, International Human Rights, Justice, Military Forces & Armed Groups, Private Military & Security, Sexual Violence Regions: Africa, MENA, Americas, North America, Asia, Middle East, South Asia Countries: Afghanistan, Iraq, United States of America

Year: 2011

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