March 7, 2013
As the world marks International Women’s Day on March 8, I’d like to take the opportunity to look back on the remarkable progress made in international gender justice in the last 20 years. Since the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY/R) in 1993 and 1994, the creation of the permanent International Criminal Court (ICC) in 1998, and subsequent hybrid war crime tribunals for Sierra Leone (SCSL) and Cambodia (ECCC), rape is now widely acknowledged to be an instrument of warfare, terror, demoralization, devastation, oppression, and destruction. It destroys families, communities, identities and lives, often more so than murder or other forms of non-sexualized violence.
When I began my doctoral dissertation in 1993 on how to prosecute war crimes against women, I often heard doubt expressed that rape was even a war crime. It was regarded as an inevitable consequence of conflict or a mere by-product of war waged by men. Fortunately, the jurisprudence from the tribunals has shattered those misconceptions and revolutionized the way sex crimes are treated internationally, and to some extent nationally. Now, rape and other forms of sexual violence can be prosecuted as war crimes; crimes against humanity; instruments of genocide; means of torture, slavery, and persecution; and as other gender related atrocities, such as forced pregnancy, forced marriage, forced sterilization, forced nudity, and sexual slavery. Male rape is known to be more common than previously imagined. In a mere two decades, the investigation and prosecution of sexual offences has skyrocketed and the UN Security Council has made redressing wartime sexual violence a priority.
Why? After studying this issue for two decades, my views (very simplistically put) are:
- The presence of women in positions of power as investigators, prosecutors, judges, and gender crime specialists increased the opportunity.
- A powerful global women’s caucus of gender justice advocates, scholars, lawyers, and reporters literally forced sexual violence onto the agenda of war crimes tribunals, international human rights conferences, the media, and United Nations bodies (assisted by new mass communication technology, such as electronic mail).
- The acts surrounding sexual violence are so horrific and inhumane that once the true nature, vast scope, and some of the underlying causes and wide-reaching impact of sex crimes became known, the facts became virtually impossible to ignore. Similarly, the brave survivors who risked retraumatization, ostracism, and other negative consequences of reporting sex crimes by coming forward, deserved justice.
- Many of the relevant laws have been in place for centuries, despite being largely ignored in practice. War crime tribunals allowed humanitarian laws to be examined, clarified, enforced, and refined.
Despite the huge advances, the tribunals have done a relatively pitiful job of holding high-level leaders or others far from the battlefield responsible for sex crimes. Some prosecutors and judges (including appeals chamber judges) seem readily persuaded that a political or military leader intended troops to kill, displace, torture, and pillage, but they seemingly have a hard time accepting that these same leaders intended their troops to rape, even when the crimes are committed over months or years with their tactic approval by failing to prevent or punish the widely reported crimes. Most of the positive jurisprudence on rape crimes has come from situations where the accused were the physical perpetrators or were present when the crimes occurred, or less often, when they occurred over so many years with so much consistency it became impossible to believe the senior level accused didn’t at least aid and abet the crimes or actively encourage their commission.
Countless other disappointments in gender jurisprudence and women’s issues, both domestically and internationally, deserve attention. However, for International Women’s Day, I’d prefer to focus on the remarkable achievements. I’d also like to take the opportunity to publicly recognize a handful of women who I believe are largely responsible for the progress, especially during the first decade of contemporary international justice efforts when the fair treatment of gender related crimes was far from assured. Without their presence, as well as their courage and determination to provide justice to survivors of sexual atrocities along with victims of non-sex crimes, it is highly unlikely that international laws, rules, procedures, and practices would have the rich gender crime jurisprudence it now has. (While a handful of good men have played an indispensable role in adjudicating sex crimes, this blog focuses on highlighting women leaders I consider most responsible for the progress). The following women, in my opinion, are owed a debt of gratitude for how far we’ve come in international gender justice:
Judge Gabrielle Kirk McDonald (United States), former president of the ICTY; Judge Elisabeth Odio-Benito (Costa Rica), former Vice-President of ICTY and former judge on ICC; Judge Navi Pillay (South Africa), former President of ICTR, former ICC judge, and current UN High Commissioner for Human Rights; Judge Florence Mumba (Zambia), former Vice President of ICTY, current judge at ECCC; Judge Patricia Wald (United States), former judge at ICTY; Louise Arbour (Canada), former Chief Prosecutor of ICTY and ICTR, former UN High Commissioner for Human Rights, current president of International Crisis Group; Patricia Viseur Sellers (United States and Belgium), former gender crimes specialist at ICTY/R and current Special Advisor to the ICC Prosecutor; Fatou Bensouda (Gambia), former prosecutor at ICTR, former deputy prosecutor of ICC, current Chief Prosecutor of ICC; Judge Teresa Doherty (Ireland), Judge of SCSL; and Brenda Hollis (United States), former prosecutor at ICTY, current Chief Prosecutor of SCSL.
While much remains to be done, these women were in critical decision-making positions in the war crimes tribunals and laid the groundwork for subsequent work being done in this field. The precedent used in international courts is increasingly used in domestic courts. Prosecution is but one important tool to end impunity for the millions of atrocity crime victims still awaiting justice.