About justice that is yet to come: a few remarks about the international pursuit of post-conflict gender justice

Abstract

The past three decades has seen increasing recognition of the gender-specific impact of armed conflict. This issue became especially important in context of conflicts in the former Yugoslavia, and in Rwanda, which were marked by the high prevalence of sexual and gender-based violence. International criminal law has also made some significant advancements regarding sexual violence committed during periods of conflict. In particular, successful prosecutions of wartime rape led to the development of long-awaited (especially in the field of international law) post-conflict justice. However, here it is argued that much of ‘post-conflict gender justice’ is yet to come. The International Criminal Tribunal for the former Yugoslavia and for Rwanda is examined in relation to how wartime rape is defined and prosecuted. The extent to which the Tribunals addressed these acts as gender crimes as opposed to through the lens of victim's ethnicity or nationality is evaluated as an area where there is much work to be done.

Keywords::

• gender violence
• armed conflict
• international criminal law
• gender justice
• post-conflict

Notes

^1. The initial version of this article was presented as a conference paper at Gendered Violence Conference, Bristol, 25 November 2011.

^2. ‘Gender’ is used in this article as a socially and culturally constructed notion of the identity of a particular ‘sex’ which is associated with the role of an individual within certain society and/or cultural setting. In contrast, ‘sex’ is used here as biologically determined category of identity.

^3.Prosecutorv. Duško Tadić, Opinion and Judgement, IT-94-1-T (7 May 1997), para. 206; Čelebići, Trial Judgement, IT-96-21-T (16 November 1998), para. 1066. Tadić was the first trial which addressed sexual violence against men committed in the context of armed conflict and also the first trial of the war crimes tribunal addressing the issue of sexual violence in general. The case concerned an assault in Omarska camp in Bosnia and Herzegovina, where one of the detainees was forced by the accused and other men to bite off the testicles of another detainee. The ICTY found Tadić guilty of cruel treatment (as a violation of laws and customs of war) and inhumane acts (crimes against humanity). Čelebići was concerned with the use of sexual violence against both women and men. In relation to the latter, the tribunal considered the incident where two brothers were forced to commit fellatio on each other in front of other detainees. The men also had burning fuses placed around their genitals. The ICTY held that these acts constituted grave breaches and violation of laws and customs of war.

^4. UNSCR 1325 (2000) on women, peace and security and UNSCR 1820 on sexual violence in armed conflict, both call for prevention of acts of sexual and gender-based violence in situations of armed conflict.

^5. Nevertheless, Goldstein (2001, pp. 1–3) argues that there exists a cross-cultural consistency of gender roles in war.

^6. However, it should be noted that none of the provisions from the ICTR or the ICTY Statute explicitly mention gender as a cause for commission of these crimes.

^7. The ICTR is composed of the three Trial Chambers and the Appeals Chamber. Cases are heard at first instance by the Trial Chamber.

^8. The full text of the convention is available here: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

^9. Interahamwe is a Hutu paramilitary organisation, whose members played a key role in perpetration of the Rwandan genocide.

^10. These included the verdict of the European Court of Human Rights in Aydinv.Turkey (Aydinv. Turkey, Judgement of 25 September 1997, Eur. Ct. of H.R., Reports of Judgements and Decisions, 1997-VI, paras 62–88) and the conclusion of the Inter-American Court of Human Rights in Mejiav. Peru (Fernando and Raquel Mejiav. Peru (Decision of 1 March 1996), Report No. 5/96, case no. 10.970, in Annual Report of the Inter-American Commission onHuman Rights 1995 OEA/Ser.L/V/II.91, pp. 182–188). Aydinv.Turkey concerned the rape and mistreatment of a female detainee and the failure of Turkish authorities to conduct an effective investigation into her complaint that she was tortured this way. In Mejia v. Peru, the Inter-American Court of Human Rights held that rape of Mrs Mejia by a member of the counterinsurgency unit of Peruvian military amounted to torture.

^11. However, the judgement refers to Akayesu legacy in Prosecutorv. Furundžija; IT-95-17/1T, 10 December 1998, para. 176.

^12.Kunarac concerned multiple rapes and gang rapes of victims by Kunarac as well as committing an act of enslavement by depriving two women of any control over their life and treating them as property. Sexual acts formed a part of the enslavement. The Tribunal emphasised that although force, threat of force or coercion are relevant, these factors are not exhaustive and the major emphasis must be placed on violations of sexual autonomy because the ‘true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy’ (Kunarac et al.; IT-96-23 & 23/1, Trial Judgement (22 February 2001), para. 440). Relying on the experience drawn from various jurisdictions, which mostly refer to rape as an act committed with the absence of the victim's free will or genuine consent, the Trial Chamber introduced three categories of factors which enable the courts to determine whether the act of sexual activity should be prosecuted as rape. The essential categories are based on circumstances in which:

• the sexual activity is accompanied by force or threat of force to the victim or a third party;

• the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her abilityto make an informed refusal or

• the sexual activity occurs without the consent of the victim. (Kunarac et al.; IT-96-23 & 23/1,Trial Judgement (22 February 2001), para. 442)

 The Judgement of the Appeals Chamber not only concurred with the reasoning of the Trial Chamber concerning consent in the act of rape, but went even further in finding that ‘the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible’ (Kunarac et al.; IT-96-23 & 23/1, Appeals Chamber Judgement (12 June 2002), para. 130).

^13.Gacumbitsi; ICTR-2001-64-A, Appeals Chamber Judgement (7 July 2006), para. 157:

It is not necessary, as a legal matter, for the prosecution to introduce evidence concerning the words or conduct of the victim or the victim's relationship to the perpetrator. Nor need it introduce evidence of force. Rather, the Trial Chamber is free to infer non-consent from the background circumstances, such as an ongoing genocide campaign or the detention of the victim.

^14. ICTR Statute, Article 3.

^15. ICTY Statute, Article 5.

^16. Available from: http://www.icty.org/sid/10586 [Accessed 21 November 2011].

Additional information

Notes on contributors

Olga Jurasz

Olga Jurasz is a Lecturer in Law at the Open University. She is also a Ph.D. candidate at Aberystwyth University.