Kelly D. Askin
It’s been my privilege to work in or with each of the international and hybrid tribunals
established in the past 12 years to prosecute war crimes, crimes against humanity, and genocide. This experience has powerfully demonstrated what extraordinary tools criminal tribunals can be in empowering women and providing redress for gender related crimes. Through international war crimes tribunals, more legal rogress has been made in the last decade in prosecuting crimes committed exclusively or disproportionately against women than has been made in domestic courts going back thousands of years. The presence of women in these contemporary tribunals has been one of the primary reasons for this unparalleled progress. I’ll briefly address the historical treatment of women in international tribunals, then look at the contemporary treatment of women and gender related crimes in the current war crimes tribunals, particularly the Yugoslav and Rwanda Tribunals, the International Criminal Court, the Serious Crimes Panels in East Timor and the Special Court for Sierra Leone. We all know horrible atrocities are committed during wars. Although war is intended to be fought by and against combatants, the negative impact of war on women and children is profound and civilians, particularly women and girls, are increasingly targeted for attack. In addition to other horrors – starvation, killing, forced labor, destruction of homes, injury, loss of loved ones, etc. – women have also routinely been singled out for sexual assault during wartime, and these crimes are committed in addition to the other crimes committed against males and females alike.
During the Second World War, millions of Jews and other select civilians were systematically exterminated and otherwise subjected to abuse. Most war correspondents of the first two world wars were men, most national and international decision makers were men, and most combatants were male. War was considered man’s business, despite the devastating impact it had on more than half the victimized population, the women and girls.
After the Second World War, the Allied victors of the war established international war crimes tribunals in both Nuremberg, Germany and Tokyo, Japan to hold trials of high level Nazis and Japanese accused of committing crimes against peace, crimes against humanity, and war crimes. In the Nuremberg and Tokyo War Crimes Tribunals, there were a handful of women participating in lower level positions, but no women served as judges or prosecutors or decision-makers. The indictment for the Nuremberg Tribunal gave no mention of gender crimes, whereas the indictment for the Tokyo Tribunal did mention rape in conjunction with other crimes, such as the murder, torture, rape, and looting of a village. The Judgments, as would be expected in the context of the Holocaust, focused on crimes against peace and on mass atrocities committed against innocent civilians in concentration camps in Europe and in vanquished towns across Asia.
Until relatively recently, the conventional view was that rape crimes were not prosecuted in the post World War II trials. While it’s true that various forms of sexual violence were not highlighted in commentary about the trials, the transcripts of the trials reveal that vast amounts of evidence of sexual violence were entered into the trial records. The Tribunals heard repeated evidence of gang rape, forced sterilization, forced abortion, forced nudity, forced prostitution, sexualized torture, sexual mutilation, and other forms of sexual violence. So my view is that the post World War II trials did prosecute gender crimes, but these crimes got subsumed under the rubric of mass atrocity and thus their inclusion was largely obscured.
Between the 1940s and 1990s, very serious crimes were committed in civil wars raging throughout the world. Despite the legacy of Nuremberg, little attention was given to holding perpetrators accountable for their crimes. Although formally prohibited by law, including the 1949 Geneva Conventions, there was still a common notion of women as part of the booty, the spoils of war, with conquerors having legitimate access to their bodies. The prevailing attitude was that wartime rape was not a serious offense and hence most rape incidents were ignored.
Very little changed over the next 50 years in terms of accountability for war crimes. Yet women were making slow but steady progress in many countries, achieving the right to vote, to stand for political office, to go to law school, become judges, reporters, police officers, crime scene investigators, human rights activists, and trial attorneys, and making other very basic but essential gains that would lay the foundation for women to have some form of participation in or with international justice mechanisms. By the late
1980s, women had achieved far greater access to and involvement in domestic justice processes and women were increasingly appointed to UN or other international bodies. While the percentage of women in high level decision making positions domestically or internationally was exceedingly low, the fact that women were making inroads into many justice and human rights arenas was indisputable. So in the early 1990s, as war was again fought on European soil, the legal and political landscape had changed significantly since the 1940s.
In 1992, shocking photos of emaciated detainees behind barbed wire fences finally jarred the conscience of the international community, reminding people of Nazi concentration camps and their promises of ‘never again.’ Some reports asserted that rape camps had been set up in Bosnia to hold female detainees for systematic rape and forced impregnation. Such reports generated international furor and a call for the UN to take urgent action.
In May 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia, the UN’s first ever ad hoc international criminal tribunal to hold trials of persons accused of genocide, crimes against humanity, and war crimes. Rape was explicitly listed as a crime against humanity in the tribunal’s statute, and two out of the first eleven judges elected to the court were women. Also significantly, some of the prosecution staff, including investigators, trial attorneys, and interpreters, were female. Other important events also happened around 1993 shortly after the Yugoslav Tribunal was established. The World Conference on Human Rights in Vienna saw unprecedented numbers of women coming together and building momentum to work collectively to fight violence against women and demand accountability. The internet and email were emerging as exceptional means of mass communication and information sharing, and the women’s movement began to utilize these tools to their maximum advantage.Also during this time, as stories of widespread and systematic rape against women in the Yugoslav conflict was broadcast around the world, women in other parts of the world were taking notice. Initially, just a couple of brave women from Korea who had been subjected to sexual slavery by the Japanese military during WWII came forward. The socalled “comfort women” had been silent for 50 years, but as they learned that the same crimes committed against them were being repeated in other conflicts, hundreds of women from nearly a dozen victimized countries gathered the courage to speak out and admit that they too had been systematically raped during war some 5 decades earlier. These elderly women speaking out publicly after so many years had a profound affect on the way we view war crimes against women and it gave survivors of the new In early 1994, over 700,000 civilians were slaughtered in Rwanda during 100-day period. Again there were indications that gender crimes were also rampant, and as in the former Yugoslavia, reports suggested that the rapes were committed as part of an orchestrated, systematic campaign against the female civilian population. With women from Africa, Europe, and Asia reporting similar crimes, addressing the crimes became a priority. Undoubtedly, random and isolated rapes still occurred, but the Yugoslav and Rwanda conflicts demonstrated that rape crimes were now being committed strategically as a very effective weapon of war and terror. The stunning realization was that many commanders no longer merely ignored rape and other forms of sexual violence: they often actively encouraged or incited the crimes, even ordered them. As a response to the mass slaughter, and in part because it could not ignore Africa after setting up a war crimes court in Europe, in 1994 the UN Security Council established the International Criminal Tribunal for Rwanda to prosecute genocide, crimes against humanity, and war crimes. Soon thereafter, one woman out of nine was elected as a judge to this Tribunal. At this time in the early 1990s, more female war correspondents covered these conflicts than ever before, and horror stories of mass rape and other atrocities made headlines around the world. Human rights organizations and women’s rights organizations were documenting crimes and issuing international reports and media alerts and demanding prosecution of those most responsible. The legal authority to prosecute rape crimes was there, and had been for centuries, but it was problematic because language in international treaties was less than forceful, for example requiring that women be protected from outrages upon their personal dignity. As to international precedent, in part because rape crimes were treated so generally in the post WWII trials and lumped together as part of a package of atrocities, at the time the Yugoslav and Rwanda Tribunals were established, the law on wartime rape crimes had been subjected to little research and even less analysis and scrutiny. Since the overwhelming practice was to ignore wartime rape, there was debate in some circles as to whether rape was even a war crime. That was in the early and mid 1990s. Now, scarcely a decade later, the indictments, trials, practice, and jurisprudence of the Yugoslav and Rwanda Tribunals have firmly established rape as one of the most serious crimes committable. Indeed, rape and other forms of sexual violence have been successfully prosecuted as war crimes, crimes against humanity, and instruments of genocide. Rape has been recognized as a form of torture, means of persecution, and indicia of enslavement. Forced nudity, sexual slavery, sexual mutilation, torture, inhumane acts, and threats of rape have also been prosecuted. The tribunals have prosecuted rape and other forms of sexual violence against males and females and have established precedent that it’s not merely the physical perpetrator, but also anyone who encourages, orders, assists, or otherwise facilitates rape crimes can be held criminally liable.I should clarify that gender crimes have been intentionally ignored in many, many cases, and there have certainly been acquittals and a myriad of other serious problems with some of the rape cases. Yet despite the problems and the obstacles, the progress has been remarkable nonetheless, and it is that progress which I wish to highlight today. As I noted previously, the presence of women in positions of power and at all levels of the hierarchy in these Tribunals has been indispensable to the development of international law and practice. In addition to the female judges, two of the three Chief Prosecutors of the Yugoslav Tribunal have been women, and a woman has held the post of Registrar as well. During one period in 1999, the President of the Rwanda Tribunal and all three organs of the Yugoslav Tribunal (President, Chief Prosecutor, and Registrar) were headed by a woman – something utterly unthinkable not so long ago. The Tribunals have plainly demonstrated that women are exceedingly competent to sit on war crimes tribunals and adjudicate all crimes, certainly not just the gender crimes. Men and women bring different experiences and expertise to the courts, and just as it is important to have regional and racial representation, it’s also crucial for the fair and effective function of the trials to have gender parity on international courts. Tribunals have empowered victimized women by formally recognizing and redressing many of the crimes committed against them. Women are increasingly more willing to talk about rape crimes, to report the crimes and agree to testify about them, sometimes in public court and without a pseudonym or other form of protection. There is no doubt that the shame and stigmas surrounding rape crimes are deeply entrenched stereotypes, but as more and more victims and witnesses come forward and describe the crimes committed against them, and as more people hear the facts and come to understand how incredibly violent and destructive sex crimes are, and realize the impact of rape extends far beyond the immediate victim, many of the stereotypes are being debunked. Testifying, and certainly testifying about a crime so personally invasive as rape, is rarely a pleasant experience, though it can on occasion be an empowering one. There have been many instances when rape survivors boldly faced their victimizer in the courtroom and reported feeling positively affected by that experience. In an armed conflict situation when there are typically tens of thousands of victims, most survivors never get to step foot in a courtroom to testify or to have their crimes individually redressed. However, in some situations, such as when a high level official is held accountable for crimes committed in a particular location, the broader victimized community can feel like the crimes committed against them have been prosecuted. For example, Jean Paul Akayesu, essentially the mayor of Taba, was found guilty for rape as an instrument of genocide in Taba commune, Rwanda, for the role he played in encouraging and inciting rape crimes. There can be some satisfaction that he was held accountable for far more rapes than the ones where victims testified to his role in encouraging others to rape them. The Tribunals undoubtedly need to do a far better job of local outreach and ownership, but holding high level officials or the most notorious perpetrators accountable for the crimes can go a long ways toward providing a measure of justice to a broad group of victims.
In 1998 a permanent international criminal court was established by treaty to prosecute the most serious international crimes that were deemed a threat to international peace and security. The ICC has the authority to prosecute rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity. Seven of the 18 judges are female, a result of intensive lobbying, pressure, and strategizing by women’s organizations.
The ICC is actively investigating crimes, including gender crimes, in Uganda and the Democratic Republic of Congo. There is a decent chance that the crimes committed in the Darfur region of Sudan will be referred to the Court by the UN Security Council. In each of these three situations, gender crimes have been pervasive and committed systematically. I’ve worked on documenting and reporting on crimes in each of these conflicts, and the crimes, including the sexual violence, are every bit as horrendous and calculated as in other conflicts and gender crimes will likely play a major role in the prosecution strategy.
In 2000 and 2002, other war crimes tribunals were set up to redress crimes against humanity and war crimes committed in East Timor and Sierra Leone respectively. These courts are hybrid in nature – that is, having a combination of both international and locaa judges, prosecutors, defense attorneys, and administrators and they are located in the country where the crimes were committed. Like the other tribunals, there are a few female judges represented on the bench and gender crimes are being prosecuted.
In Sierra Leone, the court will prosecute not only rape and sexual slavery, but it will prosecute forced marriage for the first time, for crimes in which women and girls were abducted and forced to remain with one particular combatant for months or years, cooking and cleaning by day and performing sexual services at night. Afterwards, these women were rejected by their communities as collaborators with the enemy, so in many ways they have even been denied the right even to be a victim. A hybrid court intended to prosecute the Khmer Rouge leaders for the Cambodian genocide is expected to be set up by the end of this year, and while gender crimes were not as prominent or widespread in this context as in some others, there is evidence that rape and forced marriage were relatively common. One way international courts can do a better job of empowering women and girls is to ensure that the language used by the tribunals accurately reflects the situation on the ground. More precisely, they need to recognize women as enablers and not just victims, and emphasize the incredible strength, courage, and resiliency of the women who have endured horrible atrocities and yet continued to work towards survival for themselves and their families and toward ensuring that their children have a better and safer future. The tribunals need to explicitly specify that wartime rape typically involves an armed soldier preying on an unarmed civilian woman or young girl, and to regard the perpetrator as not just a criminal, but a coward who brings shame and dishonor to the military and its laws intended to protect civilians and combatants alike. We have begun a new path in international criminal justice. No longer can perpetrators of war crimes, crimes against humanity, and genocide be assured of impunity for their crimes. Bank accounts are being frozen, travel bans are being issued, and indicted leaders have had to go into hiding and spend their vast fortunes on their own protection. And slowly but surely, attitudes towards rape crimes are changing. Perhaps in another 10 years, I can come back here and report that the shame and stigma associated with rape crimes has been taken wholly off the victim, and placed squarely on the shoulders of the perpetrators, where it belongs. And with that, perhaps I’ll be able to report that because one of the factors that made rape such a powerful weapon was removed, it is no longer being used as an instrument of war and indeed, because a wartime rapist brings such dishonor and disrepute to his colleagues, he fears to commit the crime lest his colleagues punish him even before a court can.
