Throughout this course, there have been many discussions about the different systems of justice and their effectiveness in establishing peace and reconciliation in post-conflict societies: the ICC, local judiciaries, hybrid courts, and even truth commissions. However, in many case studies, one of the main criticisms of these institutions is that they fully acknowledge crimes of sexual violence in their respective justice, peace and/or reconciliation proceedings.
In the case of the ICC, sexual violence is considered a crime against humanity based upon Article VII of the Rome Statute. On March 7, the ICC convicted Germain Katanga to four counts of war crimes and one crime against humanity for his part in killing more than 200 people in a province of north-eastern Democratic Republic of Congo.However, Katanga has been cleared of charges for sexual violence and the use of child soldiers. The initial ICC investigations found that women who survived the 2003 massacre had been raped or kept as sex slaves but they did not have sufficient evidence to convict Katanga of carrying out these crimes. While it is clear that the ICC investigates crimes of sexual violence, they still have yet to convict any criminals of such crimes. It is possible that Katanga’s case mirrors that of Thomas Lubanga, who was only convicted of conscription of child soldiers. Despite evidence suggesting involvement in other atrocities, the ICC decided to move forward with their prosecution based on evidence that was already available to them. Even if this is true for Katanga’s case, however, should the ICC be criticized for not taking the additional time to collect further evidence that would ensure Katanga was held accountable for crimes of sexual violence?
In addition to analyzing the ICC, it is also important to discuss how sexual violence has been acknowledged domestically, particularly in Rwanda’s Gacaca courts. The HRW’s report on the ‘Barriers to Justice for Sexual Crimes’ states that 2001 Gacaca law discouraged women from testifying about their experience of sexual violence due to the social and procedural obstacles they faced in reporting the crime, the public nature of the Gacaca process, and the lack of security and confidentiality protections for witnesses. This causes additional barriers for investigators considering the hesitation of witnesses to report these crimes and difficulties in providing sufficient evidence to ‘prove’ that a victim was subject to sexual violence when there is an absence of witnesses to ‘validate’ the victim’s testimony. Furthermore, there are inconsistent verdicts of trials involving sexual violence due to lack of definition of rape or sexual torture under Rwandan laws. Genocide judgments applied the terms “rape” and “sexual torture” inconsistently, and none of the post-1994 judgments invoke a definition of rape or defilement.
What is particularly surprising about the lack of convictions for sexual crimes in Gacaca courts is the fact that the ICTR’s judgement in Prosecutor v. Akayesu held Jean-Paul Akayesu accountable for prohibiting rape as a part of a systematic attack against a civilian population, essentially establishing that sexual violence can be punishable as a crime against humanity. These differences are likely based on the lack of capacity for Gacaca courts, in addition to the stigmatization of rape culture in Rwanda and the public nature of the Gacaca process. However, in light of the Rwandan Senate’s report on the ICTR stating that it “did not include Rwandan prosecutors and judges despite having the requisite qualifications”, one must also question the stigma of sexual violence in Rwandan culture in comparison to justice institutions that are perhaps forcing particular principles of justice to initiate change.
While this is only one case study, it is important to note that other domestic proceedings have largely ignored crimes of sexual violence including South Africa’s Truth and Reconciliation Commission and the Historical Clarification Commission of Guatemala. There is no doubt that obstacles to reporting, investigating, and proving crimes of sexual violence in courts are a result of the lack of capacity and resources of courts and commissions to thoroughly address such cases (especially considering the gravity and breadth of atrocities that have occurred). However, it is evident that there are sociocultural barriers that are perpetuating the impunity of sexual violence as a crime against humanity. If such impunity continues in these conflicts in both domestic and international peace/justice institutions, to what extent is reconciliation and justice actually achieved for victims?