International Justice

CJ354 Endicott College

Impunity for Crimes of Sexual Violence

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?

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2 responses to “Impunity for Crimes of Sexual Violence

  1. gracen0te5 March 14, 2014 at 12:06 am

    If anything at all, impunity for crimes of sexual violence fuels injustice among victims, families and survivors of war crimes. It’s an especially hard blow on victims, especially women. Due to the inconsistent definition of war crimes, there is disparate impunity. This disparity may come with regional differences in the treatment of women. There is some issue of double standards when it comes to sexual violence. Of course, women are not the only victims, but they are often the majority who fall prey to sexual violence during war.

    The ICC’s failure to convict anyone at all of rape, sexual slavery, and other sexual crimes is quite a statement on the lack of priority given to the (majority women) victims who suffered sexual crimes during armed conflict. Katanga’s acquittal of all responsibility for the mass sexual violence does not encourage victims or witnesses to speak out or provide further evidence. It has been over a decade of its mandate to end impunity for certain atrocity crimes, yet ICC has not convicted for sexual crimes. The personal and gender-related roles in sexual crimes make it difficult to gain ICC backing. When committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack, rape, or other sexual abuse of comparable gravity, it is debatable whether sexual violence acts are considered isolated acts. The ability to “prove” sexual violence, even with the backing of victims’ and witness testimonies, is very unlikely. Sexual violence as part of government policy or wide practice of tolerated atrocities is informal and difficult in the information-gathering process.

    Fiona Ross describes sexual violence as “horrifying irony” because it implicates beyond power and “forces the sufferer into the position of betrayal” (81). She outlines some of the psychological and social complexities with sexual violence because it involves both individual and collective acknowledgement of experience(s) in harm. Ross places some responsibility on women in describing complex silence as “individual moral failures rather than as institutional failures.” This does hold truth because when women are reluctant to come forward to testify, the silence becomes further damaging not only to others who are silent about their own wounds from sexual violence, but through posing challenge to the ICC by keeping sexual violence records in the dark. If victims do not press harder against sexual violence, the ICC may not have as much pressure or “motivation” to acknowledge what is not encouraged to share in domestic settings. There is great responsibility for the ICC and institutional levels, to hold more people accountable for sexual violence. The ICC conviction for Katanga was a minor step towards justice, but sexual violence cases do not move in progress beyond impunity. International courts have jurisdiction to rule on national amnesties, regardless of the domestic legalities and gender issues. If the tribunal can base judgment by considering sexual violence as torture – considering it a peremptory norm going against international law, could Katanga still have possibility to be prosecuted for torture before an international tribunal even if the acts in question had been subject of impunity?

    The concept of justice aims to restore victims, perpetrators, citizens, and the governments of states that have been involved in political injustices, but allowing impunity for sexual violence does not compensate victims. The ICC must take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims of sexual or gender-related violence. There is a lot of inconsistency when courts, to what it seems, protect the perpetrators’ rights more than the victims’ rights.

    The impunity of sexual violence separates sex crimes away from war crimes and subjects it to lesser importance. A solution would perhaps be to put more perspective into issues of double standards. Having a lack of women in positions of power as investigators, prosecutors, and judges in the international tribunal does play a part in the gender setback of the Katanga ruling. Fatou Bensouda has shown increased commitment to gender justice, so there is still some hope that her leadership will put greater prioritization in prosecuting sex crimes.

    References and Supporting Links:
    Ross, Fiona C. “An Acknowledged Failure: Women, Voice, Violence, and the South African Truth and Reconciliation Commission” in Localizing Transitional Justice: Interventions and Priorities After Mass Violence. Rosalind Shaw and Lars Waldorf (ed). Stanford: Stanford University Press, 2010: 69-91.

    http://www.opensocietyfoundations.org/voices/katanga-judgment-underlines-need-stronger-icc-focus-sexual-violence

    http://www.icc-cpi.int/iccdocs/doc/doc1441449.pdf

  2. thewendyway March 14, 2014 at 12:37 pm

    I would also like to add to gracen0te5’s of critique of international courts effectiveness in protecting victims rights, especially sexual victims. When it comes to prosecuting and speaking of sex crimes, it very important to consider the local traditions and customs regarding speaking of sexual violence in the public sphere.

    Ross also addresses the stigma of talking about rape and sexual violence in non-Western cultures. She describes the dangers of “straight-talk.” For example, speaking elliptically may be a way local women protect themselves from the uncertainties straight-talk creates. The public forum of speaking about past trauma for women can also compromise victims’ sense of safety within society, especially if the sexual perpetrators are also members of their social circle. Language itself encodes different patterns of respect in different contexts of social life. The circumlocution technique cited by Ross will definitely be problematic when witnesses participate in truth commissions heavily influenced by Western thought on psychoanalysis and “talking through” past trauma. Circumlocution is in direct conflict with Western theory of speaking the truth as a way to reconcile a victim’s psychological pain. It also compromises the function of truth commissions as a way to accurately document crimes of sexual violence.

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