(Part 2 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald; Part 1 is here)
Womankind has a right to expect much from, and has a strong stake in the success of, international and hybrid tribunals.
Women and children represent the largest constituency of international humanitarian law and the tribunals that breathe life into it. They are the bulk of the casualties of war and the refugees of combat, the most numerous victims of war crimes, crimes against humanity, and genocide. A few statistics:
► One out of every 150 persons on earth is a refugee or displaced person due to armed conflict or human rights violations; at least 75% of them are women or children.
► In the conflict in Bosnia, there were an estimated 20,000 victims of sexual assault.
► An expert panel concluded that nearly every woman and girl over the age of 12 who survived the Rwandan genocide was raped.
Similar stories are being told today in Congo, in Darfur, and elsewhere. And so it has gone, for centuries, as far as women are concerned.
But the winds of war are changing direction, a bit anyway. And women worldwide look to our tribunals to stiffen up the breezes, to make it more perilous for combatants as well as civilian and military leaders to ignore or downplay the sufferings of women as “collateral consequences” of war. Just as they bear the greatest impact of war, women should have a right to claim a high priority in the strategic thinking of the tribunals.
But what does that mean in practice?
Dramatic strides have been made. All the tribunal charters specify, or have been interpreted to include, rape and other sexual violations as war crimes and crimes against humanity. Tribunal jurisprudence has elaborated on the variations of sexual abuse. Examples:
► In the Kristić case on which I sat, the International Criminal Tribunal for the former Yugoslavia pronounced the effect of executing more than 7,000 young male household heads – though sparing the women – as a form of genocide that intentionally destroyed a targeted group of Muslims in Srebrenica.
► Tribunals have made rape prosecutable by eschewing rigid definitions that required actual physical force in favor of recognizing broader kinds of coercion and intimidation, and have declared rape in some circumstances to be a form of torture and a tool of genocide.
► Virtually all the recent indictments from the International Criminal Court have contained gender-based allegations, although there is a need to flesh out the contours of as-yet-charged crimes like forced pregnancy and trafficking in women and children.
What else should women want – or expect?
I have heard repeated complaints from some women inside tribunal prosecution offices that the focus on gender-based crimes must, but does not always, come at the very beginning of an investigation. Field investigators, the first responders, have to be sensitized to the range of potential crimes involving women and children and how best to elicit the information to prove them.
In many cultures, sexually abused women are not the most vocal of complainants or the most eager of witnesses. Gender crimes may indeed be harder to investigate than other kinds of war crimes. They are often harder to prosecute as well, not only because of the traumatic effects on the victim who must face her perpetrator anew in the courtroom, but also because of the difficulty of linking the rapist with the military or civilian commander in a faraway headquarters who ordered or approved the rape-terror strategy.
Yet women have a right to expect that these despicable crimes will be given their rightful priority in the tribunals’ strategic litigation plans.
This means, in the view of many women tribunal veterans, intensive gender-crime training for all levels of prosecutorial staff. Judges too. And in the words of one such veteran, this means “more than one three-hour lecture.”
Women & the judicial process
Women judges and prosecutors also have special obligations to pay attention to the treatment of other women in the judicial process. The women who work for them, and those who appear before them as witnesses or litigators, can feel less isolated or out of place when there are women in positions of power and prestige in the courtroom. This proved true in my own experience in U.S. courts as well as at the ICTY. Some research shows that litigants’ evaluation of justice is directly related to how they perceive their own treatment by court personnel; in turn, how the judges and prosecutors act toward them will trickle down to all levels of courthouse personnel.
Witnesses & victims
In the tribunals there is a special need for women judges and prosecutors to be sensitive to the plight of women witnesses and victims. Often these women and young girls have been traumatized not only by the crimes committed but by threats of retaliation and by shunning in their villages. The tribunals have set up Victims and Witnesses Protection units to offer escort services, temporary housing during court proceedings, and in some cases counseling; it is vitally important that women judges and prosecutors champion the Registry’s financial needs for adequate services.
I am sorry to say that women witnesses have occasionally, albeit rarely, faced hostile or demeaning questioning or even derogatory comments and embarrassing attempts at humor at their expense, sometimes participated in by judges. On those rare occasions women judges have a special obligation to admonish counsel and to express their own discomfort, not to sit silently by or let them go unchallenged.
Based on my own trial experiences, I know that women who have suffered the loss of family members – one woman who testified in one of my trials saw three generations of her menfolk wiped out in a week – want not only accountability but compensation. Only the ICC and the Extraordinary Chambers in the Courts of Cambodia have direct authority to grant it. Where the money will come from is, of course, a primary problem. Here is an area in which women and their allies must themselves be reasonable in their expectations and demands; they cannot expect full compensation for their economic losses, let alone their emotional sufferings. And after a decent interval has passed to see how the system works, they should be tolerant enough to cooperate in an evaluation as to both how intense an intervention by victims the process can sustain and what priorities on compensation from a limited fund are most reasonable.
Women outside the tribunal process also need to be given the opportunity to understand what the tribunals are trying to do in order to draw their own judgments on how successful they are. Some hybrids, like the Special Court for Sierra Leone, have pioneered in going out into the villages to explain their goals and processes. The necessity for understanding and support from women in the outside world also suggests the ICC might take some of its hearings out of The Hague and go to the places where the violations occurred, so that the affected communities can see for themselves the merger of crime and punishment.