Sex and International Tribunals. Chiseche Salome Mibenge
against humanity. The laws of war are activated by armed conflict, and my case studies of Rwanda and Sierra Leone are decidedly conflict or postconflict societies. For this reason, I also present a brief overview of the feminist critique of international humanitarian law prohibitions against rape and other forms of sexual violence against women in wartime.23 My focus will, however, remain on human rights law instruments and not the laws of war because even as international humanitarian law seeks to minimize the civilian population’s vulnerability to the vagaries of war, it is in fact military expediency that lies at the heart of its objectives. This prioritization of military interests over civilians’ explains in part its limited relevance to my discussion in Chapter 1. Further, I demonstrate in Chapter 1 the unabashed and important trespass of human rights discourse into the jurisdiction of international humanitarian law. I argue that unlike the laws of war, human rights have responded substantively in the postwar period to the reality of belligerents that willfully target civilians as proxies for enemy combatants. This response has helped keep civilian women’s experiences of atrocity in war in the imagination of international humanitarians advocating for the rights of women in peace and war.
In Chapters 2, 3, and 4, I describe the ways in which gender and violence have been included or excluded from the processes of the ad hoc criminal tribunals in Sierra Leone and Rwanda and the Truth and Reconciliation Commission in Sierra Leone (TRC). My selection of mechanisms of accountability privileges judicial or quasi-judicial processes. Although many other nonjudicial mechanisms have operated or are operating in Rwanda and Sierra Leone, I chose judicial processes because I am aware of their power to create a historical account of atrocity and justice. Even into the new millennium, apologists and revisionists attempt to rewrite or deny historical facts of the Holocaust and World War II.24 Most people would agree, however, that the prosecution and conviction of those most responsible for crimes against peace, war crimes, and crimes against humanity as part of the Nuremberg Trials helped confirm the fact of German aggression.25 The Nuremberg process of justice establishing individual criminal accountability laid the foundation for the creation of the ad hoc criminal tribunals as well as the permanent International Criminal Court. The convictions have also provided a historical record of war crimes, war criminals, and their victims.26 Like the Nuremberg trials, justice processes in Rwanda and Sierra Leone are setting historical legal precedents and are contributing to a historical account of conflict and peace in their respective regions. I argue that women’s narratives belong in this historical account, and in these chapters I look at narratives and examine the extent to which they represent gender and violence.
My exercise is spurred on by the fact that Nuremberg’s judicial-historical narrative of gender-based violence is far from satisfactory. While historians and other social scientists have amply documented the widespread and systematic nature of gender-based violence in World War II and its aftermath, a binding legal narrative does not affirm it. While French and Soviet prosecutors wrote evidence of mass rape into the trial record, the Nuremberg Trials did not explicitly criminalize rape and other forms of sexual violence as either war crimes or crimes against humanity.
The absence of specific prosecutions for sexual violence from the Nuremberg Trials was a great omission and a poor precedent for the ad hoc criminal tribunals. The prosecutor and trial chambers of the Yugoslav and Rwandan tribunals were unable to rely on judicial precedent from international criminal process when trying to define and interpret rape and sexual violence as international crimes. The decisions of the ad hoc criminal tribunals have remedied this omission, and broadly defined elements of rape and other forms of sexual violence are now part of the emerging body of international criminal law.
Tribunals and national courts have begun to refer to the ICTR and ICTY statutes and decisions, and in particular their definitions of sexual violence and rape are being coopted into national and international justice processes. The case law of the Sierra Leone Special Court, the final report of the Sierra Leone Truth Commission, reports of the special rapporteurs, general comments of the treaty bodies, and Security Council resolutions all specifically refer to the case law of the ad hoc tribunals. The doctrinal achievements of these tribunals are contributing to a growing awareness of a gendered experience of war and other forms of political violence. I am joining the growing number of legal scholars in assessing our profession’s competence and consistency in doing justice to framing the intersection of gender and violence in Rwanda, Sierra Leone, and other countries and regions that have granted jurisdiction to prosecute war crimes and crimes against humanity to ad hoc international tribunals.
In Chapter 2, I focus on gender and violence in the context of an ethnic conflict. I use gender as a lens through which the dominant narrative of the authentic man and the authentic woman (his wife) are dethroned as the universal models of mankind to which human rights laws first tailored their protection mechanisms. I argue that one’s categorization as the authentic man and/or his wife is a dubious privilege. In the context of armed conflict, the authentic man and his powerful and inviolable body make acts such as castration and other sexualized forms of torture such a potent attack. Conversely, it is this inviolable body that conceals castration from the investigation and prosecution process. I argue further in this chapter that the narrative presents the wife of the authentic man as valuable yet infinitely vulnerable—the better to complement the authentic man’s power. This infinite vulnerability makes sexual violence such an incontestable and dominant narrative in peace and war. In peace, she must avoid public spaces such as the workplace and be indoors before dark in order to avoid the advances of predatory men. And in war, the enemy must rape her. In this narrative, the anticipation of sexual violence is a pervasive fear shared by the woman and her community. The legal framework’s privileging of her vulnerability over other less valuable women’s security guarantees that only her victimhood is acknowledged but not necessarily with an effective legal remedy. I will demonstrate that in fact such acknowledgment may result in more severe forms of self-cloistering and restricted movement. Using such categories as “small woman,” “big man,” and “big woman,” I will introduce those victims that the International Criminal Tribunal for Rwanda could not accommodate in its narrative of genocide, which privileged ethnicity as a category of bias to the exclusion of gender and class.
In Chapter 3, I move from Rwanda’s tribunal to Sierra Leone’s TRC. Truth commissions do not produce judgments or case law. Rather, their legal and factual findings are presented in voluminous reports, and my discussion is based on the final report of the TRC. There is a great body of critical writing on the gendered processes and outcomes of truth commissions, largely produced by anthropologists, ethnographers, political scientists, and other social scientists.27 My focus on the report is an important contribution to legal scholarship because substantive research on the findings of commission reports is minimal compared to research on the case law of tribunals. This oversight by legal scholars is surprising considering that recommendations made by truth commissions are far-reaching and, some would say, inventive: they can include demands for apologies and reparations to victims, petitions for commemorative monuments, and curriculum changes that would bring subjects such as conflict and peace building into elementary and high-school classrooms. However, these recommendations often remain unenforced because they are vested with moral and not legal authority, and governments and identified perpetrators are not compelled to take any positive action to redress the rights of victims. The disproportionate attention paid by legal scholars to case law is influenced by a tribunal’s authority and stature in the hierarchy of mechanisms of accountability. For example, ad hoc criminal tribunals use their legal authority to convict and sentence public officials or other perpetrators for human rights abuses.
I argue in Chapter 3 that the TRC final report produces a human rights narrative of gender and violence that essentializes Sierra Leone’s culture as harmful and inherently violent toward