What Makes a Watershed Moment
"Sexual violence in conflict needs to be treated as the war crime that it is; it can no longer be treated as an unfortunate collateral damage of war." - UN Special Representative on Sexual Violence in Conflict, Ms. Zainab Hawa Bangur
The photo above says “I do not deserve to be raped.” This is the slogan of a social media campaign which began in Brazil, and has become very popular there as well as throughout Latin America. Although today we place an emphasis on protecting women against sexual violence including rape, it was not until 1993 that rape was defined as a crime against humanity.
Historically, according to the UN Outreach Programme on the Rwanda Genocide, rape was often regarded a “spoil of war,” which was legitimate for a victorious party to commit against the women of the defeated. Even in the Nuremberg and Tokyo trials following World War II, although all sides were suspected of mass rape and other sexual violence, the trials made no mention of such crimes, and made no attempt to prosecute them.
In 1993, the International Criminal Tribunal on the former Yugoslavia included rape as a crime against humanity in a statute, with other crimes such as torture and extermination. Later, the International Criminal Tribunal on Rwanda did something somewhat similar; however, they set a different precedent through a particular case.
The case of Jean-Paul Akayesu, pictured above in court at the ICTR, proved to be a very influential case in international law, and one that expanded the definition of genocide to include rape as it was decided in his particular case to be “ acts of genocide insofar as they were committed with the intent to destroy, in whole or in part, the Tutsi ethnic group.”
This decision to convict Akayesu on charges of rape and sexual violence are referred to by Rebecca L. Haffajee in her article “Prosecuting Crimes of Rape and Sexual Violence at the ICTR: The Application of Joint Criminal Enterprise Theory” as a “watershed moment” for sexual crimes during conflict situations, specifically as a tool of genocide. Haffajee explains how, using the joint criminal enterprise theory, high-level officers and politicians such as Akayesu who instigate or encourage crimes like rape can be held responsible for those crimes.
"Destruction doesn’t mean a stack of bodies. There are other ways to destroy somebody. One of the things that these women were told as they were being raped was ‘we’re leaving you alive so that you can die of sadness.’ That to me encapsulates this strategy.” - Filmmaker Michelle Mitchell, interview
She goes on to discuss, however, the difficulty of documenting sexual crimes in Rwanda and Africa in general due to stigmas against victims of these types of crimes, and fears of having these kinds of offenses become public. Michelle Mitchell, a filmmaker, created a documentary on Akayesu’s case, interviewing three of the witnesses who participated in proceedings against Akayesu. What she says about rape used to destroy women and families without killing them is, to me, why prosecuting and identifying these types of crimes is so important. It is absolutely essential that, despite the taboo of speaking about these kinds of crimes in some places, they be brought to light and examined. Ignoring them perpetuates the antiquated idea that rape is a legitimate action by a victor or aggressor.
However, simply prosecuting the people in charge for committing these crimes is not enough. Really, even if all those who actually committed the rapes were also prosecuted and sentenced to jail time, it would not be enough. Prosecution and what international criminal tribunals do is so important in the quest for peace and justice, but they are certainly not the only way to provide peace and justice to a community, nor to ensure healing and redress for victims.
Communities that are struck by horrific events such as Rwandan communities need resources and support in order to heal from violence, especially sexually based offenses that injure victims in ways that go so much further beyond the physical. Victims, especially in African societies, are looked down upon after having been abused sexually; many are shunned in their societies and not allowed to remarry, earn money, or be reintegrated into their families. Some also suffer horrendous physical injuries as well, for which they are unable to seek treatment because they are afraid their communities will find out and ostracize them, or they have no money to pay for treatment.
In Rwanda, there are several other avenues through which justice is being sought. This includes transfer of cases from the ICTR to the national court system, which has tried almost 10,000 people in cases related to the genocide, and the use of the gacaca system. This system is a traditional, tribe-based method of justice, which brings perpetrators directly to the places where they committed crimes, and face their accusers. Proponents of this method assert that it is a legitimate way to achieve reconciliation in situations where there are already tens of thousands of cases being tried in front of national courts, jails are overcrowded, and a community still needs to see something being done.
In addition to national and gacaca courts, a particularly important part of reconciliation includes creating a national memory of an event, so that it is not forgotten and therefore may not be repeated. In Argentina, this was done with the CONADEP report, a report consisting of hundreds of pages of testimony from victims or the relatives of victims following a period of state-sponsored tortures, killings, kidnappings and diasppearances. Anyone who wished to share their story was welcomed into the office of the commission for the CONADEP report, and they were allowed the cathartic experience of telling their story, and having it added to the national memory of the time period. The ICTR provides this in the form of testimonies as to what happened there during the genocide.
“the TFV has a two-fold mandate: (i) to implement Court-Ordered reparations and (ii) to provide physical, psychological, and material support to victims and their families. By assisting victims to return to a dignified and contributory life within their communities, the TFV contributes to the realization of sustainable and long-lasting peace through the promotion of restorative justice and reconciliation.” - Trust Fund for Victims website
Furthermore, as these types of courts grow older, different features to help those who are affected by conflicts. Many courts, including the ICTR, have processes in place to protect victims and witnesses so that they are able to testify without fear of retribution, and promised confidentiality if they so choose. The International Criminal Court has a mechanism in place known as the Trust Fund for Victims, which helps provide reparations and other necessary services to victims. Although this is a lesser-known piece of the ICC, it is an extremely important one.
Without these types of systems in place to help preserve the justice that is served through prosecutions in international courts and tribunals, I think that the international system for justice would be rather weak. After all, these types of crimes, in particular rape and other sexual crimes, have severe lasting physical and psychological impacts on communities, families, and individuals.
“There is no better exercise for the heart than reaching down and lifting people up.” - John Holmes
In my view, these courts are a way to bring everyone up, rather than primarily to bring down the leaders and officials who are committing these crimes. This is done by looking seriously at what the needs of victims are in order to address those concerns, and help them. “Reaching down and lifting people up” is a much more involved process, one that places emphasis on those who have been affected as well as holding those who are responsible accountable. A prosecution, even a “watershed moment” in international criminal law may not mean much if there is not additional support to help to redress those who were wronged and lift them back up as best we as an international community can. What makes moments like those meaningful is the responsiveness of the international community and these kinds of international bodies to the needs of the ones who need it most: the victims, their families, and their communities.
