Lydiah Kumento Bosire
17 July 2008
(Page 2 of 4)
In The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, the charges on the arrest warrants include sexual and gender based violence. The two are charged, in particular, with the planning and executing an attack aimed at wiping out the village of Bogoro on 24 February 2003, including rape and sexual slavery of women in that village [18]. Hearings to confirm the charges for which the prosecutor seeks to hold the two accountable started on 27 June 2008. This case so far has demonstrated some of the shortcomings of the international platform of international justice in addressing rape. In late May/early June 2008, IWPR reported that the sexual charges against the two would be scrapped due to contention over how to protect the witnesses whose testimonies would have backed up the charges of sexual violence, provoking outrage amongst activists [19]. The issue of the protection of witnesses- in particular whether the ICC could practice "preventive relocation" for prosecution witnesses, is a discussion between the VWU and the OTP that is still ongoing [20]. The witness' testimony was later accepted after they came under the protection of the ICC protection system [21]. But the fact that international legal procedures can cause such potential hiccups informs SGBV advocates that the ICC will not the panacea.
LIMITS OF TRANSITIONAL JUSTICE IN ADDRESSING SGBV
The paper so far has outlined the efforts to address rape from a judicial perspective. A broader analysis of TJ and SGBV demonstrates challenges arising on at least two levels: a practical level and a conceptual one.
On the practical level, challenges arise from the inadequacies of TJ as a tool to address SGBV. At the level of formal, international justice described in the three cases, only a handful of people will be brought to trial, as part of what Bells calls a paradox of attenuated justice that seems necessary at moments of transition [22]. Further, these perpetrators' cases may not have central to their charges the SGBV crimes. International Justice takes into account the greatest crimes, and SGBV is seldom considered in that package. The case of Bemba signals a hopeful direction, but the fact that Lubanga case did not consider that some children might be recruited for sexual purposes is a drawback.
Focusing attention away from international justice to regional, hybrid or even domestic justice mechanisms reveals that a variation of same challenges are replicated. Kelsal and Stepakoff demonstrate in their work on Sierra Leone that women may have been psychologically harmed by the manner in which women's stories on sexual violence were silenced, for the benefit of the "integrity of the proceedings [23]. Formal justice at the national domestic level, while arguably capable of processing more perpetrators, has many challenges that have been adequately addressed elsewhere. At the formal level, transitional justice becomes a national (or international) project and not a moment of individualizing harm and privatizing it [24].
Informal, or restorative justice, is offered as the alternative framework for seeking justice for SGBV, since here accountability is locally defined and understood. However, measures like TRCs are not without their problems. Conceptually, restorative justice focuses on "restoring," while for most women, a restoration to normalcy would mean giving up the "perverse equality gains" achieved women at moments of transition, and a return to inequality [25]. In a practical example, Rosser shows the shortcomings of the Historical Clarification Commission of Guatemala in narrowly conceptualizing sexual violence and leaving out "reproductive" crimes [26].
Some restorative justice measures have inequalities embedded into them, as Allen has shown with regard to Uganda [27]. Further, these alternative justice measures themselves can have different priorities from those held by private individuals. Others have argued that that the way in which women understand harm, and the manner in which harm may be defined by various transitional justice measures may be different. Women may much prefer to focus on secondary effects of violence, while transitional justice defines the primary [28].
Some conceptual challenges in addressing SGBV arise from the very understanding of the content of SGBV , and consequently, can impact the appropriateness of the tools chosen to address it. In other words, the problem must be well understood in order for the right tool to be applied to it, and the challenge is that there is no consensus about the nature of the problem.
Some scholars have expressed a worry that the focus on sexual violence can draw attention away from other areas of violence in women's lives. According to Nesiah, a focus on SGBV can hide other important facets of women's experiences from view. Such neglected experiences may include "internally displaced women, women who became sole breadwinners as a result of human rights abuse against spouses, women refugees who fled to other countries, or women prisoners [29]."
In other words, in writing into the transition story the oft-neglected story of SGBV, we write out many other women's experiences. Nesiah adds, "while sexual violence is critical, it does not capture the complex and multidimensional ways in which women experience abuse. Moreover, reducing women's violations to sexual abuse reproduces more widespread prejudices that reduce women to sexual beings alone [30]." In her view, there is a risk that the stories of rape are appropriated for activist agendas, reducing complex women into "just points on a graph that will help us buttress statistics about sexual abuse [31]."
A second conceptual challenge is offered by Skjelsbaek, who argues that sexual violence is not related to intrinsic male or femaleness. She also and rejects theories based on "essentialist" claims of rape as stemming from militaristic masculinity that targets all women or some women [32]. Instead, she considers sexual violence to stem from constructed power relations, where some groups are feminized and others masculinized. She offers that the association of of femininity and victimization is inevitable, so that men, ethnic groups, and other identities in a war zone are feminized and 'othered', while the rapist is masculinized. even men can be raped. Such a construction can help us understand why men can be raped and why female soldiers can be instrumental in the capture and subjugation of younger women in combat zones. In this view, then, responses that assume that it is women who are targeted rather than feminized groups are bound be misapplied.
CONCLUDING CONSIDERATIONS
The discussions above illustrate that our challenges are not only in a quest to make transitional justice measures deliver, but also in defining the contours of the problem for which we are mobilizing the transitional justice response. But for the purposes of the practical activist, these debates are incomplete, since they do not provide guidance for one who wants to understand why SGBV elicits such faint responses and what needs to change in order for the problem to be tackled robustly. Here I suggest some discussions that may be more helpful.
The first would be a debate on how to rescue SGBV from the realm of 'soft' law in which most issues affecting women tend to fall, and into 'hard' law [33]. We know that some scholars have raised the issue of rape as torture [34]. Perhaps the rise in attention tothe use of guns and other objects to rape women (and men) as we have seen in Eastern Congo, where the outcome is physical and visible - young girls are walking around with colostomy bags and traumatic fistula because of destruction of internal organs - makes this case more strongly than "traditional" rape. What is the status of this debate on rape as torture, if there is one? Why has there been no active effort to have rape be thus recognized, in order for it to fall under the Convention against Torture, with the benefit of the Convention's robust sanctions? What would need to be done for such recognition to be given, since it is possible that seeking such recognition would be a more useful direction to apply energy than to yet another document or declaration, or any other 'soft law' condemnation?
The second necessary debate would be on what sustainably addressing of SGBV might look like. In advocacy, is it possible that focus on SGBV leads to a decoupling of the criminal outcome from the political conflict from which it originated, even when it is clear that addressing the political conflict is what will sustainably address the needs of vulnerable populations?
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