Overcoming experiences of violence - Truth and reconciliation commissions and criminal tribunals
by Rita Schaefer
“Transitional justice – with a method to deal with wartime sexualised violence?” was the main issue of an expert talk organised by the Gunda Werner Institute on 3rd November 2011. Apart from speakers from South Africa and discussion participants from Zimbabwe and the Democratic Republic of the Congo, representatives of the International Criminal Court (ICC) and a number of German non-governmental organisations, particularly from the field of peace and conflict studies, also took part. The event was organised in cooperation with the European Centre for Constitutional and Human Rights (ECCHR) and the Women’s Security Council. The meeting followed on from the international conference on UN Resolution 1325 that had been organised by the Gunda Werner Institute in October 2010 to mark the 10th anniversary of the Resolution. In terms of content it also referenced the subsequent expert talk on militarised masculinity that had been organised by the Gunda Werner Institute in May 2011. On that occasion, Ugandan and South African gender activists had presented their work with male survivors of wartime sexualised violence and described possible approaches to changing the behaviour of men in post-conflict societies.
The focus here was on transitional justice and its significance for overcoming wartime sexualised violence. At the centre of consideration were truth and reconciliation commissions, specifically the TRC in South Africa, which is regarded as a model for many other similar commissions, particularly in Africa. The meeting also looked at international criminal tribunals, with a main focus on the International Criminal Court (ICC) in The Hague. The central question was the extent to which international tribunals are suitable for ensuring justice for the victims of wartime sexualised violence.
In her opening address, Gitti Hentschel, director of the Gunda Werner Institute, took up these points, illustrating the gender-specific patterns and dynamics of violence during and after wars. She emphasised that in particular wartime sexualised violence carried out by soldiers or other combatants is often not prosecuted by transitional justice systems and the perpetrators are not punished. The tolerance of violence that this represents results in a continuation of sexualised and domestic violence in post-war societies, according to Hentschel. She went on to explain that boys who have to watch helplessly as their fathers behave violently, and girls who observe abuse of their mothers are not just traumatised – they also take over patterns of behaviour and receive the message that violent behaviour is justified. This generational dimension and the sheer extent of violence mean that comprehensive counter strategies are required. From all this, Gitti Hentschel formulated the following question for the discussion: what forms of transitional justice are appropriate and in the interests of the victims and/or survivors of violence?
She was followed by Dr. Helen Scanlon, who has been working for the African Gender Institute in Cape Town for some months and was previously responsible for the gender program of the International Centre for Transitional Justice (ICTJ). Dr. Scanlon widened the focus to take in the global dimension of transitional justice. A historian by background, she spoke about various concepts of justice, for example restorative and punitive justice. She also identified the legal discourse on which transitional justice is based as being problematic and pointed out the resulting difficulty in developing interdisciplinary perspectives. Scanlon emphasized that the term “transitional justice” is used as a label to cover various different forms, such as criminal prosecution or truth and reconciliation commissions. However, these are highly divergent processes for dealing with violent crimes. It was, she said, important not to impose any particular way of coming to terms with the past from the outside. It was also very important to avoid increasing the stigmatization of the victims – particularly in the case of survivors of sexualised violence. Scanlon also emphasised that the term “gender” had to be treated carefully, particularly as it was a foreign concept for many post-war societies. As a topic for discussion she suggested that processes of transitional justice, if applied appropriately, could ideally provide a starting point for legal reforms and institutional change. These should include women’s rights and women’s access to the justice system. However, such reform processes offered no guarantee that domestic violence would be reduced – which merely demonstrates the complexity of the problem of transitional justice and its impact.
In her presentation, Sheila Meintjes, professor of political science at Witwatersrand University in Johannesburg, focused on the South African Truth and Reconciliation Commission (TRC). In the mid-1990s she had been one of the academics who had drawn up specific proposals for the systematic integration of gender aspects into the TRC. The entire apartheid regime had, after all, been structured in a gender-specific way and gender-specific violence had played a role in shoring up the regime. However, the members of the TRC had not recognized the importance of this perspective and had merely set up three special hearings throughout the country at which women had appeared largely as mothers and wives, with their role as independent political activists being largely ignored, despite the fact that their political involvement had caused them to fall into the hands of the apartheid police and to be tortured and raped.
Prof. Meintjes explained that the special hearings were not a suitable forum in which to talk about sexualised violence, because the women would have thereby revealed their husbands as failures: according to traditional gender norms it would have been their task to protect their partners from such attacks. The final report of the Truth and Reconciliation Commission only contained one chapter on women, in which they featured essentially as mothers and wives of male activists. However, women were involved in the political struggle, despite patriarchal social structures. According to Meintjes, these paradoxes characterise the problem of coming to terms with the atrocities of Apartheid. She explained that the academics involved not only drew up a gender concept for the TRC but also carried out a large-scale survey of South African women in all parts of the country in collaboration with women’s organizations, and used the results as a basis for suggesting legal reforms. The specific issue was ensuring that black women’s full legal status was recognised. Hitherto they had been regarded as mere extensions of their husbands. Against massive opposition from so-called traditional authorities and by dint of energetic lobbying, the activists managed to achieve full recognition of women’s legal status in the new constitution of 1996. However, despite this constitutional basis for gender justice, South Africa still has extremely high levels of gender-specific violence. This means that the civil society players who are calling for comprehensive measures against violence from the government are all the more important – which is why the withdrawal of international donor organisations from South Africa is so disastrous, as critical non-governmental organizations depend on external support. Meintjes concluded by calling on donors instead to sit down together and develop joint strategies for promoting gender work.
Anna von Gall, Program Director for Gender and Human Rights at the European Centre for Constitutional and Human Rights in Berlin, explained the importance of international criminal court cases for dealing with the aftermath of wartime sexualised violence. She examined the question of the extent to which legal processes can be regarded as a driving force behind social transformation, given that women’s experience of war and violence is by no means homogeneous. Von Gall explained that sexualised violence has only recently been recognised as a war crime in the history of international criminal justice and there have been only a few cases in which this form of violence has been taken into account. As a lawyer with considerable international experience, she ranged in her presentation from the Nuremberg trials, the tribunals on former Yugoslavia and Rwanda and the ICC case against Congolese warlords to current cases in Germany where militia commanders from the Democratic Republic of the Congo are accused, amongst other things, of sexualised violence in eastern Congo. She also drew attention to new approaches to dealing with sexualised violence during the time of the military junta in Argentina and the consideration of forced marriages by the current tribunal investigating the violent rule of the Khmer Rouge in Cambodia. Von Gall also referred to Resolution 1325 “Women, Peace and Security” as well as subsequent UN Security Council resolutions 1820, 1888, 1889 and 1960, as these categorize sexualised violence as a war crime and call for prosecution of the perpetrators. But she also pointed out the problems of implementation, given that lawyers responsible for the trials taking place in Germany reject gender training as being potentially prejudicial. Another problem – and not just here – is a lack of knowledge about these complex conflicts. A further basic problem was followed by a final discussion: the fact that it is the leaders who are condemned but thousands of militia men continue to spread local violence and terror by forming their own militias or joining forces with other warmongers. For the local population, particularly for women threatened by sexualised violence, the question of justice still remains.
In the final discussion the remaining problems and the following demands were discussed: gender-specific violence in public and in private has to be finally understood as a consequence of conflict; the need for improved gender awareness on the part of lawyers, combined with legal reforms that should also include comprehensive protection of female witnesses; care should be taken to avoid imposing ideas from the outside, which could lead to rejection; inter-sectional approaches need to be developed covering various different models of violence before, during and after wars. Here, it would make sense to cooperate systematically with women’s organisations, which should also be consulted in order to use the scope offered by transitional justice. The crucial point should be that perpetrators are brought to justice and an end put to their impunity. At national and international level those responsible should show a greater political will to implement resolutions and treaties and monitoring processes need to be systematically established. They should be made aware that managing and overcoming sexualised violence is a lengthy process.
- Frauen und Kriege in Afrika (2008)
- Im Schatten der Apartheid (2008)
She is doing research on gender, gender violence, HIV / AIDS and women's rights in Africa. Analysis of masculinity in war and post-conflict societies (including South Africa, Zimbabwe, Namibia, Sierra Leone).
Further Information: www.frauen-und-kriege-afrika.de
- Overview Expert Talk: Transitional Justice - an instrument against wartime sexualised violence?
- November 3, 2011 - Transitional Justice – an instrument against wartime sexualised violence?
- May 18, 2011 -Militarised masculinity in armed conflicts – counter-strategies