War-related sexualised violence – has international criminal justice failed here?

Depiction of Justice at the Peace Palace in The Hague. The Peace Palace, in The Hague, the Netherlands, built in 1913, is the seat of the International Court of Justice.
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Die Justiza am Friedenspalast in Den Haag. Der Friedenspalast, im Jahr 1913 erbaut, ist der Sitz des Internationalen Strafgerichtshofs.
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The trying of cases involving war-related sexualised violence is the exception in international criminal trials as well as at the national level. This circumstance has equally not changed as a result of the UN resolutions on women, peace and security of 2000 and 2008 or the so-called Rome Statute of the International Criminal Court (ICC) of 2002. Whilst these resolutions have categorically established, that sexualised acts of violence committed during armed conflicts and wars, such as rape, forced sterilisation, forced pregnancy, sexual enslavement and forced prostitution, are to be acknowledged and punished as crimes against humanity and as war crimes, these criminal acts are rarely tried before international criminal courts and an even fewer number of cases ever ends with a conviction.

What are the reasons and background? What measures can be taken to prevent the mostly female victims from being humiliated and traumatised once again by ignorant parties involved in court cases when they appear as witnesses or joint plaintiffs in the few criminal cases that deal with violent sexual crimes. What legal and social prerequisites and framework conditions are required to ensure that such acts are punished as crimes against humanity or as war crimes, that the mainly male perpetrators are prosecuted and that the mainly female victims can experience justice through seeing it dispensed in a court of law.

Blind in one eye? Panel discussion on the ICC 10 years on
These were the main questions addressed by a panel discussion on 16.4.2012 which was held at the invitation of the Gunda Werner Institute in the Heinrich Boell Foundation together with the Wagenbachverlag in Berlin. The occasion was the 10th anniversary of the establishment of the International Criminal Court (ICC) on 1 July 2012.
An interested audience of 80 followed the discussion by the panel members, who consisted of the Alternative Nobel Prize Winner and founder of the women's organisation medica mondiale, Monika Hauser, whose organisation, among other things, lent support to victims appearing as witnesses before the International Criminal Tribunal of the Former Yugoslavia; lawyer and Secretary-General of the human rights organisation, ECCHR, Wolfgang Kaleck, who, in his newly-published book "Mit zweierlei Maß. Der Westen und das Völkerstrafrecht" has taken a critical look at the practices of international criminal courts; and the international lawyer, Silke Studzinsky, who, in representing joint plaintiffs in the Khmer Rouge Tribunal in Cambodia since 2006, has succeeded in having the practice of forced marriages tried as a crime against humanity.

The three experts were unanimous in their conviction that there was a significant gap between political demands, legal norms and social reality in dealing with and prosecuting war-related sexualised crimes. However, their analyses of the root causes and their conclusions on how this has been treated in particular as a taboo subject in all societies, but also on how trivialised crimes can, once and for all, be suitably condemned in a court of law, diverged greatly and were, at times, contentious.

Social movements as a vehicle for bringing sexual violence before the ICC
Wolfgang Kaleck asserted that, with respect to these international criminal proceedings, it was not just a case of “gender blindness” generally existing, which makes it difficult to establish sexualised violence as a criminal offence, but also that a regional focus and narrow-mindedness existed, above all where criminal offences on the African continent were concerned. He also believes the expectations placed on the ICC are “overburdened with false perceptions”, as the exceptionally low levels of resources make it impossible for the court to try all crimes anyway but instead concentrate on those politically responsible and their liability as superiors. Apart from the fact that key international players, such as the USA and Russia, do not recognise the jurisdiction of the ICC for their citizens, he outlined the extraordinary problems concerning police and prosecution investigations in the respective countries. Kaleck noted that these were amplified in the case of sexual violence, especially since the victims did not usually talk about them in their local environments and, if they did, their safety was jeopardised due to the fact that the alleged perpetrators and their clans lived in the same area, as is the case with the Congo or Sri Lanka. To Kaleck, social movements, support for the victims through civil society and the breaking down of the taboo that engulfs violent sexual crime are, through their commitment, the prerequisite and condition for more of these criminal acts being tried and the offenders being held accountable
The justice system and politicians must establish the conditions for sexualised violence to be recognised as a war crime

In contrast, Monika Hauser believes it is the responsibility and duty of the justice system, the investigating authorities and also the international courts, but also politicians to establish the conditions that enable female testifying victims who have experienced sexualised violence to give testimony before international courts. She pointed to the general social background, not just in post-conflict countries but also in Western democracies such as Germany, as to why sexualised violence is rarely prosecuted as a war crime: it is looked upon as “collateral damage” in wars and not taken seriously as a structural problem. She convincingly argued that the coming to terms with such violent crimes was the prerequisite not only for victims processing their traumas, but also for social reconciliation. As long as these acts are suppressed and not addressed in societies, they will continue to have a significant impact on generations to come. Drawing on the experience medica mondiale had gained working in this area, Hauser vehemently contradicted Kaleck’s hypothesis that many of the raped and traumatised women did not want to speak about what had happened, arguing that the majority of women most certainly were willing to testify against the perpetrators, but that the courts often did not allow them to do so, in part because they wanted to accelerate the proceedings, but also in part because there was a lack of awareness of the significance and function of sexual exploitation. Sexualised violence is indeed a crucial factor when it comes to recruiting soldiers and it serves as a bond for the militias. For this reason, the masterminds of these atrocities, the people with political and military responsibility and the commanders must also be brought to justice as part of their responsibility as superiors, Hauser stated, adding that the best measures to combat sexualised violence were pro-active regulations, and that the superiors, in general, needed to be held accountable. All in all, Hauser presented a bundle of measures that needed to be implemented within the judicial system and by those with political responsibility, among them the establishment of a permanent high-ranking post of a gender equality officer; clear standards for dealing with female testifying victims and comprehensive means of protection during criminal investigations and trials; the systematic training of those involved in trials and/or the investigation authorities and legal experts in the area of war-related sexualised crimes and how to deal with female testifying victims and joint plaintiffs.

Forced marriages under the Khmer Rouge were tried as a lesser crime
With her emotive outline of her experience as a legal representative for joint plaintiffs before the tribunal against the Khmer Rouge in Cambodia, Silke Studzinsky underscored the problems sketched out by M. Hauser. When it first took up its work in 2006, the Cambodia Tribunal – a hybrid tribunal comprising national and international judges – sexualised crimes played no role whatsoever. Only through much commitment was Studzinsky able to convince the courts that, among other things, the mass forced marriages ordered by the Khmer Rouge should also be tried as a violent sexual crime; a form of violence that affected women and men alike, because on the orders of political powers mass group weddings were held across the country. Couples who, in virtually every instance, were complete strangers to one another were declared married and forced to have sex in a hut assigned to them so that they would produce offspring. They were often watched over, and those who refused were threatened with time in jail or a re-education camp. According to Studzinsky, both sentences equated to death threats. Studzinsky, too, pointed out that those affected wanted to talk about what they had experienced and do so publicly, even if no convictions came of this, but she added that the right environment needed to be established for them to be able to testify. This included the recognition and acceptance of the pain that victims had suffered, specific skills for those involved in trials as well as the will to prosecute such acts in a court of law. That the significance of these crimes is disregarded in Cambodia as well can be seen, in Studzinsky's estimation, in the hierarchy of prosecution charges: forced displacement comes first in the list of cases that are tried and only then forced marriages – if indeed the defendants and potential witnesses are still alive that is.

Just how important speaking out on such crimes and documenting them is for a society to process its past was made clear towards the end of the event by the contribution of a courageous member of the audience: growing up as a child in Nazi Germany at the end of the war, she, along with her mother, had personally experienced mass rape being committed by the victorious troops. An experience which she never spoke about – not even with her mother – and which has continued to impress on her right up to today.

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Gitti Hentschel

Executive Director Gunda-Werner-Institute
Phone: +49 - (0)30 - 285 34-122
E-mail: hentschel@boell.de

About Gitti Hentschel

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