Blind in one eye? The International Criminal Court 10 years on

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Auf einem Auge blind? Monika Hauser resümiert 10 Jahre Internationaler Strafgerichtshof

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medica mondiale sees itself as an advocate for women affected by war-related sexualised violence. Through close to 20 years of interdisciplinary work, we have acquired direct experience in various crisis-torn countries and consequently gained a unique insight into the different life circumstances and prospects of affected women on the ground. Experiencing justice, no matter how minimal it may be, is of vital importance to survivors in order for them to be able to come to terms with the sexualised violence and ensuing traumas they have experienced and also a prerequisite for reconciliation processes within society. The omission of any sense that justice has been served nurtures individual and collective resentments which are passed down to the next generations and produce new violence.


Despite key UN resolutions having been ratified over the past few years, violence continues to be committed on a broad scale against women and girls in warzones, conflict and post-conflict regions. Despite international criminal courts and tribunals and national legislation reforms, impunity also continues to be the norm in many countries rather than the exception. It is for exactly this reason that the International Criminal Court in The Hague has been vested with the responsibility to establish standards, once and for all, e.g. in terms of prosecution strategies as well as in the treatment of female testifying victims, which do justice to women’s realities. The policies of the international community must, once and for all, take preventive action – for example, it must, once and for all, meet its political obligations which it committed to in ratifying UN Resolution 1325 to strengthen and protect women and girls in war zones and crisis regions. This includes the German Government, which, for many years, has refused to develop a national action plan to implement Resolution 1325; an action plan which should, for example, also include protecting female testifying victims during war crime trials in Germany.

Let us take a look at the criminal prosecution strategies: consistent investigation and prosecution strategies that comprehend the dynamics of sexualised violence in the various war contexts, determine those responsible for such acts and bring them to justice were neither discernible at the two ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and for Ruanda (ICTR) nor are they currently in evidence at the ICC! As before, the decisions as to who should be charged and for what appear to be made rather randomly. Above all, they are taken by individuals. It is a fact that, for example, Carla del Ponte, the Chief Prosecutor of the International Criminal Court, actively prevented charges being brought for war crimes in the former Yugoslavia or set aside rape charges because she wanted to accelerate trials. The trial of Serb war criminal, Milan Lukic, is one case in point. I see the then 17-year-old Amina before me, who, in the summer of 1993, reported how she was forced to look on as her father's corpse was tossed into the river Drina and how she had been raped by the exact same Lukic who Frau del Ponte did not want to hold to account. What can I possibly say to Amina if she asks me what justice this world has to offer?

And why has there only been one solitary trial up to now which solely focused on war rapes, the Foca trial?

This begs me to raise the question of how seriously criminal prosecutors really treat sexualised violence and whether the courts truly are sufficiently aware of the complexities and dynamics of war-related sexualised violence. How otherwise can we reason that the Congolese rebel leader, Thomas Lubanga, the first person to be sentenced by the International Criminal Court, was merely convicted of recruiting child soldiers? Not a word was mentioned of the realities faced by numerous girls and countless boys who, as child soldiers, were also sexually enslaved. And, all that, despite it being generally known that one of the decisive reasons for many violence-prone men joining rebel groups in the first place is the opportunity to exploit others sexually and that sexual exploitation itself is a key bonding element among many militia. It is absolutely incomprehensible how the Chief Prosecutor of the International Criminal Court in The Hague, Luis Moreno Ocampo, could not just ignore and not prosecute these crimes but even rejected a petition submitted by a victim’s legal representative that the Court should reassess the existing charges to account for sexual violence.

The only conclusion we can draw here is categorically: most definitely blind in one eye! For years now, we have called for the post of a gender equality officer to be created who would specifically attend to investigation and prosecution strategies and be vested with the relevant resources and competencies to pass on her findings as directives – this demand remains as current as ever. As the history of the ICTY has shown, it is often up to individuals – usually women – to decide whether someone is charged for sexualised violence or not. We have a handful of women such as the gender legal officer Patricia Sellers, judges such as Gabrielle MacDonald, Elizabeth Odio Benito or Florence Mumba as well as prosecutor Hildegard Uertz-Retzlaff to thank for the key prosecutions and verdicts in the initial years of the ICTY! If it weren't for them, the results to date would not be half as good. According to a UN report, in 24 of 75 cases completed by the end of 2009, convictions were brought for sexualised violence crimes or the testimonies given in these cases were admitted. However, our own studies have also revealed the following: only around 34% of the cases dealt with sexualised violence charges at all and the number of acquittals here was 10% higher than for other charges.

The approach taken by the prosecution of the ICTY is also questionable: numerous rape cases were subsumed under “persecution” and were not the subject of separate prosecution. In the case of charges brought against seven leading Serb politicians and military leaders (Milutinovic, Dordevic) for crimes committed in the Kosovo, this led to six of them being acquitted in the first instance at least. This, in spite of several female witnesses confirming before the court that they had been raped, some of them on numerous occasions, and also in spite of the courts believing these witnesses. Only the lack of proof that the rapes had taken place as part of ethnically or religiously motivated persecution tipped the scale in this verdict! Women who divulged their innermost painful experiences in order to give their courageous testimony in The Hague, who, because of the rapes they had suffered, have been stigmatised, insulted, threatened in their villages and excluded – how mocked must these women feel by international judiciary and their own society?

At the ICC, “gender” has now been afforded its own grounds for prosecution in the statutes – Luis Morena Ocampo has, thus far, been unable to find the courage to build a prosecution case around this (or has had no interest in doing so). It remains to be seen whether the new Chief Prosecutor, Fatou Bensouda, will be more courageous – certain stances she has displayed would suggest that she very well might be!

Awareness of prevention and education are of decisive importance if sexualised violence is to be prevented in the long run. As war rapes occur in virtually every militant conflict, it is enormously important to have unequivocal penal laws in this context: officers, state officials and other superiors must be bound by law to recognise the high probability of sexualised violence and to take proactive measures to prevent rape! Needless to say, this also applies to other acts of violence which breach international humanitarian law. Superiors, who hold the de facto power to put an end to atrocities, must be prevented from being allowed to use as an excuse the notion that they knew nothing (or did not intend such things to happen).

The latest Pentagon report on the US army's anti-rape programme highlights why consistent penalties and legal standards are essential: the seven-year programme has, thus far, been unable to prevent sexualised violence even increasing within the US army. The reason: it is left to the individual commanders to decide whether or not to instigate criminal proceedings if a complaint is filed. Many opt only to transfer the perpetrator, or even the person filing the complaint for that matter!

With regard to the accountability of superiors, the Federal Court of Justice gave the following direction in June 2010: it justified its ruling to extend the prison sentence for the two Ruandan rebel leaders, Ignace Murwanashyaka and Straton Musoni, among other things by stating that as superiors of armed groups, both men had a “special responsibility”. Merely by being armed, such units as the FDLR posed “a great danger [...] to especially high-quality legal interests including the life and limb of potential victims”. The Court ruled that the commanders were responsible for keeping this latent danger “under control at an early stage through suitable measures” and not first intervening when the criminal acts become concretely known (p. 21, sect. 44).

20 years of research and extensive documentation on virtually every past and present war have provided sufficient knowledge and insight to show that, in virtually every war in which armed units encounter the civilian population, sexualised violence is widespread. It is therefore foreseeable or must, at least, be deemed to be highly likely! UN Resolution 1820/1960 also emphasises the role that sexualised violence plays in extending wars or amplifying conflicts in armed conflicts and, at the same time, the need for it to be analysed and documented. Implementation of these resolutions – which also includes the corresponding qualification of legal and political personnel – can actually help to turn knowledge of the probability of sexualised violence in wars into standard knowledge so that no-one can use this as an excuse any more. Yet, the German Federal Government in particular is showing very little enthusiasm here.

In the almost 20 years following the establishment of the two ad hoc tribunals, ICTY and ICTR, and ten years since the foundation of the International Criminal Court (ICC), there have been virtually no gender-specific studies on past and present war crime trials. Until today, there is a lack of standards on how to treat and involve witnesses in trials which, above all, are binding for criminal proceedings before national courts. Our 2010 study on female testifying victims in the Bosnian war show, among other things, that especially the regional courts in Bosnia afford far too little protection to witnesses, let alone any means of involvement. The wellbeing of the witnesses must be the central duty and not be seen as a necessary evil. What’s more, far more female witnesses must be won over. In our study, it materialised that only 13% of all witnesses who testified before the ICTY and the war crimes chamber in Sarajevo were women. The courts are far too rash in wanting to make the women themselves responsible – their supposed silence brought about by shame – or their society. Instead, they should ask what they can and must do in order to earn women’s trust and cooperation. A key precondition for this is transparency, respect and giving them more control over the events and also the possibility to contribute their views into the entire process to good effect (now Silke!). Another issue that has yet to be resolved is what notions of justice the survivors themselves have and how these can be implemented.

Our study has also shown how difficult people working in the courts find it to deal professionally with the subject of sexualised violence and how many gender-stereotypical concepts can hamper communication with these witnesses especially. However, handling the traumas suffered by female testifying victims with sensitivity is vital if war crimes really are to be criminally prosecuted. In spite of all the problems, the willingness of women to testify is frequently greater than those in the dock assume. Usually, it is not women’s shame that keeps them from testifying. In the case of the war crimes chamber in Sarajevo, we saw that women certainly do want to testify – even in front of others – but that the judges and prosecutors sought to prevent this, arguing that Bosnian women would feel ashamed. Yet women want the world to learn about what they have suffered. The question that raises itself here is whether or not we are dealing with judges projecting themselves?

Our legal norms – whether in Germany, Bosnia-Herzegovina or within the United Nations – reflect social values and also reproduce them. As do the primarily male personnel who do not act value-neutrally but bring in their own value systems – and stamp their mark on the trial proceedings and witness examinations through their gender-specific prejudices and social preconceptions about race, class and gender! The fatal thing, however, is that these preconceptions often remain concealed but are a part of common sense!

If the international community and the International Criminal Court in The Hague are not only concerned with justice for justice’s sake but, by their own admission and claims, with keeping peace and seeking justice for post-war society – then they must find an answer as to how they intend to implement justice, including for women survivors!

Thank you.


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Monika Hauser - Picture: Stephan Röhl - Some rights reserved

Monika Hauser

Founder of medica mondiale 
Monika Hauser is a gynaecologist specialist who has worked as a resident doctor in various German cities. Between 1992 and 1994, she worked together with women experts from Bosnia to develop Medica Zenica, a therapy centre for women which she later headed. It was in connection with this work that the medica mondiale organisation ultimately evolved. Over the subsequent six years, Monika Hauser supported the further development as a member of its board while also returning to Zenica on repeated occasions for extended missions. In 1999, she launched the medica mondiale Kosova project which entailed numerous visits to projects in Albania and the Kosovo. In 2000, Monika Hauser assumed the professional and political management of medica mondiale. As medica mondiale continues to grow into an organisation advocating human rights, she regularly speaks at national and international congresses and presents the work conducted by medica mondiale to experts and the general public.

Monika Hauser is responsible for developing the curriculum for training "psychological consultants for women" in Kosovo. Since 2002, she has also been involved in training Afghan women doctors, nurses and midwives in Kabul in her capacity as lecturer. She has received several prestigious awards such as the Gustav Heinemann Prize, the Annette Barthelt Prize and the Peter Beier Prize of the German Lutheran Church in the Rhineland as well as the Rotary Prize Trentino, South Tyrol. In 1993, she was named Woman of the Year by German ARD TV's Tagesthemen programme. She turned down the Order of Merit of the Federal Republic of Germany in protest at the German Federal Ministry of the Interior's resolution to expel Bosnian refugees in 1996. In 2008, she was awarded the Alternative Nobel Prize. Monika Hauser is one of 1,000 women to be chosen for the 1,000 Women for Peace initiative. This initiative was nominated for the Nobel Peace Prize in 2005.