A history of activism behind the ICTY/R Statutes
Written by SAHR member, Natasha Latiff.
Contemporary conflicts have exhibited in such brutal terms, the tactical use of sexual violence in war. Considering the egregious nature in which they are committed, these crimes cannot be left unaccounted for. It has become the mandate of prosecutors and justice institutions to address all forms of sexual assault, violence and rape with the same seriousness as other international crimes.
Over the years various resolutions have been passed; Resolution 1820; 1325 (2000) and 1889 (2009) on Women and Peace and Security; Resolutions 1612 (2005) and 1882 (2009) on Children and Armed Conflict; and Resolutions 1674 (2006) and 1894 (2009) on the Protection of Civilians in Armed Conflict. Similarly, the Rome Statute of the International Criminal Court (ICC) expanded the notions of sexual violence to include forced impregnation, sexual slavery, forced prostitution, forced sterilization, inappropriate medical examinations and strip-searching amongst others. Additionally, the Rome Statute also recognized the ways in which acts of sexual nature are coerced through fear of violence, duress, detention, abuse of power, and psychological fear. Thus consent has taken a new role and definition during trials.
These are important advances for both legal practice and grassroots activism because they now provide a framework which although not exhaustive, attempts to bring women’s narratives of war into the fore. But law in itself is not self-executing and thus cannot be assumed to operate independently. In other words convictions are not secured by the fact of law. Unless strategised with resilient persistence, the opportunities for accountability may be squandered under the weight of heavy case-load and resource constraints.
This section surfaces some of the practical obstacles experienced during the trials of ICTY/R and the efforts of advocates to motion the Courts and lobby various stakeholders to take sex-based crimes seriously. It will illustrate specific examples of vigilance and activism. The purpose of this presentation is draw out important lessons learned and position a few strategies for continued monitoring and lobbying for accountability.
Much of the credit for these advances goes to human rights organizations. These organizations alerted me to the anger and frustration of the victims of those crimes and the concern of many thousands of women in dozens of countries.[1]
Activism in drafting statute
The history of the creation of ICTY is itself a story of vigilance and activism. During the drafting of the ICTY Statute, ‘letters, papers, studies and all types of documents sent by female academics, women’s groups, and individual women’[2] were submitted to the then Secretary-General Kofi Annan to ensure that the ICTY Statute encompassed all forms of sexual assault as crimes and developed the right procedures to enable prosecutions.
The ‘gender unit’ of the Office of the Prosecutor surveyed ‘every in-house document, every NGO report, newspaper article, and each precedent’ of international law. The team made numerous missions into the field to meet with every stakeholder who witnessed the crimes or encountered survivors of sex-based crimes at the front-lines. This included gynaecologists, religious leaders, police officers, potential witnesses, nurses and women’s groups. Only as a result of these comprehensive interviews were they able to navigate existing psycho-social and collective action networks in the regions where the crimes were committed, and put into place the support systems for potential witnesses to later come forth for the Office of the Prosecutor[3]
Meanwhile at the Hague, the Unit examined vast amounts of material written by lawyers, scholars and physicians for human rights including jurisprudence from ‘each major and minor military trial since World War II’.[4] The efforts of the field and scholarly studies culminated in an in-house report on several gender strategies to investigate and prosecute sex-based crimes[5]
These efforts exemplify the kind of work put by advocates into ensuring that the foundations behind a war tribunal is set to address women’s specific concerns.
Read More:
Integrating sex-based violations into prosecutions
[1] Richard J Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, 280
[2] Patricia Viseur Sellers, ‘Gender Strategy is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender-Based Crimes before International/ized Criminal Courts.’ [2009] 17 (2) American University Journal of Gender, Social Policy and the Law 301, 306
[3] Ibid, 309
[4] Ibid, 310
[5] Ibid, 309
[6] Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217, 224
[7] Ibid,
[8] Ibid, 225
[9] Binaifer Nowroji, ‘Your Justice is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, Occasional Paper №10, 2005) 2 <http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/56FE32D5C0F6DCE9C125710F0045D89F> accessed April 7, 2013
[10] Patricia Viseur Sellers, ‘Gender Strategy is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender-Based Crimes before International/ized Criminal Courts.’ [2009] 17 (2) American University Journal of Gender, Social Policy and the Law 301, 315
[11] Clare McGlynn and Vanessa E. Munro, Rethinking Rape Law: International and Comparative Perspectives, (Routledge-Cavendish, 2011) 65
[12] Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95–1B-T, (Trial Chamber) 28 April 2005, para. 484
[13] The Prosecutor v. Tharcisse Muvunyi Case No. ICTR-2000–55A-T, (Trial Chamber),11 February 2010.
[14] Clare McGlynn and Vanessa E. Munro (n 11) 66
[15] Alfred Musema v. The Prosecutor, Case No. ICTR-96–13-A, (Appeal Chamber), 16 November 2001.
[16] Clare McGlynn and Vanessa E. Munro (n 11) 65
[17] Susan M. Pritchett, ‘Entrenched Hegemony, Efficient Procedure or Selective Justice?: An Inquiry into Charges or Gender-Based Violence at the International Criminal Court’ (2008) 17(1) Transnational Law and Contemporary Problems 265, 274
[18]Clare McGlynn and Vanessa E. Munro (n 11) 63
[19] The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96–4-T, (Trial Chamber), 2 September 1998 para 417,
[20] Nowrojee (n 9) 10
[21] Nowrojee (n 9) 2
[22] Binaifer Nowroji, ‘Your Justice is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, Occasional Paper №10, 2005) 5 <http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/56FE32D5C0F6DCE9C125710F0045D89F> accessed April 7, 2013
[23] Richard J Goldstone, ‘Prosecuting Rape as a War Crime’, (2002) 34 Case Western Reserve Journal of International Law 277, 280
[24] Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217, 225
[25] Ibid, 226
[26] Beth Van Schaack, ‘Obstacles On The Road To Gender Justice: The International Criminal Tribunal for Rwanda As Object Lesson’ (2009) American University Journal of Gender, Social Policy and the Law 355, 364
[27] Copelon (n 24) 226
[28] Ibid, 230
[29] Ibid, fn 43
