Activism behind prosecuting rape

Written by SAHR member, Natasha Latiff.

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;
• 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.

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 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 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.

[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