This year, as part of my Masters study in international law and women’s rights, my focus has been on developing strategies to prosecute rape and sexual violence in conflict and in peace-time. I thought to share some resources ranging from Inquiry Reports to bibliographies, videos, innovative projects, and reflective questions.
Learning from others We must share and discuss the important lessons of the past two decades; from the Rwandan Tribunal, to the Tribunal of the Former Yugoslavia and the Special Court of Sierra Leone. The work of each tribunal has developed new jurisprudence and thinking around rape and sexual violence. Unless we internalize what we did right and wrong, gender-mainstreaming in law will remain pretentious, a boast of success with little substance. Let not lessons be lost. We have so much to learn from our peers from different countries. Some of these resources have enabled me to develop new strategies for tackling patriarchal perspectives through the force of law and civil society action.
Some noteworthy sources
Oxford Bibliographies has assembled a series of key scholarship written by lawyers, former prosecutors and academics. It covers all aspects of rape, sexual violence and the work of courts. Email me for access.
The Gender Jurisprudence and International Law Project has a similar collection.
Perceptions and prosecutions of sexual violence and rape
“We are the ones we have been waiting for.” As advocates, activists, writers and lawyers, we must conscientiously monitor and evaluate our society and ourselves! Our goals should not just be that rape and sexual violence are prosecuted. But they are prosecuted for the right reasons. Our analyses must de-link women’s bodies as sites of men’s honour and tackle the manifold biases and assumptions that complicate rape cases. And we must do this carefully so as not to alarm the community who may believe that our defence of women’s autonomy is a promotion of “immoral” values.
A gender-competent articulation of law is the duty of lawyers in courts, journalists in the media and the activists in the community. Our analyses must be well-thought out, scrutinized by our own peers, packed and unpacked. If we omit questioning ourselves, our own strategies can backfire and reproduce other forms of gender-discrimination. What we say sets a precedent. So by our choices, we transform the way rape and sexual violence in conceptualized and prosecuted.
Law is not self-autonomous or self-executory. Justice is not done by words on paper. Justice is not moved by enactments and pronouncements. Justice requires the movement of people. We are the ones who write, who speak out, who lobby, who educate, who train. But how are we expressing our concerns? We need no repetition that rape and sexual violence is a grievous violation. Everyone knows this. The larger question is how is this crime characterized by society and the legal system? Meaning in what kinds of situations is rape and sexual violence condemned? And in what kinds of situations is she blamed for it? Mapping out the spectrum of scenarios to understand when rape is condemned, excused and justified enables us to think of innovative strategies for arguing against patriarchal perspectives that render rape a less serious offence.
- What patriarchal justifications and excuses are usually made by the police, investigators, prosecutors and court staff?
- How is a woman’s immoral behaviour deployed as an argument in the proceedings?
- From her dress-code to where she was at the time, to her participation in the public sphere, to the fact that she was an actress, or had exchanged romantic text-messages to the alleged rapist prior to the incident – in what situations is she blamed for her rape? Exactly how is this conceptualized and expressed?
- Understanding this spectrum enables us to structure our responses. How do we respond to these perspectives in a court of law, to the media, and in a grassroots awareness program? The audience we are addressing will determine the knowledge tools and resources we choose to use.
- Substantive Law: How do we demonstrate that these perspectives are patriarchal and inherently discriminatory? Can we use the language in Islamic law and traditions to address them? Can we describe this as an access to justice, fair trials and human rights issue?
- Procedural Law: How can we motion the Judge to ensure the victim is respected and protected in all stages of the proceedings?
- Sexual violence can encompass many acts, some of which need not require physical contact (like sex harassment) or need not be sexual in nature (mutilation of the body). It should not just entail penetration by the penis into a vagina. Instead it should criminalize a larger range of acts; enslavement, prostitution, forced impregnation, rape, assault, harassment and others.
- Another point to bring out is that when sexual harassment/ violence or rape occurs within a government institution, supervisors/ higher ranking officials within the institutions can be held accountable even if they did not directly commit the acts. They can still be found responsible under the doctrine of ‘command/ superior responsibility’ if they fulfill certain requirements.
Some excerpts from the front-lines:
International Criminal Court “The investigation and prosecution of gender based crimes must be made a priority. Victims given a voice, their own voice to tell their stories and perpetrators must not go unpunished. Together we can send a clear, strong and consistent message that the use of violence against women as a tool in war is no longer acceptable,” said Prosecutor Bensouda.
« We have chosen to come together to call on courts, governments, legal bodies to end impunity and hold perpetrators accountable. We are asking you to join us and rise to end impunity. »
Senior Legal Officer, Kelly Askin re-iterates the power of lobbying in her piece & appeal to us to learn from our failures.
After studying this issue for two decades, my views (very simplistically put) are:
1) The presence of women in positions of power as investigators, prosecutors, judges and gender crime specialists increased the opportunity (for prosecutions).
2) A powerful global women’s caucus of gender justice advocates, scholars, lawyers, and reporters literally forced sexual violence onto the agenda of war crimes tribunals, international human rights conferences, the media, and United Nations bodies (assisted by new mass communication technology, such as electronic mail.)
4) Many of the relevant laws have been in place for centuries, despite being largely ignored in practice. War crime tribunals allowed humanitarian laws to be examined, clarified, enforced, and refined.
Despite the huge advances, the tribunals have done a relatively pitiful job of holding high level leaders or others far from the battlefield responsible for sex crimes. Some prosecutors and Judges (including appeals chamber judges) seem readily persuaded that a political or military leader intended troops to kill, displace, torture, and pillage, but they seemingly have a hard time accepting that these same leaders intended their troops to rape, even when the crimes are committed over months or years with their tactic approvalby failing to prevent or punish the widely reported crimes. Most of the positive jurisprudence on rape crimes has come from situations where the accused were the physical perpetrators or were present when the crimes occurred, or less often, when they occurred over so many years with so much consistency it became impossible to believe the senior level accused didn’t at least aid and abet the crimes or actively encourage their commission.
Africa has so much to teach us. Physicians for Human Rights on Addressing Sexual Violence. This was filmed at the grassroots, with workshops collectively attended and contributed by physicians, medical workers, lawyers, activists, judges.
Last week my peer Sara who is a human rights activist in Egypt showed us a controversial film titled “678″ about sexual harassment in Egypt. It is in Arabic with English subtitles. Highly recommended!
Movements are effected by people. A group of young activists started the innovative Harass Map Project in Egypt. This project implements a system in Egypt for reporting incidences of sexual harassment via SMS messaging. This tool gives women a way to anonymously report incidences of sexual harassment as soon as they happen, using a simple text message from their mobile phone. By mapping these reports online, the entire system will act as an advocacy, prevention, and response tool, highlighting the severity and pervasiveness of the problem. The project utilizes FrontlineSMS and the Ushahidi Engine.
Verma Committee Report in India Following the rape and death of Indian medical student in Delhi, India released a Report to address all facets of sex-based crimes against women. I do encourage holding a discussion session or working group on the findings and recommendations of this report as it brings us up to speed with how sexual violence is committed and also aided and abetted by our own village councils and health workers. Commission of a sexual crime is one facet of a woman’s experience. How it happens, why it happens, and what happens at the point of complaint, trial and sentencing — are other facets that need serious scrutiny. The recommendations can be discussed in other country contexts too.
Summary by Judge Pillay In January, the report of the Verma Committee in India proposed sweeping reforms, including vigorous punishment for marital rape, domestic rape and rape in same-sex relationships; requiring police officers to register every case of reported rape and ensuring those who fail to do so face serious repercussions; ensuring accountability of police or military personnel for sexual violence; punishing offences such as stalking and voyeurism with prison terms; changing the humiliating protocol for medical examinations experienced by rape victims; cracking down on extra-legal village councils, which often issue edicts against women; and legal and electoral reforms to ensure that people charged with criminal offences may not hold political office.
These recommendations require serious and sustained follow up. They can also serve as a model for other situations.