Institute for War and Peace Reporting | Giving Voice, Driving Change
International Justice Failing Rape Victims
International justice has come a very long way since the summer of 1992, when violence in Bosnia and Hercegovina raged and reports surfaced for the first time of mass rape being used as a weapon of war.
As Bosnian Muslim women flooded into the government-controlled down of Zenica escaping attacks on their villages, accounts emerged of Serb forces engaging in systematic rape, with many of the victims made pregnant.
Fadila Memisevic, a founder of the Zenica Centre for Research on War Crimes and Genocide, remembers the account of just one woman made a delegation from the European parliament go numb.
Scars clearly visible on her body, the woman, from a village near Prijedor in northwestern Bosnia, explained that she had been hiding in a basement in order to care for her pregnant daughter-in-law, but was discovered by a group of Serb soldiers. Despite her pleas, they ordered her to strip, and the entire group raped her. To muffle her cries, she bit into her own arm, so that her son, nearby, would not hear what was happening to her.
Her story took two hours to tell, and when she was done the faces of the women from the parliamentary group, which had been tasked to investigate the issue, were white. One was sick. Although they had asked to speak to at least 50 victims, they said they didn’t want to hear any more accounts.
“They talked to only one woman . . . [but] there were thousands of women with similar stories,” said Memisevic.
The episode is revealing, as it underscores the delicacy and the difficulty of uncovering this most sensitive of crimes. Initial estimates of 60,000 and more raped women were not substantiated. The parliamentary group’s report settled on an estimate of 20,000 rapes, while recognising the difficulty of ever achieving precise numbers.
But it also marked a turning point, as the role of rape as an explicit tool of war became more widely understood. Shortly afterwards, Tadeusz Mazowiecki, United Nations special rapporteur on human rights, whose research cited a figure of 12,000 victims of sexual violence, concluded that “rape has been used as an instrument of ethnic cleansing”.
The plethora of new war crimes courts have all taken up rape, mounted investigations and in many cases successfully prosecuted cases sexual violence as a war crime. The International Criminal Court for the former Yugoslavia, ICTY, secured its first conviction for rape in the ground-breaking 2001 Foca verdict, which confirmed the use of rape as a crime against humanity.
Hundreds of thousands of rapes allegedly took place during the 1994 Rwanda genocide, and in its 1998 verdict against Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda, ICTR, handed down not only the first genocide conviction by an international court, but the first conviction for rape as an act of genocide.
Yet despite this progress, there are complaints that international justice is still failing the victims of sexual violence - that too many crimes in Africa and elsewhere are going unpunished because of inadequate investigations and prosecutions. Even in the Balkans, after all the international attention, the success of local courts in prosecuting rape cases as war crimes is also being questioned, particularly in Bosnia.
SPOILS OF WAR
Rape, sexual slavery and forced prostitution have always been factors in armed conflict.
“In conflict, there is a nature of permissiveness where combatants are allowed to do what they want,” said Binaifer Nowrojee of Harvard Law School’s human rights programme and director of the Open Society Initiative for East Africa. “Sexual violence is part and parcel of conflict . . . a way to terrorise communities and implement a political tactic.”
And for almost as long as rape has been a tactic employed by warring armies, legislators have tried to outlaw the practice.
English kings Richard II in the 14th century and Henry V in the 15th both declared rape a capital offence. So did the Leiber Code, the Union Army’s military code during the American Civil War, which also made rape punishable by the death penalty. The Hague conventions at the turn of the century were based on the Leiber Code and emphasised that rules forbidding rape applied as much during times of war and occupation as during peace.
However, the existence of international law prohibiting rape did not prevent the act itself and the legal system remained slow to bring wartime rapists to justice. Many analysts believe taboos kept the issue from being confronted directly.
Germany’s “rape of Belgium” in the First World War remains a controversial period for the extreme claims of barbarity, but the metaphor tends only to mask widespread incidences of actual rape. The 1929 Geneva convention proclaimed that “women shall be treated with all consideration due their sex” - intending to prevent rape but with the awkwardness of a euphemism.
During the Second World War, many French women along with concentration camp inmates fell victim. And Red Army soldiers raped many thousands of women during the liberation of Berlin in 1945.
After the war, the 1949 Geneva convention spelled out more clearly than its predecessor that “women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault”.
Unfortunately, the increasing forthrightness of international law on rape did not translate into increased enforcement.
The breakthrough for international law, and for the prosecution of rape as a war crime, came with the ad-hoc tribunals for Yugoslavia and Rwanda, established in the mid-1990s. Both set important legal precedents and put in place crucial safeguards to protect victims and witnesses, giving many the confidence to come forward as they could not have done in other courts.
The Yugoslav and Rwanda tribunals have “had a huge influence on the way that rape is prosecuted”, said Susan Breau, a reader in law at the University of Surrey. “Rape is being defined as a crime against humanity and genocide. It is now considered to be one of the grave breaches [of international law].”
In Rwanda, the UN estimates that between 250,000 to 500,000 women were raped during the three months of the genocide, the majority perpetrated by Hutus against the country’s Tutsi population. Women were also mutilated, their breasts chopped off along with other body parts deemed characteristic of Tutsis, like thin fingers or long noses.
Witnesses described young women lying dead, their dresses over their heads, their legs spread and bent, objects shoved inside their bodies. Many who survived got HIV from their attackers, with some estimates suggesting 70 per cent of survivors were infected with the virus.
“In Rwanda, the ideology was that Tutsi women are beautiful and are proud of themselves, so it was difficult for a Hutu to get with a Tutsi woman. So for the Hutu the ultimate humiliation [to mete out] was to gang rape a Tutsi,” said Renner Onana, who worked as a human rights officer with the UN Human Rights Field Operation for Rwanda, investigating crimes including rape in Gitarama province near the capital Kigali.
He says that because Tutsis hold ethnic purity in such high regard, Hutu attackers believed that making them pregnant was the best way of humiliating them and their community.
“For a Tutsi woman, having a baby who comes from a Hutu is something unimaginable,” said Onana. “Having within you a baby of someone traditionally seen as a slave - some women would prefer to die and were paying [people] to kill them.”
The first case of the ICTR was that of Akayesu, the former mayor of Taba in central Rwanda, who was charged with orchestrating many of the horrors in his district. In a landmark September 1998 judgment, he was found guilty of nine counts of genocide, crimes against humanity and war crimes - including, for the first time, rape.
According to Human Rights Watch, the verdict was the first time an international court had punished sexual violence in a civil war; and the first time that rape was found to be an act of genocide when it was committed with the intent to destroy a particular group targeted as such.
The judges also defined rape, saying it was more than physical penetration and sexual contact and included “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.
“We were faced with evidence that we found credible, but found that there was no commonly accepted definition of rape under international law. So we created a definition that was gender neutral,” said Judge Navi Pillay, who presided over the case and was the only woman on the panel.
“From the evidence, we saw that rapes were only perpetrated against Tutsi women by Hutus, with the intent to destroy that group, so we concluded that it was genocide,” continued Pillay, now a judge at the permanent International Criminal Court, ICC.
In Bosnia, Serbs also raped women systematically. Memisevic says she alone has interviewed or received statements from around 10,000 female rape victims.
“Sometimes I would receive about 20 letters a day from Germany, from Bosnian women who live there as refugees and who have been raped,” she said. “They simply had the need to tell someone about what happened to them. Sometimes a woman would write to me begging me never to tell anyone the things she told me, because her husband was taken away, but she still hoped he would come back.”
Bakira Hasecic was raped in 1992 in the eastern Bosnian town of Visegrad, infamous for its Vilina Vlas spa hotel - a rape camp from which few victims ever returned.
“When they raped me, they screamed, ‘You won’t give birth to little Turks anymore, but to little Cetniks,’ ” she said, using Serb extremists terms for Muslims and Serbs. “Such hatred has been passed on by every generation since the time of the Turkish conquest here. That was the motive and the cause of all of this. Because I’m not a Serb, but a Muslim, a Bosniak woman, that was my guilt.”
But it was for prosecuting sexual crimes in Foca that the Yugoslav tribunal made history in February 2001. Tribunal judges found three Bosnian Serb men guilty of raping Bosnian Muslim women - some as young as 12 and 15. They were also accused of selling or renting women and girls for forced prostitution to other soldiers.
All three, Zoran Vukovic, Radomir Kovac and Dragoljub Kunarac, were convicted of crimes against humanity and violations of the laws or customs of war.
It was the first time an international court had judged a combination of sexual enslavement and rape to be a crime against humanity. Applauding the ruling, human rights groups including Amnesty International said it challenged the widespread acceptance that the torture of women is an intrinsic part of war.
"What the evidence shows," said presiding judge Florence Mumba in a statement read in court, "are Muslim women and girls, mothers and daughters together, robbed of their last vestiges of human dignity. Women and girls, treated like chattels, pieces of property at the arbitrary disposal of the Serb occupation forces, and more specifically at the beck and call of the three accused."
Although the ICTY had dealt with the rape in the past - notably in the Anto Furundzija case in which the Bosnian Croat paramilitary commander was charged with abetting a rapist to extract answers from a woman who was being interrogated - this was the first case to focus exclusively on wartime crimes of sexual violence.
“For the first time since Nuremberg, Foca gave us modern jurisprudence under humanitarian law as to what enslavement meant - a person owning sexual access to a victim - which is very important in terms of the legal concept,” said Patricia Sellers, a prosecution trial attorney at the ICTY and its legal advisor on gender. “Enslavement wasn’t dependent on being locked in a cell or working in a field with a ball and chains.”
But while significant strides have been taken in recognising rape as a war crime, the actual number of convictions secured is very small.
Brigid Inder, executive director of the NGO Women’s Initiative for Gender Justice, points out that international conviction rates for gender-based crimes are low. Across the Yugoslav and Rwanda tribunals and UN special courts like the one in Sierra Leone, there have been only 34 successful prosecutions for sexual violence. The majority of these have been by the Yugoslav tribunal, which Inder attributes to the fact that it has a designated gender legal advisor.
The ICTR has been particularly criticised for failing to include rape charges on initial indictments, as in the case of Akayesu who was not originally accused of gender crimes. The indictment was broadened only after Pillay’s diligent questioning of witnesses, which elicited stories of rape, and through the intervention of NGO activists.
She admits that rape did not feature much in early indictments at the ICTR.
“In 1997, I was asked to deliver an address at the human rights day at the UN. From the audience, an NGO representative accused the ICTR of neglecting to prosecute rape - out of 21 indictments we did not have a single count of rape,” said Pilla.
“At the time, I answered the person by saying that judges cannot influence indictments. But it alerted me to watch out, and I found she was right. I was hearing from women investigators that they were instructed to just concentrate on the killings, because these were seen as more serious.”
Some observers, such as Nowrojee, say that despite groundbreaking cases like Akayesu, guilty verdicts are still too rare at the Rwanda tribunal, which is scheduled to finish all hearings in 2008.
“Of the prosecutions of rape at the ICTR, there are more acquittals than convictions,” she said. “So there has been a miswriting of history where those responsible for the genocide are absolved of rape.”
At the Special Court for Sierra Leone, the case against members of the pro-government militia, the Civil Defence Forces, CDF, also does not include rape or other sexual offences. Eleven people associated with all three of the country's former warring factions are standing trial at the court - set up by the UN and the government of Sierra Leone - and have been charged with various war crimes, crimes against humanity and other serious violations of international humanitarian law.
Maxine Marcus, who worked as an investigating attorney at the court, said prosecutors did try to amend the CDF indictment to include allegations of crimes of sexual violence. The judges refused, arguing that the accused would have insufficient time to prepare a defence against the allegations
In the amendment sought by the prosecution, it was alleged that the CDF were committing acts of sexual violence against women from their own, rather than from the opposing warring faction’s community.
"This made it difficult for prosecutors to prove rape as a war crime.. because how do you link it to the armed conflict if the CDF are raping their own people?" she said.
Marcus says the prosecution sought to charge the CDF accused of war crimes nonetheless, as these women were regarded as "war rations".
"Just as soldiers from militias would take crops from fields to sustain themselves, women were treated in the same way. There was almost an open permission to use women to support the war effort," said Marcus, now a prosecuting attorney at the ICTY.
Marcus' team also attempted to charge rape as a crime against humanity, which at the Special Court for Sierra Leone does not require the crime to be linked to the armed conflict.
Complicating the prosecutions was that fact that rape is not considered a serious crime in Sierra Leone, where women's rights are severely restricted.
"For example they do not have the right to refuse sex within marriage. As such, perpetrators view very narrowly what rape is. If they capture and keep and feed a woman, they may view themselves as having a right to rape her," said Marcus.
"Perpetrators would deny raping, when it is phrased as such, but if investigators phrase it differently, such as asking if they had women 'available to them for gratification', they would say yes."
The fact that rape was not included in the CDF indictment was a big let down for those who were raped by CDF soldiers, says Marcus, because it had been a huge risk for them to even offer to give evidence.
"This was an instance in which rape was used by troops against their own community, so it took us [prosecution investigators] a long time to build confidence and get the evidence and witness statements," she said.
"These women were exposing their own community - their neighbours and cousins. Their trauma [wasn't even recognised] by their own communities, which did not consider their rapes to be grievous crimes.
'In other cases, war crimes tribunals have prosecuted rape but under the umbrella of broader crimes, rather than as a separate charge.”
Sellers says investigators must be mandated to search for evidence of sexual violence at the beginning and throughout an investigation, so it can be included on the initial indictment.
“If a charge of rape is tagged or amended into the indictment later on, it gives the defence room to appeal based on procedural, usually due process, grounds that the indictment was flawed because it was amended late, such as during trial, and that there was not enough time to prepare the defence,” said Sellers. “It could send the signal that rape is demeaned as a lesser crime and seen as an afterthought to the investigation.”
Pillay, however, says circumstances may warrant a charge on one or both counts. “Rape is a free standing offence and should be charged as such in order to accord due weight to the seriousness of the crime. However, rape can also constitute torture, as determined in the ICTR and ICTY. Charging rape as torture by no means diminishes the seriousness of the crime or the suffering of the victim,” she insisted.
The role played by investigators like Marcus and Onana is vital if victims are ever to receive justice. How they approach survivors of a crime can open the door to new evidence or shut it firmly, causing victims and communities more harm than ever.
But investigators face countless challenges when looking into reports of mass rapes, particularly in African countries.
As in Sierra Leone, Onana points out that in Rwanda rape is not considered to be a terrible crime in the eyes of the community. “In some places in Rwanda, near Congo, the traditional behaviour is to grab a woman you like and take her home,” he said.
On the one hand, that means rapists are not hiding away and are relatively easy to track down, because in their minds they’ve done nothing wrong, he says. But on the other, to be raped is still a personal humiliation for a woman, and she often doesn’t want to talk about it - making the work of those trying to piece together what happened extremely challenging.
In the Democratic Republic of Congo, much of the sexual violence happened in a way that didn’t appear to be systematic.
Tens of thousands of women there were raped by members of the many warring militias in what Human Rights Watch researcher Juliane Kippenberg describes as a “ceremony of violence”. Many were infected with HIV.
But in the Congo, a large number of the women were “just grabbed on the street or attacked in their house”, said Kippenberg, making it especially hard for the victims to know who their attackers were. Further complicating the picture, women also sold sex to ensure their safety in what Kippenberg describes as “survival sex”.
In this climate, it was especially important that investigators were familiar with the language that women used when talking about rape. Working with local women’s and human rights organisations helped Kippenberg understand the Congolese culture.
“Our translator said one victim had been told to ‘lie down’ - by which she meant she had been raped,” said Kippenberg. “Sometimes women would tell things in the third person, and say, ‘I knew someone’. And you’d come to realise she meant herself.”
Deciding whom to interview can also be tricky. Kippenberg’s team avoided very young children and those who were so traumatised by what they had experienced that reliving it would be harmful, speaking to parents and medical staff instead.
Ensuring the security of those they spoke to was also paramount.
“You have to think about the physical safety of the victim. Make sure no one listens in, except a person of trust. Then you want to make sure that later, people can’t work out who gave the information. You must store it safely, taking notes about with you, and email it in encrypted format. You have to get it out the country safely,” said Kippenberg.
“You should put names of victims in different place to interviews and keep your notebook with you at all times. Rather than giving the real names we use pseudonyms. We also don’t publish pictures that show the face of the victims.”
Shana Swiss, director of Women's Rights International, has worked in Liberia with a local team of nurse-midwives to document the impact of that conflict on women, and in 1993 was part of the team of physicians who investigated mass rapes in the former Yugoslavia on behalf of the UN.
She cautions against conducting face-to-face interviews with the victims of sexual violence, saying the consequences for women can be dangerous, especially for those living in “volatile, unstable, and extremely vulnerable situations such as refugee camps, internally displaced camps, and resettlement areas, particularly while the conflict is ongoing”.
During her time in the former Yugoslavia, Swiss says the team of physicians decided not to interview women who had been raped, because it would put those women at additional risk. "There were no safety nets, no services. There was stigma," she said.
Looking for new ways to document the scale of rape in a conflict, Swiss researched medical records showing rates of sexually transmitted disease, pregnancies and abortions.
"We ended up reviewing records from six hospitals. We counted the number of women who had received pre-natal care or abortions and who disclosed they had been raped,” she said.
“Based on medical information that indicates that approximately one per cent of instances of unprotected sex results in pregnancy, we were able to get a rough estimate that approximately 12,000 rapes had to occur to result in the number of pregnancies we found. This indicated to us that the scope of rape in the conflict in the former Yugoslavia was huge.”
If an investigation does lead to a prosecution for rape, special care also needs to be taken with how victims are treated on the witness stand.
Madeleine Rees, chief of mission in Bosnia for the Office of the High Commissioner for Human Rights, questions whether the adversarial system - where defence lawyers grill witnesses in order to poke holes in their stories, creating reasonable doubt in the minds of judges - is the best way to prosecute sexual-abuse crimes.
“There’s a huge incentive for the defence to try and trash the women,” said Rees. “You end up in situation where women are cross-examined in such a way as to demean them.” She says the commission is questioning whether it is possible to move away from the need for individual cross- examination.
But Sellers believes most witnesses are very strong on the stand.
“They are not weaklings, but agents of change,” she said. “Most defence lawyers don’t want to enter into arguments nor belittle a sexual assault witness, because they are good witnesses who know their facts.”
Local courts are one alternative to accused and accuser confronting each other in faraway places like The Hague.
The Rwanda gacaca, restored by the government five years ago and now operating around the country, is a traditional court based on truth and reconciliation, where the accused are tried within the communities where they allegedly committed crimes. A reduced sentence, including community service, is offered to those who confess and are forgiven.
This is one way not only to deal with the thousands of suspects in custody still awaiting trial but also to deploy methods far less adversarial and in theory less threatening to witnesses. Yet some observers question whether it is an appropriate way to punish rapists.
According to Nowrojee, traditional justice mechanisms do not treat rape as a serious crime, nor do they include women in the process as judges.
Recent UK media reports have also detailed reprisal killings of gacaca witnesses and widespread intimidation of those who testify against genocide suspects. A December story in the Observer newspaper said witnesses had suffered death threats, poisoning, physical assaults and rape. One man reportedly had his tongue cut out.
JUSTICE BOSNIAN STYLE
International courts have neither the capacity nor the time to prosecute large numbers of people, so local courts must take up much of the caseload at some point. But this only raises fresh concerns, where local legal systems may not have the capacity, interest or sensitivity to deal with sexual violence crimes.
This is a significant concern in the Congo, where there has been successful rape prosecutions, including those of soldiers convicted of over 100 assaults in a small village in the northwest of the country in 2003. But overall there is little public confidence in the local judiciary. And according to Kippenberg, “The justice system is so weak, biased and badly set up, it’s like an obstacle course.”
The main test case, again, is Bosnia, where a completely different, and quite controversial, brand of local justice is gaining pace.
For the first time since the Nuremberg and Tokyo tribunals, the authority to prosecute war criminals has been transferred to a national jurisdiction, with the newly-created Bosnian War Crimes Chamber gradually taking over from the ICTY.
The court receives referrals, advice and support from the Yugoslav tribunal. But it can also initiate its own prosecutions, and is seen by many in the legal community as a hugely positive step in obtaining a truly sustainable and impartial domestic criminal justice system.
All cases classified as “very sensitive” - generally rape, multiple murder and those involving high-ranking officials - are tried at the war crimes chamber. Those classified as “sensitive”, meanwhile, are referred to local prosecutors and cantonal and district courts.
Boris Grubesic, spokesman for the state prosecutor’s office, says rape is included in six of the approximately 20 indictments for war crimes at the chamber so far, about one quarter of all its cases. One man, Radovan Stankovic, was found guilty of rape and other crimes against humanity, while the others are still on trial or awaiting the start of their trial.
As at the Hague court, Grubesic said witnesses at the war crimes chamber who fear for their safety are allowed to testify under protective measures or give evidence in closed session.
“As far as I know, protective measures are respected, and there are even special corridors which protected witnesses use when in court in order to ensure that no one sees them,” he said.
But those who watch the Bosnian court and those who have testified there claim the witness-protection programme is inadequate. They say that victims have been identified by judges and in the press and that judges and lawyers are insensitive.
“I’ve heard appalling reports about comments made by some of the judges,” said Rees. “One international judge asked a woman if she was a virgin at the time of the alleged rape, and what she looked like when she was 16.
“Witnesses are much more reluctant to have to testify at the national court. To go there they have to walk through Sarajevo, which is like a big village where everyone knows each other.”
Hasecic says that in the trial of Boban Simsic - a Bosnian Serb police officer and prison guard convicted of the forced disappearance and rape of Bosniak civilians at the Hasan Veletovac school in Visegrad - the judge revealed the names of protected witnesses that didn’t convince the trial chamber they were victims.
“Six or seven women that testified in this case were named in court. The judges said their testimonies were not convincing enough,” she said.
Mirha Bojskic, director of the NGO Medica, which works with victims of rape, says Hague prosecutors are “gentle” but not so their local counterparts.
“Victims often feel intimidated,” she said. “Prosecutors need to be more sensitive. There is very little support for the victims too. There is also fear of revenge and stigmatisation, so more trauma problems.”
With many suspects still to appear before the court, Memisevic warns that shoddy treatment and general fatigue with the process could mean that witnesses will become increasingly scarce in the future. “There are less and less witnesses,” she said. “Women are tired. Some are dying.”
Another major complaint is that sentences handed down by the Bosnian court do not match the severity of crimes committed, according to victims and advocacy groups. A key example is Simsic, who in July 2006 received a sentence of only five years.
In another recent case, Radovan Stankovic, a member of a Serb paramilitary unit, received 16 years for crimes in Foca. Stankovic, whose case was the first to be transferred from the Hague tribunal to the Bosnian war crimes chamber, was accused of detaining Muslim women, subjecting them to forced labour and beatings, and turning them into sex slaves for fellow soldiers. Stankovic held one of the imprisoned women for himself, raping her almost every night.
Hasecic dismissed his sentence as “a reward”, adding, “It seems better to be a war criminal in this country than a victim.”
The legal community, however, sees the Stankovic sentence differently. Sellers says the judgment sends a strong message that sexual crime is going to be tried thoroughly in national courts, and that countries can prosecute their own war crimes, even those that relate to women and sexual violence.
“That is not to say that the national system is immune [to] issues like guaranteeing witness protection, but Stankovic has to be seen as a serious victory,” she said.
Grubesic also defends the court’s results so far, “The prosecution is doing its job and is trying to try these cases as quickly as possible, because we understand that victims expect to see the results. But prosecuting war crimes cases is a very complicated process which takes time and thorough work.”
And there have been some recent developments to hearten rape survivors.
The war crimes court’s appeals chamber in December sentenced Bosnian Serb Nedjo Samardzic, an associate of Stankovic, to 24 years in jail. His original sentence of 13 years and four months for aiding and abetting persecution, rape and torture of Muslims in Foca was overturned in April because of procedural errors and a new trial ordered.
Wartime rape trials are also ongoing in Serbian and Croatian courts, albeit with difficulties. In Croatia, there are complaints that the majority of war crimes defendants are civilians, while the number of former Croatian Serb army members on trial is small.
In Serbia, the Organisation for Security and Cooperation in Europe has found that the quality of trials there is generally improving. But there are also concerns that not enough soldiers have been tried for wartime rapes. The OSCE also said in a 2005 report that there must be greater cooperation between Serbian authorities and those in neighbouring states.
Nevertheless, many observers believe the role of national courts is vital. Nidzara Ahmetasevic, who covers war crimes trials at the Bosnian court for the Balkan Investigative Reporting Network, says the time has come for Bosnia to take responsibility for its own justice proceedings. “The trials held here will have a much stronger impact on future generations,” she said.
At the international level, the latest development is of course the launch of the ICC, which from its Hague base is already doing things differently.
In an attempt to address concerns about the treatment of war crimes victims, it has established a Gender and Children Unit, to ensure investigators and other staff deal with vulnerable witnesses in a sensitive manner throughout the judicial process.
Crucially, for he first time under international law, war crimes victims can have influence on a case at the investigation stage, including the right to present evidence, testimony, views and concerns.
“So if they are worried certain crimes are not being investigated, they can make their feelings known,” said Pillay.
Also for the first time, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and other forms of sexual violence have been included in the court’s definitions of war crimes and crimes against humanity.
“In every war there has been sexual violence against women, and it was treated as a reward for the troops,” said Pillay. “Now the rule is that you cannot do what you want with women and girls, and get carried away with your war strategies.”
Inder adds, “One of the most effective ways [of preventing future violence] is for the ICC to be seen to prosecute and convict those responsible and signal that rape and gender based crimes are considered amongst the gravest crimes.”
But not everyone is happy with the ICC’s performance so far.
Although it has yet to hear a single case, there are already concerns that it is not doing enough to investigate and prosecute gender-based crimes - particularly in the case of Congolese militia leader Thomas Lubanga.
The head of the Union of Congolese Patriots, Lubanga has been indicted by the ICC on the charge of conscripting children under the age of 15 to fight.
NGOs and human rights groups have campaigned for the indictment to be widened to include crimes of sexual violence, but prosecutors have so far resisted.
“I am worried about how ICC is dealing with sexual crimes, not pushing hard enough,” said Kippenberg. “The legislation is adequate. But the general impression I get is that they’re trying to go for simple cases, and sexual violence is not a simple case.”
The big issue for war crimes prosecutions is the Darfur region of Sudan, where tens of thousands of people have been killed and 2.5 million forced from their homes in three years of conflict. The US has said genocide is taking place, a charge rejected by the government in Khartoum.
Since Khartoum itself is unwilling to investigate alleged crimes against humanity, the UN Security Council has referred the case to the ICC. Chief Prosecutor Luis Moreno-Ocampo recently revealed that enough evidence has been collected to name individuals responsible for crimes in Darfur and to launch proceedings against them. He said his investigators have conducted more than 100 witness interviews and collected thousands of documents from various sources. He has mentioned rape as one of the crimes for which he has now gathered enough evidence.
The prosecutor is now determining whether the Sudanese government will itself conduct national proceedings against the alleged perpetrators.
“In Darfur I expect the court to be more careful than they were in the DRC [Congo] case,” said Inder. “Initially the prosecutor said he would not include rape in the charges in Darfur, but now he has said it is a priority. I am confident that they will bring charges of sexual violence against individuals in Darfur.”
Whatever happens with the Sudan prosecutions, advocates and victims alike say in this era of international justice, concerted efforts must be made to learn from past experiences and ensure that rape victims are not short-changed by the ICC or other tribunals that may arise.
And although the current system is far from perfect, for women like Hasecic it is the only one they have. She says that she and others like her will continue to testify and continue to pursue through the courts those who inflicted such pain.
“There are women who say why go to trials and relive those horrors again, but when they finish with the testimony they feel better,” she said.
“Of course, it’s easier when you face your rapist and he is helpless, without a gun or knife, and can’t hurt you. To speak the truth and make him face what he did to you - even have a hand in bringing him to justice - that is the only justice we have left.”
This report was produced by Lisa Clifford in London; Katherine Boyle, Katy Glassborow, Aleksandar Roknic and Caroline Tosh in The Hague; and Merdijana Sadovic in Sarajevo. Orsida Gjebrea, Denis Dzidic and Peg Jennings also contributed material to this report.
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