Sex and International Tribunals. Chiseche Salome Mibenge
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Bintu exploded in anger: “Who told you that? It’s a lie! We women were slaves! Wake up in the morning to farm for them, collect their water, we had to feed them! Those rebels! They raped us in front of our husbands, and our husbands did nothing.”
In the same way that I extracted conflicting social narratives of gender and violence from the incident in the Lusaka market and a father and daughter’s struggle to draw meaning from it, I extracted from conversations with Bintu and Chief Sesay social narratives of gender and violence. Bintu’s outburst and the chief’s claim present views that are different yet similar. Both assert that gender shaped the way they experienced insecurity within armed conflict, and indeed gender continues to shape the way they experience the peace process and nascent democracy. Bintu speaks of herself and other women as slaves. The chief, however, describes men and women going about their everyday business. Bintu describes not only rape but also rape as theater, as husbands were forced to watch the rape of their wives. The chief refers to “some killings” and his probable assassination had he remained in a rebel stronghold. The absence of sexual violence in the chief’s account is in itself a valuable narrative of masculinity and patriarchy that demands a gender analysis (though far from the only point to raise the gender flag).5
The juxtaposition of Bintu and Chief Sesay’s responses raises a number of questions about gender and violence. Some of the questions are too simple and too obvious to build a thesis upon. For example, one might conclude that Bintu leads us to a narrative on suffering that is asking rhetorically, “Who suffers the most in war, men or women?” This contest can be observed between victims, victim organizations, humanitarian organizations, the media, and human rights advocates, depending on their specific political agendas. Some argue that men suffer the worst human rights abuses; after all, they are killed, unlike women, who are only raped.6 The image of Srebrenica, for example, where thousands of men and boys were led to an execution ground while their women were only put on buses and exiled from their village, bolsters this view.7 Others torment the public with images of abandoned or orphaned children, conveying the message that children suffer the most, that they are the most vulnerable to exploitation.8 Still others tell us that actually women suffer the most atrocious violence, often in the form of rape. They are raped because it is a fate worse than death; perpetrators of rape tell women they will die from sadness, and there is no need to waste bullets on them. Women, especially widows, are left to head households and rebuild shattered families and lives.9
This is not the contest Bintu’s outburst drew me toward. Bintu’s and the chief’s separate yet related accounts raise the key questions that concern me throughout this book: How did men and women experience violence and human rights violations? Which men and women have their narratives privileged by the prosecutor’s investigation? Who is representing or giving voice to victims’ experiences, and how do they edit out “inconsequential” details from the formal processes of justice?
In responding to these questions, I will reveal a dominant narrative of gender and violence emerging from the legal and justice process, a dominant narrative that is wont to represent African women not only as victims of armed conflict but as rape victims of a militarized African masculinity. This narrative essentializes women as a monolithic victim group and gender as a unitary ground of discrimination. In essentializing women’s gender role thus, this dominant narrative fails to acknowledge variance within the group and ultimately variance in the experience and impact of gender-based violence on women and men.
While it is important for me to focus on the men and women excluded from the justice process, I also examine what I call the price of inclusion in an essentializing justice process for women victims of gender-based violence. The dominant narrative requires a “perfect” or “legitimate” victim who is allowed to gain access to justice but required to adjust their testimony of atrocity in war to fit the script provided by the dominant narrative. The legal narrative of the “perfect victim” is a well-known phenomenon in the domestic sphere; it varies from society to society and is dynamic. In the context of U.S. legal and justice narratives of the 1970s, Alice Sebold described herself as the perfect victim because of an important set of facts: “I was a virgin. He was a stranger. It happened outside. It was night. I wore loose clothes, and could not be proven to have acted provocatively. There were no drugs or alcohol in my system. I had no former involvement with the police of any kind, not even a traffic ticket. He was black and I was white. There was an obvious physical struggle. I had been injured internally.… I was a young student at a private university.… He had a record and had done time.”10
I am concerned with the impact of the “perfect victim” narrative on the experiences of women who are included as well as excluded: the wartime experience of both groups is never fully authenticated by a legal narrative. Even as I identify and distinguish between “perfect victims” and “imperfect victims,” I recognize the vacuity of the terms beyond their malleability as research tools. The women I met in Rwanda and Sierra Leone are survivors. These survivors live firmly in the present and look back at the upside-down world of war only when prodded by researchers such as myself to (against their better judgment) look backward and not forward. As I acknowledge this awkward transaction between scholar and survivor, I recall a vow made by Albie Sachs, a South African Constitutional Court justice and an iconic victim of apartheid. Sachs vowed that he would not make himself an exhibit, even when asked to speak subjectively of his victimization by the apartheid state (Sachs 1997: 20). And even as I place my body and the bodies of other African women and men into this book, I vow not to make myself or others exhibits. The exhibit in this book is law and its enforcement of human rights.
The ad hoc criminal tribunals for the former Yugoslavia and Rwanda brought gender, violence, and armed conflict into the lexicon of international jurists. The initial response by legal scholars was to focus on the interpretation of the statute and rules of evidence and procedure. Literature flourished on landmark interpretations and definitions of sexual violence, and on admissible defenses for rape and the inclusion of evidence of rape trauma syndrome by medical experts.11 The scholarship then began to focus on the needs of victims and witnesses of gender-based violence, and scholars have discussed the support services provided by the victim and witness unit and the tone of examinations by prosecutors and defense counsel. They have raised the issue of reparations for victims and witnesses, invoking this as a form of social justice, for example, suggesting the provision of housing and medical treatment.12
There is a curious research gap between legal scholars at the domestic and international levels. In the case of gender-based violence at the domestic level, criminologists, in particular, have exposed how race, ethnicity, and class can limit or improve the prosecutor’s odds of securing a conviction on behalf of the victim. Facts such as the victim being Hispanic, the community being white, the accused being a surgeon, the jurors being working class, the police precinct being located in a black neighborhood, and the judge being a conservative can influence prosecutorial strategy and judicial processes and outcomes. At the level of international armed conflict, social scientists have led the way with studies of how the state, media, and propaganda include and exclude victims of gender-based violence from narratives of victimhood in the former Yugoslavia, South Africa, and other transitional societies (Zarkov 2007; Ross 2002 and 2005). However, legal scholars have lagged in producing a comparable body of work within their discipline that reveals those factors that disadvantage victims of gender-based violence from accessing effective justice. My research in this book responds to the apparent need for legal researchers, such as myself, to pose the gender questions surrounding victim participation in processes of international criminal law.
Factors such as stigma or ignorance of the workings of the legal system are regularly put forward as obstructing women from seeking justice at the international level. However, this view focuses on projecting fear or reluctance onto women as victims and witnesses, and placing the responsibility for accessing justice exclusively on them. Little energy is directed toward investigating the international tribunal and its unwillingness or inability to give an audience to women on discriminatory grounds. Few scholars have empirically investigated whether an international criminal tribunal is sexist, racist, or ageist, for example. As a legal scholar, I draw the jurist or legal scholar toward a serious self-examination that could reveal the reasons why women might shun the legal system. I have