Sex and International Tribunals. Chiseche Salome Mibenge
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justice, in contrast to the domestic level, are immune from projecting gender, race, and other forms of bias on victims and witnesses. While there is an understanding that elderly, poor, and illiterate women may lack the means to access justice, there is no examination of whether prosecutors might arbitrarily deem poor, illiterate, and elderly women to be unreliable witnesses or simply implausible victims of rape. Bias emanating from the international justice process has yet to be thoroughly interrogated by legal scholars, and my objective with this book is to contribute to this interrogation.
Defining the Terms and the Structure of the Book
Mass violence and its avoidance have held central places in nations’ framing and ratification of international laws that supersede their own domestic laws and sovereignty. By the twentieth century, the international community unanimously agreed that crimes such as piracy and slavery violated international custom and the standards of civilized nations. Law students may take for granted that UN General Assembly declarations, UN Security Council resolutions, reports by truth commissions, and decisions of international criminal tribunals clearly state that sexual violence against women committed in armed conflict is a form of gender-based discrimination. However, the legal and political processes that brought gender into the framework of international law depended on the birth and maturity of a new body of international law, namely, international human rights law after World War II. This new law brought the rhetoric of universalism, nondiscrimination, and equality to all members of the human family. Over a span of more than sixty years, certain family members have called attention to unique challenges posed to their enjoyment of human rights as a result of their membership in subgroups. Disabled people, migrant workers and their families, refugees, children, domestic workers, women, and many other groups have advocated for the establishment of thematic human rights norms beyond an international bill of rights stating government’s responsibility to prevent actions that discriminate against them specifically.
The inclusion of gender into the international human rights law framework is a recent and ongoing process that I am contributing to with this work. By gender I refer broadly to the socially constructed roles ascribed to women and men, as opposed to biological and physical characteristics under the banner of sex. The social worth of men and women is closely tied to their ability to internalize, perform, and fulfill idealized gender roles. Gender expectations shape the ways in which men and women interact in every sphere of social activity, such as those that determine access to resources, security, power, and participation in political, cultural, and religious activities (Pankhurst 2003: 166). Although the details vary from society to society and change over time, gender relations always include a strong element of inequality between women and men and are influenced strongly by ideology (ibid.).
Gender groups are traditionally divided into two monolithic units: men and women. This division is erroneous as it tends to make invisible subgroups and cultures within a dominant gender group and also conceals the hierarchies and hegemonic power within a single gender group. Thus, within the supposedly monolithic group of men, there is an idealized man who fulfills the gender expectations dictated by society. Those men who aspire to conform to this model of masculinity would enjoy greater civil, political, economic, and social freedom than men who deviate too far from the idealized model. However, men may feel ambivalent and even oppressed by their conformity, even when it reaps rewards such as increased social standing and economic gain.
There is no universal model of the idealized male. In one society he could be Muslim, heterosexual, a father, self-employed, married, and faithful to his wife; in another, he may be Protestant, educated to college level, heterosexual, a father, married, and casually but discreetly involved with multiple sexual partners. And those women who complement and enable men’s performance of an idealized masculinity are promised greater security and bargaining power in a patriarchal universe and privileged access to contested or scarce resources. Equality requires that the gender roles of both women and men who do not fulfill and/or complement the idealized male gender role model are awarded comparable status as those of the idealized male and entitled to equal access to rights and resources.
Many inequalities in the enjoyment of human rights arise from gender-based discrimination, which is an umbrella term for any harm that is the result of power imbalances that exploit distinctions between men and women and among men and women. Gender-based discrimination or the threat of gender-based discrimination can press “deviant” men and women to conform to acceptable gender roles. Thus, a woman may conceal that she is gay in order not to jeopardize her appointment as a partner in a law firm, or an unmarried woman may wear a wedding band in order to gain the respect of colleagues in an office. Gender-based discrimination often occurs as a combination of both sex and gender bias. For example, a company may refuse to employ young women because of an expectation that they will get pregnant and prove a liability. This form of discrimination is based on women’s sexual reproductive potential, that is, their biological sex. It is also based on the common belief that professional women (rather than professional men) should take primary responsibility for child rearing, household chores, and other domestic roles perceived to be natural and gender appropriate but incompatible with the pursuit of a career outside of the home.13
Discrimination can manifest itself as violence against men and women. Gender-based violence takes many forms, including sex-selective abortions, gay bashing, honor killings, and sexual harassment. There is often a continuum of harm and magnification of scale with regard to violent forms of discrimination. Thus, discriminatory hiring practices against “girls,” “gays,” “pregnant ladies,” and others can foster a hostile work environment where sexual harassment is not only prevalent but condoned by management.
The international community has recently accepted unanimously that sexual violence in armed conflict is a weapon or strategy of war14 and, further, that the egregious nature of gender-based violence, particularly sexual violence, is aggravated by the prima facie coercive nature of armed conflict.15 The judicial processes of accountability in postconflict societies that I describe in this book are responding in part to widespread acts of sexual violence and other forms of gender-based violence. According to the case law, gender-based violence characterizes abuses such as the conscription of child soldiers, disappearances, detention, torture, genocide, and enslavement.
My study of gender and violence in Rwanda and Sierra Leone takes place in peacetime, but I bear in mind the popular truism that war is not over with the last bullet. This truism has come to signify the ongoing gender impact of conflict on women’s insecurity and vulnerability to violence and exploitation.16 In Rwanda and Sierra Leone, and indeed in many countries that have experienced widespread and systematic violations of human rights, women’s security remained—long after demilitarization—precarious and marginalized from the core peace processes and reconstruction projects.
Human rights instruments have played an important role in blurring the dichotomous peace-war framework. This traditional framework allocated abuses committed in peacetime to the jurisdiction of the human rights law framework and wartime abuses to the jurisdiction of international humanitarian law. This delineation between war and peace allowed states to summarily “suspend” fundamental rights of civilians in times of emergency or conflict and to put civilians under the less humane protection of the laws of war. Until the early 1990s, at the international level, little recognition was made of the scale of the insecurity women experienced in the various gray zones that mark the continuum of violent economic, social, and political up-heavals caused by armed conflict.
The term wartime rape is very revealing of the gray zones. It suggests that there is something called “normal rape” that happens only occasionally in peaceful societies. “Normal rape” suggests an apolitical offense that does not traumatize or offend the sensibilities of civilized peoples and its victims in the same way that wartime rape does. And indeed, the distinction between peace and wartime rape is often emphasized by observers, such as scholars and the media, by the attachment of adjectives such as “heinous,” “egregious,” “atrocious,” and “brutal” to rapes occurring in armed conflict. Differentiating between rape in war and peace carries the danger of prioritizing sexual assaults so that rape that is used as a tactic of ethnic cleansing evokes moral outrage but forced sex in the privacy of family life is accepted (Nordstrom 1991, quoted