Monday, July 30, 2012

Guest Author Posting: Susan Dewey & Tonia St. Germain on Conflict-Related Sexual Violence

Some Thoughts on the Release of Conflict-Related Sexual Violence: International Law, Local Responses

The idea for working collaboratively on Conflict-Related Sexual Violence evolved from our success with a special issue of Wagadu, Journal of Transnational Women's and Gender Studies entitled “Sexual Violence and Armed Conflict: Gender, Society, and the State” (Volume 10, Spring 2012, available online. As we worked together, the intimate intersections between anthropology and the law with respect to conflict-related sexual violence became evermore apparent. We were not the first to discover this connection between anthropology and the law, as our application of theory follows in the path pioneered by anthropologist Sally Engle Merry. Tonia’s experience as a legal practitioner and lobbyist during the US rape law reform movement in the 1990’s and Susan’s experience in the field in the former Yugoslavia in 2006 gives the text an applied emphasis and seeks to provide concrete recommendations for addressing the systemic nature of conflict-related sexual violence.

We edited the book with the understanding that many readers might find it overwhelming and difficult understanding conflict-related sexual violence’s globally pervasive and enduring nature.  As an editor, anthropologist Susan Dewey ensured the articles selected were infused with cultural analysis to help readers grasp the force of war rape narratives as well as the particularities of individuals’ lived experiences. Chapters cover a wide variety of countries where war and sexual violence have converged, including Sierra Leone, Liberia, Haiti, Afghanistan, South Africa, and Colombia. It is through survivors’ stories in these case studies that we uncover some of the many reasons for the globally pervasive and enduring nature of conflict-related sexual violence.

In thinking about reasons for conflict-related sexual violence’s pervasive nature, we were forced to ask ourselves why this is the case? Women’s universally marginalized status is one of the common threads running through examples provided in the book. Throughout the world (including the United States), women are much less likely than men to play active decision-making roles in governance and policy-making, and still earn less (or have less stable jobs) than their male counterparts. In situations of conflict-related instability, this situation only worsens, rendering women particularly vulnerable to violence as non-combatants. This is compounded by the reality that women’s and girls’ sexualities constitute a point of tension throughout the world; in fact, one of the arguments against women filling active combat roles in the US military is that they face a higher likelihood of being raped by enemy forces as a means to humiliate their male co-combatants. Indeed, in almost every instance documented in our book, conflict-related sexual violence has a unique power to destroy social institutions, families, and communities, through shame and stigma. Because of the punishing violence involved, responses to wartime sexual violence reveal much about the dynamics of gender-based violence during peacetime. Since most nations participate in worldwide organizations tasked with managing violations of international humanitarian law, local responses to these crimes also expose gender inequality in the recourses available to, and community support of, survivors of conflict-related sexual violence.

Our volume focuses on three key areas of analysis with respect to conflict-related sexual violence: the rhetoric and discourses used to describe it, international criminal justice reactions, and the post-conflict reprecussions.  We wanted to capture the complexity and depth of this topic without giving way to sensationalism. As much as we appreciate increased newspaper coverage of conflict-related sexual violence, photographs of sexual and gender-based violence survivors from combat zones throughout the world have now become standard fodder in North American and Western European news media. In fact, our book opens with descriptions of such images of women shielding their faces in pain, or in expressions of shame. We know that sexual violence is- as one of our volume’s contributors observes- nothing new, and yet such sensationalized images and language does a real disservice to the issue. When, for example, elements of the news media refer to the DRC as “the rape capital of the world,” there is an element of Other-ing that diminishes the complex ways in which survivors make sense of their trauma and begin to forge new lives for themselves and their families. We chose these three themes as a way to understand the totality of experiences that surrounds international responses to conflict-related sexual violence, which is necessarily a very local and personal experience. Hence the early chapters, by Bronwyn Winter and Laura Sparling, examine the language used by the international community to describe conflict-related sexual violence; doing so provides insight into these underlying ideologies.  Later chapters by Avory Faucette, Kiran Grewal, Peace Medie, and Benedetta Faedi Duramy, triangulate survivors’ experiences with local and international criminal justice systems to examine the disconnects that can occur between intention and effect. The final chapters, by Carol Mann, Evalina van Wijk, Jose Miguel Nieto Olivar and Carlos Ivan Pacheco Sanchez, document the post-conflict paths taken by survivors and their families.

The introduction of the book provides an overview of international law as it applies to conflict-related sexual violence, which had its nascence in the post-WWII Geneva Conventions (1949) and Nuremburg Trials, and more recently the criminal tribunals of the former Yugoslavian war (1991-95) and Rwandan Genocide (1994) that led to the Rome Statue (1998) and the creation of the International Criminal Court (ICC). Part two of the text examines how far the international community has come in responding to conflict-related sexual violence. Here the theme is not the creation of laws to prosecute war rape instead Faucette, Grewal, Medie, and Faedi Duramy analyze how effective the advancements in legal advocacy and health services have come to aid survivors and their families. Despite progress made in responding to conflict-related sexual violence, these chapters demonstrate that the international community still has a considerable way to go in combating this global issue. The law is only as good as those who enforce it, including both legal professionals and members of the local communities where survivors live. 

The authors in this text share insights into the key areas in which the international community could better respond to sexual violence in conflict and post-conflict zones and involve analysis of legal, medical, and mental health systems. In terms of international humanitarian law, the Akayesu case in Rwanda (The Prosecutor v. Jean Paul Akayesu, 1998, ICTR-96-4-T), the Foča rape camp trials from the former Yugoslavia (Kunarac et al., 2001, IT-96-23 & 23/1) and the Rome Statute that establishes the crimes and procedure for the ICC are the watershed events impacting legal responses.  Here we see many of the same themes that were developed during the rape law reform movement in the US that began in the 1970s coming to forefront of international criminal practice around wartime rape.  The goals converge into: (1) a pro-prosecution approach that encouraged survivors to report rape and to co-operate with criminal justice officials in prosecuting offenders; (2) legal treatment of rape as a crime like any other, specifically by shifting the focus from the behavior or reputation of the survivor to the unlawful acts of the offender. On the international level this was accomplished by redefining rape and consent, by making rape (and other forms of sexual violence) an individual crime, and explicitly defining rape as both a war crime and a crime against humanity.

            Accordingly, the ICC incorporates a number of mechanisms to support the rights of victims of sexual violence. The ICC has the authority to determine the extent of the victims’ damages as well as the power to give reparations directly to the victims. The ability to make reparations to victims is critical because it provides victims (often members of marginalized groups) equal rights relative to other citizens and seeks to facilitate their trust in the court and state institutions.  Additionally, the ICC provides a Victim and Witnesses Unit staffed by professionals with expertise in trauma, especially trauma related to sexual violence and a Gender and Child Unit which assists the prosecutor in dealing with issues surrounding victims and witnesses of sexual crime. Finally, ICC Statute provides that the court will take appropriate measures to protect the safety and physical well being of the victims and considers their views and concerns at different stages of the proceedings. In short, the ICC has realized that mechanisms to protect survivors’ rights are crucial to establishing the truth about these serious crimes. It wis hoped that ultimately these reforms will lead to an increase in the number of rape cases which are reported and would make arrest, prosecution, and conviction for more likely. However, our volume indicates that such reforms have been less than ideal in their results.

Consequently, our volume presents an interesting, albeit cautionary, argument about the incorporation of legal and policy-related “best practices,” developed in the context of the North American and Western European feminist and rape law reform movements. The authors use different approaches to ask a similar question: what are some of the potential problems with importing these “best practices” as global solutions to local problems? Work presented in the volume examines best practices from the legal, medical, and mental health fields, while intertwining threads of the current vigorous debate on how best to aid survivors of conflict-related sexual violence.

Our volume builds upon feminist scholarship, jurisprudence, and activism that made significant contributions to contemporary international legal discourse and practice. Yet feminist scholars continue to debate the nature of the North American and Western European rape law reform movement’s influence of on the Rome Statute. Our book problematizes the relatively recent emergence of concretized “best practices,” which we define as a method or technique believed to produce superior results. This policy, despite its good intentions, recommends global solutions for what are inevitably local problems frequently couched in human rights discourses presumed universally relevant, these concepts are almost exclusively originated and disseminated by individuals in a privileged position vis-à-vis the intended beneficiaries. Such broad overviews obscure the local realities of girls’ and women’s experiences in conflict zones by proposing universal solutions that ignore the particularities of culture and place.

Such unsuccessful attempts at formulating best practices have considerable precedent in the United States, where feminist legal scholarship has begun to challenge the pro-prosecution approach by pointing to the failure of these reforms. Nonetheless, this prosecution-oriented approach remains popular among the populace, prosecutors, and jurists involved. The efficacy of these reforms continues to hold sway and younger generations of lawyers receive little alternative to the hegemonic “end the impunity” model presented by criminal prosecution and recreate it with little room to question or challenge. Therefore, chapters in our volume highlight how the purported benefits of criminalization are even more destructive in the international criminal prosecution arena because cultural beliefs about gender, sexuality, and violence are as varied as the countries where conflicts originate, this is due to the reality that such approaches may be inappropriate in conflict zones, where sexual violence is often not interpersonal but systemic and widespread among the civilian population. Exporting flawed solutions from the U.S. criminal justice system raises serious ethical and human rights concerns regarding colonialism and conflict-related sexual violence, a great deal of which takes place in communities outside the North American ideological purview. We address this issue further in our forthcoming article in “Between Global Fears and Local Bodies: Toward a Transnational Feminist Analysis of Conflict-Related Sexual Violence,” which will appear in volume 13, number 3 of the Journal of International Women’s Studies.

There are numerous references to transnational feminism throughout the book that help the reader to understand conflict-related sexual violence in novel ways. Transnationalism is a social phenomenon and scholarly research agenda that emerged from the heightened interconnectivity between people and the receding economic and social significance of boundaries among nation states. Proponents of transnationalism seek to facilitate the flow of people, ideas, and goods among regions. It is different from internationalism, which advocates a greater economic and political cooperation among nations for the theoretical benefit of all, such as the United Nations. Economic transnationalism, commonly known as globalization, was impelled by the development of the internet and wireless communication causing corporations to organize their operations in the most efficient means possible irrespective of political boundaries, contending that it does not make sense to link specific nation-state boundaries with  migratory workforces, globalized corporations, global money flow, global information flow, and global scientific cooperation. Transnational Feminism is generally a critique that is attentive to intersections among nationhood, race, gender, sexuality, and economic exploitation on a world scale in the context of emergent global capitalism and imperialism; their connections to colonialism and nationalism; and the role of gender, the state, race, class, and sexuality in the organization of resistance to hegemonies in the making and unmaking of nation and nation-state. It seeks to lay the groundwork for more productive and equitable social relations among women and men across borders and cultural contexts.

There are some rather bleak findings presented in some of the chapters. Authors describe UN peacekeepers abusing women, note discriminatory tendencies in international law, and the systematic use of rape as a tool of terror and genocide such that some readers might conclude that international humanitarian law has failed survivors of conflict related sexual violence.  Readers who are seeking to draw a “black or white” conclusion will be disappointed in this text. Clearly we would not have written the book if it were not for the groundbreaking work of feminist jurists, practitioners, scholars, and activists involved in the criminal tribunals in Rwanda and the former Yugoslavia. Their work defined rape as a war crime for the first time in history and this is an achievement in international humanitarian law equivalent to that which Roe v. Wade made in US law. However as scholars, we separate our understanding of the sacrifices these women made to produce these reforms from a rational analysis of how efficacious they have been in practice.  On the former there is much to celebrate in terms of advancement, on the latter much work needs to be done. The articles in the text work to identify what is failing and point to ways to improve legal, medical, and mental health responses to those afflicted by conflicted related sexual violence.

Several chapter authors make mention of the reality that rape happens in peacetime as well. The chapters on Haiti and South Africa, countries that have experienced considerable levels of sociopolitical upheaval, illustrate this particularly well. We included these to illustrate why it is useful to distinguish conflict-related sexual violence from rape that occurs in societies that are not at war. The issue of gender justice for wartime sexual violence under law has developed within the larger theoretical feminist framework about gender inequity in other institutions like economics, religion, education, and the like.  As a result, some contemporary feminist theorists argue that pre-existing conditions of gender socialization, inequality, body objectification, and eroticism of violence evoke sexualized violence during peace and help explain the rise of rape as a tool during war. The articles in this text generally make this connection.  The role of media, academic, and political context in giving the relatively unspoken rape stories of women in both peace and wartime more exposure has had a powerful impact connecting the two. Although rape occurs in almost every society in peacetime, rape that occurs in the context of a war has distinct features, consequences, and implications for interventions. This raises one of the fundamental questions of the text: how can laws designed to prosecute the rape of one woman, usually by one man in the in socioeconomic context of North America be effective models for justice in conflict zones where rape is widespread, systematic, even normalized?

In sum, Conflict-Related Sexual Violence examines systems of law, medicine, and mental health to explore how “best practices” have become the conduit for exporting ideas about gender justice for wartime sexual violence. It exposes various sights of tension between ICC prosecutors and scholars of feminist jurisprudence, between the UN and NGOs seeking to help survivors, between the survivors and their communities, and beyond.  The discussion of such conflicts reveals the cracks and fissures where new ideas can take shape and inclusive solutions can be created. As such, the chapters in the book collectively advocate for the incorporation of transnational feminist practices into international humanitarian law and provide some guideposts for how this might look in practice. Conclusions presented acknowledge the limitations of a binary, prosecution-intensive approach to ending conflict-related sexual violence by juxtaposing these against a focus on respecting local meanings of justice. They examine how women are often a doubly oppressed population- that is, disadvantaged by both their local cultural norms and the international legal framework in its current form, and how this reality makes it difficult to create community-based models of accountability in which perpetrators will be brought to justice, whatever that means in a particular cultural context. We believe that feminist scholarship is in a place to move international human rights policy and international criminal law in a new direction both methodologically and substantively. However, the first step involves a clear acknowledgment that we have a very long way to go toward actively including women in processes of restorative justice.

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