Sex and International Tribunals. Chiseche Salome Mibenge

Чтение книги онлайн.

СКАЧАТЬ those victims that the International Criminal Tribunal for Rwanda could not accommodate in its narrative of genocide, which privileged ethnicity as a category of bias to the exclusion of gender and class.

      In Chapter 3, I move from Rwanda’s tribunal to Sierra Leone’s TRC. Truth commissions do not produce judgments or case law. Rather, their legal and factual findings are presented in voluminous reports, and my discussion is based on the final report of the TRC. There is a great body of critical writing on the gendered processes and outcomes of truth commissions, largely produced by anthropologists, ethnographers, political scientists, and other social scientists.²⁷ My focus on the report is an important contribution to legal scholarship because substantive research on the findings of commission reports is minimal compared to research on the case law of tribunals. This oversight by legal scholars is surprising considering that recommendations made by truth commissions are far-reaching and, some would say, inventive: they can include demands for apologies and reparations to victims, petitions for commemorative monuments, and curriculum changes that would bring subjects such as conflict and peace building into elementary and high-school classrooms. However, these recommendations often remain unenforced because they are vested with moral and not legal authority, and governments and identified perpetrators are not compelled to take any positive action to redress the rights of victims. The disproportionate attention paid by legal scholars to case law is influenced by a tribunal’s authority and stature in the hierarchy of mechanisms of accountability. For example, ad hoc criminal tribunals use their legal authority to convict and sentence public officials or other perpetrators for human rights abuses.

      I argue in Chapter 3 that the TRC final report produces a human rights narrative of gender and violence that essentializes Sierra Leone’s culture as harmful and inherently violent toward women. Building on this argument, I pay attention to the government’s and the international community’s representation of the TRC as a restorative and indigenous model of justice and the impact this has had on the commission’s specific framing of gender and violence in Sierra Leone. In particular, I show how the report’s rights based emphasis on forced marriage and early marriage as forms of gender-based discrimination produces a problematic narrative of marriage as an oppressive institution for women. As in Chapter 2, I introduce narratives in contradistinction to the dominant narrative. I create such categories as “adulterous wives,” “cuckolds,” and “merry widows” to illustrate that women do exercise agency, even from within oppressive social structures. In this chapter, I borrow heavily from narratives produced by ethnographic researchers embedded in Sierra Leonean society whose work inadvertently but importantly disrupts the dominant legal narratives that I question.

      In Chapter 4, I remain in Sierra Leone but move my focus to the Sierra Leone Special Court. A review of this court is important because its statute creates an extraordinary and broad gender mandate. The statute specifically calls for the Office of the Prosecutor to adopt measures that ensure the justice process realizes women’s and girls’ specific needs. In light of this mandate, I critique the decision-making process of the prosecutor, which I argue discriminated against female victims and witnesses and negatively affected their ability to participate in the justice process. I also critique the Special Court’s narratives around forced marriage and sexual slavery as crimes distinct from the customary international law crime of slavery. This distinction made by the court relies on reducing crimes, such as forced marriage and sex enslavement, to multiple incidents of the rape of women. In so doing, the law avoids a broader gender analysis that would reveal the complexity of the crime of enslavement and the ways in which an enslaved person, irrespective of gender, experiences the loss of sexual reproductive health and autonomy, sexual autonomy, physical integrity, and dignity. Using a historical perspective, I borrow from the gender analyses of scholars who have studied transatlantic slavery and colonial wars to support my critique of legal categorizations such as “sexual slavery.”

      In Chapter 5, I provide a final roundup and review of my narratives and arguments. It is important for me to add at this stage that during my field work, I came to consider all Rwandans and Sierra Leoneans, who had lived in their respective countries or even the region during any period between the outset and the close of the armed conflict, as survivors of the conflict. I use the term survivor to convey that the civilian population was disproportionately targeted for and affected by human rights violations and war crimes committed by the conflict. Despite the targeting, they survived.²⁸ This approach in the field allowed me to avoid categorizing individuals dichotomously as either victims (women) or perpetrators (men).

      Finally, I am guided in my selection of narratives and alternative narratives by Poyi Soyinka-Airewele’s reminder that “in the narrative of African societies the invocation of the past is most intense when it is embodied within the discourses and memories of violent struggles, of communities emerging from and through collective traumas, of oppression, violent resistance and the continuity of pain on the minds of those who have suffered” (Soyinka-Airewele 2004: 7).

       Chapter 1

       The Women Were Not Raped: Gender and Violence in Butare-Ville

      In May 2004, a decade after the genocide, I sat with Aimable, a state prosecutor at the Office of the Prosecutor of Butare-Ville in Rwanda. I asked him for his thoughts on why prosecutors failed to pursue allegations of sexual violence. He answered with a story, describing a curious incident:

      A detainee confessed to having raped a number of women. Aimable immediately recognized that this was an incredible confession considering that the death penalty was still in place in Rwanda for those who confessed to sexual violence and other crimes listed as category one offenses. Confessions for lower level crimes were frequent in 2004, but Aimable had not yet encountered a confession to a category one crime. The detainee made a full disclosure, and he listed the names of his accomplices and of the women, living and murdered, he had raped. Aimable duly commenced an investigation into these claims, starting with statements taken from the survivors. However, Aimable was faced with the unexpected predicament that the alleged victims denied that they had been raped by the accused or his accomplices. The women completely refused to cooperate with the Office of the Prosecutor. Consequently, Aimable was forced to withhold the rape charges from the dossier, although he did not doubt their veracity. I asked Aimable why the women reacted as they did, and he responded with a nod in my direction: “You should know why.”

      I assumed at the time that “I should know why” because I am a woman, and as my introductory chapter reveals, I received an early education in “rape fear.” Therefore, I could easily place my rape fear into the context of a postconflict, yet still insecure society, where reprisal killings of women alleging rape were widely reported. However, I also assumed that “I should know why” because as a guest of the Office of the Prosecutor I resembled Aimable more than I resembled the raped women: I shared Aimable’s academic and professional training as a lawyer and his experience of the criminal justice process. I understood as well as he did the opportunities and the challenges women genocide survivors would encounter when accessing that process. Some challenges stemmed from convoluted procedural issues and others from the substantive complexity of sexual violence as a crime against humanity and an element of genocide.

      I have used Aimable’s anecdote as well as the story of the denial of the women victims in lecture halls in Europe and the United States, and have thus produced a narrative about justice, gender, and violence. While I can quote or at least paraphrase Aimable’s words, I produce a silence when it comes to the women. A gender analysis of the silence of the women victims is, however, also essential because their resistance to speaking within the criminal justice machinery produces a gap that acts as a challenge or counterweight to the promise (made by the likes of СКАЧАТЬ