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Gender Transitional Justice: Turning the Weapon of War into a Mechanism for Justice


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A ‘weapon of war’, a ‘tool of terror’ or one of the ‘spoils of war’. These slogan phrases are symptomatic of rape and sexual violence being held at a level of insignificance throughout history. It wouldn’t be naïve to be lulled into a false sense of security that the international community would have learnt from its past mistakes, thus put in every possible provision to prevent sexual violence of such magnitude. Unfortunately today, this is simply not the case; just six years ago in 2011, it was found that 12% of the female population had been sexually violated in the Democratic Republic of Congo, equating to 48 women being raped every hour. Why it is that women’s voices are still being silenced in the aftermath of war? And what, if anything, is being done?

Genocide or ‘Gendercide’?
Continued struggle for gender transitional justice today could well be historic, underpinned by an initial ‘Genocide-Gender’ discrepancy. Taking a retrospective view submits the notion of international law has consistently failed to recognise the importance of the gender-roles within conflict, offering an explanation as to why gender is still in desperate need of reconciliation with international humanitarian law today.

A case in point is close examination of the Genocide Convention 1948, which later became incorporated into the Rome Statute of the International Criminal Court (1998). At first glance the law appears somewhat watertight: the Statue offers a concise legal definition of genocide under article 6 which successfully describes the actions that constitute genocide under international law, including article 6(a) “killing members of the group” and article 6(b) “Causing serious bodily or mental harm to the members of the group.” However, cracks within the efficacy of the law start to appear through the recognition that the list of these said ‘persecuted groups’ may actually be incomplete. Genocide is prescribed to mean the intention to destroy only “a national, ethical, racial or religious group” under the Rome Statute. Of course, law is always open to interpretation, especially law which dictates the international domain, but the omission of a ‘sexual group’ enlisted could persuasively argue this acted as a catalyst for the current battle for gender justice universally.

The sticking point in which some put forward is the rhetoric that sexual violence simply cannot constitute as genocide under black-letter law because women, for the most part, are not murdered when subjected to these atrocities. This is a view shared by the president of Republika Srpska, Milorad Dodik, when he commented on the Bosnian Genocide by stating in 2010, “It wasn’t genocide because the women and children were not killed.” However, even if this was the case that thousands of women and children were slaughtered, strictly speaking it still would not count as genocide; again if we are to hark back to the Genocide Convention, there is no mention of the propensity for there to be a victimised sex or gender group. Perhaps instead, the mass killing would be identified as ‘gendercide’ or ‘femicide’, the former term being coined by author Mary Anne Warren in 1985. Nevertheless, a precedent of expectation is set of what the law is willing and what it is not willing to prosecute. Through ignoring to acknowledge gender violence in the same deep-rooted and problematic faction as such indicted behaviours of racism and xenophobia, the occurrence of systematic rape has been endured and accepted for centuries.

“Rape is cheaper than bullets”
The way in which this battle has developed could be contextual. When rape is committed in a society with boundaries governed by law, the crime is seen as a violation of the individual. When rape is committed within a time of war, where legal boundaries are fragmented and impunity is rife, the crime grows into something more than an individualistic defilement against one person. Instead it is utilised as a methodical destruction of a group, both sexually and reproductively. Unfortunately, rape is not simply a by-product of war but instead a military technique. History is littered with heinous examples: The ‘Rape of Nanjing’, in which the Japanese Imperial Army raped up to approximately 80,000 women, the events of the Bangladesh War in 1971 where up to 400,000 Bangladeshi women were sexually abused in ‘rape camps’ by the Pakistani Army and so recently as the Bosnian Genocide from 1992-5 where an estimated 50,000 women were subjected to sexual violence in Bosnia-Herzegovina.

Progress slowly developed and the treatment of how rape was prosecuted within the international fora was drawn attention to by second-wave feminists and subsequently, global discussion broke out. With the recognition of this paradigm building swiftly, those in positions of power needed to be seen to hold the accused accountable. In 2001, a precedent was set for the first time and rape was successfully prosecuted as a crime against humanity during the aptly-dubbed ‘Foca Rape Case’ in the International Criminal Tribunal for the Former Yugoslavia. The ad hoc tribunal for Rwanda also marked a crucial occasion when it became the first tribunal to deliver a verdict using an interpretation of the definition of genocide set out in the 1948 Geneva Conventions. Perhaps more fundamentally, the tribunal ruled rape as a perpetuation to genocide. Although time should be taken to revel in the achievement of these momentous milestones, the road to justice will never be smooth, and now we are met with more imminent concerns.

The Post-Conflict Contradiction
More often than not, ideas function better in theory than practice and in the case of gender transitional justice, this seems to ring true. Transitional justice, as an umbrella concept, carries a fairly simple explanation: it acts as a necessary societal mechanism, both judicially and non-judicially, once human right atrocities occur within a state or across several states. With conception stemming back to the aftermath of the Second World War and the beginning of the Nuremburg trials, it serves as an essential experience towards serving justice and strives to achieve restored peace and democracy in countries devastated by war. The use of truth commissions, reforming select institutions and prosecuting perpetrators criminally, helps to create an honest foundation in which justice can be built upon.

But how stable can this foundation be if 50% of the population are seemingly predominately precluded from this remedial advancement? Nadine Puechguirbal, coordinator to the UN Action Against Sexual Violence within Conflict pertinently states, “Although conflict is a profoundly gendered experience, gender issues have not been part of mandates of peacekeeping missions throughout the world until recently.” Without diminishing the atrocities men experience through violence affiliated with combat, there is persuasive evidence to suggest that women actually might endure greater suffering than men when taking into account all effects of war. This might be because of the asymmetric conflict we now engage in: war is no longer army vs army or state vs state, but now government vs militia or militia vs rebel group. Contemporary warfare distorts the rules of war, with women generally receiving the brunt end. Former Military Advisor to the UN, Major Patrick Cammaert stated that it is now more dangerous to be a woman than a soldier in modern conflict. Perhaps what he means by this is that women are more likely than men to suffer recurring violence during periods of post-conflict peacebuilding, standing in macabre irony as the absolute antithesis of what was initially intended. Systematic rape within refugee camps is a common occurrence, sometimes even being committed by those employed to help, such as humanitarian aid workers or UN peacekeepers.

With the marginalisation of women being so patent, there is an assumption that a large fraction of post-conflict social reconstruction would be dedicated to gender. Unfortunately this is a misnomer and akin to previously mentioned policies of international law, transitional justice is disproportionate too. The attitude transitional mechanisms have towards gender and the lack of female presence during reconstructive negotiations is very telling: just 4% of women make up the police recruits in peacekeeping missions, women are consistently excluded from reparation programmes both in the administrative roles and as receiving recipients, and female voices are often silenced in truth commissions to satisfy cultural norms. The reason for this is that many dangerous inaccuracies still exist today which still stand to be corrected. Women are frequently constrained as ‘grassroot advocates’ in the transitional justice process, with their roles limited to approaches such as peaceful demonstrations and marches. A lack of recognition within political frameworks also prevails due to an absence of empowerment. Sometimes, women are even seen as an obstruction towards reaching justice. Transitional justice is inherently retrospective and prospective in equal parts; we tend to learn in future from the mistakes that history has made previously. However, some posit that looking backwards and punishing those accountable is regressive and weakens the chances of a stable society by resurrecting ill-will. It seems offensively illogical to attempt to reach the truth, without acknowledgment of the violations that have occurred, who caused them and then applying punitive action.

The Road to Justice: Support, Advocacy, and Empowerment
Yet with darkness, light often follows. Events such as the 2011 ‘Jasmine Revolution’ in Tunisia are encouraging for the recognition of women’s voices to be heard, both in times of peace and post-conflict. Not only did Tunisian activists take to the street to protest for greater rights for women socially and politically, but also transitionally. Legal reform is taking place and a Minister of Human Rights and Transitional Justice has been appointed, together with the formation of a constitutional court. Occurrences like the Tunisian Revolution are positive, but further progress needs to come from engraining gender issues within transitional justice mechanisms. The International Center for Transitional Justice (ICTJ) advocates for the proportionate representation of women within transitional justice institutions and their engagement in the bureaucracy that comes alongside seeking transitional justice. They run a number of programmes within different countries haunted by human right violations including Côte d’Ivoire, Colombia, and Indonesia, offering ‘technical support’ by working with activists, government agencies and victims alike to create and implement policies that empower women. The ICTJ even assisted with the establishment of a committee dedicated to women within the Tunisian Truth and Dignity Commission, which has since encouraged the engagement of women within truth-seeking. Like all discriminated groups, work such as this needs to be promoted in order for issues to become mainstreamed and effectively engrained. It is time for the long-endured weapon of war depicted by discrimination, blame, and silence to be replaced by a mechanism of justice through support, advocacy, and empowerment.

Olivia Doherty is an aspiring lawyer and currently training to be a specialist adviser for Citizens Advice. In 2015 she graduated from the University of Manchester with a LLB in Law and an LLM in International Law and Security. She is particularly interested in transitional justice within international humanitarian law.

Written by Olivia Doherty and published on 03-August-2017




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