Women, International War Crimes & Impunity: A Feminist Critique Of Traditional Approaches To Justice
By Dinushika Dissanayake –March 8, 2017
Dinushika Dissanayake
2017 appears to demonstrate all signs of a year of reckoning yet again for Sri Lanka. The Universal Periodic Review, the performance of Sri Lanka against specific treaty obligations specifically the conventions against all forms of discrimination against women, the International Covenant on Economic Social and Cultural Rights are some of the important mechanisms that will monitor the human rights landscape of this country in the current year. In this context, the progress of the state especially in relation to its commitments before this array of international mechanisms as well as before the Human Rights Council looms large. The resistance shown explicitly and implicitly to several calls for accountability disturbs the hopes that were ignited when this Government came into power. Alarming trends include the step motherly treatment meted to the report of the Consultative Task Force on Reconciliation, launched in January of 2017. This task force which was incidentally appointed by this very government, conducted wide consultations and womens’ concerns appear at the forefront of many of its recommendations. The lackadaisical reception of the report,causes more and more concern for those committed to ensure accountability for crimes perpetrated by both state and non state actors in Sri Lanka.
Women are often the victim on multiple levels in all these narratives. Quite apart from the illusory nature of justice even now, as women and men await a mechanism to dispense justice, this article argues that the very international criminal law regime itself is skewed against women. This provides double connotations for ensuring gender considerations in transitional justice, and any type of criminal law mechanism that the state considers in relation to its international and domestic obligations and commitments vis-a-vis human rights guarantees.
The feminist critiques of traditional approaches to trials and special courts to try international crimes during times of war is an important consideration in any discussion of issues that a transiting society must consider when drawing its first caricature of post-war justice.
While the feminist political project of urging explicit recognition of rape as a war crimes has its own weaknesses, and in fact may be further alienating the alternative stories of women that go beyond traditional victim-survivor narratives, it is still important to recognize that sexual violence is one of the important aspects of gender inclusion in criminal prosecutions for crimes emanating from conflict. While this short article cannot delve into the post modernist feminist discourse on this issue, it is important to recognize that the fixation on sexual violence alone is in-itself problematic- but nevertheless an important victory for women on many fronts.
One significant feminist critique of trials is that the traditional prosecutorial approaches fails to comprehend the widespread nature of sexual violence in many conflict situations. A criminal Trial, with its individualized approach to justice, places the perpetrator and the victim in individual roles. This ‘stage’ then applies also to gender based cimes, where an individualized approach to criminal prosecution, in the context of widespread, multiple violations. In some gender based crimes during conflict, the crimes are pre-meditated, and depending on the circumstances, may in fact be with the objective of attacking the community as a collective by attacking its women and men through sexual violence. Therefore in such instances, and individualized approach to prosecutions fails to comprehend the full enormity of the crime in question.
A second critique is the very elitism present in international criminal justice which identifies and aligns with understandings of the global north, of the notion of justice. Such understandings may be rarely grounded in the context and socio cultural milieu of the global south. This focus on the individual ultimately also works against the victim, causing social consequences for survivors who are willing to testify to the atrocities suffered by them and other women during war. Their return to the community and the village post-prosecutions may be fraught with social stigma, especially where support measures for victims and witnesses are not in place. Such support measures, to be effective, must not only include economic and livelihood support but also psycho-social support for the individual and the community. Psycho-social support is essential especially in relation to social acceptance and re-integration of women and men who have been victims of sexual crimes.
In 2008, the United Nations declared by Security Council Resolution (1820), that rape is a war crime. It was followed by UNSCR 1888 in 2009, in a similar vein. In 1995, the ICTY similarly found that rape and sexual enslavement were crimes against humanity. However, the length of time taken to achieve these hard-won gains is also significant; 17 years for ICTY (60 convictions in 17 years as of 2012), 45 cases in 17 years for the ICTR (as of 2012). The funds available to support survivors is also limited. Prosecutions, in Sierra Leone, in Rwanda, on former Yugoslavia, are all predicated on the understanding that perpetrators of widespread sexual violence during war can be held accountable through holding individuals accountable- the collective responsibility for widespread war time sexual crimes becomes much less visible.
