Conference Report

Dr. Judith Rowbotham and Dr. Lorie Charlesworth wrote in their Conference Report:

The conference opened with a plenary from Lesley Abdela, a well-known journalist and women’s Human Rights campaigner with war correspondent experience, talking for only half an hour but engaging in a
debate with the audience for the remainder of the session which helped to
identify many of the themes of the conference – practical agendas and ways
of understanding war crimes and war tribunals. Her particular emphasis was
on gender as a key factor in reconstructing citizenship, and she talked of
the issue of rape, and its wider implications for the legal process.

A particular Conference focus was given to Bosnia, and to a range of African
experiences, particularly in Congo and Rwanda, Sudan/Darfur and Sierra
Leone, and to the lesser known events in Cambodia (Silke Studzinsky brought
the latest news on the trials just beginning there) and South America.

As well as Peru, the closing plenary delivered by David Sugarman testified
to the importance of a global, as well as an historical comprehension in
order to understand the impact of war crimes, especially when war crimes
tribunals are not an automatic resource.

Bosnia: it was very impressive to hear the range of papers on Bosnia, in
particular the panel based around the experiences of the Prosecutor’s Office
and the UNDP in Bosnia-Herzegovina. Aided by their Chair, Shireen Fisher
(who, until 2008, was an International Judge there), Toby Cadman, Iva
Vukusic and Alma Dedic provided absorbing insight into developments.

Further themes:

Identification and Definition of War Crimes: drawing on her experience in
the immediate aftermath of conflict in Kosovo, Bosnia, Sierra Leone, Iraq,
Afghanistan, Aceh and most recently, Nepal, Lesley Abdela talked of the
importance of making the identification and definition of war crimes and
their subsequent prosecution more than an admirable concept; and into
something which can help in post-conflict reconstruction.

Her particular emphasis was on gender as a key factor in reconstructing
citizenship, and she talked of the issue of rape, and its wider implications
for the legal process.

That was a theme which regularly re-emerged during the conference, as part
of the debate over whether it was possible to identify some international
code, and even more importantly, language, of rights which could unite all
the participants in war crimes trials. Defining the nature of a war crime,
in the cultural spaces of the local/national and the international was a key
problematic: Lesley pointed out it was only recently that rape had been
identified formally as a war crime, and this identification was hedged
around with problems.

The Role of the ICC: There is also the issue of what should be the role of
the International Criminal Court: should it involve itself in post-conflict
resolution, or was that aspect of war crimes tribunals for other agencies
and agendas? Was it possible, or desirable, to draw a line between the work
of war crimes tribunals, especially where the ICC was involved, and other
agencies (local, national and international)? And what kind of justice was
being sought? How could, and indeed should, international jurisprudence
trickle down into domestic courts? Should the ICC have a role in this?

How far were such courts located in, and focusing mainly on, the weaker
states – economically poorer and less powerful entities or individuals?
Erasmus Migyikra, contributing to the first round table with his experiences
in Sudan/Darfur, had also raised this issue.

Media reportage underlines that there is a substantial Sudanese perception
that the arrest warrant issued by the ICC on 4 March 2009 against the
President of Sudan, Omar al-Bashir, by the ICC is part of a neo-colonial
conspiracy against the country.

Timing Of War Crimes Tribunals: the theme of the ICC’s role was particularly
apparent in the Thursday evening Round Table, when Lesley Abdela again
challenged the conference to consider the concept that we were talking about
lessons identified, and not yet discussing lessons learned. Talking of war
crimes tribunals, she suggested that one thing emerging already from the
conference was the issue of their timing, because it bore so importantly on
the question ‘What kind of post-conflict justice is acceptable overall?’ Is
it important to have elections first, to advance or establish ‘democracy’?
Or should there be moves first to deal with war crimes, through
international or national (or both) tribunals in that the outcome of
tribunals (or Truth and Reconciliation Commissions, alternatively) had the
power to affect, profoundly, people’s relationship with a post-conflict
constitution and its democratic legitimacy?

An Overall Pattern to War Crimes: the talks delivered by, amongst others,
Cissa Wa Numbe and Erasmus Ndemole Migyikra stressed sexual violence –
elevated at times to being a tool in a deliberate genocide – is best
understood as part of an overall pattern of war crimes. This means that the
case studies of events and tribunals in particular regions have a very
significant role to play in furthering strategies for dealing with war
crimes, whether judicially or socially, as Timothy Waters, Valerie Arnould
and Iryna Marchuk demonstrated.

A Second Category of War Crimes And Criminals?: another question raised was
whether it is necessary, if a genuine format for international justice is to
be achieved, to identify a second category of war crimes and criminals:
those who aided or were in some way complicit in the committal of war
crimes; those whose aid or compliance was essential to the performance of
war crimes without them being actually the perpetrators. In her paper, Lorie
Charlesworth pointed out the ways in which British prosecutors in the late
1940s emphasised the need for law, but also the need to create appropriate
law.

Historical Origins of Attitudes: papers such as that given by Peter Rushton
and Gwenda Morgan revealed the historical origins of attitudes which colour
a state’s practice when dealing with war crimes. They explored the perceived
importance of an observance of legal protocols during the American
Revolution/War of Independence, which found real echoes with the strategies
adopted by defence lawyers as depicted in the powerfully delivered panel
featuring Joe McMillan, Michel Paradis and Melissa Epstein Mills, on
prosecutions in Guantanamo Bay, and the prosecution of US servicemen for
misconduct during the Iraq war.

The Post-War Italian State: Effie Pedaliu’s paper on the war crimes
perpetrated by Italy during World War II argued that the advent of the Cold
War and a desire for reconciliation within the post-war Italian state led to
very few offenders being prosecuted. Effie Pedaliu further argued that this
has led to the fundamental political instability of the modern Italian
state, providing an interesting illustrative response to Lesley Abdela’s
query whether it was sensible to move to elections without dealing first
with the issue of war crimes through some means.

Does The World Give A Damn?: there was also an issue brought up directly by
Arzoo Syeddah and Kate Wright, and was implicit in many other talks: ‘How Do
We Get Audiences to Give a Damn About the Congo (and for Congo, read any
location from Aceh to Peru)?’ ‘What Sort of a Damn Do We Want Them to
Give?’

Is there such a thing as compassion fatigue? The Victorians, as Dr Judith
Rowbotham pointed out, would not have thought so: why is it identified as a
feature of the modern landscape?

Conference Reflections

Despite the horrors that characterise war crimes, from the plenary talk
onward, one very positive aspect emerged: the extent to which so many
individuals professionally involved in the aftermath of war crime, including
investigators, judges, lawyers, researchers, were passionately engaged in,
and committed to their work beyond ‘normal’ professional duties, in ways
that command respect and admiration.

The range and scope of the commitment demonstrated, in a humbling manner,
that original discipline and formal qualifications need be no bar to
involvement, witness the role played by Konrad Kweit and his team of
historians in bringing Lithuanian Nazis to trial in Australia; and a feature
emphasised by Lesley Abdela’s opening talk and David Fraser’s powerful and
challenging plenary.

It was not just the speakers: many of the delegates present had tales to
tell which demonstrated the same energetic dedication. For instance, Martha
Baker and her contribution to defining rape as a war crime.

Pro Bono Work: the paper on representing victims before the ICC given by H.
Candace Gorman, contextualised by her contribution to discussions through
the conference, raised the possibility of interdisciplinary pro bono work
being developed to aid war crimes trials – something that SOLON will be very
interested to help forward.

A Conclusion

Key Points: Time To Review Existing War Crimes Tribunals. In the concluding
Round Table, several key points were held by speakers such as Silke
Studzinsky and Jose Pablo Baraybar to have been identified during the
conference.

First, it is now time to have a review of the existing war crimes tribunals,
including the ICC, and to question the extent to which there is a rule of
law which is standard to them. It seems to be agreed by most there that
distant courts are not the answer in the majority of cases of trials for war
crimes: there is a need for these to be as local as possible, which also
raises issues of the compositions of juries in national and international
tribunals.

Second, there needs to be a focus on other institutions and what their role
in the creation of post-war justice should be – including states and bodies
such as the EU, the USA, NATO and the UN.

It was suggested that while there was much discussion from them, there
needed to be talks about them in this context.

Urgent Need for a Manual: the creation of a synthesis – a manual – of what
makes a successful tribunal is a genuine and urgent need. Whenever a new
court is created, it has to create a legal culture for itself – a reference
guide of what has worked elsewhere could help to avoid the repetition of old
mistakes.

Opening Plenary Session by Lesley Abdela

Transcript provided by Lesley Abdela.

After the War Is Over…what of the women?

First let me thank the organisers of this important event. Dr Judith
Rowbotham from Nottingham Trent University and her Solon and IALS colleagues
have assembled a really impressive group of people, participants and
speakers alike, and I look forward very much to these 3 days together.

Dr Rowbotham tells me she invited me to give this opening talk because
over the past 10 years I’ve found myself boots on the ground in a set of
deeply disturbed countries towards the end of conflict or just after the
fighting has ceased.

This is not going to be a list of graphic horror stories, it will be more a
practical exposition and will raise some questions, some of which I hope may
be explored further during these 3 days.

My first experience of a conflict zone was in the besieged Bihac enclave in
Bosnia as a war correspondent for Cosmopolitan Magazine.

A few years after that I arrived in Kosovo 10 weeks after the NATO bombing
as Deputy Director for Democratisation for the OSCE.

Then very soon after the rebels were pushed out of Freetown I visited Sierra
Leone for the British Council to carry out an assessment on the needs of
conflict-affected women.

A couple of months before Saddam was captured I arrived in Iraq.

I then spent a month in Aceh as Gender Advisor to an IOM DDR programme for
the reintegration of former combatants.

And last year I spent 6 months in Nepal shortly before the first
post-conflict elections where I was Senior Gender Advisor to the UN
Agencies.

That’s easily enough about me, but from those experiences come the thoughts
I am offering today titled

‘After the war is over …what of women?’

A topic I frequently ask participants at workshops to discuss is… ‘Why do
we consider a man wounded in war a hero, while a woman who has been raped in
war an embarrassment?’

Rape has been used as a tactic of terror in many wars.

Rape was a weapon of terror as the Germans marched through Belgium in World
War I.

Gang rape was part of the orchestrated riots of Kristallnacht which marked
the beginning of Nazi campaigns against the Jews.

It was a humiliation strategy used when the Japanese raped Chinese women in
the city of Nanking.

It was a weapon of revenge as the Russian Army marched into Berlin in World
War II, and when the Pakistani Army battled Bangladesh. (Bergman 1974: 69)

In those wars, sexual violence did not receive the widespread publicity it
has more recently been given in the wars in former Yugoslavia and more
recently in the DRC, Sierra Leone, Rwanda and Darfur.

In the Tokyo Trials after the defeat of Japan, acts of sexual violence and
rape were not placed at a level that would allow them to stand alone.

At the Nuremburg trials after World War 2 rape in war was defined as a crime
against the dignity and honour of a woman – not a crime of violence, not a
war-crime and certainly not genocide.

For a long time gender aspects of war crimes were disregarded.

As a result of such omissions, for a long time afterwards no-one knew
whether rape in time of conflict could be prosecuted as a separate
substantive crime standing on its own merits under international law.

It wasn’t until 1993 when we celebrated 75 years of women getting the vote
that I myself realised this situation still continued, after I organised a
week of briefing meetings at the House of Commons.

Two of the speakers had just returned from the Balkans. Francoise Hampson,
Senior Lecturer in the Department of Law and Centre for Human Rights at
Essex University, confirmed that rape camps existed in former Yugoslavia and
the women she spoke to said they had been raped on average by 7 different
men.

Another of the speakers pointed out that despite the fact Amnesty
International had called for the recognition of Rape and Sexual Abuse as
torture, it was not yet officially recognised as a war crime so the
perpetrators in Bosnia Herzegovina believed they would never be brought to
trial for rape at a War Crimes Tribunal.

The Break-Through

In 1993 and 1994 rape and sexual violence were specifically codified for the
first time as a recognizable and independent crime within the statutes of
the International Criminal Tribunals for the Former Yugoslavia (ICTY) and
for Rwanda (ICTR).

These two historic international instruments are now the foundation upon
which crimes of rape and sexual violence are punished.

This move forward started quietly within the International Criminal Tribunal
for Rwanda in the case of the Prosecutor v. Jean-Paul Akayesu.

The Akayesu decision held that rape or sexual violence could be prosecuted
as genocide if the evidence showed it is carried out with the intent to
physically or psychologically destroy a group. This landmark case is now the
cornerstone for all future genocide and crimes against humanity
prosecutions.

There is now solid case law holding that rape and sexual violence are a form
of genocide. The ICTY and ICTR cases have also reinforced the legal basis
for arguing that rape and sexual violence are individual crimes against
humanity, and also constitute violations of the laws and customs of war.
This forever altered the landscape of criminal prosecution and affected the
scope of consequences that any potential perpetrators must consider.

10 years ago, in late 1998, the ICTY produced equally historic precedents in
(excuse my pronunciation) the Celebici, Furudzija, and Delalic cases. These
judgments recognized rape as a violation of the Laws and Customs of War and
as a basis of torture under the Geneva Conventions.

Furudzija was a watershed because it was the first case to consist
exclusively of rape charges.

The next advance in international humanitarian law in this area was to
broaden the scope of individual criminal responsibility to leaders and
commanders who lend their influence and tacitly encourage crimes against
women.

There is now Case law (the Akayesu and Furudgiya cases) that hold that
officials and leaders can be directly responsible when they witness acts of
sexual violence and rape committed by attackers – even when those attackers
are not strictly under their chain of command.

This is particularly important. Today’s paramilitary and militia command
structures are often covertly organized and not easily defined.

David J. Scheffer, US Ambassador-at-Large for War Crimes Issues said in a
talk at Fordham University, New York (October 29 1999) how much he welcomed
this advance. He said, “We must combat these intentionally loosely-knit
paramilitary and militia by creating laws that are flexible, thus piercing
the shields designed to hide the true culprits.”

Summing Up to Date:

In summing up where we are to date I’ll revert to my former Political Editor
of Cosmopolitan Magazine style and say –

“OK. That’s all great stuff but, how to make it work?”

I’ve learned from my worm’s eye view at ground zero that a major
consideration in making War Crimes justice more than an admirable concept
into something which can help in post-conflict reconstruction means dealing
with a number of practical but easily-overlooked considerations.

Report after report by Amnesty International and other human rights
organizations and women’s rights advocates show how female rape victims are
routinely denied the opportunity to report the rape, ill-treated by forensic
medical examiners, interrogated about their sexual history, subjected to
abusive questioning by police, prosecutors, defence attorneys and judges and
generally blamed for what has happened to them, the women.

I have heard examples of lack of coordination and insensitivity from
international agencies and NGOs when they are gathering evidence of sexual
violence in war: these include a convoy of white four-wheeler vehicles
driving up and parking outside the hut of a rape survivor and/or a series of
different humanitarian agencies and human rights groups asking the same
person the same ultra-personal questions as part of the information
gathering.

A friend of mine, Human Rights Lawyer Margaret Owen, watched proceedings in
the War Crimes Tribunal in Arusha. She described how women were mocked and
belittled by defence lawyers and most astonishingly by the judiciary.

I recently heard a Judge on the Special Court for Sierra Leone at The Hague
tell how her male colleagues were far too readily inclined to disbelieve
women who said they had been raped. The male judges demanded firm evidence.
By contrast she and other female Judges were inclined to believe women who
came to the war crimes court to say they had been raped.

She said she is convinced that “Evidentiary and procedural barriers to
successful prosecution of gender based crimes should be removed. Rape
happens in cases where the victim is overpowered and there are often no
witnesses. Medical evidence often cannot support the rape claim.”

She said, “Judicial hearings on rape should begin by considering the fact
that women have more to lose by speaking about the crime, through
humiliation and by revisiting the trauma they experienced. The statement of
the raped woman should be evidence enough.”

Access to Justice – War Crimes Courts

Witnesses are crucial to the success of any trial but they are frequently
the least considered element in practical terms. Yet the protection of
witnesses, especially females, in the lead-up to the trial; at the time of
the trial and also, crucially, after the trial when they have to return
home, is essential. Other basic issues include the matter of the economic
costs of being a witness, especially travel, accommodation and living costs.
Both men and women but perhaps especially women cite the personal economic
costs of being a witness, including travel, accommodation and living costs.

Many women who survive attacks do not want to report the rapes for a variety
of reasons. Some women victims of rape express fear they will never be able
to marry. Others feel terrified they will be shunned by society. But other
very brave women express anger at their attackers and want to testify. That
willingness to testify is often tempered by fear that their attackers may
still be at large back home, in the conflict region. For those women willing
to testify, issues of witness protection and support loom large.

There are still unresolved issues that need to be examined. What about war
widows, an agonising feature of so-called modern warfare which heavily
targets civilians? International Lawyer Margaret Owen writing to the UN
Commission on the Status of Women 2003 noted:

“Women widowed through war and ethnic cleansing, across regions, face rape,
sexual mutilation and torture, the deliberate infection of the AIDS virus,
sexual slavery and forced pregnancy. The violence meted out to widows
during armed conflict, as refugees and IDPs, often continues long into the
post-conflict period due to their poverty and vulnerability to economic and
sexual exploitation, trafficking and prostitution, and the stigma of having
been victims of sexual crimes.”

On the positive side, there is a growing understanding of gender dimensions
in identifying and dealing with war crimes, but given the pressures and
compromises necessary to make peace quickly, the danger is ever-present that
Peace will be sought at almost any cost, including at the cost of Gender
Justice. As part of this, there is a real issue with impunity versus
accountability. Questions need to be asked about women’s views and needs to
ensure these are not bypassed or ignored in the search for quick fixes for
short-term stability which may not lead to long-term peace.

A Large Question

One large question that needs to be asked: where are the instances of
political leaders being sentenced for rapes and other acts of sexual
violence committed by their followers or Militias under their control? Or a
military commander sentenced for rapes/sexual violence committed by his
troops?

And should Truth and Reconciliation Commissions as a direct alternative to
International Courts be set up, and if they are how they should be composed?
Do women’s voices get heard properly at such TRCs?

I shall end on the very optimistic note that the development of law on
gender-specific war crimes is speeding ahead, further extending the gender
dimension of war crimes to genocide. Only last year the entire 15-member UN
Security Council unanimously adopted Resolution 1820, which states that
‘rape and other forms of sexual violence can constitute war crimes, crimes
against humanity or a constitutive act with respect to genocide’.

It also affirmed the Council’s intention, when establishing and renewing
State-specific sanction regimes, to consider imposing ‘targeted and
graduated’ measures against warring factions who committed rape and other
forms of violence against women and girls. The text made several key
requests of the Secretary-General, including that he submit a report on
implementation of the resolution by this coming June (2009).

So looking back to my own first glimpse of this important subject, back in
1993, a good amount of progress has been made in those 15 years. Rape is on
the books as a war crime. Military commanders can be held responsible for
rape by their soldiers.

Now we must enter an era where we work out how to make all the practical
implications workable. The Deity rather than the Devil lies in the detail,
the nitty-gritty. I shall look forward to any thoughts you may have on any
of the above.

Thank you.

Addendum

UNSCR 1820 and UNSCR 1325 are mutually-reinforcing and complementary. 1820
strengthens an area where implementation of 1325 remains particularly weak,
namely sexual violence prevention and response. With its strong focus on the
condemnation of sexual violence in conflict and post-conflict situations, it
provides a Security Council parallel to UN General Assembly Resolution
62/134 (adopted in December 2007) on Eliminating Rape and other forms of
sexual violence in all their manifestations, including in conflict and
related situations.

UNSCR 1820 includes:

* As rape and other forms of sexual violence can constitute a war
crime, a crime against humanity or a form of genocide (depending on the
elements of the offence), these crimes should be excluded from any amnesty
provisions in the context of conflict resolution processes. States need to
prosecute the perpetrators and ensure that all victims of sexual violence
have equal protection under the law and equal access to justice, thereby
ending impunity;

End of provided transcript.