Sara M. Pan Algarra is a Hillary Clinton Global Challenges Scholar, a global award to pursue the Master’s in Global Challenges: Law, Policy and Practice at Swansea University’s School of Law. Her most recent advocacy research with UNICEF UK focused on the impacts of climate change-related displacement and migration on efforts to achieve girls’ access to education.
Women are efficient tools of war and ethnic cleansing. The Rwandan Genocide in 1994 was not an exception. Human Rights Watch reported in 1996 that during the genocide, ‘thousands of females [referred to as cockroaches by the perpetuators] were raped, gang-raped, raped with objects, held in sexual slavery, or sexually mutilated’. These sexual violations have become so common in ethnic cleansing schemes over the course of human history, that societies across nations have been accustomed to normalize them. This normalization of female sexual violence is problematic because it diminishes the seriousness of the violation.
Despite the 1948 Convention on the Prevention and Punishment of the Crime of Genocide recognizing physical and mental destructions as punishable acts, both the international and national arenas have moved issues concerning sexual violence to the background in the debates for transitional and restorative justice (TRJ). TRJ schemes are different mechanisms, such as tribunals, truth commissions and mediation procedures, through which a post-conflict country reconstructs its institutions, and recovers national justice and peace.
The human rights scholar Heidi Haddad contends that ‘while the [human] history of [sexual violence in conflicts] is brutal and extensive, [it] has historically been an invisible crime largely absent from international and domestic prosecution’. After the slaughter stopped, as part of the Rwandan TRJ schemes, the UN Security Council formed the International Criminal Tribunal for Rwanda (ICTR) in November 1994. However, when it comes to sexual violence, ‘the first rape indictment of the ICTR did not occur until 1997, 3 years after the establishment of the tribunal’. This was the Akayesu case, the first prosecution in international law of sexual violence as a genocidal crime. Albeit this significant case, the ICTR had not prosecuted many more cases of sexual violence as of 2008. Indeed, by July 2008, the ICTR had a total of 5 convictions related to sexual violence. Hence, these numbers highlight the problematic historical normalization of sexual violence across societies permeating TRJ post-genocide schemes.
The political theorist Michael Walzer argues that the responsibility of the international community to protect when a genocide takes place does not ax once the genocide stops. Hence, Walzer conceptualizes jus post bellum (justice after war) as the process of rebuilding and restoring justice and peace in post-conflict contexts. This process is as much of an obligation as stopping the genocide through humanitarian intervention. As such, the numbers also underline why Walzer’s understanding of social justice in jus post bellum should expand to address female sexual violence.
Walzer’s jus post bellum
Failing to address female sexual violence in TRJ schemes of post-genocide contexts is a consequence of the normalization of female sexual violence across nations. Female sexual violence is a blind spot that needs attention in Walzer’s jus post bellum. Walzer states that ‘protecting women […] is especially important, since they are often the first civilian victims of war and the last beneficiaries of reconstruction’. But on the other, he argues in favour of a minimal approach to social justice in TRJ, based on ‘the creation of a safe and decent society’. This is peculiar because Walzer’s approach to social justice as minimal delimits jus post bellum such that it leaves aside areas of TRJ that historically have not received enough consideration in post-genocide contexts. One of these areas is female sexual violence.
This interrelation of dimensions of social justice shows the complex nature of TRJ, and poses that Walzer conceptualizing social justice as minimal is instead simplifying the complexities of jus post bellum. Addressing female sexual violence through TRJ schemes, the creation of a safe and decent society and the punishment of perpetrators are more complex than just doing so. For jus post bellum to be minimal rather than simplistic, its dual dimension of social justice has to consider female sexual violence as an important component in the process of forming safe and decent post-genocide societies.
Jus post bellum: TRJ Schemes and Female Sexual Violence
The scholars Kelly Askin, Richard Goldstone and Anne-Marie de Brouwer explained that what leads to the differentials in sexual violence prosecutions in courts of post-genocide contexts are the inexistence of ‘appropriate legal instruments to prosecute crimes of sexual violence and sufficient tribunal resources [with] adequate administration’ (as cited by Haddad). The institutions enforcing laws for the prosecution of génocidaires, as perpetrators of the genocide, must be robust and resourceful. Not only that, these institutions must also include all forms of genocidal crimes. The structure of the legal systems for punishment and social justice are crucial because this structure will sustain the creation of a safe and decent society. However, this structure would not function without a set of laws supporting the recognition of particular crimes like sexual violations.
It is problematic that sexual violations were not considered a crime against humanity per se in the 1948 Genocide Convention. This means that before the creation of the international TRJ bodies of the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTR, and the International Criminal Court (ICC), ‘there were no internationally accepted definitions of [sexual] crimes’ (Askin as cited by Haddad). This recent inclusion of sexual violations as part of international law regarding genocide shows how TRJ in its nature is essentially gendered as its legal basis excludes one of the largest forms of crime affecting females. Therefore, it is not only necessary for TRJ schemes to firstly recognize female sexual violations as serious genocidal crimes, but to then actually punish sexual violence, and provide attention to the victims.
Lack of information and accountability in jus post bellum
The first aspect of incompetence when it comes to sexual violence is the lack of information once sexual violations have been legally recognized as genocidal crimes. Habimana accounts on how little the victims knew about the ICTR demonstrates that it is relevant for the public to know the role and the scope of influence of the TRJ mechanisms to achieve social justice after the genocide. However, this lack of information about TRJ bodies takes on another issue in relation to sexual violence: the lack of evidence for judicial processes.
Sexual violence is difficult to investigate because of their magnitude and the social stigmatization. This is why finding the truth in contexts of post-genocide both at the national and international levels can take years of investigation, and in the meantime, the victims are forgotten. As such, the political theorist David Boucher argues that there is a distinction between establishing the ‘truth’ and establishing guilt. He argues that here responsibility and injustices are concerned, there need not be such high standards of evidence [in national post-genocide tribunals] as required for a prosecution in an International Criminal Tribunal. In other words, in the case of sexual violence, the prosecution processes at the national level cannot be expensive, or time-consuming, and must be encouraged.
This leads me to consider that in jus post bellum, when it comes to sexual violence and the difficulties to gather evidence for prosecutions, the complexity of TRJ worsens the situation because most of the victims will not be able to even find the perpetrator’s name. In order to get females to raise their voices in jus post bellum, there must be a system that promotes their expression, without them having to fear consequences of shaming and threats.
The historian Yasmin Saikia explains these complexities through her idea of ‘a total absence of [female] voices in the official collective memory [of post-genocide contexts]’. She argues that ‘the relative silence of [female] voices, […] has disconnected [female] experiences from the historical context and once again, [the females’] honour has become a substitute for failing to recognize the brutality of rape’. Therefore, TRJ schemes must establish mechanisms to gather evidence for prosecutions, and develop a system in which accountability is reliable for the females. This lack of judicial accountability is another aspect of incompetence in TRJ schemes. It is also a symptom of normalization of sexual violence and the inconsistencies of TRJ prosecutions regarding sexual crimes. In order to overcome this lack of accountability, political and moral wills need to be emphasized to address sexual violence in tribunals – through a thorough understanding of the post-genocide contexts.
Understanding the Context in jus post bellum
Context matters. In jus post bellum, TRJ schemes must address the structural gender violence before the genocide and the conditions of the legal system in the country to achieve social justice. To understand why many females do not benefit from TRJ post-genocide schemes, one cannot ignore the question whether post-genocide society recognizes the dignity of the female survivors or not, and the extent of it. In the context of Rwanda, this question implies that after the genocide, the standard of living of many female survivors declined because of their condition as widows and orphans. These females have been ‘often denied access to their husband’s or father’s property because they are females’. This structural discrimination against females limits the achievement of social justice in jus post bellum.
The concept of identity in post-genocide contexts matters too. The magnitude of sexual violence during the Rwandan Genocide indicates that the female survivors’ identities itself became the subject of violence. Since the violence defined and subjugated their sense of identity, they will never feel safe in a post-genocide society where TRJ schemes do not consider sexual violence as fundamental while establishing social justice. This is why in TRJ schemes, ‘first we have to learn to listen to the witnesses and survivors, and what [they] want to recount’. Boucher argues that TRJ ‘is also about restoring identity and self-worth’. In order to build a safe and decent society it is not enough to address the lack of information, the challenges to gather evidence, and the lack of accountability in TRJ judicial institutions. TRJ schemes must be contextual and should consider the impact sexual violence has on the survivors’ sense of identity.
Sexual Violence as a Weapon of War
In 1996, the Rwandan Parliament created the Organic Law on the Organization of Prosecutions for the Crime of Genocide or Crimes against Humanity committed between October 1, 1990 and December 31, 1994. This law divided genocidal crimes in different categories, and considered sexual violence as a weapon of war and genocide. It was a significant improvement in the TRJ schemes of post-genocide contexts. However, categorizing crimes against humanity within both the international and national law, at the same time, was detrimental to the victims.
The legal definition of sexual violence as an instrument for ethnic cleansing forecloses the definition of sexual violence. When the law recognizes sexual violence as crime, the law changes to break an unjust legal framework, but ends up with a new framework that perpetuates injustice. Buss explains that ‘prosecuting rape as a crime against humanity requires showing [that] the act of [sexual violence], […] was “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”’. It leaves at the discretion of the tribunal to call the sexual crime a genocidal one or not. The lesson to be learned here is that, in jus post bellum, crimes against humanity cannot be simplified. TRJ schemes have to address the full range of acts of female sexual violence in post-genocide contexts.
Jus post bellum in Rwanda continues to be unresolved as it continues to be unresolved worldwide. Although mechanisms such as the UN Action Against Sexual Violence in Conflict that attempt to mitigate injustice against females in post-genocide contexts are in place, these mechanisms are insufficient. I questioned Walzer’s minimal understanding of social justice in jus post bellum arguing that his conception of social justice has to expand. This is because it is clear that TRJ schemes will never fully establish social justice and create a safe and decent post-genocide society if these schemes do not address female sexual violence effectively.