The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia

Recent efforts to develop and implement progressive models oftransitional justice have been significantly influenced by majordevelopments in the law concerning sexual violence in armedconflict. In particular, the International Criminal Tribunalfor the former Yugoslavia has pioneered accountability for sexualviolence against women in armed conflict. This article takesthe ICTY as a case study of how gender can structure the accountabilitymechanisms of transitional justice. The article analyses howlegal norms and practices instantiate and reiterate, ratherthan transform, existing hierarchical gender relations. It considersthe existing models of sexual violence as a criminal harm underinternational law, and then examines gendered patterns of legalpractice in ICTY prosecutions. To address this engendering oftransitional justice, the article produces a new model of theharm of sexual violence in conflict, suggests the developmentof a new international offence of sexual violence and generatesdifferent strategies for international prosecutions of sexualviolence.     

Creative appropriation: academic knowledge and interventions against sexual violence in the Democratic Republic of Congo

ABSTRACT

Recent academic research has questioned assumptions about sexual violence in (post-) conflict contexts. Gender norms rather than military decision-making have been found to constitute a major underlying reason for wartime sexual violence. In this contribution, we investigate whether international organisations seeking to prevent sexual violence in the Democratic Republic of Congo have accordingly changed their analytical perspectives and modified policies and programming. We find that many, but not all, such organisations creatively appropriate new academic work in their policy and project documents. However, incentives for continuity in the humanitarian field have slackened the pace of any substantive practical changes.     

Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence

¹Despite the proliferation of trauma and memory research inrecent years, we know very little about the contribution oftransitional justice mechanisms to psychological healing andsocietal reconciliation in the aftermath of genocide, armedconflict and politicized violence. Many scholars in this areahave argued that the disclosure of traumatic experiences isbeneficial to the psychological recovery process for survivorsof gross human rights violations. This article critically examinesthis therapeutic assumption within a transitional justice paradigm.The article explores the potentials and limitations of internationalwar crimes trials for victims of wartime sexual violence, focusingspecifically on the International Criminal Tribunal for theformer Yugoslavia (ICTY). The article provides a theoreticalframework for analyzing the significance of testimony at internationalwar crimes trials and raises some critical questions relatedto the psychological impact of trials. It is argued that dueto the sheer diversity and heterogeneity of wartime rape victims,the experience of giving testimony is likely to be mixed: whilesome victims may suffer under the constraints of legal process,under the right circumstances, war crimes trials may help othersto make sense of their suffering.     

Reparations for Sexual and Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru

Sexual and reproductive violence (SRV) perpetrated against womenduring war or under authoritarian regimes is one of the mostsevere manifestations of gender-based violence. The authorsask how governments in new or reforming democracies hope torepair SRV and how state programs for reparation might be conceptualizedand delivered. By examining the cases of Guatemala and Peru,they explore the problematic of repairing damage caused by SRVand comment on prospects for redress to victims in each country.     

Constructing the sex trafficker: spectral figures and sexual violence in California’s Proposition 35

This article examines the development, framing, and implementation of Proposition 35, the ‘Californians Against Sexual Exploitation Act.’ The 2012 ballot initiative, described variously as a measure against human slavery, human trafficking, and sex trafficking secured more votes than any other initiative or candidate in a single statewide election in California history. We argue that the measure exemplifies a disjuncture in the articulation of feminist politics against sexual violence, labor exploitation, and criticisms of the carceral state. The rise of the sex trafficker as a ‘spectral’ subject of contemporary political discourse shapes a broader ideological framework that permits a distinct set of political actors and interests to widen their institutional and political authority and to marginalize competing claims about the roots of sexual violence and labor exploitation. Proposition 35, which targets a ‘spectral’ figure abstracted from institutional context and relations of power, expands the carceral state in the name of protecting vulnerable women while also excluding long-standing feminist solutions to sex and gender-based violence.     

Peace and Justice through a Feminist Lens: Gender Justice and the Women’s Court for the Former Yugoslavia

ABSTRACT

Post-conflict interventions to ‘deal with’ violent pasts have moved from exception to global norm. Early efforts to achieve peace and justice were critiqued as ‘gender-blind’—for failing to address sexual and gender-based violence, and neglecting the gender-specific interests and needs of women in transitional settings. The advent of UN Security Council resolutions on ‘Women, Peace and Security’ provided a key policy framework for integrating both women and gender issues into transitional justice processes and mechanisms. Despite this, gender justice and equality in (post-)conflict settings remain largely unachieved. This article explores efforts to attain gender-just peace in post-conflict Bosnia and Herzegovina (BiH). It critically examines the significance of a recent ‘bottom-up’ truth-telling project—the Women’s Court for the former Yugoslavia—as a locally engaged approach to achieving justice and redress for women impacted by armed conflict. Drawing on participant observation, documentary analysis, and interviews with women activists, the article evaluates the successes and shortcomings of responding to gendered forms of wartime violence through truth-telling. Extending Nancy Fraser’s tripartite model of justice to peacebuilding contexts, the article advances notions of recognition, redistribution and representation as crucial components of gender-just peace. It argues that recognizing women as victims and survivors of conflict, achieving a gender-equitable distribution of material and symbolic resources, and enabling women to participate as agents of transitional justice processes are all essential for transforming the structural inequalities that enable gender violence and discrimination to materialize before, during, and after conflict.     

Gendered discipline,gendered space: an ethnographic approach to gendered violence in India

ABSTRACT

Why are Indian women’s lives at fatal risk in the public sphere, when Indian democracy is inclusive in terms of gender? Addressing this question reveals a methodological and theoretical blind spot in political science scholarship – a blind spot which results in the reproduction and legitimization of gender-blindness. To understand how and why political science reproduces and legitimizes gender-blindness I reflect on a particularly horrific case of sexual and gender-based violence, the 2012 Delhi gang rape. This analysis is significant because it provides insight into the difficulty of understanding gendered violence in political science and achieving gender equality within democratic societies.     

Gender, Representative Bureaucracy, and Law Enforcement: The Case of Sexual Assault

Using the theory of representative bureaucracy, this paper investigates the relationship between women police officers and sexual assault reports and arrests. The theoretical contribution is to establish a case in which representation is likely to occur, even without a conscious effort on the part of the bureaucrat involved but simply because of the shared experiences of the bureaucrat and the client. Based on a pooled time series of 60 urban areas over an eight-year time frame, this study finds that the percentage of women police officers is positively associated with the number of reports of sexual assault and with the number of arrests for sexual assault.     

Sexual Violence,Competitive State Building,and Islamic State in Iraq and Syria

ABSTRACT

This article examines the practices of rape, sexual enslavement, and forced marriage used by the Islamic State in Iraq and Syria (ISIS). Most research see wartime sexual violence as solutions to battlefields challenges. Studies of civil war and competitive state building during civil wars have largely overlooked the implications of such violence for rebel governance. This article explores how efforts to regulate sexuality figure within processes of violent state formation. ISIS’s practices of sexual violence mirror previous efforts by the Iraqi and Syrian state to substantiate ethno-sectarian domination through violence. But ISIS creates new gendered and ethno-sectarian hierarchies. Repertoires of sexual and gender-based violence can help to sustain and create structures of state control and are thus integral to competitive state building.     

Violence against women and economic, social and cultural rights in Africa

International human rights treaties and declarations lay out the interconnection of civil and political rights with economic, social, and cultural rights. However, it was not until 1993 at the 2^nd UN Conference on Human Rights in Vienna that governments agreed that all of women’s rights are an integral part of human rights. Promoting women’s economic, social, and cultural rights is a critical human rights advocacy issue. Poverty leaves women more exposed to violence and less able to escape it, and severely restricts women’s ability to organize and fight for change. The article describes work by AI and other NGOs on violence against women and its connection with women's poverty and lack of education, healthcare, housing, and access to land in Africa. Besides the burgeoning of African women’s organizations calling for protection of all women’s human rights, a second hopeful development has been approval in July 2003 of an historic Protocol on the Rights of women in Africa.     

'When We Wanted to Talk About Rape': Silencing Sexual Violence at the Special Court for Sierra Leone

This article explores the legal and psychological ramificationsarising from the exclusion of evidence of sexual violence duringthe Civil Defence Forces (CDF) case at the Special Court forSierra Leone. Using empirical findings from post-trial interviewsconducted with the ten victim-witnesses who were originallyto testify, we juxtapose what the Special Court allowed thewomen to say, and what the women themselves wanted to say. Froma legal perspective, we then critique the Trial Chamber's reasonsfor excluding the evidence and question the legal bases uponwhich the women were silenced, arguing that wider and widercircles of the women's experience were removed from the Court'srecords despite there being ample authority at an internationallevel to support inclusion. We further look at the genderedbiases in international criminal law and how expedience andefficiency usurped the significance of prosecuting crimes ofsexual violence in this instance. From a psychological perspective,we discuss the consequences that the act of silencing had forthe witnesses, and argue that a more emotionally sensitive understandingof the Court's notion of ‘protection’ is required.     

Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks and the Development of International Criminal Law

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions.     

Governing peacekeeping: the role of authority and expertise in the case of sexual violence and trauma

Abstract

The surprising authority of gender expertise on sexual violence within post-Cold War peacekeeping can be understood by tracing how sexual violence became linked with political torture and combat violence in peacekeeping security rationality. The linkage emerged from the development of Post-Traumatic Stress Disorder (PTSD) theory within anti-Vietnam war activism, which gained international authority during the 1980s. Post-Cold War narratives of ‘multi-dimensional’ peacekeeping as the policing and rehabilitation of perpetrators and victims for self-government drew on PTSD expertise on ‘integrity violations’, thus problematizing sexual violence. However, gender expertise should not be dismissed as providing ideological cover for imperialist projects: the contingent authority gender expertise has claimed has disrupted the peacekeeping narrative by representing peacekeeping operations as fostering flourishing sex industries in which integrity violations are a norm.     

Is it time for a progress report on violence against women in Ghana?

Ghana, like many African countries, continues to grapple with domestic violence issues. Ghana's 1992 Constitution mandates provisions that should eradicate the scourge of violence against women and children. In this paper, two main questions are asked. First, will the 1992 Constitution ultimately lead to victories over discrimination and violence against Ghanaian women? Second, has progress been made in eradicating violence against women in Ghana to date? In that regard, have governmental and non-governmental organizations supported Ghanaian women to arrive at relative stability, empowerment and freedom from violence? Progress thus far is encouraging. Presently, there are several holistic or organic approaches being used to combat domestic violence in Ghana. however, an epidemiological examination of custom and a psychosocial approach towards domestic violence may facilitate permanent meaningful solutions.     

Invisible Populations and the #MeToo Movement

The #MeToo movement has done a great deal to address sexual abuse and violence. There is no doubt that justice may occur when the right person speaks out. However, what happens when the wrong people—that is, people of color, the working class women, and transgender people— speak out on the same issue? When these “wrong people” do speak out, they are discredited, marginalized, and silenced by being ignored. This Viewpoint essay addresses two populations that have been overlooked by the #MeToo movement: women of color and transgender people. The essay concludes with recommendations for how the movement can move forward given the criticisms around the absence of diversity and transparency.     

Feminism in the Humanitarian Machine. Introduction to the Special Section on ‘The Politics of Intervention Against (Conflict-Related) Sexual and Gender-based Violence’

ABSTRACT

The prevention and mitigation of sexual and gender-based violence in (post-) conflict societies has become an important humanitarian activity. This introductory article examines the analytical discourses on these interventions, the institutionalization of SGBV expertise in international politics, and the emancipatory potential of anti-SGBV practices. It argues that the confluence of feminist professional activism and militarized humanitarian interventionism produced specific international activities against SGBV. As part of the institutionalization of gender themes in international politics, feminist emancipatory claims have been taken up by humanitarian organizations. The normal operating state of the humanitarian machine, however, undercuts its potential contribution to social transformation towards larger gender equality in (post-) conflict societies.     

Exposing the War on Women: The Limits of Law and Power of Care to Address Sexual Violence in Contemporary Crime Drama

A comparative reading of two recent crime dramas, The Fall (TF) and The Bletchley Circle (BC), demonstrates the limits of law and potential of care to address violence against women. TF, a Nordic noir, moves beyond a gender-blind account of crime yet relies on a liberal, state-centric response that blunts its political critique. BC, a hybrid cozy-period-detective genre piece set in post-World War II London, offers a new perspective on violence against women in crime dramas. First, juxtaposing men’s and women’s post-war experiences, BC frames violence against women as an ongoing war in which women remain comrades-in-arms. Second, it suggests that while the state has a necessary role to play as a coordinator of spaces, skills, and citizens, state action alone cannot end violence against women. Rather, citizen engagement through an ethic of care may offer a new way to address such harms.     

The Role of National Human Rights Institutions in the Implementation of the UN Guiding Principles

National human rights institutions (NHRIs) are key domestic mechanisms for promotion and protection of human rights. The institutions' broad mandate, competencies, and special status between state and nonstate actors on the one hand, and special status between the national and international levels on the other hand enable them to engage effectively in the field of business and human rights. Since 2009, NHRIs have been engaging with the international human rights system in order to increase understanding and raise awareness of their role in addressing business and human rights issues. As a result, they have contributed to the development of the UN “Protect, Respect and Remedy” Framework and obtained an evolving role within all pillars of the framework and in its implementation. This paper presents how these domestic institutions, bridging the national and international levels, fit into the UN legal regime for corporate responsibility for human rights and what contribution they make to the implementation of the UN Guiding Principles.     

Killings in Context: an Analysis of the News Framing of Femicide

While attacks against members of the LGBT community are increasingly covered as hate crimes and are widely viewed as a form of repression, attacks on women are almost never covered as violations of human rights. We propose that until violence against women is recognized as a form of repression and a threat to the physical security of women, we cannot expect much to be done to prevent it. We posit that policies aimed at preventing violence against women are unlikely to come about unless this abstract concept is connected, through a connection frame, to concrete crimes against women. We conducted a framing analysis of news coverage of all confirmed femicides in Massachusetts in 2013 and find that while journalists have the potential to draw these connection frames, they seldom put these killings in the context of violations of women’s rights.