By Dinushika Dissanayake –

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.

Concepts of fair trial of the global north also impose evidentiary requirements that can severely restrict ability of victims of widespread sexual violence during war, to prove their case. Tribunals like the ICTY however adopted special procedures that allowed for relaxation of some of these rules in view of the enormity of the sexual crimes alleged during the conflict under their mandate.

The victories in this realm however have been slow and hard won. It was only in the fourth case of the International Criminal Court that an accused was convicted of sexual crimes- in the trial of Jean-Pierre Bemba Gombo (Bemba), in March 2016. In fact, the ICC was severely criticized for its failure to convict Thomas LubangaDyilo in 2012 for sexual crimes, especially for abuse of prosecutorial discretion. This is despite the composition of the bench of the ICC, and the text of the Rome Statute, both of which were hailed as gender inclusive. It is estimated that 500,000 women in Rwanda and 20,000 in former Yugoslavia were raped during the conflict- whether individual culpability of a few, less than 100 accused, will mean anything to these women who were subject to widespread sexual violence, has been questioned in feminist critiques.

Another critique is that women survivors are often ignored when largely male dominated experts decide on scope, schemes and form of international prosecutions for sexual crimes and other crimes. Therefore women’s concerns would ultimately disappear from the agenda. Gender bias, even in Courts like the ICC that are celebrated to be gender sensitive and gender inclusive, has also been documented. However, mere appointment of women experts would do no favour, if they are also locating in a gender insensitive patriarchal space. Thus, it is necessary to free the international prosecutions from patriarchal structures where ideologies of both women and men are trapped.

In fact, survivors are documented to be subject to intimidation, humiliation and law practitioners face resistance when raising sexual crimes under international law. Even where women are willing to testify, lack of support services, even simple issues like travelling to the seat of the Court, and societal resistance and recrimination, can prevent them from doing so.

However much we would like to avoid the fact, being able to survive, and then to testify, before a tribunal set up to prosecute war crimes tribunals is for those privileged in many ways- and more often than not, women survivors rarely fulfill the criteria of the privileged few. Unless equity co-joins equality in ensuring space for women, with assertive protections and support for women, meaningful recognition of womens’ issues in trials for international war crimes will never be a reality.

Women are often marginalized within marginalized communities; by religion, by caste, by gender, by landlessness and economic bankruptcy- they need special protections to guarantee a voice even in a post war democratic state. Assuming a prosecution court room where they stand as equals against male perpetrators is a fallacy, unless that equality is supported and provided by the State. Re-traumatizing of women should be avoided.

In fact, these vulnerabilities multiply when one takes into account the fact that for thousands of women who have been raped as a result of a conflict, a few individualized convictions cannot hope to contain the aspirations to justice of all these women. Rape during war is not only against the individual victim, but also often against the entire community. Even experiences of women in Argentina and in Rwanda, of invisibility in their communities after being subject to sexual violence, support the argument that the legal prosecution traditions of the global north have largely failed the victim-survivors of widespread systematic sexual violence in the global south to a great extent. These are weighty criticisms and the alternatives to ensure justice in prosecutions of war crimes are not any clearer. However any transformational approach to gender justice in prosecutions must necessarily take cognizance of these critiques, even if all the rights answers may never be found. These critiques also provide fodder for alternative spaces to be created for women if formal processes fail them; the Womens’ Court held in Saraevjo in May 2015 on the sexual crimes committed in the former Yugoslavia, and the Womens’ International Tribunal held in Tokyo in 2000 as a symbolic trial for Tokyo’s “Comfort Women” from World War II are cases in point.

Each of these experiences point to the ways in which women are vulnerable on multiple fronts- and the slim chance that she has of ever gaining truth or justice in an invariably skewed and discriminatory structure. It is the contention of this author that unless women are involved at every stage of the design, and implementation, of a prosecutorial mechanism, that justice will continue to elude those women victims in this country. Given the large number of women who are victims on multiple levels, the historical injustices suffered by women, and the failure of the state to consider even the most obvious of amendments to our archaic laws, it is an imperative that at least at this late juncture, women and women’s issues are part of the norm setting framework rather than a hasty consultation in an air-conditioned Colombo based ‘workshop’.

*Dinushika Dissanayake, a lawyer by profession, is the Executive Director of the Law & Society Trust in Colombo. She can be reached via email on dinushika@lawandsocietytrust.org

By DinushikaDissanayake –