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Prosecuting Sexual Violence Offenders after Conflict

by svonwendel
July 31, 2014

A Tutsi woman passes between a guerilla from the Rwandan Patriotic Front on the left and a wounded man on the right, Rwanda, May 1994 (Courtesy Reuters). A Tutsi woman passes between a guerilla from the Rwandan Patriotic Front on the left and a wounded man on the right, Rwanda, May 1994 (Courtesy Reuters).

Emerging Voices features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is by Sigrid von Wendel, who edits the Development Channel.

Rebuilding a country after conflict is a task that takes years, if not decades. War and genocide can displace millions, reduce cities to rubble, suffocate economies, and leave countless civilians and soldiers dead or injured. These challenges are well known, and governments and aid organizations have long grappled with how to handle the refugee crises, financial shocks, medical emergencies, and infrastructural damage that result from war. But there is another equally important (and less widely discussed) crisis that must be addressed in post-conflict rebuilding: sexual violence.

In the 1994 Rwandan genocide, sexual violence, particularly against members of the Tutsi ethnic group, was widespread. Over the course of one hundred days, between 250,000 and 500,000 women and girls were subject to acts of sexual violence including rape; gang rape; rape with objects such as arrows, sharpened sticks, and gun barrels; and sexual mutilation. Rape by HIV+ men was also used as a weapon of genocide and, as a result, more than 67 percent of women who were raped during the genocide became infected with HIV and AIDS.

In November 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) to prosecute those responsible for the atrocities. Since then, the ICTR has established important international precedent for prosecution of sexual violence in conflict, and for the care of victims and witnesses of sexual violence. The Tribunal’s successes, and lessons learned from its failures, have advanced a comprehensive global strategy for bringing perpetrators of sexual violence to justice.

New developments in international law, however, could undo some of this progress. The ICTR and its sister court – the International Criminal Tribunal for the former Yugoslavia (ICTY) –have recently made rulings based on a higher burden of proof: the accused individual must be proven to have not just aided and abetted, but “specifically directed” the crime.

The appropriate standard of proof for convicting war criminals has long been debated within the international community, and for good reason. After 9/11, some U.S. military and intelligence officials began to fear that international courts could undermine national security by targeting military and intelligence officials and limiting U.S. military operations. This “lawfare,” some argue, can enable militarily weak opponents to use law as a weapon of war against superior military powers.

While some argue that making the law less open-ended will prevent wrongful conviction, the new standard goes too far and instead threatens to undermine cases against actual war criminals who might not have “specifically directed” a crime, but are still responsible. As Kenneth Roth, executive director of Human Rights Watch, has argued, “Officials who want to facilitate mass atrocities are rarely so dumb as to give explicit orders. Rather, they tend to proceed by indirection, giving aid to a criminal enterprise that is already in motion.” The “specifically directed” criteria has already let some war criminals off the hook: last year in Rwanda, prominent ministers previously sentenced to thirty years in prison for committing acts of sexual violence had their convictions overturned. The ICTY’s acquittal of Croatian and Serb military leaders last year sparked additional outrage and resistance to the new criteria. Prosecutors reportedly fear that the standard threatens their cases “to the point where a conviction has become nearly impossible” and sets “legal precedents that will protect military commanders in the future.”

The work of the ICTY and the ICTR is far from finished. Even decades later, many perpetrators of sexual violence remain free or have been freed recently by changing court doctrine. It is not just Rwanda, the Balkans, and other post-conflict areas that are affected by these failings. Bringing sexual violence criminals to justice sends a strong message to would-be perpetrators around the world that their crimes are unacceptable and, if committed will be met with the full force of international law. Recent rejections of the “specific direction” standard bode well: the Special Court for Sierra Leone upheld a guilty verdict against Charles Taylor in 2012; and last January, an ICTY appeal bench upheld guilty sentences for four Serbian senior officials, further rejecting the new standard. It is crucial that global powers, including the United States, work to bolster the court’s ability to convict perpetrators of sexual violence. National and global security, stability, and prosperity are strengthened, not threatened, by a strong mechanism that brings war criminals to justice.

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