The Unspoken Tension Around Sexual Violence Crimes in the International Criminal Justice System
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The Missing Gender Frame: The Unspoken Tension Around Sexual Violence Crimes in The International Criminal Justice System By Annie Lentz Washington and Lee University, Class of 2020 Table of Contents Introduction………………………………………………………………………………………2 Chapter 1: Literature Review……………………………………………………………………...5 The Reality of Rape Prosecutions………………………………………………………....6 The Role of Feminist Theory in Rape Convictions….…………………………………..10 The Role of Race in Gendered Crimes….……………………………………………….17 The Role of Practitioners………………………………………………………………...19 The Role of Civil Society…….……………………………………………………….....21 Order Building and Feminist Theory………………………………………………….... 25 Humanitarian Organizations and Criticisms in Treatment….………………………….. 29 Where We Are Now…. ………………………………………………………………….34 Chapter 2: Outlining Our History Prosecuting Sexual Violence………………………………...35 Codifying the Rules: The Geneva and Hague Conventions….………………………….39 The First Trial: Leipzig War Crimes Trial….…………………………………………....42 A Missed Opportunity: The Nuremburg Trials………………………………………….44 Underplaying Even the Most Brutal Rapes: Tokyo Trials……………………………….47 Trying to Universalize the Rights of Women: CEDAW………………………...………50 The First Tribunal in The New System: ICTY……………………………………….….51 Pushing the Definition and Convictions Further: ICTR………………………………....54 Changing the Structure, Consolidating the Process: International Criminal Court……...57 The New System and Restorative Justice: ICC Situations………………………………59 Progress for the Treatment of Victims and Witnesses…………………………………...64 Chapter 3: Practitioners Within the System….…………………………………………………..67 David Scheffer: U.S. Ambassador-at-Large for War Crimes Issues (1997-2001)……....70 Clint Williamson: U.S. Ambassador-at-Large for War Crimes Issues (206(2006-2009)…-2009)……...72 Stephen Rapp: U.S. Ambassador-at-Large for War Crimes Issues (2009-2015)………..74 Stephanie Barbour: Lawyer and Investigator for the ICC……………………………….78 Lucy Seyfarth: Foreign Affairs Officer, Office of Global Criminal Justice at U.S. Department of State….…………………………………………………………………..80 The Challenge of Getting Justice for Women, as Women……………………………….84 We Cannot Adjudicate Sexual Violence Unless We Address Gender…………………..85 The Gender Bias in the ICJS……………………………………………………………..87 Practitioners See Their Roles as Important and Norm Defining………………………...90 Chapter 4: If We Want to Better Adjudicate Rape, We Have to Address It……………………..91 Appendix…………………………………………………………………………………………99 Bibliography……………………………………………………………………………………103 The Missing Gender Frame Lentz 2 Introduction: Facing My – And Our Collective – Unfamiliarity The first time I was exposed to the reality of gendered violence, violence that targets certain individuals because of their gender, during conflict was the second semester of my junior year. I was in my fifth class that covered WWII in detail. This class in particular outlined war tactics and movements of the Allied and Axis powers, providing context for our current global political environment. About halfway through the semester, the professor was lecturing on German military activity in France, illustrating the movements for the class on the white board. As he concluded his representation and shifted back to the PowerPoint, he added, “Over this particular movement, it is suspected that somewhere between 50,000 and 100,000 women were raped by traveling soldiers.” Then he moved on. I was shocked. I raised my hand and asked if he could go into more detail. He summarized that it was estimated that over the course of the military movement he was outlining, between 50,000 and 100,000 women had been raped between both the Allied and Axis regimes. I could not believe it. I was not only shocked by the number of attacks but also by the fact that this was the first time I was learning about any such violence. I was in my fifth class covering WWII history at the collegiate level, and this was the first time I had even heard of gendered and targeted violence. After class I did some more digging on sexual violence during WWII and found that the numbers my professor referenced were actually minimal compared to the projected total number of female rape victims in WWII. It is estimated that 2 million German women were raped by the Soviet Red Army soldiers during the war.1 I could not get over the exclusion of such widespread sexual 1 Walter S. Zapotoczny, “The Russian Army in Germany: 1945,” in Beyond Duty: The Reasons Some Soldiers Commit Atrocities (Fonthill Media, 2017). The Missing Gender Frame Lentz 3 violence from my education, and I was determined to learn more about sexual violence during conflict. That exploration led me to this project. In the subsequent pages, I will explore the phenomenon of sexual and gendered violence during war. When I began this venture, I set out to answer the question, “What is it about sexual violence crimes that makes them different from other crimes against humanity such that we do not talk about them?” In pursuit of an answer, I will provide a summary of some of the leading scholars’ work on gender imbalance, as well as the writings of practitioners in the field. Then, I will outline the history of prosecuting sexual violence and gendered crimes in the international criminal justice system (ICJS). I will explore case studies from the ICJS and track the development of precedent that has led to the current international justice approach in use today. I will utilize interviews I conducted with leading practitioners in the field to explore the ICJS from the view of those working inside it. I will explain my method for the questions I asked – ranging from their view of their role to the justice priorities of those working in international criminal courts – and the answers I received. Finally, I will close this project by concluding that we have a gender framing problem that spans from domestic policy to that at the highest level of international criminal justice. I will argue that our inability to verbalize the gender imbalance in our society inhibits our legal system from achieving justice for female victims of sexual violence. I will argue that in order to truly achieve justice for sexual violence crimes, we have to be able to address that on top of rape being an atrocious crime – as the ICJS has established through convictions over the past three decades – it is also a gendered crime. I will maintain that because of the gendered nature of sexual violence, rape is distinctive from other crimes against humanity as it targets victims based on gender. I will argue that only through addressing sexual violence The Missing Gender Frame Lentz 4 crimes committed against women as gendered crimes can we achieve justice for women as women. Throughout this analysis, I maintain that the ICJS employs criminal law to promote social good. In my estimation, the ICJS is promoting a broader socioeconomic and spiritual understanding of sexual violence for a particularly heinous form of crime. I make the distinction that no legal institution fights against the rule of law, rather, that changes are slow moving because progress has to be purposeful. I also maintain that the ICJS has made positive steps toward adjudicating sexual violence, even though there is a missing gender frame. I argue that we can continue to make our system better by acknowledging the gendered nature of sexual violence crimes. I will suggest that the effort to address the legacy of sexual violence should begin with education, as we can only tackle the problem if the public knows it exists. The Missing Gender Frame Lentz 5 Chapter 1: Literature Review Rape as a war crime is not a new idea. Rather, it has been a tool of domination for actors in conflict for centuries.2 The first recorded tribunal for war crimes – held in 1474 for German military leader Peter von Hagenbach – featured rape as a prominent portion of the conviction. But, in the centuries that followed, sexual violence was sparsely mentioned in military convictions or trials. By the time the Nuremberg Trials were conducted following WWII, rape was all but excluded from the court proceedings and entirely absent from the convictions. However, that is not to say that no progress has been made. In the past century, the international criminal justice system (ICJS) has been completely transformed. Formal tribunals were established and have convicted and sentenced those guilty of mass atrocity crimes. The International Criminal Court (ICC), the newest organism of the ICJS, is a staple of international justice and sets precedents for the adjudication of war crimes with its convictions. Over the past three decades there has been increased scholarship in the field of rape as a war crime, prompted both by the civil society interest in the issue and the increasing international attention paid to women’s rights and sexual violence. This work spans countries and ideologies. Scholars and field actors alike contribute to the body of work, studying the use of rape in conflict and the evolution in the legal treatment thereof. It is my view, for the reasons outlined throughout this project, that the developments in the treatment of rape in the ICJS have been path dependent. Each conviction delivered in the system is informed by the work of the preceding trials. It is also my view that expansion in approach and conception of gendered violence in the 2 Linda Grant, “Exhibit Highlights the First International War Crimes Tribunal,” in Harvard Law Today (15 Apr. 2020), today.law.harvard.edu/exhibit-highlights-the-first-international-war-crimes-tribunal/. The first known war crime was that of Peter von Hagenbach, who, in 1474, was tried and convicted by the first international criminal tribunal. His crimes included that of “violation of ‘the laws of God and man,’ specifically murder, rape and perjury.” The Missing Gender Frame Lentz 6 ICJS can come from the public. Civil society actors have been behind many of the developments that have expanded the equality and treatment of women in the ICJS, as examined in Chapter 2. In a similar vein, with the rise in feminist scholarship like that evaluated in this chapter, we have also seen an elevation in the treatment of sexual violence in the ICJS.