Sex and International Tribunals - Chiseche Salome Mibenge Pennsylvania Studies in Human Rights

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community’s representation of the TRC as a restorative and indigenous model of justice and the impact this has had on the commission’s specific framing of gender and violence in Sierra Leone. In particular, I show how the report’s rights based emphasis on forced marriage and early marriage as forms of gender-based discrimination produces a problematic narrative of marriage as an oppressive institution for women. As in Chapter 2, I introduce narratives in contradistinction to the dominant narrative. I create such categories as “adulterous wives,” “cuckolds,” and “merry widows” to illustrate that women do exercise agency, even from within oppressive social structures. In this chapter, I borrow heavily from narratives produced by ethnographic researchers embedded in Sierra Leonean society whose work inadvertently but importantly disrupts the dominant legal narratives that I question.

      In Chapter 4, I remain in Sierra Leone but move my focus to the Sierra Leone Special Court. A review of this court is important because its statute creates an extraordinary and broad gender mandate. The statute specifically calls for the Office of the Prosecutor to adopt measures that ensure the justice process realizes women’s and girls’ specific needs. In light of this mandate, I critique the decision-making process of the prosecutor, which I argue discriminated against female victims and witnesses and negatively affected their ability to participate in the justice process. I also critique the Special Court’s narratives around forced marriage and sexual slavery as crimes distinct from the customary international law crime of slavery. This distinction made by the court relies on reducing crimes, such as forced marriage and sex enslavement, to multiple incidents of the rape of women. In so doing, the law avoids a broader gender analysis that would reveal the complexity of the crime of enslavement and the ways in which an enslaved person, irrespective of gender, experiences the loss of sexual reproductive health and autonomy, sexual autonomy, physical integrity, and dignity. Using a historical perspective, I borrow from the gender analyses of scholars who have studied transatlantic slavery and colonial wars to support my critique of legal categorizations such as “sexual slavery.”

      In Chapter 5, I provide a final roundup and review of my narratives and arguments. It is important for me to add at this stage that during my field work, I came to consider all Rwandans and Sierra Leoneans, who had lived in their respective countries or even the region during any period between the outset and the close of the armed conflict, as survivors of the conflict. I use the term survivor to convey that the civilian population was disproportionately targeted for and affected by human rights violations and war crimes committed by the conflict. Despite the targeting, they survived.28 This approach in the field allowed me to avoid categorizing individuals dichotomously as either victims (women) or perpetrators (men).

      Finally, I am guided in my selection of narratives and alternative narratives by Poyi Soyinka-Airewele’s reminder that “in the narrative of African societies the invocation of the past is most intense when it is embodied within the discourses and memories of violent struggles, of communities emerging from and through collective traumas, of oppression, violent resistance and the continuity of pain on the minds of those who have suffered” (Soyinka-Airewele 2004: 7).

       Chapter 1

       The Women Were Not Raped: Gender and Violence in Butare-Ville

      In May 2004, a decade after the genocide, I sat with Aimable, a state prosecutor at the Office of the Prosecutor of Butare-Ville in Rwanda. I asked him for his thoughts on why prosecutors failed to pursue allegations of sexual violence. He answered with a story, describing a curious incident:

      A detainee confessed to having raped a number of women. Aimable immediately recognized that this was an incredible confession considering that the death penalty was still in place in Rwanda for those who confessed to sexual violence and other crimes listed as category one offenses. Confessions for lower level crimes were frequent in 2004, but Aimable had not yet encountered a confession to a category one crime. The detainee made a full disclosure, and he listed the names of his accomplices and of the women, living and murdered, he had raped. Aimable duly commenced an investigation into these claims, starting with statements taken from the survivors. However, Aimable was faced with the unexpected predicament that the alleged victims denied that they had been raped by the accused or his accomplices. The women completely refused to cooperate with the Office of the Prosecutor. Consequently, Aimable was forced to withhold the rape charges from the dossier, although he did not doubt their veracity. I asked Aimable why the women reacted as they did, and he responded with a nod in my direction: “You should know why.”

      I assumed at the time that “I should know why” because I am a woman, and as my introductory chapter reveals, I received an early education in “rape fear.” Therefore, I could easily place my rape fear into the context of a postconflict, yet still insecure society, where reprisal killings of women alleging rape were widely reported. However, I also assumed that “I should know why” because as a guest of the Office of the Prosecutor I resembled Aimable more than I resembled the raped women: I shared Aimable’s academic and professional training as a lawyer and his experience of the criminal justice process. I understood as well as he did the opportunities and the challenges women genocide survivors would encounter when accessing that process. Some challenges stemmed from convoluted procedural issues and others from the substantive complexity of sexual violence as a crime against humanity and an element of genocide.

      I have used Aimable’s anecdote as well as the story of the denial of the women victims in lecture halls in Europe and the United States, and have thus produced a narrative about justice, gender, and violence. While I can quote or at least paraphrase Aimable’s words, I produce a silence when it comes to the women. A gender analysis of the silence of the women victims is, however, also essential because their resistance to speaking within the criminal justice machinery produces a gap that acts as a challenge or counterweight to the promise (made by the likes of Aimable and me) of human rights law and transitional justice interventions to prevent or punish violence and other forms of discrimination against women.

      The gap I describe also reveals the underlying political context that engenders violence against women in conflict as well as peaceful societies: Annemiek Richters’s study of rape survivors in the United States showed that their experience made them aware of the “little rapes” that plague women on a daily basis. “Little rapes” were defined as encounters with such phenomena as sexist jokes and pornography, which were only perceived as negative after the experience of rape. Survivors realized that their real life world and their language are full of symbols of objectification and degradation of women, out of which the potential for rape arises. They became acutely aware that they were victims not only of an individual perpetrator but of male hegemony within society at large and of the social and political constructions that enable and even sanction gender-based violence (Richters 1998: 114).

      Similarly, Susan Brison, a philosopher and survivor of sexual violence and attempted murder, describes her subsequent awareness of a pervasive culture of violence against women broadcast innocuously by the media in the United States. She explains that events such as the trials of the defendants in the Central Park jogger case, the controversy over the book American Psycho (and subsequently its film version), the Kennedy rape case, and the Tyson trial triggered “debilitating flashbacks” and a “visceral” reaction (Brison 1998: 21).1 And Brenda V. Smith, a professor of law, describes how she has been able to place an abusive relationship between her parents within the context of a number of other equally violent experiences in her life, such as racial segregation, poverty, and a fear for her safety with people outside of her home (2003).

      Richters, Brison, and Smith politicize what might otherwise be regarded as “ordinary violence.” They push the reader to grasp the gravity and pervasiveness of violence, or the threat of violence in “peacetime,” and its objective of maintaining gender inequality. The “little rapes” perpetuate violence against women such that the insecurity that women experience in peacetime is commensurate with that in a conflict. I believe that Aimable’s victims, a decade after the genocide, were aware of the “little rapes” in their society, seen in the

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