Sex and International Tribunals. Chiseche Salome Mibenge

media as “brutally gang raped and dying of AIDS”;² the escalation of sexual abuse of the girl child in the home; and the examination and cross-examination of women before the International Criminal Tribunal for Rwanda and domestic courts often perceived by survivor groups as humiliating.

      In 1994, Rwanda’s legal system lay devastated by a long civil war, a swift genocide, and a judiciary that had lacked independence for decades. This situation resulted in impunity for state sponsored violence. In spite of this legacy, the transitional government known as the Broad-Based Government of National Unity (1994–2003) dedicated itself to renewing public faith in the judiciary, putting justice at the center of the country’s democratization and peace process. A strong human rights discourse buttressed this call for far-reaching judicial and legislative reform. This governmental commitment mandated that prosecutors investigate sexual violence as an element of the genocidal massacres.

      Human rights defenders in all conflict zones refer to the “culture of silence” surrounding sexual violence. Victims and their communities are said to refuse to disclose sexual violence to authorities, such as prosecutors, international investigators, the media, and human rights defenders. In contrast to these common assertions, I was taken aback during my research at the National University of Rwanda’s Center for Conflict Management by the forthright manner in which Rwandans, male and female, discussed sexual violence as it was perpetrated during the 1994 genocide and as it had proliferated in postconflict society. In private as well as public spaces, such as the police station, Office of the Prosecutor, and the university’s department of law that I visited, there was no culture of silence. I attribute this openness to the fact that rape in Rwanda was a public act, committed by light of day in classrooms, open fields, and even outside government offices where female internally displaced persons converged to seek refuge from militias and other genocidaires. At the same time, however, the high public visibility of rapes largely not only precluded discussions of specific cases of the rape of individual women but also made little impact on the prosecution of perpetrators of these rapes. A decade after the genocide, the gap between documented cases of sexual violence and criminal prosecutions of this crime was unacceptably wide.³

      Since the 1994 genocide, some notable gains have been made in strengthening the human rights law framework at the domestic, regional, and international levels. However, these gains apparently were not enough for “Aimable’s victims.” They, and many other women, continued to choose to remain outside the parameters of formal legal redress offered by the state. Can silence create a narrative? In my experience, yes. The silent narrative of these women undergirds my review in this chapter of the international human rights law and international humanitarian law frameworks for the protection of women against violence, particularly gender-based violence. It suggests a gap between the imperatives of legal process and those of its intended beneficiaries.

      In order to address this gap, I explore two important legal approaches to eradicating gender discrimination: the application of “formal equality” and the “single category axis.”⁴ Formal equality implies that women have equal rights and are treated as equal to men. Throughout the twentieth century, the formal equality approach to redressing the denial of women’s human rights played an important role in combating inequality and discrimination against women. A popular example of its application could be seen in the post–World War II era when many European women were granted the legal right to vote.

      A limitation of formal equality is that granting everybody the same rights does not ensure that these rights have an equalizing effect since everybody is not similarly situated. Thus, despite the legal award of formal equality, it may well be that some women still require the implicit or explicit permission of a guardian (such as a father or mother-in-law) before registering to vote. Or women citizens (unlike men) who marry foreign nationals may immediately lose their citizenship and the attendant right to vote. It may also be that as a result of a discriminatory education system, women’s literacy levels are dramatically lower than those of men’s, making them less informed about candidates’ policies and reducing their inclination or ability to independently register as voters. Thus, realizing equality beyond formal equality requires complex and long-term gender-specific measures before the electoral process is a truly participatory one for both men and women.

      The application of a single category axis analysis entails that lawmakers center their response to inequality and discrimination on one feature, and in the case of armed conflict, we see the recurring imagery of an essentialized female measured against an essentialized male.

      Both formal equality and the single category axis approach result in legal responses that can only effect cosmetic or limited challenges to gender inequality, for example, by creating formal de jure equality between men and women. Further, the positive outcomes of the legal responses privileges a limited and usually elite group of women and not a wider demographic. Women’s identities are multidimensional, which means that a combination of factors intersect with gender to shape and distinguish inequality and discrimination for individual as well as collective groups of women. Multiple identities in the gender group could refer to religion, civil status, age, race, ethnicity, nationality, disability, caste, and sexual orientation. Intersecting identities can aggravate as well as mitigate gender-based discrimination against women depending on the social and political context in which a woman is located. Overturning essentialism and understanding the role of intersecting identities is crucial for the human rights law framework to meet effectively the concerns of women at all levels (universal, collective, and individual).

      To clearly illustrate the human rights law framework for the purposes of a gender analysis, I have created a three tiered structure of rights. In the first part of this chapter, I divide international and regional laws into three “tiers” representing a progression of the inclusion and exclusion of women as a gender group and gender-based violence into and from the human rights discourse. My examination of the trilevel framework also reveals the gradual trespass of human rights law into situations of armed conflict and the jurisdiction of international humanitarian law, also known as the laws of war. I begin with the caveat that my selection of the various human rights instruments should not be read as a chronological or linear evolution of human rights legislation. For example, a 1948 declaration should not immediately be viewed as less gender inclusive than a 1978 declaration. Rather, what guides my chronology from the first to the third tier is the inclusion of gender into the ambit of the instrument in question. Further, the instruments I refer to in this study should not be regarded as exhaustive. I have selected representative laws that provide clear illustrations of a shift toward gender awareness in the interpretation and application of norms that ostensibly protect women against discrimination.

      In the second part of this chapter, I discuss two key features of the feminist legal critique of international humanitarian law. The first relates to the reductionist presentation of women as vulnerable mothers, and the second to the interpretation of violence against women in wartime as an honor crime against the community. I support the feminist critique in its call for individualizing the multiple harms women experience in war, but I also argue that the critique should not totally ignore women’s identities in the collective, and women’s own valorization of motherhood and their reproductive capacities. An elaborate intersection between individual and collective harm shaped ethnic violence in Rwanda, and in order to describe it, I refer extensively to the feminist critique of legal scholarship on the Holocaust for its failure to unpackage the harm Jewish women suffered as mothers and caregivers of children. I also use the repatriation of Korean women after World War II and Indian women after partition as comparative examples that demonstrate that women’s roles are multidimensional and that a strong individual identity does not have to exclude a woman’s membership in a group or her desire to fulfill the gender roles within her community.

       First Tier

      The first tier of international human rights law was enacted shortly after and was greatly influenced by World War II. The Universal Declaration of Human Rights (1948) (UDHR) has influenced the development of subsequent human rights treaties, codes, declarations, and proclamations since its adoption. In particular, the International Covenant on Civil and Political Rights (1966) (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (1966) (ICESCR) greatly elaborated on the principles