Justice in criminal prosecution

It is not only sexualised violence itself women in war and crisis zones experience from day to day, but they also see perpetrators being exempt from punishment. This equals denial of the very injustice committed. And even more than that: as it is often the women who are held responsible for the events, they risk isolation from society if they testify in court. It is only at the cost of silence and by relinquishing justice that many women, and in particular girls, have a chance to avoid being stigmatised.

War rapes were long considered collateral damage and remained unprosecuted. This changed only when the two UN Tribunals for the Former Yugoslavia and Rwanda were established in 1993 and 1994 respectively. In several trials, rape was punished as a war crime, a crime against humanity and as genocide. Also the International Criminal Court, established in 2002, attaches great importance to the criminal prosecution of sexualised violence, as is expressed in its Statute. This was endorsed also by the German negotiating committee after consultations with, among others, medica mondiale.

These unquestionable legal improvements, however, either remain irrelevant for most women and girls in current war and crisis zones or fuel hopes of justice that are later dashed. While the UN Security Council in June 2008 condemned the widespread or systematic use of sexualised violence in war in Resolution 1820, saying that it exacerbates conflicts and threatens world peace, charges of rape before the International Criminal Court are often merely attachments to indictments. They thus do not make a noticeable contribution against the withdrawal of social solidarity with victims of such violence. However, this very withdrawal of solidarity is the main reason that prevents survivors of rapes from fighting for their own rights and for compensation. Still only few women are willing to testify in court.

Once in court, female witnesses are faced with further problems: in order to protect themselves from acts of revenge and stigmatisation, they often make anonymous statements at their own request, but are later often threatened in their home villages because everyone there learned about their testimony all the same. During cross-examination, they are often exposed to demeaning questions, without prosecutors or judges intervening. Investigators use false promises to talk them into testifying. Only rarely are they informed about the progress or the outcome of the proceedings. Women and girls in northern Uganda and the Democratic Republic of Congo report that disrespectful and ignorant behaviour on the part of the staff of the International Criminal Court is quite common. As a general rule, all courts of justice are lacking comprehensive care for female witnesses; they receive neither psychosocial counselling nor medical treatment – quite unlike the perpetrators, who, for example, receive medication when they have an HIV infection, while the women infected through rape receive no care.

Survivors of sexualised violence in war must – similarly to other victims – be able to decide, free of any fears of stigmatisation, whether they want to testify in court. They must have the possibility to fight for their rights, for compensation or for indemnification proceedings in dignity without paying the price of social exclusion. It is only then that the term “justice” can at all be used in connection with rapes in war. This requires for legal professionals to change their ideas. When helping women to cope with sexualised violence in war, the withdrawal of social and cultural solidarity with rape victims as a repeated gender-specific human rights violation must no longer be ignored. Rather, it must be actively counteracted. This concerns both the definition of the crime itself, the rules of procedure, protective measures, sensitive treatment of female witnesses, and also the court’s public statements and its priorities. Furthermore, it requires sexualised violence in war to be seen and prosecuted in its entire extent and its various functions. Often enough, charges are only obtained with considerable effort on the part of women’s rights organisations – and are then frequently dropped by the prosecution. The immediate perpetrators must be held responsible in an equally consistent manner as those who, due to their political or military function, are responsible for or accept rapes or do not take effective countermeasures against them. Also Germany’s legal authorities have a responsibility: the new Code of Crimes against International Law, which entered into force in 2002, subjects genocide, war crimes and crimes against humanity to German jurisdiction even if no relations to Germany are apparent.

The so-called Foča Trial is of particular importance when it comes to prosecuting crimes of sexualised violence. It is named after the South Bosnian town and was the first to treat exclusively rapes, sexual mistreatment, torture and enslavement of women committed as of April 1992. In February 2001, the International Criminal Court for the former Yugoslavia assessed organised rape as “sexual enslavement” and a “crime against humanity”. The three accused were sentenced to between 12 and 28 years of imprisonment for rape, sexual enslavement and torture. One year later, on 1st July 2002, a statute entered into force that forms the basis for the International Criminal Court. Also in this context, women’s organisations fought for the gender-specific perspective to be anchored in the text. The legal basis created by the International Criminal Court can be regarded as a great improvement. Practical implementation, however, leaves a great deal to be improved, for law itself is not enough to create justice.

• War rapists must be prosecuted in a consistent manner at national and international level.
• The aspect of social stigmatisation must be considered when legally examining sexualised violence.
• National and international criminal courts must develop investigation and indictment strategies that are appropriate to this crime.
• Public prosecutors and indicting authorities must set up separate offices with far-reaching authority to issue instructions and separate budgets for prosecution of sexualised violence in war.
• The Federal Public Prosecutor’s Office in Germany must use its discretionary powers to carry out targeted investigations of perpetrators of sexualised violence as defined in the Code of Crimes against International Law.
• The rights of victims and witnesses to legal representation as guaranteed by the International Criminal Court must be financially secured.
• Women and girls having survived sexualised violence must be empowered in all respects in order to be able to make conscious decisions and remain in control of their role during legal proceedings.
• Female witnesses must be effectively protected against acts of revenge and threats and their right to privacy must be effectively safeguarded.
• Female witnesses must be granted a right to psychosocial and medical help.
• The entire staff of investigating authorities and courts must obtain continuous training with regard to individual and social consequences of sexualised violence in war and to the respectful treatment of former rape victims.
• Compensation mechanisms without demeaning verification procedures must be instituted at national and international level.
• The German Federal Government must advocate the establishment of an international documentation and information centre on the criminal prosecution of sexualised violence.