Forgiveness In Cases of Mass Atrocities

Gendered Subjects of Transitional Justice
Katherine Franke
Professor of Law, Columbia University
Prepared for ICTJ Meeting on Gender and Transitional Justice
Bellagio, Italy, March 17-20, 2005

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and future. This is no easy task, and shortcuts both in dealing with the past and in building a just future often appear irresistible. In Martha Minow’s words, justice at this juncture amounts to replacing “violence with words and terror with fairness,”1 of steering a “path between too much memory and too much forgetting.”2

The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past nor chart a fully just future. Transitional justice will always be both incomplete and messy.

Justice is, of course, a very complex ethical, legal, institutional and emotional problem, and its aspirations are rendered all the more difficult in transitional societies that are struggling with unstable governance, security and economic institutions. To better illuminate these complexities, particularly as they relate to gender, I will borrow a framing device from political scientist Nancy Fraser. In Justice Interruptus Fraser discusses one of the key dilemmas of justice projects: whether they should be fundamentally committed to redistribution or recognition.3

Justice as redistribution is a familiar concept entailing the reordering of material and symbolic resources based upon a particular account of culpability, desert, accountability, injury and fairness. These transitional justice projects could be primarily committed to redistributing money or land (in the form of reparations), but they would also redistribute shame (from the injured to the injurer), or power - resources that might be best understood as symbolic and cultural. By contrast, justice projects that emphasize recognition seek the establishment of official bodies (be they courts, tribunals, officially appointed commissions, or boards of inquest) whose task it is to recognize facts, and, more importantly, identities of the parties and acts that are brought to their official attention. The facts to be recognized may be culpability, harm, injury, or causation. Individual identities to be recognized would be that of criminal, victim, conspirator, or rights-holder, while the identity of particular criminal practices may be recognized as well, such as genocidal, gender or ethnic-based crimes.

Of course, a preference for redistribution over recognition, or visa versa, does not tell you which of the tools of transitional justice to prefer. Courts can both recognize and redistribute, as can truth and reconciliation commissions that possess the power to order reparations. However, I think it fair to say that while transitional justice mechanisms can undertake either or both justice as redistribution and justice as recognition, in the end of the day most of them end up accomplishing more recognition than redistribution. I will elaborate this conclusion at greater length below, but I offer it up front for consideration in order to ask an allied question: What are the particular benefits of recognition-based justice projects for the advancement of the interests of women and of gendered justice? Given that I don’t think existing contexts of transitional justice have delivered much in the way of redistributive justice, I do not think it a useful exercise to compare and then rank recognition and redistribution, since under ideal circumstances I would expect that we would pursue both of these forms of justice simultaneously.

If the platforms of transitional justice were to be evaluated with respect to their structural capacity to deliver “justice,” surely formal, legal prosecutions of those responsible for the injustice of the past rank high in most people’s estimation. To be sure, the injustice that is of concern in this transitional project is largely limited to violations of human rights, leaving to other fora the problem of less heinous conduct. Law professor Diane Orentlicher is among a group of scholars who has staked out the most emphatic position with respect to the importance of the use of prosecutions in transitional justice, arguing that international law imposes a duty to prosecute a prior regime’s human rights violations,4 and that prosecution is the optimal method of addressing past atrocities.5 Other scholars have argued that the “ethically defensible treatment of past wrongs requires that those individuals and groups responsible for past crimes be held accountable and receive appropriate sanctions or punishment,”6 and that “prosecution makes possible the sort of retribution seen by most societies as an appropriate communal response to criminal conduct.”7

Others have criticized the exaltation of the normative value of prosecutions in the project of transitional justice. After all, the underlying assumption of these prosecutions is that gross violations of human rights are crimes. Miriam Aukerman has offered a very thoughtful critique of Orentlicher and her colleagues, asking whether ordinary crime is really an “appropriate analogy for massive human rights atrocities, what Kant called ‘radical evil?’ ... Yet are genocide and ethnic cleansing really just more egregious versions of premeditated murder? ... Or are such atrocities qualitatively different from ordinary crime because of the number of victims involved and because they are typically undertaken or at least countenanced by state or quasi-state actors for political reasons?”8

Without resolving this debate here, it is worth asking what prosecutions can deliver in terms of transitional justice, particularly with respect to gender-based violations. I explore this question here in relation to what has happened in the messy world we inhabit rather than what might occur in an ideal world of unlimited resources and stable legal institutions. Of course, sexual violence against women during times of war and social upheaval is an old story, but until quite recently the masculinity of international humanitarian law was unable to appreciate how atrocities committed against women because they are women might amount to a violation of international humanitarian legal norms. Traditionally, rape has not been treated as a grave breach or as the actus reus of genocide, but rather as a crime against dignity and honor.9

Indeed, the masculinity of international law has prompted feminist scholars and activists to ask provocatively whether women were human?10 Rhonda Copelon, among others, has argued vehemently that rape of women be treated under international humanitarian law not merely as inhumane, but “with the same fervor as are the war crimes which happen routinely to men.”11

The last ten years of transitional justice jurisprudence has radically altered the treatment of gendered-violence under international law.12 The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ITCY) have both issued paradigm-shifting criminal indictments and convictions of men in Rwanda and the former Yugoslavia on the grounds that rape and other forms of sexual and gender violence be recognized as among the most serious offenses over which these tribunals have jurisdiction. The cases have recognized that rape and other sexual violence can constitute genocide, torture and other inhumane acts.13

The ICTY’s Prosecutor’s office has committed substantial resources to thinking through the meaning and manner of prosecuting sexual violence as a war crime, including the appointment of a legal advisor for gender-related crimes and the development of special procedural protections14 “both in relation to evidentiary rules for prosecuting gender crimes and affording protective measures to safeguard the physical and mental well-being of victims of and witnesses to those crimes.”15 These tribunals have established compelling precedent that led to the ratification of the Rome Statute establishing the International Criminal Court which explicitly
recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, gender-based persecution, sexual enslavement, enforced sterilization and sexual violence as war crimes and crimes against humanity.16

So, in many fundamental respects, international humanitarian law has come a long way in acknowledging the gendered components of violence during war. These advances, however, have been more symbolic than revolutionary in nature. Although the ICTR found that sexual violence could constitute a form of genocide in the Akayesu decision, it has done little to follow it up in terms of prosecuting sexual violence. The ICTR’s Prosecutor’s office has been widely criticized for failing to investigate sexual violence and rape, and for problems with training investigatory staff, witness protection, confidentiality protections and security in travel back from Arusha, inappropriate cross-examination, counselling for victims, and sanctions for inappropriate
judges.17

The ICTY has been subject to similar criticisms. Notwithstanding it’s efforts to be sensitive to the particular concerns that inhere in the prosecution of sexual violence, victims of rape and other sexual violence who have come before the Tribunal have felt themselves more silenced than heard by the Tribunal’s judges. In lodging this critique, scholars and activists have argued that rules of relevance, establishment of culpability, efficiency of judicial resources, and protection of the due process rights of defendants all cut against victim-witnesses telling their stories. Forced to testify to their experiences by answering prosecutors’ questions in “yes” or “no” manner, and interrupted by judges when their testimony veered beyond the immediate question of the culpability of the individual defendant, many victims of sexual violence who have testified before the ICTY have found their experiences as witnesses humiliating and disrespectful.18

Justice for these witnesses entails the public telling of their stories and a sense that they are being heard. But this kind of truth-telling is not within the jurisdiction of formal legal fora. The translation of human suffering into a vocabulary and a form that is acceptable and appropriate to a judicial proceeding can be a dehumanizing experience, not only for victims of sexual violence, but particularly for them. In this regard, Fiona Ross’ observations about the dilemmas of testifying before a Truth and Reconciliation Commission apply with equal force to testimony in a judicial proceeding: Testifying can be alienating - it demands that you “pose” your story for an outside listener. It appropriates the story from the domain of the intimate interior and externalizes it.19

In this sense, judicial proceedings like other platforms of transitional justice “instrumentalize memory in its own way, for its own purposes.”20

I offer this very brief summary of both the accomplishments and the limitations of criminal prosecutions of sexual violence as a form of transitional justice in order to better appreciate the potential for justice as redistribution and recognition in these fora. With respect to redistribution, successful prosecutions are not likely to result in a range of remedies that order the transfer of money, power or other resources from perpetrators to victims. Even if all of the wealth of the defendants could be made available as restitution to their victims, it would be an offensively inadequate reparation for the harm they have caused to their victims. Whether these prosecutions are successful in redistributing shame from victim to perpetrator is a separate, and quite interesting, question. Surely there should be shame in being found to have committed radical evil, but whether the actual defendants in these cases experience their convictions as shameful is an open empirical question. Of related concern is whether the act of testifying in court and then witnessing the conviction of those who have inflicted gross human suffering can alleviate or diminish the shame felt by the victims of sexual violence, or indeed can shift it from them to their persecutors. While this too is an open empirical question, the form of the criminal trial seems an unlikely vehicle for the redistribution of this species of shame. If, as Giorgio Agamben has argued, the “subject in becomes witness to its own disorder, its own oblivion as a subject,”21 can trials offer the reconstitution of subjective order and escape from oblivion that the redistribution of shame requires? As noted above, some of the women who have testified before ad hoc war crimes tribunals have felt dominated by the Tribunal’s efforts to render their testimony relevant and concise when they have sought to narrate their pain and their suffering.

We must consider whether the act of testifying in court shares a dynamic with the underlying acts being testified to, such that in both contexts “[w]omen’s bodies become sites of the visible enactment of power, shame is produced as the residue.”22 It is no new story that testifying in court can create a second or compound form of victimization for people who have suffered sexual violence.

If the possibility for redistributive justice is limited in the criminal prosecutorial context, what about the values of justice as recognition? The ICTY and ICTR have broken new and important ground in the recognition of rape, sexual slavery, enforced prostitution, forced pregnancy, gender-based persecution, sexual enslavement, enforced sterilization and sexual violence as among the most serious forms of war crimes. This is no small achievement, and cannot be minimized. It now goes without saying - largely because important legal authority have said it - that the kind of harm caused by this sort of sexual violence is normatively and legally on a par with the kinds of harm that men have traditionally suffered in war and in grossly unjust societies.

In a sense, however, the recognition of this kind of gender-based harm has come at a cost to the individual women who, as witnesses in the Akayesu, Delalic, Furundzija and similar cases, provided the judges with the scripts they needed to bridge the old and new understanding of gender and transitional justice. Any women could have done it, and in that sense the witnesses were fungible to a larger project of establishing a gendered dimension to international humanitarian law. In this sense, war crime tribunals as instruments of transitional justice operate best on the wholesale, not retail level. In the context of mass atrocities, the tribunals cannot come close to delivering “perfect justice” in the sense of establishing culpability and accountability for all the actors who caused egregious harm in the past. Instead, the tribunals have to settle for a minority of cases that can be used to establish important precedent, identify important kingpins or masterminds of the violence, or, in many cases, whomever they can get their hands on.23

Witnesses in these cases are invaluable resources in the production of wholesale justice, but the individuals become less important than the larger principles which their testimony helps establish. The ICTR provides ample evidence of this perverse fact of transitional justice through prosecution. Having established a novel and expansive rule of gendered justice in Akayesu, it is an open question what effect the doings in Arusha have had for the retail justice that is struggling to take place in the Gacaca system almost a thousand kilometers away in Rwanda. Some have argued that it has had almost no effect at all, beyond the symbolic level.24

Criminal prosecutions, whether in the ad hoc tribunals or by the ICC, must surely be one component of a comprehensive program of transitional justice, yet standing alone they necessarily fall short in delivering full justice for gender-related atrocities of the recent past. The translation of human suffering into the language of law and rights will always satisfy the interests of legal authorities more than those who are called to narrate their pain. The presentation of the injured self in legal fora does not necessarily produce a healed self, for the treatment of witnesses is by its very nature appropriative. In important respects, courts are consumers of the memories of others. Courts “gather” and “collect” evidence, prosecutors “present” witnesses, witnesses “deliver” testimony and “give” proof. To bear witness requires that victims pose themselves and their memories in a way that allows them to be harvested by judicial actors in the service of larger goals of justice. Healing the witness is not and cannot be the court’s concern.25

What is more, bearing witness in the service of healing requires an empathic listener, someone to hear and affirm suffering. Yet, this kind of empathic listening is not the listening of a judge - an objective arbiter tasked with deciding what happened.26 Thus, from the victim’s perspective the recognition-based justice that is possible in criminal prosecutions may bear, at best, an orthogonal relationship to the injured person’s need to remake the world so as to be “able to recontexualize the narratives of devastation and generate new contexts through which everyday life may become possible.” 27

Instead, criminal prosecutions - at their most sensitive to gender issues - recognize women as victims of sexual violence, and the women who come before the court must perform a kind of sexual vulnerability in order to be so seen as victims by the court. Fiona Ross has noted that women’s testimony has taken one of two forms. On the one hand, they operate as expert witnesses regarding the treatment of the men in their lives - husbands, sons etc. They are the repositories of memory, not victims in and of themselves. On the other hand, where women have personally suffered a number of violations, legal authorities tend to focus only on, or principally on the sexual molestation.28

It is worth noting that it is rare for criminal tribunals to treat genderbased atrocities as anything other than sexual violence against women. Of course men too are victims of sexual violence, and women are victims of gendered violence that is not sexual.

However, the treatment of gender-based violence has reduced in so many contexts to the incidence of sexual violation of women. The reduction of gender to the sexual and the ignorance of how men can suffer gendered violence is, to be most generous, a form of overcompensation for the years of ignoring women’s place in humanitarian law. Yet this overcompensation has had the effect of sexualizing women in ways that fail to capture both the array of manners in which women suffer gross injustice, as well as the ways in which men suffer gendered violence as well.

What is more, to see the “gender issue” surface only in the case of sexual violence is to elide the gendered dimensions of war, violence, and the investment in killing over caring.

Further, this problem of mis-recognition or over-recognition creates a structural tension related to healing and justice: Narrating sexual violation according to the strict rituals of legal testimony renders it all the more difficult for these victims to script new social possibilities and to claim a self who has a future, and is not tethered to a painful past. This, in the end, is among the central goals of transitional justice - coming to terms with the past in a way that helps chart a future that moves beyond that past. This is among the greatest challenges to transitional justice mechanisms: How to honor the injuries and crimes of the past while creating the possibilities for new ways of being in the future.

The scripted performance that many women are expected to perform as witnesses in criminal trials implicates another dilemma that inheres in the project of gendered justice during periods of social and political transition. War crimes tribunals, truth and reconciliation commissions, and other public mechanisms of transitional justice have complex objectives, but one of them is surely the project of reshaping a post-conflict national identity. These institutions serve to lay down a baseline, they mark out a past the society hopes neither to forget nor to return to. The first stages of transition are typically highly dynamic, characterized by “representational gap” where different narratives of the recent past battle to be dominant. Often women’s stories, women’s memories, women’s experiences are appropriated in the service of this rebuilding project. A popular identification with selected aspects of women’s suffering can be quite powerful. For instance, their sexual violation can come to stand for the violation of the nation as a whole. So too, the fact that the nation’s men were unable to protect “their” women from the violence of the recent past can be rendered as a metaphor for the emasculinization of the culture more broadly. Writing about the immediate post-World War II period in Germany, Heide Fehrenbach observed that “[i]n the wake of defeat and occupation, German men lost their status as protectors, providers, and even (or so it seemed for a short time) as procreators: the three Ps that had traditionally defined and justified their masculinity.”29 In this period in German history, Fehrenbach is concerned with excavating how masculinity, fatherhood and nation were explicitly linked to one another, and how the manipulation and appropriation of narratives of women’s suffering provided a narrative anchor for the remythologization of a national masculinity.

Different versions of this kind of problem can be found in many post-conflict societies.

At the end of the genocide in Rwanda, for example, the society had become radically feminized - that is, women outnumbered men by overwhelming ratios. These imbalance has been rectified in part through the return of Hutu refugees who had fled Rwanda over a period of years, however ongoing imbalances, coupled with explicit requirements for women’s representation in the national parliament risk “feminizing” the society in ways that are likely to be met with strong efforts to remasculinize Rwandan culture. In this regard the motifs and rituals of cleansing after war need bear close attention to their gendered and counter-gendered implications. There is a rich literature analyzing this dynamic in post-war Germany that urges due care and attention to the ways in which masculinity and femininity get articulated in the process of restoring postconflict national identity.30

In different ways and by different means, rebuilding post conflict societies is almost inevitably a process of re-masculinization. Left untended, this process can take the form, for instance, of reinstalling men as good citizens by and through the ideological redefinition of “women’s place,” or of formulating new political leadership in the form of a “national father.”

Those who have studied post-war Germany have observed how rebuilding the vaderland was converted into a project of establishing a land of fathers. While these concerns should be attended to with respect to all the mechanisms of transitional justice, they have particular purchase in the context of criminal prosecutions for gross injustice from the immediate past. To the extent that criminal tribunals tend to expect and solicit testimony of sexual violation from female witnesses, women become figured in collective memory as particular sorts of victims that encourage popular identification with selected aspects of women’s experience. This is not to say that the culture should ignore the reality of sexual violation of women. Rather, we best appreciate how the testimony provided to criminal tribunals amounts to an ppropriation of the meaning of women’s suffering - they lose control of giving meaning to that suffering both for themselves and for the role it may play in the shaping of collective memory. Law itself tends to be a particularly masculinist practice, elevating rationality and objectivity over context and nuance, preferring process to substance, master narrative to nuance, and being generally ill suited to the kind of empathic listening that would transform the speaking self into a healing self.31 Even where law’s masculinity has been constrained, as in for instance the adoption of special procedural and evidentiary protections related to the prosecution of sexual violence, we must be realistic in our expectations of the kind of gendered justice that it can deliver.

None of this is to say that we should abandon criminal prosecutions as a key instrument in the transitional justice toolbox. Rather, transitional justice should be viewed as a critical practice and an ongoing experiment in which future applications of its methodologies should benefit from the lessons learned from our previous efforts.

The Special Court for Sierra Leone has sought to apply lessons learned from the ICTY and ICTR ad hoc tribunals. A hybrid court, located in Sierra Leone rather than extraterritorially as were the two ad hoc tribunals, it will try cases against those who “bear the greatest responsibility” for violations of international humanitarian law since November 30, 1996, and is expected to complete its business within three years of its establishment in 2002.32

Perhaps most important, what distinguishes the Sierra Leone Special Court from the ad hoc tribunals is the fact that a Truth and Reconciliation Commission has been set up to operate simultaneous to the legal prosecutions.33

While underfunded and arguably under-mandated, the Sierra Leone two-track process may be better able to address the under- and mis-recognition problems of the past as these two fora, undertaken as compliments to one another, can minimize the limitations to community and group healing and justice that they each must bear.