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Published online by Cambridge University Press: 25 March 2011
Although international security studies tend to focus on the nature of armed conflict and how nations fare in the face of such conflicts, our attention has been drawn to the challenge of managing the peace. Specifically, given the enormity of the damage caused by state-sponsored violence, both in terms of property and in terms of human damage, how can the people of a nation that has served as a battleground be assisted in their recovery from the devastation caused by conflict? Ongoing trauma from armed conflict has peculiarly gendered dimensions and requires solutions that are attentive to those dimensions. Here, we focus on remedies that shift from perpetrator-centered tribunals to victim-centered compensation commissions. Using the United Nations Compensation Commission established to provide restitution to Kuwaiti citizens following the Iraqi invasion as an example, we argue that the restitution model is a more humane and ethical option for managing the aftermath of conflict than war crimes tribunals, which employ a retributive philosophy. Using the limited evidence available on compensation and rebuilding, we make concrete recommendations for an approach to post-conflict adjudication that makes the well-being of victims its top priority.
1 Bridget Byrne, “Gender, Conflict and Development,” Report 34, Institute of Development Studies (Brighton, U.K.: Institute of Development Studies, 1996) p. 29; available at http:\\www.ids.ac.uk/bridge/Reports/re34c.pdf.
2 Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law (Chicago: University of Illinois Press, 2004), p. 120.
3 In other works we have examined the operation of war crimes tribunals vis-à-vis the special circumstances of female victims of armed conflict. See Sara L. Zeigler and Gregory G. Gunderson, “Pernicious Patriarchy or Prosecutorial Progress: Confronting Culture, Combat, and Rape in International Law,” Journal of Conflict Studies 25, no. 2 (2005).
4 Scott Splittgerber, “The Need for Greater Regional Protection for the Human Rights of Women: The Cases of Rape in Bosnia and Guatemala,” Wisconsin International Law Journal 15, no. 1 (1996), pp. 198–200.
5 “Report of the Secretary-General on Women, Peace and Security,” S/2002/1154, New York, October 16, 2002, p. 3. For a particularly powerful treatment of sexual violence in multiple genocidal contexts, see Catherine MacKinnon, “Genocide’s Sexuality,” in Melissa Williams and Stephen Macedo, eds., Political Exclusion and Dominations (New York: New York University Press, 2005), pp. 313–56.
6 Zeigler and Gunderson, “Pernicious Patriarchy.”
7 Jerome Socolovsky, “Bosnian ‘Rape Camp’ Survivors Testify in the Hague,” Women’s Enews (July 19, 2000); available at http:\\www.womensenews.org/article.cfm?aid=204.
8 “Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991,” A/59/215-S/2004/627, New York, August 16, 2004, p. 91; available at http:\\www.un.org/icty/glance/index.htm.
9 Byrne, “Gender, Conflict, and Development,” p. 35.
10 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Reservations (New York: United Nations, 2002); available at http:\\www.unhchr.ch/html/menu3/b/treaty2_asp.htm.
11 Kerstin Greback and Eva Zillen, “Engendering the Peace Process, a Study on the Dayton Peace Accord, Updated Version,” EMG/Peace/2003/EP.2 (Ottawa: United Nations Division on the Advancement of Women, 2003), p. 5. See also “Report of the Secretary-General on Women, Peace and Security,” p. 1; and Byrne, “Gender, Conflict, and Development,” p. 28.
12 Byrne, “Gender, Conflict, and Development,” p. 25.
13 “Report of the Secretary-General on Women, Peace and Security,” p. 2. See also Greback and Zillen, “Engendering the Peace Process,” p. 11.
14 Women’s International Network News, “Women Proposed as U.N. Peacekeepers,” reprinted from the Boston Globe in WIN 25 (Lexington, Mass.: WIN News, 1999), p. 13.
15 Fred Pelka, “Voices from a War Zone,” Humanist 55, no. 2 (1995), p. 6.
16 Sara L. Zeigler and Gregory G. Gunderson, Moving Beyond G.I. Jane: Women and the U.S. Military (Lanham, Md.: University Press of America, 2005), pp. 121–24.
17 Ibid., p. 132.
18 Byrne, “Gender, Conflict, and Development,” pp. 13–15.
19 Greback and Zillen, “Engendering the Peace Process,” p. 3.
20 Amnesty International, “International Criminal Court: Amnesty International’s Urgent Appeal to Countries that Have Ratified the Rome Statute Creating the International Criminal Court to Address the Disturbing Lack of Nominations for Female Candidates for Judges,” IOR40/034/2002 (London: Amnesty International, 2002); available at web.amnesty.org/library/index/engior400342002.
21 MacKinnon, “Genocide’s Sexuality,” pp. 313–56.
22 Kelly D. Askin, “Women and International Humanitarian Law,” in Kelly D. Askin and Dorean M. Koenig, eds., Women and International Human Rights Law, Vol. I (Ardsley, N.Y.: Transnational Publishers, Inc, 1999), pp. 46–47.
23 Christine Chinkin, “Background Paper: Peace Agreements as a Means for Promoting Gender Equality and Ensuring the Participation of Women,” EGM/PEACE/2003/BP.1 (Ottawa: United Nations Division for the Advancement of Women, 2003), p. 5; available at http:\\www.un.org/womenwatch/daw/egm/peace2003/documents.html.
24 UNSC Res. 1325 (October 31, 2000), pp. 1–4.
25 Chinkin, “Background Paper,” p. 14.
26 Anna Lithander, ed., Engendering the Peace Process: A Gender Approach to Dayton—and Beyond (Stockholm: The Kvinna Till Kvinna Foundation, 2000), p. 24.
27 Chinkin, “Background Paper,” p. 21.
28 Zeigler and Gunderson, “Pernicious Patriarchy.”
29 Chinkin, “Background Paper,” p. 22.
30 Judith G. Gardam and Michelle Jarvis, Women, Armed Conflict, and International Law (The Hague: Kluwer Law International, 2001), p. 241.
31 Carolyn Boynes-Watson, “In the Belly of the Beast? Exploring the Dilemmas of State-Sponsored Restorative Justice,” Contemporary Justice Review 2, no. 3 (1999), pp. 261–82; and James Bonta, Suzanne Wallace-Capretta, Jennifer Rooney, and Kevin McAnoy, “An Outcome Evaluation of a Restorative Justice Alternative to Incarceration,” Contemporary Justice Review 5, no. 3 (2002), pp. 319–39.
32 For an analysis of the foundations of international law with respect to adjudication of sexual violence against women, see Zeigler and Gunderson, “Pernicious Patriarchy.”
33 We recognize that the United Nations and the international community cannot control the composition of the leadership of parties to conflicts and therefore cannot dictate the sex of participants.
34 For a detailed discussion of gender issues and PKOs, see Zeigler and Gunderson, Moving Beyond G.I. Jane, especially ch. 7.
35 As quoted in Ghanim Alnajjar, “Human Rights in a Crisis Situation: The Case of Kuwait after Occupation,” Human Rights Quarterly 23, no. 1 (2001), p. 195.
36 Christine Chinkin, “Rape and Sexual Abuse of Women in International Law,” European Journal of International Law 396, no. 3 (1994), p. 1. In this case, unfortunately, the sexual assaults did not stop with the defeat of Iraqi troops in Kuwait by coalition forces. After the liberation of Kuwait, large numbers of female foreign workers were subject to sexual assaults. “An American adviser to the Kuwaiti government was quoted as saying that the reason for the prevalence of rape was a combination of a shortage of police officers, plus the fact that the ‘police don’t care because they are only Filipinos or Sri Lankans, ’” Chinkin, “Rape and Sexual Abuse,” p. 2. For more on the occupation of Kuwait, see “Report of the Special Rapporteur on the Situation of Human Rights in Kuwait Under Iraqi Occupation,” E/CN.4/1992/26, New York, January 16, 1992.
37 Catherine N. Niarchos, “Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia,” Human Rights Quarterly 17, no. 4 (1995), p. 667, n. 116.
38 It is beyond the scope of this paper to explain fully the relationship between rape in armed conflict and international law. For a more complete discussion, see Zeigler and Gunderson, “Pernicious Patriarchy.”
39 Howard Zehr and Harry Mika, “Fundamental Concepts of Restorative Justice,” Contemporary Justice Review 1, no. 1 (1998), pp. 47–56.
40 Dinah Shelton, “Righting Wrongs: Reparations in the Articles on State Responsibility,” American Journal of International Law 96, no. 4 (2002), p. 835; Boynes-Watson, “In the Belly of the Beast?” p. 265.
41 International Court of Justice, Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Report 166 (The Hague: United Nations, 1973), p. 47.
42 Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 178-81; and Dinah Shelton, “Reparations to Victims at the International Criminal Court,” prepared for the 1999 Meeting of the Preparatory Commission for the International Criminal Court (New York: Center on International Cooperation, New York University, 1999), p. 4; available at http:\\www.nyu.edu/pages/cic/pubs/ReparVictimsNewPrint.html.
43 Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 178–81.
44 The payment of reparations for damages and losses during armed conflicts is a long-standing tradition in the history of international relations. See David J. Bederman, “The United Nations Compensation Commission and the Tradition of International Claims Settlement,” New York University Journal of International Law and Politics 27, no. 1 (1994), pp. 1-42. Reparations of this type have normally been paid as a lump sum from one government to another, however, usually from the defeated to the victor, to be used as the victorious government saw fit. Therefore, the reparations payment does not necessarily reach the civilians who have been harmed by the conflict.
45 Carlos Alzamora, “The UN Compensation Commission: An Overview,” p. 4, and Ronald J. Bettauer, “Establishment of the United Nations Compensation Commission: The U.S. Government Perspective,” p. 30, both in Richard B. Lillich, ed., The United Nations Compensation Commission: Thirteenth SOKOL Colloquium (Irvington, N.Y.: Transnational Publishers, Inc., 1995).
46 As quoted in Ronald J. Bettauer, “The United Nations Compensation Commission—Developments Since October 1992,” American Journal of International Law 89, no. 2 (1995), p. 416.
47 John R. Crooks explains the claims filing process this way: “Claims and supporting evidence are gathered from individual claimants by national governments, using standardized forms developed by the Commission. Individuals have no further involvement in the system until eventual payment. Claims are presented to the Commission by governments in consolidated groups.” John R. Crooks, “The UNCC and Its Critics: Is Iraq Entitled to Judicial Due Process?” in Lillich, The United Nations Compensation Commission, p. 79.
48 UNCC Decision Number 10 (1992). All decisions of the UNCC are reprinted in Appendix C to Lillich, The United Nations Compensation Commission, pp. 397ff. Hereafter, we simply cite UNCC decisions by their number and date.
49 Gardam and Jarvis, Women, Armed Conflict and International Law, p. 234; Alzamora, “The UN Compensation Commission,” p. 6.
50 All amounts are in U.S. dollars.
51 Bettauer, “Establishment of the United Nations Compensation Commission,” p. 39.
52 UNCC Decision Number 17 (1991).
53 Some exceptions would be made for the filing of late claims in certain circumstances. See Gardam and Jarvis, Women, Armed Conflict and International Law, p. 235.
54 Alzamora, “The UN Compensation Commission,” p. 6.
55 United Nations Division for the Advancement of Women, “Women 2000—Sexual Violence and Armed Conflict: United Nations’ Response” (New York: United Nations, 1998); available at http:\\www.un.org/womenwatch/daw/public/w2apr98.htm.
56 Veijo Heiskanen and Robert O’Brien, “UN Compensation Commission Panel Sets Precedents on Government Claims,” American Journal of International Law 92, no. 2 (1998), p. 340.
57 Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 235–36.
58 UNCC Decision Number 3 (1991); Gardam and Jarvis, Women, Armed Conflict and International Law, p. 238.
59 UNCC Decision Number 3 (1991). The fact that the UNCC felt compelled to clarify this issue and “decide” that sexual assault constitutes an injury is telling and illustrates the androcentric slant of prior definitions of injury. Italics added by authors.
60 United Nations Division for the Advancement of Women, “Women 2000”; Gardam and Jarvis, Women, Armed Conflict and International Law, p. 239.
61 Under Rule 105 of the ICTY’s Rules of Evidence and Procedure, the ICTY may order restoration of property to a victim. Under Rule 106, the victim has the right to sue for compensation in national courts. International Criminal Tribunal for the former Yugoslavia, Basic Legal Documents: Rules of Evidence and Procedure 2005, rev. 36 (The Hague: United Nations Publications, 2005); available at http:\\www.un.org/icty/legaldoc-e/index.htm.
