INTRODUCTION

Societies in general often consider policing to be a male profession. The end result is that most police forces are comprised primarily of men. This is the case in Bosnia and Herzegovina (hereby simply referred to as Bosnia) where, historically, few women have participated in law enforcement and where police culture has been heavily steeped in traditions of patriarchy and sexism (which were exacerbated by the 1992–1995 war). Gender integration, however, has become a focal point of the police reformation process in post-conflict Bosnia. Gender integration activities have largely targeted the recruitment, hiring, and advancement of female officers throughout Bosnia. As a result, women now currently constitute 6.3% of the Bosnian police force. Despite the push to integrate females into the police force, little is known empirically about these women. Who are they? What are their experiences? What are their attitudes? What attracted them to policing? Are they ‘different’ than their male colleagues? And if so, how?

This essay will explore women's participation and role as agents of change in the police reformation process in post-conflict Bosnia. Specific attention will be devoted to the characteristics, rankings, and attitudes of female officers serving in post-conflict Bosnia, with comparisons made with their male counterparts. Results from a survey of 10 female Bosnian police officers, as well as policy implications and suggestions for future research will be presented.

POLICE REFORMATION IN BOSNIA

The 1992–1995 war left Bosnia with three separate police forces; one for each ethnicity (Bosniak, Croat, and Serb). Subsequently, each police force had its own separate jurisdiction. While the Bosnian and Croatian police forces (aka Bosniak-Croat Federation) have since merged (at least by name), the Republika Srpska police force has flatly refused any and all efforts to integrate with the federation. In addition to the law enforcement agencies operating at the state level (Bosniak-Croat Federation, Republika Srpska, Brčko District, Border Police, and SIPA), each canton has a separate law enforcement agency (10 total cantons). The overall size of the Bosnian local police force in the post-war years was also problematic. It was estimated that in 1996 there were about 40,000 police officers operating in Bosnia, three times peacetime strength. Furthermore, there were very few ethnic minority and female police officers.

The second part of the collection concentrates more specifically on feminist legal strategies and their potential consequences. In Chapter 5 Hansel explores a feminist conception of ‘time’ in order to induce international lawyers and academics to consider time as beyond its functional dimension and seeing how different, even competing conceptions of time might manipulate and shape international law. A currently dominant notion of ‘emergency time’ reflects law's preoccupation with crisis and the need for immediate and heroic intervention, which often negatively affects women by ignoring the dimensions of the crisis most relevant to their lives. This sense of crisis time tends to ignore root causes, viewing crises as discreet events rather than a heightening of continuing relations of inequality. She explores some of the potential the benefits of using alternative feminist time-frames where time may be viewed as ‘regression’ (finding value in the past); ‘redemption’ (future and positively focused); ‘rupture’ (not coherent or continuous); or ‘repetition’ (cyclical and infinitely reoccurring).

In Chapter 6, Cheah takes us back in time to explore three movements for justice as they were developed after World War II. While only one was explicitly about women, all three movements shared the organising principle of viewing the state as a perpetuator of harm as understood from a ‘victim's perspective’; Much of contemporary feminist theory is critical of the designation of women as victims because it robs them of agency and individuality and renders them as helpless beings in need of paternalistic protections. Cheah's examples show there is also occasionally (at least historically) some positive power in pursuing a victim stance and also that it is not only women who can be perceived as victims. Using existing international law and the human rights paradigm that emerged after the War, these movements employed specific notions of group harm and remedy in defining how justice should be understood. The comfort women justice movement arose out of the work of feminist academics in Korea with women who had been forced into prostitution by the Japanese military. Justice was redefined beyond individual remedy to the state giving both recognition to and atonement for the wrongs that were done. Interestingly, the stories themselves show how claiming victim status sometimes can be empowering for a group and belie the designation of the victim as passive and helpless.

The last two decades have produced a number of publications on topics such as gender and human rights or international law. However, with the exception of Gender in Transitional Justice (Buckley-Zistel and Stanley, eds.), there still is little written on gender and feminist issues in the fast-growing arena of transitional justice.

Truth-seeking mechanisms, international criminal law developments, and other forms of transitional justice have become ubiquitous in societies emerging from long years of conflict, instability, and oppression and moving into a post-conflict, more peaceful era. In the concluding chapter of her influential work, Transitional Justice, Professor Ruti Teitel argues that transitional justice work can be seen as developing a paradigm that combines politics with law to address the need to reconstruct on stable basis a society affected by instability on many different fronts. She writes:

Both top-down and bottom-up approaches to transitional justice are being developed formally and informally in places such as South Africa, Liberia, Peru, Chile, the Democratic Republic of Congo, Sierra Leone, Rwanda, the former Yugoslavia, and Northern Ireland. Elaboration of theories relating to transitional justice generally can be found in studies, debates, and conferences world-wide. These sources typically do not take into account in any systematic manner the specific victimisation of women. Few commentators consider whether the recently developed mechanisms for promoting peace and reconciliation will actually help the position of women as a society moves out of repression or conflict. This is unfortunate. Because post-conflict societies must rebuild, they are uniquely positioned to effect change. The restorative process to build a stable and democratic polity affords an opportunity to introduce new standards that would facilitate, if not ensure, the active participation of the entire population, particularly including women.

INTRODUCTION

Women and girls continue to suffer from the predicaments associated with violent conflicts in which they are victims of rape, sex-slavery, forced marriage or prostitution and abductions. These acts are usually committed as part of systematic war strategies or are occasioned by vulnerability of women during war times. During war periods, women bear heavy responsibility of sustaining their households as they fill the gaps left by men who may have joined the warring groups, or may have been killed or may have escaped. Thus women assume the responsibility of being the heads of their households. Yet the place of women remains peripheral in transitional justice initiatives which are geared towards bringing about sustainable peace in post-war societies. The situation of northern Uganda where the Lord's Resistance Army (LRA) committed serious civilian atrocities against the dominantly Acholi population of northern Uganda for over twenty years is one of those situations where transitional justice initiatives have not adequately placed women at the centre.

In 2003 the President of Uganda, Yoweri Museveni, referred the situation in the International Criminal Court (ICC). This referral generated debates regarding the appropriateness of the court vis-à-vis local peace and justice initiatives that were being proposed. Traditional leaders, civil society organisations, religious leaders and a section of the population rejected the ICC's pursuit of retributive justice for the LRA commanders as being an obstacle to peace. Instead they advocated forgiveness and reconciliation as a more viable route to peace. Central to the debates were the criteria of justice that would appropriately bring lasting peace and stability to the region. This discourse was placed within the framework of punitive versus restorative justice. But neither side of the debate critically placed women at the centre, yet women have born the greatest suffering during the conflict. This chapter therefore seeks to identify this lacuna by examining the place of women in the transitional justice processes in northern Uganda by asking whether the approaches to transitional justice in northern Uganda were broad enough to cover various forms of dehumanisation like rape, suffered by women during the conflict. In this chapter, I argue that taking cognisance of conditions of women and their needs in transitional justice processes is a key to creating sustainable peace and stability in northern Uganda as elsewhere.

The globalisation of transitional justice as a framework for the resolution of conflicts is recognised as a remarkable phenomenon of the post-Cold War era. The transitional framework is regarded by advocates as a mechanism for enabling politically conflicted and post-colonial societies to institutionalise universal principles of equality and human rights within processes of statebuilding or regime reform. Intersectionality theory, too, has achieved an extraordinary status ‘at the cutting edge of feminist theorising’, particularly in the European context. It enables us to analyse these principles in practice. In particular, it poses useful theoretical and empirical questions for explaining gendered dimensions of transitions in cultures that are described as ‘deeply divided’. This chapter explores these questions in relation to women's absence in peace negotiations and the silence in negotiations on material matters to do with women's day-to-day lives, with a focus on Northern Ireland's 1998 Agreement as a site for intersectional analysis. The pragmatic implications of universal claims for equality are examined in this jurisdiction where political and religious inequalities are recognised in law. The analysis affirms critical correlations between structural, economic and political inequality, violent conflict and the limitations of law as a discursive framework for conflict resolution. An intersectional conceptualisation of gender aids in understanding the local realities of women's lives in this and other transitions. This also goes some way to explaining women's political agency and the dilemmas facing feminist advocacy in these circumstances. The original intersectional triad of race/class/ gender is flexible. This is why it is such a useful tool for feminist analysis in contexts as diverse as the ‘Arab Spring’, Afghanistan and Northern Ireland. Each of these locations, and most, if not all, transitional jurisdictions are characterised by histories that invoke identity discourses. Intersectionality theory can be used to examine the material and cultural potency of these discourses in women's lives locally and globally. This leads to the recommendation that targeting deeprooted inequalities reduces the divisiveness of identity politics and strengthens political stability. In this way marginalised women's lives can be improved and the root causes of a conflict addressed. This is fundamentally about the distribution of resources within a society in transition. Parties emerging from violent political conflict are unlikely to view this recommendation in a neutral light.

INTRODUCTION

I have the privilege and the responsibility to be the first prosecutor of the International Criminal Court (ICC). My mandate is to put an end to impunity for the most serious crimes of concern to the international community, including gender crimes as part of genocide, crimes against humanity and war crimes, and to contribute to the prevention of such crimes. The Rome Statute pays particular attention to gender crimes.

Accordingly, since my appointment over nine years ago, the Office has been developing policies on gender crimes.

In doing so, we have benefited extensively from the expertise of international and non-governmental organizations. A number of experts have paved the way, pushing for accountability of gender crimes; the ad hoc tribunals’ jurisprudence has laid the groundwork for the development of international criminal law in this area.

HISTORICAL NOTION

The recognition of “gender violence” or “gender crimes” is relatively recent in international law. For example, the 1979 Convention on the Elimination of All Forms of Discrimination against Women did not address issues relating to violence against women. For a long time, the gender perspective was also not reflected in major international instruments related to international crimes such as the Convention against Torture and Inhuman, Cruel or Degrading Treatment or Punishment.

It was only in the early 1990s that there was greater understanding of gender crimes. In particular, the 1992 General Recommendation No. 19 by the Committee on the Elimination of Discrimination against Women constituted a major step. It defined gender-based violence as a form of discrimination against women. The General Recommendation took the view that “the definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.”

In the field of international criminal justice, the evolution that took place in 60 years is remarkable. Remember that Robert Jackson, the Chief Prosecutor of the Nuremberg Tribunal, decided not to present sexual crimes in the cases against the Nazi leaders.

The efforts since the mid-90s to obtain accountability for atrocities committed against women during the conflict in the former Yugoslavia helped establish how rape and other sexual violence could be instrumentalised in a campaign of genocide. This equally contributed to the expanded understanding of sexual or gender violence as war crimes and crimes against humanity.

INTRODUCTION

Throughout history, women's rights organisations and advocates have been instrumental in every social change and justice initiative. They have influenced international conventions, provoked ground-breaking jurisprudence and driven legal reform. Non-governmental organisations (NGOs) led by women have also created global movements, adapted communication tools and established innovative services. Although sometimes invisible, women have often been at the forefront of democratic and political liberation struggles, anti-war and peace movements, and national emancipation efforts.

These initiatives continue with women advocates leading strategies to shape international gender justice and the work of the International Criminal Court (ICC), the only permanent Court with the potential to try individuals anywhere in the world for war crimes, crimes against humanity and genocide.

On 17 July 1998, the Rome Statute was adopted by 120 States and opened for signatories. The Statute came into force on 1 July 2002 upon receipt of sixty ratifications at which time the Court's jurisdiction became active. Since then it has established itself as a 698 person institution with 18 elected Judges, an independent Office of the Prosecutor, and Registry with oversight of the administrative and operational functions of the Court. The ICC includes a feature unique in international criminal justice, which is the Trust Fund for Victims mandated to provide rehabilitation assistance and reparations to victims and their families.

The key elements, which eventually gave rise to the ICC, have their roots in:

• – Past conflicts and two world wars

• – Previous efforts towards accountability and deterrence for grievous crimes and

• – The voices of victims, civil society and in particular women's NGOs, who have shown themselves to be significant partners in the pursuit of accountability and peace.

Advocates for gender justice are asserting a stake in the process of designing a new international justice system, one that effectively prevents and addresses gender-based crimes and other forms of brutality most pervasive in conflict situations as well as developing a cohesive peace and security framework capable of deterring armed conflict itself.

It has been clearly documented that the commission of rape and other forms of sexual violence intensify and increase in both scale and brutality during violent civil unrest and armed conflicts.

INTRODUCTION

The Extraordinary Chambers in the Courts of Cambodia (otherwise known as the ECCC or the Khmer Rouge Tribunal) was established pursuant to the Agreement between the United Nations and the Royal Kingdom of Cambodia. The ECCC started in 2006 with the first preliminary investigations by the co-prosecutors. ECC was established to prosecute crimes committed during the period of Democratic Kampuchea between 17 April 1975 and 6 January 1979. The ECCC has personal jurisdiction over senior leaders and those most responsible for serious violations of the Cambodian Penal Code, and the international crimes of genocide, war crimes and crimes against humanity. It is a hybrid court composed of national and international judges and staff, and it follows mainly civil law procedure. It is the first internationalized court dealing with mass crimes that allows victims to apply as civil parties and to become party to the proceedings alongside the prosecution and the defense. In Case 001, against Kaing Guek Eav (alias Duch), the former director of the security center, S-21, the Trial Chamber announced a judgment in July 2010. The judgment was appealed by all parties. On 3 February 2012, the Supreme Court Chamber pronounced the final judgment and sentenced Kaing Guek Eav to life imprisonment.

In case 002, against four senior leaders of the Khmer Rouge regime, indictments were finalized in January 2011 and the substantive hearing started on 21 November 2011. The case against the accused IENG Thirith was separated due to health reasons.

Cases 003 and 004 are strongly objected by the Cambodian government and are in the investigative phase.

In this chapter I will give (2) an overview on the participation rights and the protection scheme available for victims of sexual crimes, (3) an outline of the current situation at the ECCC with regard to sexual violence, (4) the challenges that victims face and (5) the lessons to be learned.

OVERVIEW OF THE PARTICIPATION RIGHTS OF AND THE AVAILABLE PROTECTION SCHEME FOR VICTIMS OF SEXUAL VIOLENCE BEFORE THE ECCC

PARTICIPATION RIGHTS

Victims of sexual violence, who apply to become a civil party and, therefore, a party to the proceedings, have to a large extent equal rights as appropriate like the prosecution and the defense.

INTRODUCTION

THE CALL FOR A NEW TYPE OF EVIDENCE

In remarks to The Hague Colloquium on Sexual Violence as International Crime, Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC) observed that cases of gender and sexual violence committed during conflict are “particularly problematic” because “these crimes are often underreported.” U.N. High Commissioner on Human Rights Navanethem Pillay similarly observed in her remarks to the Colloquium that, “we [the international community] are only addressing the tip of the iceberg… merely scratching the surface” in prosecuting sexual violence perpetrated during conflict. Both Prosecutor Moreno-Ocampo and Commissioner Pillay spoke to what those victimized during conflict know directly: under the surface of internal and international conflict is a massive level of impunity that allows sexual violence to persist unchecked by military and political leaders. As seen in conflicts such as Darfur, the sexual violence is also often left unchecked by international law.

Commissioner Pillay nonetheless highlighted the work of international tribunals in the 1990s and insisted that the prosecution of sexual violence committed during conflict was “a triumph for women who had previously been considered ‘collateral damage.’” Prosecuting sexual violence “has to be done,” she said, “even in situations where women cannot identify perpetrators.” Commissioner Pillay insisted that “a good prosecutor should be able to argue a case without individual testimony by establishing the planning, the modus, and the effects of the crime.” Prosecutor Moreno-Ocampo made a similar declaration. “Our goal is to go… further: a case with no witnesses, no victims.” He expressed a desire for a new kind of evidence available to those prosecuting the most serious of international crimes: “We want to use methods [social scientists] are developing, such as statistical analysis. We must refine how to use your tools.

Xabier Agirre, Senior Analyst from the ICC's Office of the Prosecutor, echoed Prosecutor Moreno-Ocampo's call for a new type of evidence. Agirre spoke to the Colloquium more specifically regarding what role social scientists could play in developing this evidence. He identified three social scientific needs: “[1] to get a level of description of the patterns of the crime; [2] then, to correlate the crime with command structures that produced it; [3] then to explain what caused it.”

INTRODUCTION

Crimes of sexual and gender based violence are part and parcel of the pattern of international criminal law violations committed in the context of armed conflict and/or mass scale criminal acts constituting crimes against humanity and/or genocide. Yet it is still the case, regrettably, that this category of violation is often approached with greater reluctance, analysed as if it were a separate category unto itself, and not assumed to be a component of every investigation into international criminal law violations. As a result, crimes of sexual and genderbased violence are under-documented and under-included in cases which are brought under international criminal law.

This article dispels myths which may lead to omission of such crimes from the initial investigation plan, or lead investigators and prosecutors to intentionally or inadvertently turn away from such evidence when it is brought to their attention. It will also seek to provide some concrete methods for accessing this evidence, to encourage international criminal investigators and prosecutors to include sexual and gender based violence as a matter of course in any international criminal investigation.

THE INVESTIGATION PLAN

Every investigation begins with a plan. Ideally, one starts with a clean slate, gathers potential leads, selects from among them, and follows the evidence where it may lead. In reality, due to many factors including most prominently mandate, political, security and resource constraints, there is usually a given starting point. The starting point may be defined by the temporal or geographic jurisdiction of the investigative body, and/or by the management of the investigation. The starting point may be a particular incident, a specific individual, or the leadership of a particular group or groups. It may be a body of information gathered by a particular agency or group which may have been collecting evidence based on techniques which could affect their admissibility in judicial proceedings. As such, it may suggest a certain type of crime or group of alleged perpetrators which may not reflect the reality of events on the ground.

Sexual and gender based violence occurs in all situations of mass violence.

INTRODUCTION

The International Criminal Tribunal of Rwanda (ICTR) was established as an ad hoc tribunal in the face of serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring states between 1 January 1994 and 31 December 1994. The establishment of the ICTR was momentous, as it was the first international criminal tribunal with a mandate to adjudicate violations of humanitarian law committed in a non-international armed conflict. The Office of the Prosecutor (OTP) has focused on bringing before the ICTR those persons bearing the greatest responsibility for genocide and violations of international human rights. During the 1994 conflict in Rwanda rape occurred on a massive scale. The ICTR's work has included the prosecution of the crimes of rape and other sexual violence perpetrated during the genocide. The recognition that sexual violence can constitute a war crime, a crime against humanity or a constituent act of genocide has been established in International Law through the work of the ICTR and the International Criminal Tribunal for the former Yugoslavia.

The importance of ending impunity for acts of sexual violence has been stressed by the United Nations to be part of a comprehensive approach towards seeking sustainable peace, justice, truth and national reconciliation. The Security Council has very recently emphasized the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls. Resolution 1820, passed by the Security Council, requires all Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, recognizing that, “[w]omen and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.”

Indeed, the prosecution of sexual violence crimes is a key component to stopping the global violence against women. Rape and other forms of sexual violence must be punished and be seen to be punished, if the cycle of sexual violence and other forms of violence is to be halted.