The impact of transnational advocacy networks on the prosecution of wartime rape and sexual violence: the case of the ICTR.

• Author: Nelaeva, Galina
• Position: International Criminal Tribunal in Rwanda - Report

Introduction

Toward the end of the 1990s, the international press and academic journals were full of stories of rape and sexual violence committed during the breakup of the former Yugoslavia. Those stories created a perception that such atrocities constituted a purposeful strategy employed by Bosnian Serbs to eradicate the Muslim population of Bosnia-Herzegovina by forcing Muslim women "to bear Serbian babies." (1)

Notwithstanding the unprecedented publicity of rape and sexual violence associated with the Serbian policy of ethnic cleansing in the former Yugoslavia, such atrocities are an age-old phenomenon committed during conflicts. The efforts of the international community to punish the perpetrators of these crimes have been weak and inconsistent, despite Article 46 of the 1907 Hague Convention which calls for respect of "family honour [sic] and rights, the lives of persons, and private property, as well as religious convictions and practice." (2) International criminal tribunals established after World War II in Nuremberg and Tokyo to try Nazi and Japanese war criminals, respectively, paid little or no attention to crimes of rape and sexual violence. In regard to the Nuremberg Trials, "[t]he comprehensive 732-page Index to the forty-two volume set reporting the proceedings ... did not ... include 'rape,' 'prostitution' or 'women' among either the headings or subheadings. In contrast, 'looting' warranted three and one half pages in the Index alone." (3) The International Military Tribunal for the Far East eventually did include charges of rape and sexual violence in its indictments but only in conjunction with other crimes. (4)

The 1949 Geneva Convention specifically prohibits offenses against "women's honor." (5) However, Article 147 of that agreement does not list rape and sexual violence as a "grave breach" of customary international law, which explicitly incorporate penal sanctions. (6) The International Criminal Tribunal for the former Yugoslavia (ICTY), created in 1993, marked a turning point in international law by producing a number of significant decisions where rape and sexual violence were prosecuted as crimes against humanity and as war crimes. (7) Several arguments have been put forward to explain why the ICTY finally addressed gender-related crimes, the most common being that this stemmed from lobbying efforts by local and international women's nongovernment organizations (NGOs). (8) Yet, a closer inspection of the international tribunals established in the 1990s, most notably the International Criminal Tribunal in Rwanda (ICTR), casts doubt regarding the extent to which women's transnational advocacy networks' (TANs) were able to influence the prosecution of rape and sexual violence as international crimes. In other words, such efforts produced much more limited results than TAN theorists Margaret Keck and Kathryn Sikkink would lead one to believe. (9) To be sure, rapes committed in a number of conflicts during the 1990s provoked international outrage, but the prosecution of rapists (or failure to prosecute) was more the result of states' decisions to establish international tribunals, (10) and the efforts of the epistemic community of judges, prosecutors, and other legal professionals working for the ICTR who made important pronouncements concerning the prosecution of international crimes, including rape and sexual violence. (11)

Transnational Advocacy Networks (TANs)

In trying to determine why rape and sexual violence came to be prosecuted rigorously in the ICTY in the 1990s and not elsewhere, one often comes across explanations based on TAN theory developed by Keck and Sikkink. These scholars maintain that rape and sexual violence were finally prosecuted as international crimes in the 1990s due to the influence of NGOs known as TANs as these local and international women's advocacy networks experienced significant growth and women took a more active role in the development of international law, and in politics generally. Men, who until recently dominated decision-making positions, did not view acts of sexual assault as particularly harmful to women. (12) Moreover, rape was perceived as falling within the private domain, not as an international issue. (13) That view changed after reports of widespread rape and sexual violence filtered out of Bosnia and Croatia in the early 1990s. Those reports spurred efforts to secure indictments for gender-related crimes as 'grave breeches' of international law. With U.S. feminist legal scholars leading the movement to secure the placement of these crimes high on the agenda of the ICTY, "the general public and many women's groups demanded that something be done to stop and punish the perpetrators of crimes targeting women. The United Nations Security Council responded to [this] public outcry by establishing the ICTY in 1993 and ICTR in 1994." (14)

Identification of rape as a tool of war and as a war crime began during the conflict in the former Yugoslavia. Until then, rape was seen as an unfortunate and unavoidable feature of conflicts. (15) According to political scientist Frances Pilch, the prosecution of rape and sexual assault arose as a result of the efforts of TANs that documented such abuses, urged international aid agencies to pay attention to victims of sexual violence, and pushed for indictments which would include charges of rape and sexual violence. By doing so, "[t] hey ... fought for the treatment of sexual violence as crimes of the most serious nature in the Statutes of the ad hoc Tribunals on the former Yugoslavia and Rwanda and the International Criminal Court, and ... achieved major victories...." Thus, these NGOs "chang[ed] the way in which international law evolv[ed], bringing the world a little closer to the goal of universal justice." (16)

TANs, as defined by Keck and Sikkink, refer to "those relevant actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and services." They seek to change the behavior of both states and international organizations and "promote norm implementation, by pressuring target actors to adopt new policies, and by monitoring compliance with international standards." (17) They are "one of the main vehicles for transnational activity around rights and social justice issues." (18) Pressures exerted by these activists (that is, representatives of local and international NGOs) have influenced many outcomes in international politics. (19)

There are several strategies that TANs employ to change human rights practices: information politics (the information must be timely, dramatic, create a causal story, and propose a solution), symbolic politics (the strategic use of powerful events), leverage politics (both material and moral), and accountability politics (holding targeted actors responsible for their actions). For an advocacy campaign to be successful, issue characteristics are important (that is, framing the problem in terms of right and wrong), as are actor characteristics (e.g., network density and target vulnerability). The "success" of any TAN can be measured by whether it can exert influence in a given issue area. As Keck and Sinkkind claim, "[n]etworks influence discursive positions when they help persuade states and international organizations to support international declarations or to change stated domestic policy positions. [...] They may also pressure states to make more binding commitments by signing conventions and codes of conduct." (20)

In their analysis of the impact of TANs on prosecuting wartime violence against women, Keck and Sikkink state that "by the mid-1990s, violence against women had become the most dynamic new international human rights concern." (21) It is very difficult to neatly outline the boundaries of a TAN, since it can include not only human rights activists from local and international NGOs, but also journalists, intellectuals, and experts. Nevertheless, Keck and Sikkink emphasize that both local and international NGOs play a prominent role in these networks, and for the purposes of an advocacy campaign, "core network actors mobilize others and initiate the tasks of structural integration and cultural negotiation among the groups in the network." (22) Such agencies actively working to bring the world's attention to cases of rape and sexual violence committed during the Rwandan genocide include: African Rights Watch, ASOFERWA, AVEGA, the Coalition for Human Rights in Conflict Situations, Human Rights Watch, the International Centre for Human Rights and Democratic Development, Lawyers Without Borders, MADRE, Physicians for Human Rights, Pro-Femmes, and the Rwanda Women Network.

In her study on the prosecution of sexual violence in international law, Anne-Marie L.M. de Brouwer, an associate professor of international law at Tilburg University (The Netherlands), provides a chart on sentencing in cases involving sexual violence during the proceedings of the ICTY and ICTR. (23) While an analysis of ICTY jurisprudence is beyond the scope of this study, an examination of that chart raises two important questions: Why did the ICTY manage to produce extensive jurisprudence on rape and sexual violence while the ICTR had a much more modest record in this regard despite the fact that, as some feminist scholars argue, atrocities in Rwanda were no less horrendous than in the former Yugoslavia and there was sufficient evidence to prosecute them? Moreover, what factors account for the steady decline in the ICTR's attention to cases involving rape and sexual violence? In her quantitative analysis of trends in sexual violence prosecutions at the ICTR, Gaalle Breton-Le Goff, a human rights scholar, finds that "the proportion of indictments pertaining to sexual violence fell from 100% to 1999-2000 to 35% in 2001-2002 [thus demonstrating that] after the clear and definite interest shown by the ICTR...