Already a year has gone by since the last volume of our Newsletter was released in February 1998. We are grateful for all your kind letters and e-mails encouraging us to continue producing the Newsletter on a regular basis. We are happy to let you know that this year, thanks to the very generous assistance of the students of the McGill InterAmicus Working Group on Engendering the Rwanda Tribunal, we will strive to issue a Newsletter every 3 months. We hope that you will also continue to assist us by sending in your article contributions.
It has been a very eventful year for the Coalition and international women's human rights in general. Of particular relevance to the Coalition was the fact that the International Criminal Tribunal for Rwanda issued its first decision in the case of the Prosecutor v. Jean-Paul Akayesu, the former mayor of Taba. Akayesu was convicted to three life sentences for genocide and crimes against humanity and to 80 years for other violations including rape and encouraging widespread sexual violence. It was the first time that an international court punished sexual violence in a civil war and the first time rape was found to constitute an act of genocide, as well as an act of torture. In mid-November, on the heals of the Akayesu judgement, was the first conviction of rape as torture by the International Criminal Tribunal for the Former-Yugoslavia in the Celibici case. Many other events captured our attention during the course of the year. This issue of the Newsletter contains some of those highlights. I hope that it was worth the wait!
Isabelle Solon Helal
For the Coalition on Women's Human Rights in Conflict Situations
By Leilani Farha (1)
I cannot inherit land. If I stay on my father's land I am put in prison. I have already been in prison eight times. I have also been beaten. My life is very bad since my parents died. I cannot even grow a potato on my property or cut down a tree. A [lawyer] told me I should get my mother's share of the land. Please defend me, I came here because of a lack of justice.
Translation of Testimony from Rwandese Woman, Kigali, February 1998
Women's lack of land and property rights is a critical issue in many parts of the world, and this is particularly so both during and immediately following armed conflict situations. Until women are granted the right to own and inherit land and property, women will continue to suffer homelessness, landlessness and acute poverty as everyday facts of life. But when women also find themselves in situations of armed conflict, their lack of such rights is especially detrimental for their attempts to cope with and continue beyond such situations. Recently, a UN sponsored Consultation investigated this problem and developed various strategies to address it. Though many practical suggestions were put forward, one strategy the Consultation did not seriously consider, but which this brief article suggests is essential in addressing the problem, is the adoption of a human rights approach.
Recognizing women's lack of land and property rights in virtually every region of the world, the United Nations Centre for Human Settlement (UNCHS), UniFemme and the United Nations High Commission for Refugees (UNHCR), in conjunction with the Rwandese government, hosted the first Interregional Consultation on Women's Land and Property Rights in Situations of Armed Conflict and Reconstruction in Kigali, Rwanda in February 1998. This event brought together activists, academics, lawyers and politicians from countries including: Colombia, Costa Rica, Guatemala, Haiti, Burundi, Chad, Eritrea, Kenya, Liberia, Mozambique, Rwanda, Sierra Leone, South Africa, Tanzania, Uganda, Palestine and Bosnia.
The Consultation opened with information and documentation regarding the various obstacles that women confront in accessing land, property and housing during armed conflict and reconstruction. Though there were contextual differences between countries, a pattern of discrimination against women emerged from the case studies. Repeatedly women explained that land in their country is regulated by customary laws which do not recognize the capacity of women to own or inherit land and property in their own right.(2) This becomes particularly problematic during times of armed conflict and reconstruction, as it means that women who have been separated from male family members or whose husbands, fathers, uncles or brothers die during flight or return, have no recognized capacity to inherit or claim the properties of their deceased male relations.(3) In turn, they are rendered homeless, landless and without a means of subsistence. In those countries where customary law was not an issue, other problems were identified including cultural barriers which inhibit women from using existing statutory laws to claim and secure their land, as well as a lack of available resources to train and educate women to ensure that once they secure land, they can adequately maintain and benefit from the land.
Having highlighted the key problems facing women with respect to land and property rights, the Consultation moved on to identify several strategies that could be undertaken to move toward the realization of women's right to land and property. The primary strategies agreed upon were: legislative and constitutional reform, women centred peace initiatives, and building international networks.
And so, despite the recognition that women have a "right" to land and property, despite the acknowledgment that women are discriminated against with respect to land and property and despite the call for constitutional and legislative reform, discussions during the five day Consultation rarely put the issues at hand in the context of domestic or international human rights law. The impact of this omission is clear; it weakens women's claims to land and property rights. Adopting a human rights framework and approach in the struggle to realize women's right to land and property must be considered in future work on the issue of women's land and property rights, at least, for the following three reasons:
Of course, a human rights approach alone will not necessarily secure women's right to land and property, but if used in concert with other legal and non-legal efforts such as litigation, grassroots movements, peace initiatives and solidarity networking, such an approach will undoubtedly strengthen women's claim to land and property and secure it a position on the international agenda.
1)Leilani Farha is the Legal Officer and Women's Programme Coordinator of the Centre on Housing Rights and Evictions (COHRE). COHRE is an international non-governmental organization based in Geneva. COHRE promotes the right to housing and the right against forced eviction for everyone, everywhere. For more information about COHRE or about using the United Nations Human Rights System in your work, please contact the Geneva office:83 Montbrillant, Geneve 1202 Switzerland T/F:+41.22.734.1028 or the Melbourne office:5/43 Broadway, Melbourne, Elwood 3184 T/F:+61.3.9531.2773.Return
2)This similarity was found particularly amongst the African countries, but customary law is also prevalent in other regions such as the Middle East.Return
3)Chaloka Beyani, "Women's Land and Property Rights Under Situations of Conflict and Reconstruction". Unpublished. Presented at the Interregional Consultation, Kigali, 16-20 February 1998.Return
In October 1998, the second annual coordination meeting for the Monitoring Project on Gender-Related Crimes at the International Criminal Tribunal for Rwanda (ICTR), was held at the office of the International Centre for Human Rights and Democratic Development (ICHRDD) in Montreal. Participants in the meeting included representatives of the Center for Constitutional Rights, Human Rights Watch, ICHRDD, International Women's Human Rights Law Clinic, Women's International League for Peace and Freedom, the Working Group on Engendering the Rwanda Tribunal (WG), the McGill InterAmicus Working Group on Engendering the Rwanda Tribunal, the Women in Conflict Zones Network, and both the Monitor and Investigator on Gender-Related Crimes at the ICTR.
The position of Investigator on Gender-Related Crimes at the ICTR was established by the Coalition following the Coalition's witness protection initiative (see Newsletter Volume 1, Number 2). Ms. Betty Murungi, a Kenyan lawyer and a Director of the International Federation of Women Lawyers (FIDA-Kenya) accepted the mandate in April 1998. The role of the Investigator is to liaise with the ICTR in Arusha and Kigali, obtain information about the prosecution of gender-based crimes at the ICTR, including witness protection and support, and report back to the partners in the project. The Monitor on Gender-Related Crimes at the ICTR, Alice Karekezi, continues to work in Rwanda with the local Rwandan-based Coalition of women's rights organizations.
Over the past year, a structure for the project was established which comprised monthly conference calls, regular reporting, and a list-serv enabling partners to communicate and strategize regularly on issues of concern.
The purpose of the coordination meeting was to come up with a clear, focused and coordinated strategy for the work of the Coalition in 1999. Participants were asked to look at the different aspects of the Monitoring project and to:
As a result of the meeting, the following sub-committees were formed:
By Barbara Bedont,
Democratic Development and Justice Programme, ICHRDD
On July 18, 1998, a statute for an International Criminal Court (ICC) was adopted by delegates attending a Diplomatic Conference in Rome. A Women's Caucus for Gender Justice participated throughout the five excruciating weeks of the Conference with the objective of integrating a gender perspective throughout the statute. Thanks to its work, the final statute is far more gender-sensitive than the draft statute originally proposed by the International Law Commission back in 1994.
In the final statute, crimes of sexual violence have explicitly been listed as a separate category of the crimes which will be prosecuted by the Court. The Women's Caucus had to fight hard to have certain gender crimes recognized under the statute, including the crime of forced pregnancy. Motivated by experiences like the rape and detention of Bosnian women by Serb soldiers to force them to bear Serb babies, the Women's Caucus believed that it was important to explicitly recognize this crime.
A group of pro-life organizations attended the conference with the intention to oppose any inclusion of forced pregnancy in the statute. These pro-lifers tried to argue that recognizing the crime of forced pregnancy would lead to abortion on demand. They found sympathetic ears among a small number of states, including the Holy See, Ireland, and certain conservative Islamic countries.
An agreement was finally reached with these countries on the second last day of the conference. Forced pregnancy was included as a crime defined as: "the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law." It is further stipulated that this definition shall not in any way be interpreted as affecting national laws relating to pregnancy. The Holy See and the other states refused to include in this definition the rape and other sexual abuse of a woman to make her pregnant, despite the fact that this part of the crime has even less relationship to abortion laws. This aspect of forced pregnancy will therefore have to be prosecuted under the category of rape and other forms of sexual violence.
Although gender appeared in several parts of the statute going into the conference, the alliance which had formed over the issue of forced pregnancy expanded its efforts to take out references to "gender" everywhere that it appeared in the statute and replace it with sex. The Islamic countries, namely, Syria, Qatar, United Arab Emirates, Iran and Saudi Arabia, were the main opponents to the term being used. After much negotiating, gender was retained in the statute with the following definition: "gender refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above." This definition refers to "context" of society, and therefore, captures the element of the societal differences between men and women.
Once this definition of gender was resolved, a Women's Caucus proposal to include a non-discrimination article in the statute was adopted. This article states that the law applied by the Court must be in accordance with international human rights standards and without adverse distinction on grounds such as gender, age, race, colour, political opinion, religion and others. This provides a constitutional-type guarantee of rights to all those who appear before the Court.
Another positive outcome following the agreed definition of gender is that the crime of persecution listed as a crime against humanity includes persecution on the grounds of gender. This means that sexual apartheid regimes like the one in Afghanistan are potentially punishable by the Court.
A key objective of the Women's Caucus was to ensure that the Court would be staffed with women and experts who would implement the gender provisions of the statute. The statute provides that in the selection of judges, States shall take into account the need for a fair representation of female and male judges and the need to have judges with legal expertise on violence against women. The language of "fair representation" of male and female judges is a step back from the commitments made by governments at the Beijing Conference on Women. The Beijing Platform for Action states that there must be "gender balance" in international institutions and tribunals. The ICC is the first international institution set up since Beijing. The loss of the term "gender balance" therefore shows that when it comes time to put their promises into action, governments are more reluctant to support gender issues.
Overall, the ICC statute provides a tool, although not a guarantee, for punishing and deterring crimes of sexual and gender violence. Much work remains to be done, however. The statute must be ratified by at least 60 states before an ICC will be created. Moreover, many provisions of the ICC Statute must now be translated into gender provisions in the Rules of Procedure and Evidence and the Elements of Crime, which are being drafted in 1999. The Women's Caucus will therefore continue to be active on these issues and on the campaign to promote ratification of the Rome statute.
To reach the Women's Caucus for Gender Justice:
Postal Address: P.O. Box 3541
Grand Central Post Office
New York, NY 10163
Address: 355, Lexington Avenue3rd Floor, WEDO
New York, NY 10017
By Dina Bogecho and Elizabeth Bowker,
Working Group on Engendering the Rwanda Tribunal
In December 1998, the International Criminal Tribunal for Yugoslavia (ICTY) sentenced the local commander of the Croatian defence council, a Bosnian Croat named Furundzija, to ten years imprisonment for the confinement and repeated rape of a Muslim woman by his subordinates. Furundzija was found guilty as a co-perpetrator of torture and of aiding and abetting the perpetration of an 'outrage on personal dignity, including rape against the victim, ("Witness A").
From the perspective of women's rights, the conviction of Furundzija, in particular his conviction for rape as a form of torture, is a positive step. Unfortunately, however, the case sets a very troublesome procedural precedent for the treatment of victims of sexual violence during the criminal trial process.
When the trial was completed in June 1998, Furundzija brought a motion to set aside the evidence of Witness "A", or alternatively for a retrial, on the basis that he had been prejudiced by the non-disclosure of Witness A's rape counselling records. Since Witness "A" was the primary witness for the prosecution, without her testimony, it would have been impossible for the Trial Chamber to convict Furundzija. The Trial Chamber allowed the motion and ordered the disclosure of any documents relating to the "medical, psychological or psychiatric treatment or counselling received by Witness A after May 1993". In addition, the Trial Chamber ordered the further cross-examination of all of the Prosecution's witnesses, including Witness "A", with respect to these documents. This order was affirmed on appeal. This disclosure order was extremely broad and invasive and, in the Coalition's view, was profoundly insensitive to the experiences of Witness "A" and the sexual stereotypes which often motivate such requests for disclosure.
Before the re-opening of the Trial and the re-examination of Witness "A" on her rape counselling and other confidential records, the Coalition decided that it was necessary to intervene and file an amicus curiae brief. The brief requested that the Trial Chamber reconsider its order having regard to the equality rights of Witness "A", the discriminatory attitudes toward women victims of sexual assault which generally underlie requests for disclosure of confidential information, the need to balance the rights of the accused with the rights of Witness "A", and the law of domestic jurisdictions, in particular of Canada, on the disclosure of rape counselling records. We advocated the importance of developing consistent and explicit procedures at the ICTY for the disclosure of third party records, and stressed that disclosure would be contrary to the principles expressed in the Akayesu decision at the ICTR. In addition, the amicus brief emphasized society's interests in protecting confidentiality of counselling records. The amicus brief argued that the ICTY should adopt a method similar to Canadian jurisprudence in dealing with the disclosure of records. The Defence would then have to prove that access to the victim's counselling records was necessary for the accused to make full answer and Defence, or that the records were relevant to the competence of the witness to testify.
The Working Group was disappointed with the reception of the amicus; the Trial Chamber re-opened the trial before reading it and refused to explicitly acknowledge the substance of the amicus in its decision. In our view, however, the Trial Chamber was clearly influenced by the amicus brief. While dismissing the usefulness of the amicus briefs, the Tribunal went out of its way to address our claim that they failed to balance the rights of Witness "A" - language which the Trial Chamber had not previously used.
A very limited set of the rights of victims, therefore, was recognized. The Trial Chamber essentially held that witnesses are entitled to a protection and to a set of procedural rights during the trial process (a pseudonym, in camera hearings, redaction of transcripts). The Trial Chamber, however, misunderstood and failed to recognize the more fundamental assertion presented in the amicus brief that the fairness of a trial is fatally undermined if the equality rights of rape victims are not respected and protected.
In the end, the Trial Chamber's overly wide order to disclose medical or counselling records still stands and will likely be relied on in future cases. If the decision remains good law at the ICTY and is unchallenged, it may deter women who have been raped from coming forward, since intimate and private feelings expressed during counselling may ultimately be exposed to the Court and to the person accused of raping them.
Women's International War Crimes Tribunal on Japan's Military Sexual Slavery will be held in Tokyo, Japan in December 2000. The objectives of the Tribunal are to clarify the fact that the Japanese military sexual slavery system constituted a war crime against women, to identify the perpetrators of crime as well as their punishment, and to record the complete proceedings of the Tribunal in history; in order to make the Japanese government take legal responsibility regarding "Comfort Women".
For more information contact:
Violence Against Women in War Network (VAWWNET)-Japan
2-10-10 Shiomi, Koto-ku, Tokyo 135-8585, Japan
The Hague Appeal for Peace is a campaign and a conference to delegitimize armed conflict and create a culture of peace for the 21st century. It will be held from May 11-15, 1999 at the Netherlands Congress Centre in the Hague, The Netherlands. The deadline for standard registration is March 19, 1999.
For more information contact:
Van Namen and Westerlaken Congress Organization Services,
P.O. Box 1558, 6501 BN Nijmegen, The Netherlands.
The Aftermath: Women in Post-War Reconstruction conference will be held on July 20-22, 1999 at the Johannesburg College of Education, South Africa. The conference is hosted by the University of the Witwatersrand in Johannesburg. The central concern of the conference is how the transitions from war to peace and from authoritarian to democratic regimes can be used as an opportunity to move beyond the reconstruction of pre-war institutions to real social transformation. This conference will explore approaches that move beyond the 'rights' and 'needs' dialectic towards redefining women as active creators of their own reality, able to tackle the problems of resource requirements and find ways to meet their social and psychological needs for healing.
For more information contact:
Robbie & Joanne,
The Aftermath Conference,
P.O. Box 72147, Parkview 2122,
Tel: 27 11 788 2736,
Tel/Fax: 27 11 788 3299,
Certainly, advances have been made in recognizing women’s rights. The legal framework is increasingly responsive to the experiences of women and girls in conflict, especially in cases of sexual violence, as we have seen in the important work being carried out by the international criminal tribunals. But there remains much to be done, particularly to improve prevention and to combat impunity.
-- Kofi Annan
October 28, 2002