The International Criminal Tribunals for the Former Yugoslavia and International Criminal Tribunals for Rwanda, for the first time in international law, recognized sexual violence in conflict as crimes against humanity and grave breaches of international law. Subsequently, the International Criminal Court was created with a gender-mainstreamed focus on international issues, and UN Resolutions required states to make gender parity in representation and gender equality national goals. However, when faced with changes in formal rules, institutions often react to reinforce old traditional gender norms and significant challenges remain for international institutions to recognize, involve, and respect women as agents and policy makers in the international security arena.
The 1993 and 1994 statutes that created the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) broke new ground in international criminal law by recognizing for the first time rape as a crime against humanity in the context of a war tribunal. The Rome Statute, the treaty that created the International Criminal Court in 2002, was seen by many in international law as heralding a new era of international criminal justice and security in which, for the first time in its history, gender-based violence would be acknowledged and punished for its full effect on women in wartime, and would serve to further advance efforts at gender equality for women in the world. The Rome Statute, for the first time in international law, codified violence against women as crimes against humanity, war crimes, and in some instances, genocide.
Though rape and sexual violence in armed conflict had been codified as criminal since 1949 when Article 27 of the Fourth Geneva Convention included rape, enforced prostitution, and indecent assaults as crimes, sexual violence was still not seen as a grave or serious breach of law, and was understood by its enactors as “an attack on honor” (Pruitt, 2012, citing KWO, 2004), implying the criminality of the act as related to men’s property of her. To now classify rape as a victimization of women, not as a social or ego injury to men, was also seen as a huge advance in the early 2000s in furthering women’s human rights.
Though many steps have been made toward women’s equality internationally, what remains to be seen is the effect these steps can have in practice in terms of advancing women’s overall human rights, when the international institutions in charge of creating, adopting, and enforcing human rights – the ICC, the United Nations and NATO, to name a few – have historically and universally been male-dominated. While the ICC has attempted to impart a gender-sensitive approach and “mainstream” gender in their recent handling of criminal cases, the way in which institutions formally and informally serve to reinforce the implicit gender norms of their actors can hinder the adoption and application of gender justice unless gender parity is truly achieved.
This paper discusses the ideas of gendered institutionalism, the formal and informal rules of institutions to adapt to new gender norms or reinforce existing ones. I explore how the lack of adaptation of new norms, in particular with regard to gender parity in representation and employment in these institutions, affects “gender mainstreaming” defined by NATO as “the process of assessing the implications for women and men of any planned action, including legislation, policies and programs, in all areas and at all levels” (Isaksson, p 53). As a result, this lack of adaptation ultimately influences gender justice, particularly in the cases of sexual violence in conflict, peacekeeping, and in systems of transitional justice.
GENDERED NEW AND OLD INSTITUTIONS
According to feminist scholars, formal rules in institutions involve rules that are “created, communicated, and enforced through channels widely accepted as official” (Chappell 2014, Helmke and Levitsky 2004) and can involve mandates, company policies, mission statements, and codes of conduct. Informal rules, on the other hand, are the “unwritten” rules that govern the behavior and attitudes, and form the culture of, organizations, involving common practices and norms that can develop over time of how one acts or reacts in certain situations. For example, men may hold informal meetings in pubs and men’s’ clubs that either overtly exclude women from entry or are held and arranged during off-hours when a woman might be putting children to bed.
Another oft-cited euphemism for these informally operating rules would be “old boys’ networks” – entrenched forms of patronage, fraternizing, and nepotism that privileges “favored sons” and excludes women. Feminist scholars assert that, particularly within the masculine-dominant political, legal and diplomatic arena, such norms are structured by gender-biased assumptions inherent to the institution. Chappell (2014) writes, “such gender biases can inhere in formal institutions, through overtly discriminatory rules that ban men and women from participating in certain activities for instance” (p. 184). Azari and Smith, however, contend that “informal institutions exist when shared expectations outside the official rules of the game structure political behavior” (Chappell, 2014, p. 184, citing Azari and Smith, 2012, p. 39).
Formal and informal rules are often coupled and can closely interact. However, in the absence of formal rules, informal rules and norms can fill in the holes as a “backup” policy. Chappelle writes that, in the context of norms, “gender norms may work with or against formal institutions to entrench gender inequalities” (p. 184). Thus, while an institution may have a formal written policy against discrimination, informal norms and understandings about the “way” things are done can counteract this policy to keep the status quo intact. In particular, Chappell and Waylen (2013) write that “gender norms have…proven to be very ‘sticky’” and that “challengers of existing gender logics of appropriateness have often been treated as ‘deviants’ and punished through acts of censure, ridicule, and harassment” (Chappelle and Waylen, p. 603).
Examples can be seen in the discussion of the “glass ceiling” that women have faced in trying to advance their careers. Rudman, Moss-Racusin, Phelan, and Nauts (2012) have identified a backlash effect that agentic female leaders in organizations face when acting against their perceived gender role, in a series of studies that demonstrated the catch-22 that women face: “because their gender status is lower than men’s, they must enact agency to be viewed as ‘fit’ for leadership – yet if they do so, they risk backlash” (p. 175). Such backlash can be viewed as a “dominance penalty,” in such that agency by women is interpreted negatively by men rating their performance.
Rudman and Phelan (2008), citing a study of law firm partners, found that male partners “criticized the female partners for acting like men, rated them as having unpleasant personalities, and viewed their authority as illegitimate, despite high competence ratings” (p. 67, citing Ely, 1994). This penalty serves to reinforce a gender hierarchy that is not uncommon, especially in the world of international politics and security, and current examples are not difficult to find; as a Senator, Hillary Clinton was labeled as “too angry” for criticizing the Bush administration’s foreign policy, but in other contexts, has been labeled as too weak to lead, causing feminists to remark, “if she doesn’t speak out strongly against President Bush, she’s timid and girlie. If she does, she’s a witch and a shrew” (Rudman, et. al, 2008, p. 70, citing Dowd, 2006, p. A21).
Joni Lovenduski (2014) chronicled the well-documented history of sexist backlash in U.K. parliamentary politics, noting that currently women comprise only 22 percent of deputies in today’s legislatures (p. 16). She writes that in the U.K., “female MPs in the House of Commons are often subject to insulting sexist abuse, frequently amplified by subsequent press comment” and notes that “women’s experiences of sexism when they enter public life are pretty much a global phenomenon” (p. 16). Women also face the burden, like members of minority groups, of having to represent their gender as a whole, and “that any of their mistakes will be attributed to their entire group” (p. 19). In an episode in the most recent season of the HBO series Veep, President Sonia Meyer’s chief of staff, Amy Brookheimer, referring to this burden of representation in excoriating her boss’s incompetence, declared, “You have achieved nothing apart from one thing. The fact that you are a woman means we will have no more women presidents because we tried one and she[expletive] sucked!” (Iannucci & Laing, 2015).
The creation of the International Criminal Court was thus seen as a possible avenue to correct and redress the gender disparity in representation that has traditionally been apparent in “old” institutions. Though the ICTY and ICTR were established with a victim-centered and thus an intended gender-sensitive approach, only two out of eleven judges selected to be on the ICTY were women, and the second woman to be elected, Elizabeth Odio-Benito of Costa Rica, was only selected “late in the balloting and after heavy political negotiations” (Hoefgen, 1999, p. 160). As Benito noted, the inclusion of women on the ICTY would be significant and essential to the provision of gender justice. She wrote, “There will be no justice unless women are part of that justice” (cited in Hoefgen, p. 60). ICTY prosecutors at the beginning of the trial of Dragan Nikolic did not think they had sufficient evidence to charge him with gender crimes, causing Benito to “publicly exhort” prosecutors to include gender crimes in the indictment. (Grossman, p. 649). Judge Patricia Wald also notes that five major legal precedents regarding gender crimes were crafted “when at least one woman judge sat on the bench” (p. 649).
It should not be assumed that male judges would not be able to appreciate the severity and injury of the crimes of sexual violence, but that female judges add a unique voice and perspective on sexual assault to the proceedings, as sexual violence is known to affect women in armed conflict in much greater numbers than men, and thus “are privy to crimes of sexual violence unattainable by men” (Hoefgen, p. 160). Notably, the indictment and conviction of the Foca 8 – which charged eight Bosnian Serbs for sixty-two crimes of sexual assault in the Bosnian city of Foca – was the first indictment dealing exclusively with crimes of sexual assault and sexual degradation. It is also notable in that the United Nations, in establishing the ICTY, included a statute, Article 22, that evidenced a gender-sensitive policy of victim and witness protection from humiliation, and that in ruling that witness corroboration of victim testimony would not be required, confirmed a gender-sensitive understanding of the often-private nature of sexual assault. Furthermore, and importantly, Article 22 rejects consent as a defense (though this did not stop some of the defendants from trying to claim it), if coercion or threat was apparent, and does not allow prior sexual conduct of the victim to be presented either, nullifying certain rape myths that discount and discredit many rape victims.
Since the ICTR trials used the same prosecutor as the ICTY, Richard Goldstone, it was assumed that the gains made in terms of gender sensitivity and gender justice would carry over to the ICTR, but these gains were not easy to come by and involved more challenges. The ICTR failed, at the outset, to establish judicial parity, in that Judge Navanethem Pillay was the only female judge amongst the nine elected ICTR judges. This gender disparity would affect the gender-sensitive nature of the prosecution. According to Koomen’s account of the ICTR, during the cross-examination of a witness in the trial of six defendants in what is known as the Butare case, one witness known as “TA” testified that she had been repeatedly gang-raped by militia members and infected with HIV. During her cross-examination, the defense attorney insinuated that she could not have been raped because she smelled badly; according to the media reporting the case, at this remark, the presiding judges “burst out laughing” (Koomen, p. 266), a further humiliation for the victim and clearly an inappropriate and insensitive reaction. Procedures were furthermore not in place to ensure the protection of victims. One witness said that when she returned to Rwanda after the trial, “everyone knew” she had testified about rape at the ICTR, causing her fiancé to leave her, and her house to be attacked.
The biggest victory at the ICTR in the prosecution of sexual violence, in fact, may not have happened were it not for the further efforts of the one female presiding judge, Judge Pillay. During the trial of Jean-Paul Akeyesu, charged with genocide but not rape, one witness on the stand testified to a rape, causing Judge Pillay to request a postponement of the case in order to further question the witness. This resulted in an amendment of the original indictment against Akeyesu to include rape, and assure the prosecution of sexual violence (Haddad, 2011). For the first time, rape was established as a crime of genocide in case law.