Using women's voices and experiences to interrogate the efficacy of the International Criminal Justice System (ICJS): The case of the Rwanda 1994 Genocide.

Abstract

This study analyzes the interactions between the International Criminal Justice System (ICJS) and survivor witnesses of conflict related sexual violence (CRSV) committed during the 1994 Rwandan genocide. It focuses on survivor perspectives about the notion of justice. While the ICJS as partly represented by ICTR focused on punishment, deterrence, and upholding the human rights of perpetrators of genocidal rape, the study shows how during the process it neglected the needs of survivor witnesses. The findings from this study are key to contributing to assessing the legacy of the International Criminal Tribunal for Rwanda (ICTR) from the perspectives of survivors. Though the ICC has one of the most innovative regime on witness participation and reparations, the voices and silences of survivors in this study can influence the future prosecutions on rape and how to create within the process a platform which identifies the needs, the concerns and aspirations of victims to prepare them to participate as empowered survivor witnesses. It informs on the language survivors said they understand: timely and context specific sensitivity, flexibility and respect. These three pillars can assist other judicial bodies globally to dispense a form of justice which taken cognizance of the totality of the needs, the concerns and aspirations of the key stakeholders of ICJS. The study aims to elucidate the position of survivors as partners in the ICJS, rather than objects of the process or mere witnesses. Whilst this study acknowledges the achievements of ICJS in so far as setting up tribunals such as the ICTR and making them somehow functional as indicated by some of the internationally acclaimed success stories – the survivor witnesses see the ICTR’s legacy through very different lenses.1 The process seemed to have been characterized by lack of political will to prosecute rape. Where rape was prosecuted, there remained weaknesses in the process, starting from the approach in the investigations, the prosecutorial strategy or lack thereof and the discretion used to call survivor witnesses to testify before the tribunal. The worst part of the process for some survivor witnesses was the disillusionment that the ICJS had little for them and some did not think it was part of the healing process. ICJS needs to take a gender perspective at all stages when dealing with conflict related sexual violence. This flaw has been a large obstacle to gender justice, demonstrated through the lack of political will at every level of the judicial process, and reflected by the low number of rape cases brought for trial and few convictions at both the trial and appeals level. It is also evident in the disturbing gaps in witness protection, marked by a notion of protection, which leaves survivors more vulnerable and disempowered. Moreover, the disconcerting absence of compensation/reparations for survivors leaves survivors of sexual violence vulnerable and disproportionately affected by the consequences of armed conflict. The study reveals a fundamental flaw in the ICJS at different levels. A lack a context-specific approach, a lack of discernment of the gender nuances surrounding the 1994 genocide and lack of a critical analysis of the complexity of the ethnic/racial categories in Rwanda, ranging from the Hutu/Tutsi delineations are part of the multiple factors which obscured the reality of the brutality different categories of Rwandan women suffered during the genocide.