allAfrica.com: Africa: The Limits and Possibilities of Transitional Justice (Page 1 of 5)

In considering the wars in the Central African Republic (CAR), Darfur, and the Democratic Republic of Congo (DRC) where the use of sexual and gender-based violence (SGBV) is widespread, this paper seeks to accomplish two tasks. The first task is descriptive: to give an overview of the manner in which the International Criminal Court (ICC) has responded to SGBV in the three countries. The second task is a modest attempt to analyze why SGBV continues to be inadequately addressed. Here, the paper considers the practical challenges that are inherent in transitional justice as a tool, particularly in its preference of some harms and narratives over others.

The paper also considers the conceptual challenges that come with understanding SGBV itself, in particular the implications of a focus on sexual violence over other forms of violence, and that of a focus on women over other feminized identities. The paper concludes with the suggestion of some useful debates for the consideration of scholars and practitioners, including the possibilities of a consideration of rape as torture, and the ramifications of focusing on criminal outcomes of political crises, to the neglect of necessary political solutions. In sum, the paper offers that transitional justice can only make a modest contribution to addressing SGBV, and that complex political crises underlying and causing violence must not be left on the wayside as we advocate around the criminal symptoms.

TRANSITIONAL JUSTICE RESPONSES TO SEXUAL AND GENDER BASED VIOLENCE

CENTRAL AFRICAN REPUBLIC (CAR)

Between October 2002 and March 2003, CAR President Ange-Félix Patassé invited the forces of Jean-Pierre Bemba, the Commander in Chief of Mouvement de Libération du Congo (MLC) to fight a rebel movement led by François Bozizé, the former Chief of Staff of the CAR army. In February 2003, FIDH referred the case to the ICC, following an extensive field mission to the conflict-affected areas where they found widespread rape, particularly from the forces of Bemba [1].

A key feature of in the CAR conflict was the high reported number of victims of rape. Under the presidency of Bozizé, who won the war, the highest court in the CAR determined that they would not be able to address the rape cases. In December 2004, the CAR government made a state referral to the ICC. According to the OTP, CAR became "the first time the Prosecutor ... open[ed] an investigation in which allegations of sexual crimes far outnumber alleged killings [2].

Evidence was compiled by local women's groups, which documented over 1,000 cases of rape. An organisation of victims kept a registry of the violations while providing support to the victims of sexual violence, sexual slavery and forced pregnancy. Once the ICC decided to open an investigation into the CAR in 2007, this evidence was handed over. The ICC subsequently deemed 600 of the reports on rape valid, and determined that they could establish from them a pattern [3]. In 2008, the ICC issued arrest warrants for Bemba, for charges including rape, particularly for violations committed in an area called PK 12 and in the town of Mongoumba. Bemba was also charged with committing outrages upon human dignity/ humiliating and degrading treatment in the same locations [4]. "Mr. Bemba's arrest is a warning to all those who commit, who encourage, or who tolerate sexual crimes," said the Prosecutor of the ICC, Mr Luis Moreno Ocampo [5]. Ocampo went on to say, "There are no excuses for hundreds of rapes. There are no excuse for the rape of a little girl, with her parents watching. There are no excuses for commanders ordering, authorizing or acquiescing to the commission of rapes and looting by their forces [6]."

This arrest was significant for impunity on at least two levels. First, by arresting the former vice-president of DRC and leader of the country's opposition, the ICC was making a statement about how high it could go [7]. Second, for NGO observers, this was a crucial case in centralizing sexual violence in international justice. Many observers had started to fear that non-prosecution of sexual violence was leading to a situation where rape was "perpetrated by civilians such as demobilised child soldiers, who saw rape occurring habitually," resulting in a communities in which rape "permeated into a pattern of conduct in the population [8]." With the case of Bemba focusing on rape, advocates against SGBV saw light at the end of their tunnel.

DARFUR

SGBV violations in Darfur are at least two-fold. First is the abuse by the government forces and the Janjaweed against women and girls, and second are the failures of the laws governing rape, which amount to further abuse: rape is charged as adultery, and therefore those coming forth to report rape are in danger of further victimization, unless they have witness of "four competent men", a requirement that can be hard to fulfill [9]. In a report done by Refugee International (RI) in 2007, it was reported that not only was rape wide-spread in Darfur, but the government did not acknowledge its existence. For instance, President Bashir was on international media declaring that "it is not in the Sudanese culture or in the culture of the people of Darfur to rape. It doesn't exist [10]." This happened at the same time as MSF reported treating hundreds of women for rape in Darfur [11].

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