CRIMES AGAINST WOMEN ARE CRIMES AGAINST HUMANITY

Since its formation and subsequent interventions in the International Criminal Court (ICC) process, the Women’s Caucus for Gender Justice has been organizing panel discussions during the ICC preparatory commission meetings (prepcoms). The objectives of these panel discussions have been to bring to the delegations and the NGOs, the realities of women and the violations they suffer in war and conflict situations and the nature of their varied concerns and needs with respect to the justice process. We have done this in the hope that the process of the prepcom takes into account these experiences of women. We have held panel discussions on how war crimes affect women, on the situation of women refugees, on the issue of gender in an effort to clarify for delegations what gender means, and for ourselves what the confusions are. In the July-August, 1999 prepcom, the Women’s Caucus organized a panel discussions where victims and witnesses of Rwandan Tribunal as well as experts who have worked with both the Yugoslav and Rwandan tribunals shared their experiences of how the Tribunals actually work and the experiences of victims and witnesses in the process.

Continuing the series of panel discussions, the Caucus brought together eminent panelists during the November-December, 1999 prepcom to speak on crimes against women in different situations in order to show how and why these are in fact crimes against humanity. The following is a report of that panel discussion held on December 15, 1999. The report introduces and summarizes the presentations by the speakers, reproduces the speeches and finally summarizes the comments at the end of the panel.

At the November-December, 1999 prepcom, the working group on Elements of Crimes had the task of defining the crimes in Article 7, i.e. crimes against humanity. Unlike the crimes listed in article 8, where there is a clear context of war or armed conflict, crimes against humanity can occur in peacetime as well. Some delegations fear that their ‘cultural and religious’ practices will be criminalized as crimes of sexual or gender violence. The Women’s Caucus saw the need, yet again, to remind the delegates at the ICC prepcoms of the different situations and the different ways in which violations of the some of the most fundamental of human rights are carried out against women so that these situations could be taken into account in their deliberations.

The speakers at the panel gave vivid descriptions of the different kinds of violations women suffer in war situations as well as in so called times of peace. The speakers on Afghanistan described the range of crimes that are committed against women, including rape, sexual slavery, forced marriage, ethnic cleansing, the use of women to spread terror, particularly terror by threats of violence against women and/or their families. The panelist speaking on the Guatemalan experience reiterated how despite being a different continent and different context, i.e. context of internal armed conflict, crimes of sexual violence against women showed the same pattern. Crimes against women are in fact crimes per se but they are also used as a means to attain larger political purposes, which are carried out by states, dictators, rebel groups and other perpetrators.

The presentation of the speaker from Jordan showed how in certain societies, the concept of honor is given priority and precedence over basic human rights, such as the right to life. Women are considered depositories of the honor of the family and by extension of the community, society and the nation. Women, in some contexts, live in constant fear on a daily basis of the possible consequences of ‘seeming’ to be violating or damaging the honor of the family. This acts as a deterrent for women to come forward and speak about these violations. Women are afraid to speak because they have to continue to live in their own communities and societies and because of the fear that their credibility will be questioned.

The exercise that the ICC preparatory commission is engaged in, is to ensure that operative instruments of the ICC statute i.e. the rules of procedure and evidence and the Elements Annex are drafted in ways which will enable the Court to effectively investigate and prosecute all crimes against men and women alike. At the November-December, 1999 prepcom, there was a move by some delegations to raise the threshold of the chapeau of crimes against humanity, i.e. to make the crimes more difficult to prosecute, and added language that would require ‘a plan or policy to actively encourage or promote’ the criminal acts. Our speaker from Jordan described a situation in which there is a law that sanctions what would otherwise be a criminal act when it is deemed an “honor” crime. This is an example of a tacit approval of the crimes. In this situation, there is no stated plan or policy that actively encourages or promotes the criminal act in that nobody actually encourages men to kill the woman whose honor is called into question, but there are no legislative and other measures to prevent those crimes. Moreover, our speaker on the Guatemalan experience mentioned how the Truth Commission did not find anything to show a stated plan or a policy to commit crimes, yet the testimonies and reports clearly showed that these cannot be accidental and that there was an intentional strategy to terrorize the population. Language that results in a higher threshold is likely to prevent investigation of crimes in circumstances where there absence of a stated policy that appears to actively encourage and promote the commission of the crimes. It is therefore very important for all engaged in the process to take note of the dangers of that kind of language making its way into the text and intervene in the process.

Women, like our speakers on Afghanistan and from Jordan are resisting and actively involved in campaigns and advocacy work to end the situations. Such campaigns and advocacy work implicate another potential of the ICC process – the advocacy for reforms in national laws on crimes of gender and sexual violence. Some of the crimes of sexual violence will not and need not be addressed at an international level, such as in the ICC. If countries have adequate and effective laws, these could be prosecuted at the national level. In the process of signature and ratification of the ICC treaty, it is imperative for some countries to engage in an exercise to reform national laws. If the ICC has adequate and effective laws, elements, rules and procedures, the possibility that these get replicated in the national law reform processes would strengthen the overall ability of states to address crimes against women.

As the speakers, particularly from Afghanistan and Jordan urged those in attendance to join their respective campaigns to end the suffering of women in these countries, we urge all to join the larger campaign for the establishment of the ICC and help end impunity for crimes against women. It is in the interest of the world and community at large to ensure that crimes against women and men are adequately recognized and that the different ways these crimes are committed against women are reflected in law-making process.

****

Speaches by Panelists in the order in which they spoke.

Hawa Ghaus is the associate for Global Programs at the Feminist Majority Foundation which is a women’s group based in Washington, D.C. She has a Masters in International Global Affairs. She is involved with the issues of human rights internationally but particularly of women’s human rights. She has conducted research into the issue of human rights violations in Afghanistan and will share her insights into the issue.

Hawa Ghaus: Thank you Vahida. Good afternoon ladies and gentlemen,

As Vahida said I am currently heading the Feminist Majority Campaign on Afghan women. It is called : Campaign to stop Gender Apartheid in Afghanistan. I have recently come back from Pakistan after a three and half weeks of researching the situation of Afghan women and girls under the Taliban regime. So I am basically here to testify not only for what I have seen but also on behalf of the women I have interviewed.

1999 marks twenty years of foreign occupation by the Soviet Union followed by the civil conflict and now this new reign of terror called the Taliban militia. The real victims in the tragedy of Afghanistan have overwhelmingly been the Afghan women. From the Cold War that was fought between the East and the West in Afghanistan to the different conflicts of political factions - all have used rape warfare and genocide against the population – specifically against the women. What the Taliban are now doing to the ethnic population – particularly under the gender specific policies towards women – is to systematically strip women of their visibility, their voices and their mobility.

The Afghan people really don't have a voice under the regime of terror and brutal force, especially women and girls who have been secluded and separated from the public sphere of life. They are not allowed to have an education, schools have been banned and closed, women are publicly banned from working outside the home and they cannot go out of their homes without being accompanied by a close male relative. There are over 75,000 widows in the capital alone, who do not have any means of survival but need to work and help their families. These women are not allowed to do so because of the official ban on working women by the Taliban militia which claims to be the legitimate government.

I have thought long and hard about which stories I should convey to you. Some of them are so heart-rendering that they deserve to be heard - here and around the world. We interviewed and spoke to about hundreds of Afghan women and conducted a formal survey, a research survey of women who fled persecution and ethnic cleansing within the past year alone. Afghans have been the world’s largest and longest refugee population for twenty-two consecutive years. Yet, one of the astonishing gaps we identified on our trip is that the UNHCR, the agency responsible for refugees, does not take into account or count the new ethnic arrivals who have fled the Taliban regime within the past year. The NGOs we spoke to estimate that millions fled within the past year alone into Pakistan. And most of these arrivals are the Tajiks, the Hizaras and the Shia Muslim population fleeing the Taliban who are the Pashtuns, the majority ethnic population.

Fifty percent of the arrivals we spoke to are from the different ethnicities. Our preliminary findings of the atrocities committed by the Taliban received very little media attention. In our survey questions we asked women specifically if the Taliban have loosened their restrictions on the women. Almost every single women said that the restrictions have remained the same or have gotten tighter. The Taliban continues to enforce its decrees with an unabated brutality. The refugees we interviewed told us horrendous stories of beatings, of maimings, of murders, of abduction and rape of women, of public stonings and of other crimes against innocent civilians.

Speaking with new arrivals from different parts of Afghanistan, we learned for the first time that the Taliban operated women's prisons. They are in operation in the territory that the Taliban have taken on as their headquarters called the Khandahar. They are also in Kabul, the capital, and in Mazar Sharif in the north of the city, a territory that the Taliban took over two years ago. Many women from central and north of Afghanistan who are Hizaras or Tajiks - the ethnic minorities, are held captive without official reasons in these prisons. We have heard first hand reports of beatings of these women prisoners who are taken out at night and tortured in these unofficial prisons and captivity chambers, called zindons. One thing that we found across the board is that the abduction and kidnapping of women and girls by the Taliban is on the rise.

The Taliban have control of about 85 percent of Afghanistan so far. When they take over new territory, women and girls from the Hizara and the Tajik ethnicities are abducted in their villages, taken directly from their houses by brutal force. Besides their policy of separating families, they separate men from the women, the elderly women from the younger women and girls. They round up the young girls in truckloads and take them to their headquarters or to these prisons captivity chambers or sell them into prostitution in Pakistan. Women have been killed and maimed trying to escape from these trucks. One of the Afghan women that I spoke to, who is a mother of two daughters jumped out of the truck with her daughters as they were going to Pakistan. The eyewitnesses we spoke to have seen trucks full of women being trafficked to Pakistan and forced into prostitution or sold to the Arabs on the market.

Forced marriages to Taliban are also on the rise. In Kabul, the Taliban enters the houses of families of young unmarried women and girls, or in the new territories they force these families to marry off the young women to a Talib. It is called nikah by force. And when the family refuses, they ask for money instead. The entire population is devastated and there is no economy. When the families cannot afford to pay the demanded money, they take the women or the girls by force anyway. Many families within these regions have married their daughters off or sent them away because of the fear of forced marriages and abductions by the Taliban. Pakistanis and Arabs are very present alongside the Taliban in their criminal activities. The refugees we met have seen Pakistani, Urdu-speaking men and Arabs among the Taliban.

The crimes that the Taliban have committed against the Tajiks, the Hizaras and the shia Muslim ethnicity of Afghanistan are beyond everything I have ever heard. From the new arrivals we heard many stories about rape and abductions. The Taliban takes even men and young boys to the military for sexual purposes. Children are murdered in the villages in the northern area. The people I spoke to from these villages said that when the Taliban took over their territory, they did not spare even the young babies in the cribs. They stuffed an Afghan tobacco called naswar into the mouth of these ethnic babies so that they do not grow up to fight the Taliban.

Since we have been back, the Feminist Majority Foundation has presented recommendations not only to the United Nations, but also to the United States government. We shall continue to mount pressure on both the US and the UN not only to not recognize the Taliban but to help alleviate unspeakable human suffering that is inflicted and continues unabated with no accountability.

Pakistan is very involved with the Taliban. They are not only one of the three governments that has officially recognized them, but they also fund and train the Talibans with the help of the ISI (the CIA of Pakistan) in their ethnic policies.

The US and UN must re-orient the funding for Afghan refugees in Pakistan to address the desperate needs of this new arrival population which consists mostly of women and children. Basically in the refugee camps, there is no humanitarian or income generating assistance. The four universities that were opened to Afghan refugees in Pakistan have been shut down under the influence of the Taliban in Pakistan.

Both the UN and the UNHCR should stop focusing on repatriating the Pashtun ethnicity into Afghanistan and provide assistance to minorities who fled these horrible crimes into Pakistan. UNHCR takes no responsibilities for the new arrivals, almost a million into Pakistan alone within the past year. On the other hand, the Pakistan government considers all Afghans de facto refugees and more recently have identified them as illegal emigrants in Pakistan. UNHCR should also have responsibility for documenting new arrivals who have fled Taliban crimes.

For the past 4 years, the Taliban have received extensive financial and military support, particularly from the governments of Saudi Arabia, United Arab Emirates and Pakistan. The world must mount international pressure on these governments to recognize the human suffering and loss in Afghanistan. The Feminist Majority is trying to do that with the US government, but it is very difficult for few organizations to accomplish much. We have a hundred and eighty women and human rights organizations on this campaign. But we still need a lot of power to end human suffering.

We need to put what is happening in Afghanistan in its perspective - how have the Taliban been successful, in less than five years to take over an entire country? It is because they have disabled half of the population, the women. Women were not only the sole survivors of the earlier conflicts but they were also themselves playing an equal role to men in the development of their society. The Taliban's current manipulation and abuse of Afghan women has deprived millions of Afghan women of their rights by imposing rigid and inhuman policies that keep them silent, uneducated, and unemployed. It is not merely geopolitical, it is immoral, inhumane, it is unislamic, and criminal. And this needs to be said over and over again. The tragedy of Afghan women is a part of the tragedy of Afghanistan but the Taliban's policies, especially of ethnic cleansing and gender specific policies exasperates an already difficult situation in that country. They have implemented a very foreign, harmful and distorted response to the problems of Afghanistan. And they have used the Islamic religion in vain for their own political purposes. The Afghan population has suffered enough and we cannot afford to let crimes happen in the name of religion or culture – to women anywhere and we have the responsibility to help end this suffering in Afghanistan. So please join our campaign. Any questions you have I will take them later. Thank you very much

****

Woman from Afghanistan who has escaped from the control of Taliban and has personally suffered persecution under the regime. She will talk to us about her own experiences. Zeiba Shorish Shamley, her aunt and a member of the Woman’s Caucus will translate.

Woman from Afghanistan: My name is Giti. I was in Afghanistan. Since the Taliban came to Herat, I cannot study anymore in my city. I cannot go out because the Taliban does not want women to be out of their homes. I can explain all my experience in Afghanistan and my Aunt will translate for you.

After the Taliban took control of my city in 1995, they took away all of women's rights. Women could not get out of the house, or go to work, or go to school or even speak loud. The Taliban forcibly marries young women so that the child born will belong to their ethnic group – the Pashtun ethnic group – which is one way they try to get rid of other ethnicities. The Taliban attacks people's homes at night, take away their belongings and also the women in order to terrorize the population and to have total control of the society.

One Talib (singular for Taliban) asked one of our neighbors to marry his daughter to him. When he disagreed, they came and took not only the daughter but also the man's wife and disappeared. And our neighbor could not say anything because he was afraid the Taliban might kill him. A talib forced another neighbor to marry their daughter to him. This talib was speaking Urdu which is the language of Pakistan. Every night the son-in-law will bring a group of his Taliban friends and force the family cook food for them. The father-in-law, finally told the son-in-law that he could not afford to cook for all his friends, so the son-in-law not only took his wife but also the man’s 13 year young boy as well. He then came back another night and robbed the family of all their material belongings.

I was in tenth grade when the Taliban came to my city. All the women including me were stopped from going to school - we had to stay home and were forced to wear the burqa (veil). There were a lot of forced marriages where the Taliban would force families to marry their daughters to them. In the meanwhile, I lost my father. After my father died, my mother was ill with diabetes and she knew that she would not get well. And because of forced marriages and abduction in my city my mother wanted to get me out the country. So she arranged my marriage to this man without me seeing the man or knowing about him. There are a lot of marriages like this taking place because people want to get their daughters out before their daughters get raped or abducted by the Taliban. So they arrange this type of marriage to men who come from outside, because that's one way of saving their daughters. That is how my marriage took place.

The men who come from outside lie a lot. For example my husband's family said that he was only 26 years old. In fact he was 50 or more years old and then they lied about a lot other things. Finally, I got to Germany where my husband worked as a psychiatrist. He had promised that I could go to school when I get to Germany and after we got there he prevented me from going to school. He put me in a house that was very far away from the center of the city. He threatened to kill me if I contacted anyone or talked to anyone. He also threatened to put me in the mental institution saying he can do that and people will believe him because he is a doctor and he can easily declare me crazy. These were the conditions I was living in. And then my aunt came and took me out.

Zieba Shorish Shamley:

I am her aunt and I found her in the worst conditions that you can think of. She was literally a sexual slave there. After she told me of her situation we went underground. We were in Germany for three and half months and thanks to the Feminist Majority Foundation, the Congress, the INS and other organizations and of course the Women Caucus who wrote a lot of letters and put a lot of pressure because of which we finally managed to get here. We were hiding because our lives were threatened. This became an issue of honor for the man. She had exposed his atrocities against her and he threatened to kill us. He has twnety-two immediate brothers and sisters and their children without counting the cousins all over Europe. And right now, this morning, we got a letter from her brother from Herat, the city she where lived, that the Taliban has threatened the entire family, her and my family. This is a very small glimpse of her life. There is more suffering and more pain that will take forever to explain.

It is not as if people in Afghanistan are not resisting. There was a demonstration in her city in which almost ten women died. The demonstration was of women against banning of the public baths, closing the schools and not being allowed to go to work. The Taliban beat them so brutally that ten died, forty got arrested and went to prison and then disappeared from the prison. Hundreds others got injured so the resistance does exist in the city but the demonstration was silenced with an iron fist.

I am asking all of you here, I am appealing to you to try to help the women and men in my country who are living under the savage rule of the Taliban and in darkness - to try get them a little life. Thank you.

****

Asma Khader is the president of MIZAN, a law group on human rights in Jordan. Asma is a lawyer and has been working on the issue of honor crimes for about twenty years now. She a consultant to the campaign in Jordan to stop the honor crime and is also working with the Center of Legal Aid and Counseling for women in Jordan.

Asma Khader: Thank you. The previous speaker mentioned that her husband is threatening her and her family’s lives because it an issue that touches his honor. This is the key issue. In my country, we don't have militia like the Taliban and we have a political system, which is trying to build democracy, respect human rights and open the public sphere to women for participation in the economic and public life. Yet, there is the challenge of private life or family life that prevents women’s participation and practicing of their basic human rights. One such issue of the private life is the issue of honor. Our societies still have a majority of men who are in the decision-making positions and who believe that women should be under the full control of the men in the families; that women are sexual subjects and that they own women’s bodies. And if the woman is a wife or a daughter, she cannot decide for herself and should follow the decision of one of the male members of the family. This mentality does not only affect personal relations between a man and a woman but also the woman’s participation in the economic, public, political and social life. This is not only a cultural, social or a religious issue. It is also a political issue. Women can vote in Jordan but they are not free enough to vote the way they want.

To use the time effectively, I want to define honor crimes. Honor crimes are also known as and called honor killings. But I think that it is better for the issue to be known as honor crimes because not all women who are victims of honor crimes are killed. Some of them are injured very seriously and some of them are put in prison in order to protect them from honor crimes. There are also some women who are in their homes and with their families with no one documenting their situation. These women are in situations of home imprisonment. They are not free to go out, to work, to continue their education and to have women friends the way they want. And the real problem is that the majority of women are living with this fear of being suspected of behaving against the honor of their family. If they are working women they prefer to go and come back exactly on time. They do not feel free to attend meetings for unions or women’s organizations. Even if she wants to spend more time at work to be able to reach higher levels in her position, she is not free to do so. While she is obliged to create income for her family by working outside the home, she continues to be responsible for all the traditional roles of women as a wife, mother or house-maid.

The problem is that honor crimes are not only a traditional practice, but they also have the sanction of the criminal law system. In Jordan, in other Arab countries and in some countries in other parts of the world, the law itself is a problem. These countries have a criminal law that states there should be no punishment for any man who kills or injures his wife or any of his female relatives if he finds her in bed with another man - except for her husband of course. If he kills or injures her because he thinks that she was in a situation which can be adultery or against the good behavior of a woman, he gets a very light sentence - only six month in prison.

In the last five years in Jordan, an average of 25 to 30 women have been killed each year in honor crimes. Not one of them was found in bed in an adulterous situation. Many of them were killed because of a rumor. Many of them were found virgin after they were killed. And in most of these cases the sentence for the man varied between 2 months to 3 years. Of course there is no equality here. A man can kill a woman but a woman cannot do the same if she finds her husband in bed. As a human rights and a women’s rights organization, we are not asking for equality on this. However, when we presented changes in the laws in our parliament on the grounds that it is against the constitutional provision of equality between all citizens, a number of members of parliament were keen to amend this article towards equality between men and woman rather than change the law. And of course we do not want to be equal in killing in such situations.

One-thirds of the killings in Jordan are honor killings against women.
One-thirds of woman in prisons are there just for protection and not for any crime they committed. Some of these women were raped and their families are ashamed of that fact. Women are in prisons because they are victims. One of my client’s brothers said that he knows his sister is not guilty, but it was still better for her and the family that she die. The women in prisons spend sometimes more than ten years. They enter the prisons not knowing when they will be free. Those who commit crimes have a sentence and they know how long they will be in the prison. But these young girls do not know what will happen to them. Many of these women are victims of honor crimes and are young children under the age of 18.

Attempts to amend this law bring a reactionary cry from religious groups who say it is against Islam or religion. In fact, if we try to read Islam from a woman’s point of view, we do not find the same results. According to Islam, adulterous cases need to go through a court procedure and require four credible eyewitnesses thus making it impossible to send any person to court for the crime of adultery. And there is no killing in Islam, in the Koran itself as a text or even in the implementation of the text in the very early stages of Islamic sharia.

The problem however is that there is no one Islam. There are several Muslims communities are implementing Islam the way they want. In the Arab region, we have Tunisia for example. Tunisia is an Islamic country but their interpretation of Islam is very different from what is going on in Saudi Arabia, Jordan or other Muslim countries. This specific law, i.e. article 340 and 98 in the criminal law of Jordan originated from the Napoleonic code. Five Arab countries, Egypt, Syria, Libya, Jordan and Palestine who copied or used the French penal code as their basis have these laws. Other Arab countries like Saudi Arabia have restrictions of women’s freedom but they do not have these specific articles in their criminal penal code. Thus Jordan is not the only country facing this problem. We know that this was practice exists in Brazil for example, in Pakistan and in other countries and of course in France twenty years ago.

In our opinion, the continuation of this practice is mostly because of the patriarchal system behind the interpretation of Islam and the use of this interpretation for political power. The government, the king and many in the civil society support the changes in the laws. Yet, when we presented amendments to the Parliament last month, the majority was against these changes. Those who voted against the changes claimed that the amendments will damage the unity of the family, that the amendments were based on western values and that women cannot be allowed to go free and do whatever they want without any control.

There is a need for an international law to protect women. May be the ICC can play a role in giving a definition to these systematic types of legal killings. I think that it is systematic when the law is accepting these kinds of killings or injuries. We are engaged in a public awareness campaign and are collecting signatures. For example, we prepared this petition and collected, for last six months, more than 25,000 signatures from citizens who asked the government, the parliament to change the law. We were able to push the government to present the amendments to the parliament but still the public awareness should be stronger.

I think the international community, especially human rights organizations need to focus on this issue. Not by blaming it as a bad practice of specific countries or against Islam or the Arabs but against the practice itself. Often such situations are used by different interest groups for political reasons, which negatively affects our local campaigns to change the situation. It is important to realize that there are different interpretations of Islam. Not all the Arabs are the same. I have heard last few days the talk about the Arab proposal. Not all Arab countries share the same position. There are different Arab countries with different points of view towards honor crimes and other women’s issues. And I think it is a universal problem. We still have it as a practice in our countries and the percentages may be higher but it happens everywhere. Violence against women should not be allowed and certainly not by law. Governments should provide institutional services and programs that will help women instead of sending them to prison for protection.

I am ready to answer any question but I want to say from my experience as a lawyer having clients who are victims of honor crimes and from the women who are using the hot-line or the legal aid center that women are afraid of taking any steps to defend themselves. They feel that if they say anything they would be suspected of being against their family and wanting sexual freedom. Women therefore keep silent when they are victims of honor crimes and of family conflicts like custody, divorce. That is why women are not able to actively participate in economic, political and social life in our countries. The constitution gives women all the legal rights but in practice they are not able to use them because of the situation. Thank you.

****

Prof. Jan Perlin is a practitioner-in-residence at the International Human Rights Law Clinic at American University in Washington. Jan has practiced Criminal Law as a public defender. She has participated in the United Nations Human Rights Mission abroad and also in the Guatemala Truth Commission She will talk to us from her experience working in the Guatemala Truth Commission and will also try to put the presentations today in an international law perspective.

Jan Perlin: Thank you, I am very happy to be here this afternoon. I hope you can take some 15 minutes listening to people speak before you spend the rest of the afternoon also listening to a lot of presentations in working groups. I just want to say that a lot of the themes that you have heard from the other speakers are repeated in the Guatemalan experience. So despite being from another continent, another context i.e. the context of the internal armed conflict, the themes about crimes of sexual violence are reiterated.

The Guatemala Truth Commission has its mandate based on the peace accord that was negotiated between the ex-guerrilla BUING and the government of Guatemala. The Truth Commission itself was called on to clarify the history of human rights violations and the incidences of violence related to the armed conflict from 1962 to 1996. In that task, the commission adopted an international law framework interpreting human rights to encompass International Humanitarian Law, Customary International Law concerning crimes against humanity, Conventional Law concerning both crimes and human rights guarantees, the Genocide Convention and all the other instruments of the international principles of customary law to which Guatemala is a party. The commission has a special section in its lengthy report on the use of sexual violence in the conflict. As I relate to you a little bit of that analysis, you will begin to see that it is not at all difficult to show a pattern or systematic or widespread use of this kind of violence when you focus, as the commission did, on the institutional rather than the individual responsibility.

I know that the ICC statute is being deigned to make the individual responsible, the concept being that individual responsibility not get lost in the idea of entities, governments and that people actually committing the crime be held responsible. But in the context of the Truth Commission where the idea was to say, “what is it that had happened?” we looked at institutional responsibility. The testimonies, and I relate in a very brief way if I can, revealed the use of sexual violence in different stages of the conflict directed at 99% of the population. We registered 42,000 victims in the investigation. People were interviewed directly and other sources of information were used as well. The use of sexual violence was predominantly against women. Although there were cases of rape of men, they constituted only 1% of the cases documented. In addition, about 83% of sexual violence was directed towards the minority indigenous women. So there was also an ethnic component to the use of sexual violence, which we heard also from the Afghan context.

The commission found in its conclusion that the use of sexual violence, particularly at the height of the counter-insurgency war in Guatemala in the eighties was systematic, wide spread, and prevalent throughout the different stages of the counter-insurgency campaign. Though massacres were the predominant mode of attack against the civilian population, it was often accompanied by rape first and then murder of women and girls. In the later stages of the conflict when the massive violence, which characterized the genocide in the eighties against the minority indigenous population in certain areas, the method of control in the different areas in the country-side which the government was seeking to subdued was the use of militarization, military detachment accompanied with rape.

The institution of civilian defense patrols loyal to the military and controlled by the military also committed these abuses. In the context of the displaced population, which was then captured and concentrated in villages or in public buildings in different areas of the country, and also subjected to the military control, the rapes continued. The common link in all these situations is the idea of the practice of total impunity, that there was no punishment for these types of crimes. And despite the purported defence of any these possible incidences having been excesses, the commission was able to document use of this type of violence consistently over time and different geographic areas, different combinations of both units, with military and paramilitary.

I do not want to begin to describe the violence because I think you have heard these stories before. These are massive rapes, they are public and in the context of the acts of genocide, very clearly designed to traumatize and to injure both mentally and physically not only the women but the entire community. So women are attacked not only because they are women but because they are members of their community. These types of patterns cannot be said to be accidental whether or not there was a stated policy. I could say that we found nothing that stated a policy. But there are testimonies and reports that talked about training to practice sexual acts in front of other soldiers in order for them to be accustomed when they attacked the population. There are some other indications to show that this was an intentional strategy.

The purpose of this kind of violence is to de-sensitize the crimes, that it is just another form of violence. Yes, these are crimes primarily directed toward women, but is just as brutal and can be characterized and is characterized as torture as well since it is done by public officials, people acting in official capacity, intentionally inflicting severe physical and mental harm for the purpose of humiliating, degrading, or getting out confessions. Many of the testimonies were accompanied by torture where women were asked: where is your husband? If your husband is not here, he must be in the mountains, he must be a guerrilla activist and then the rape will be in connection with an interrogation. I do not think that it can be underestimated that this type of violence is used intentionally with military tactical purposes and other purposes associated with other crimes prohibited by International Law. And I think that in that sense it merits a special attention in light of the specific goals of the ICC, to recognize this as it was recognized in the Guatemalan context, as it was recognized in principles in Nuremberg and Tokyo statutes after WW II although there have been no prosecutions and as it is being recognized now in the ICTY and ICTR where there has been a conviction for genocide for acts that included rape.

I want to say just one word to finish in terms of the effects and consequences of this type of violence. There have been testimonies about how this type of violence gives rise to a situation that is peculiar in many ways because the women in the Guatemala context and what I hear from these other contexts, don’t have a place to talk about what happened, or the room to heal. Their experiences are not taken into account in terms of reparations, bringing back the community, bringing back people, women included to be able to participate fully in their society.

These attacks certainly affect communities, they affect the women themselves and their ability to participate in the communities. The shame should be understood by those communities too as intentionally inflicted because that shame divides their communities and it allows the effects of these brutal kind of violence to be successful. And so I think that we can go back to dealing with these issues. The more we confront them and put them on the table, the more difficult it would be for these to be successful tactics.

Thank you.

****

Comments, Questions and Responses

1. One question from the audience was if there were women doctors in Afghanistan and if so, whether they are allowed to practice. How does this situation affect women getting medical attention?

§ Hawa Ghaus and Zeiba Shorish Shamley: There are women doctors but they are not allowed to work and male physicians are not allowed to examine female patients. Since schools are closed for women, including medical schools, there are not many newly qualified women doctors. Because of international pressure, the Taliban have allowed some widows to work and some female physicians to work in segregated spheres. But from interviews of people who fled Afghanistan from all over the country, one gathers that most of them have fled for three reasons: lack of education, no health care system as a result of which no female physician could examine them or their daughters and the fear of gender and ethnic persecution. This situation mostly affects ethnic minority groups. Women from majority pashtun community have their own lives they go to Pakistan for treatment and send their children, daughters included, for education in schools across the borders.

2. Another question from the audience was on the Guatemala situation as to what is being done to redress the balances by any sort of reparations for the Indians who were violated, now that the Guatemala case has been settled.

§ Jan Perlin: It is not sure if the Guatemala case has been settled. The President has denied that there was any genocide in Guatemala. There has been no public recognition apart from the Truth Commission which was an international body. The issue, on some real level in terms of recognition for the victims, is not settled. There has been a proposal to establish a commission for national peace and harmony to implement some of the Truth Commission’s recommendations like the one on exhumation and finding people that disappeared and recognizing victims. This is only just the beginning and it is only a year after publishing the report. As far as reparations are concerned, the Human Rights Global Accord called for assistance to victims of human rights violations. The present government had a policy of saying that the programs are to overcome the conflict and to reconstruct the country. There is a part on dedicating money but there is nothing systematic and there has been no recognition on the part of the government. There is an inter-play between prosecutions and what we know as Truth Commissions which try to reveal data and analyse what happened without prosecutions. This interplay of public complaint and announcement, trials together with commission generally increases participation by civil society which is the kind of action that will bring remedy.

3. Since the Constitution in Jordan provides for equality, what is being done on the issue so far by government and NGOs to provide for some facilities for the young girls and women who are victims of the crimes.

§ Asma Khader: There are constitutional gurantees of equality, yet the suggested amendments to the laws were defeated in the parliament. This is because majority in the Parliament are from the conservative tribal community and the situation cannot be imagined to change in the next 10 years. So one cannot leave it for democracy to work in this case and wait for the parliament with majority of liberals. As an international human rights advocacy group, we cannot be silent till the local democracy changes the situation. There are many things that are being done. There are many proposals for starting shelters for women survivors, providing legal aid and counselling to these women. We are still in a better position in Jordan because we are able to campaign against the practice, to speak up and to provide help to women. In some other countries, one cannot even mention the issue.

4. Another question was on where does Queen Noor stand on the issue of honor crimes.

§ Asma Khader: Queen Noor, King Abdulah, King Hussein and Queen Rania have all made statements that they are against honor crimes and all kinds of discrimination against women, and that the laws should be amended. Such statements encourage initiatives but it is not enough. Moreover, their statements came after 20 years of struggle and pressure from international human rights organizations. The international community therefore has a role to play at all times. Right now, the women’s groups have no problem with the palace nor with the government. The opposition is mainly from the fundamentalist Islamist groups and members of the parliament who come from very conservative tribal backgrounds and who have the majority in the parliament. The problem is also the patriarchal mentality which is dominating the whole culture in the society.

5. Comment on the honor crimes: The type of crimes in some Islamic societies are taking place under the color of law. Italy had same laws until 20 years ago. It is important that the speaker stressed that is not a part of the Sharia. It actually comes from the European criminal code prevalent 200 years ago. These laws allowed men to punish women who committed adultery and other similar conducts.

Today, there are definitions of crimes in the Rome statute. Where there are no definitions like rape, the lobbying of the Women’s Caucus for having definitions based on the Akayesu jurisprudence is welcome. But in other crimes, where we have definitions, the Rome Statute should be our point of reference. It is very important to stress that when definitions are already available, elements are not necessary. On one side, there is this need for honor crimes to be taken into account. On the other side, these terrible situations like honor crimes that are not directly related to the definitions in the statute should perhaps be dealt with at the domestic level like it was in Italy by the feminist movement in the 70’s and the 80’s and now in Jordan, Palestine and other countries.

There is a need to pursue a balance between the necessity of having the court established by getting 60 ratifications and having a court that has legitimacy in the minds and hearts of public opinion of the world. It is not only a matter of ratification because our countries can ratify a treaty and withdraw tomorrow. It is possible to do so because there is no public opinion in favour of the court. It is already happening for instance in the inter-American systems where a couple of war-torn countries in South America are in the process of withdrawing from the court. So the process of gaining the public opinion is extremely important which includes judges who are human beings and they can be expected to be imaginative and create jurisprudence that is more progressive.