This article originally appeared in T&S Issue 36, Winter 1997/98.
Sarah Maguire, an English barrister, is currently working in Bosnia. Here we reproduce the speech she gave at the Rape and Criminal Justice System conference earlier this year.
I want to talk about silence. I want to talk about the silencing effect of sexual violence, both in the national and international context. I want to talk about silence because rape, sexual violence, is one of the most silencing mechanisms that men have for controlling women. Three days ago I was talking with some of the women who have survived the fall of Srebrenitze in Bosnia and they have retreated now into silence because nobody listened then and nobody is listening now.
We have the two war crimes tribunals, what they call ad hoc tribunals — the International Criminal Tribunal for Former Yugoslavia (the ICTY) and the International Tribunal for Rwanda (the ITR). The Yugoslav Tribunal is vastly under-resourced; the Rwanda Tribunal is virtually unresourced — and there’s prize for guessing why there should be a difference in funding of a tribunal for a European country and funding of an African one.
All over eastern Bosnia and Hertzogovina, you ask the women ‘what about the tribunal’, ‘will you talk to the tribunal’, ‘why not go to the tribunal?’ and the answers they give are various. They say ‘the tribunal hasn’t been here’ or ‘they came here but they did nothing’, or they say ‘they came but we won’t talk to them’, or — and this is usually from men — ‘our women are different, our women won’t talk, our women have silence, our women have dignity, it’s different for our women’. Well, that’s a load of complete crap, isn’t it? Because it’s different for all women, we are all different. It’s not always because those men don’t care, its not always because those men want to hide what has happened to women, but it’s easier for those men and for some women — easier for all of us, probably — not to confront the reality of sexual violence. And this holds true for sexual violence in the international or the domestic context. It’s easier not to talk about it.
Feminist and other silences
But we have to, because sexual violence affects all of our lives. Yet it’s an issue that we rarely discuss, even if we are feminist activists, in terms of our personal lives. We don’t like to talk about how we take taxis home when we’re coming home late at night. We don’t like to admit, even to each other, about being scared of sexual violence. We don’t like to tell each other that we fear the step behind us on the dark street at night. We certainly don’t like to tell each other, those of us who are still unfortunate enough to be involved with men, (oh dear, did I Just come out?) even when living with brothers or fathers that we fear the man behind the closed door. It’s the same silence, nationally or internationally. We are expected to get on with our lives; we are expected not to make a fuss.
Here are two examples. We talk about ‘date rape’; we don’t talk about rape by known men. And the other day, a friend of mine in Bosnia was telling me that the Minister of Health had been to visit their organization. It’s a fantastic organization; it works with women exclusively and has done since around 1992. The Minister of Health was very impressed and he said ‘you know, it’s amazing about our women’ — going back again to ‘our’ women — ‘you can beat them and beat them and the only thing that happens is your arm gets tired. Women don’t break.’ We are expected to maintain silence.
Rape as a war crime
In this context, it’s amazing and fantastic that both the ad hoc tribunals have recognized that rape constitutes a war crime; that rape is or can be a constituent of genocide, of crime against humanity, or even, for god’s sake, a grave breach of the rules and customs of war. It’s the weirdest concept, that it’s acceptable to do certain things in war, but if you go a little bit too far, if things get out of hand, then that’s a breach of what is normal and acceptable practice when two nations decide that they’re going to start fighting each other. Or should I say, when the men from two nations decide that they’re going to start fighting each other.
Rape wasn’t recognized in the Nuremberg trials after the Holocaust as a war crime. It just wasn’t an issue; it wasn’t addressed; it didn’t happen, bit if it id happen then it was something, again, to be kept silent about. So the fact that rape is recognized by the ad hoc tribunals, and will be recognized by the permanent international criminal court as a constituent of genocide or crime against humanity, is a huge step forward. It’s a step forward that we feminists made. We made that step forward because we have insisted for years and years and gone on and on and not been silenced about the need to recognize sexual violence and to name it for exactly what it is.
So rape is now a war crime; it’s genocide and a crime against humanity and a grave breach of the rules and customs of war. But what’s actually happening? Are men by their score from former Yugoslavia or from Rwanda being prosecuted? Are the prisons full of serial rapists, or of men who order the mass rape of women in schools and other camps? No. The tribunals are failing women. I fully support the tribunals and recognise the need for them, and am an advocate of the permanent international criminal court. But they’re failing for various reasons.
A case for the prosecution
First of all if you’re going to have a trial, you have to charge somebody, and the tribunals are not charging sexual violence. There are a few indictments, but by and large they’re not charging. Part of the reason for that, I am told, is that it’s easier to prove genocide. It’s easier to prove genocide simply by pointing to the murders of — usually — men. The way that the war in former Yugoslavia was conducted was that, for instance, a village would be targeted — 40 men would be taken from the village, put on a bus, taken to a mass grave and shot through the head. 40 women would be taken, put on a bus, taken to a school or somewhere similar, and raped systematically over a period of weeks or months. But you don’t need to charge the rape, because you’ve got the murders and you can prove the genocide that way. So again there is silence over what happened to women.
Secondly, to charge rape, you have to have a witness, and witnesses have to testify. For a witness to testify, she has to be protected, and not just at The Hague when she goes to the Tribunal, but before and after. It’s no good dumping a woman back in the refugee centre — they’re now euphemistically called collective centres, and there’s nothing very collective about them, I can assure you — and saying, ‘Thanks very much for giving your evidence, thanks very much for talking to one of our investigators, sit there and wait, and while you wait, the man you accused, who lives probably up the road in the Republic of Serbska, will know that you have given evidence, will know that you have talked to the investigators, and you and your family — what’s left of it — will not be protected. But please just sit there and wait.’
Thirdly, to be a the witness, the woman has to believe that what she’s been through is not her fault. Now, you’d think, wouldn’t you, that for women who have been raped in war, no-one would believe that it was their fault. But even in that context, women can still believe that it was their fault, that somehow they were different from the women who managed to escape rape, and that somehow it was their fault. In this way they are stigmatized and therefore silenced.
Fourthly, the women have to be supported. When I talk about support for rape victims and for witnesses, I’m not talking about sitting around on beanbags and making lots of cups of tea. What I’m talking about is adequate provision for people whose rights the international community claim should be protected. When a woman has been raped, her fundamental human rights have been breached irrevocably, and we the international community have a responsibility to take care of those victims.
A particular crime
There’s been a lot of discussion at this conference about whether rape is a particular crime, or whether rape victims are a particular group of victims. Rape is a particular crime because of its relationship with heterosexuality. It’s a particular crime because of what it does to women, what it does to its victims — what men do to their victims when they rape. It’s not women who are particular victims, it’s the crime itself, and that’s what we have to recognize. Because of feminist activists and feminist lawyers, there are provisions in the ad hoc tribunals that are useful for protecting victims of sexual violence — ones that could and should be brought into domestic jurisdictions. For instance, it is not possible for a man accused of rape as a war crime to cross-examine the victim about her previous sexual history. This is not going to happen — it’s outlawed. Now if this is possible with somebody accused of mass rape or somebody accused of even raping just one woman in a tribunal at The Hague, then why can’t it happen at the Old Bailey? Why can’t it happen at the Crown Court in Dublin?
As a lawyer, I would maintain that previous sexual history is never relevant. I work as a defence barrister and I refuse to take rape cases, despite the risk of being disbarred. I refuse to stand up there with my advocacy skills, and say to a woman, ‘you had sex in the back of a car once, didn’t you? You appeared in front of a camera once, didn’t you?’ How can I do that? How can I stand there with my wig and gown and criticize a woman for being a woman? Because that is what allowing sexual history evidence really means. I absolutely refuse to do it.
The ‘consent defence’ in war crime
In the ad hoc tribunals, consent can only be an issue where the defense raises it. They have to show that it’s relevant to that trial. Some would say that if you’re talking about anonymous rape or of somebody who’s ordered the rape of loads and loads of women, then of course consent can’t be an issue. In fact, many of the women who were raped during the war in the former Yugoslavia, were raped largely by men who knew them very well — by school friends, neighbours or men who lived in the next village, so the defendants could say that consent was an issue, because ‘I’d known her since we were schoolmates and, despite me being a Serb and she being a Moslem, and despite the fact that our country — now our countries — were at war, in fact she’s always fancied me, and this was just an opportunity’. But at the ad hoc tribunals, if a man wants to raise consent as an issue, he has to show why, and the burden is upon him to establish that consent really is a relevant issue. Again, if it can be done there, then why the hell can’t it be done here?
One of the things that is necessary for a witness, is a culture of belief. For example, last August I visited the UNHCR in Zagreb where I spoke informally to a women refugee protection officer about a woman from Kluge I had met who told me that she and all the women from the village had been taken to the local primary school and had been subjected to sexual assault over a long period of time. The protection officer said, ‘oh yes, Kluge, but it happened such a lot that they’re all now saying it happened, and you can’t believe them’. Now, if you can’t believe them, who the hell can you believe? Without a culture of belief, women will not come forward and testify. I would not take myself from a village where I was trying to repair my life and my home and find out what had happened to my relatives and put myself in a place where people were going to sneer at me and say ‘Raped? Pah! You’re making it up.’ I wouldn’t do it and I wouldn’t ask anyone else to do that.
Bringing rapists to justice
Finally, even if you have all these things — you’ve got a charge, you’ve got an indictment, you’ve got a witness who’s prepared to testify, she’s protected, she’s supported, she’s believed, — you then need a defendant. The prisons at the Hague are going to be empty by the end of December. Not because there’s a shortage of war criminals, or of indicted war criminals. Not because the streets and the walls of Bosnia are not almost papered with wanted posters — made by women’s groups, not the United Nations — which list and describe and give photographs of wanted war criminals. There’s no shortage of men waiting to be arrested, and there’s also no shortage of French soldiers for instance, standing beside them, watching them have a cigarette, there’s no shortage of British and Welsh soldiers watching those men having cups of coffee in coffee bars, the big four, as they’re known are occupying positions of power and influence throughout the former Yugoslavia. Our elected representatives and others negotiate with them or their representatives on issues of national and international security. Well, the women say ‘why should I bare my soul, put myself in danger, isolate myself from my community, risk being accused of lying and of fantasizing, when the states who are responsible and who do have the power — it’s a complete myth that the forces in the former Yugoslavia do not have the power — when those forces and those states do not implement the very law that I am expected to implement — why should 1?
One of my fantasies before I went to Bosnia was to learn enough Bosnian to walk up to Radovan Karadžić and say ‘Are you Radovan Karadžić? Pleased to meet you. My name’s Sarah Maguire and I’ve got a warrant for your arrest.’ And I talked to my nearest and dearest friends about it and they said ‘We’ll come to the funeral’. But there are plenty of men, soldiers, in the former Yugoslavia, who we pay for, who could do exactly that. But they won’t and they won’t because people say we don’t want to risk our boys. But we were prepared to risk our boys to go and fight in the Gulf, we were prepared to risk our boys in the Falklands, over territory and oil, but we’re not prepared to risk our boys for the lives of women. Once again, women’s lives, women’s futures are being sacrificed to some nebulous idea of political stability. As women, we know that our lives have no such thing as stability while the threat and the reality of sexual violence against us hangs over us and permeates our everyday lives, we do not have political, or other, stability.
One last thing, and I’m going to return to why sexual violence has become an issue for the war crimes tribunals. It’s because of us and because of our feminism and our activism and our bloody hard work. Sisters, never give up. Refuse to be silenced, and keep up our demands for fair treatment for women.