Mobilizing the Will to Prosecute: Crimes of Rape at the Yugoslav and Rwandan Tribunals

Transnational advocacy networks working on behalf of rape victims pressured the ICTY throughout the entire process, from the formation of the tribunal to individual rape prosecution cases. As the UN Security Council decided to create the ICTY, women’s groups and human rights groups began to mobilize to ensure that sexual crimes were adequately addressed at the tribunal. Concerned women’s and human rights groups formed the Ad Hoc Women’s Coalition Against War Crimes in the former Yugoslavia—which included Equality Now, Amnesty International, the Fund for Feminist Majority, Women’s Action Coalition, the Center for Women’s Global Leadership, and the Center for Reproductive Policy and Law—to pressure the international legal system to act in response to the rape crimes committed (Lewin 1993). On March 8, 1993, International Women’s Day, the Women’s Action Coalition, and the Women’s Coalition against Ethnic Cleansing organized a march in Los Angeles in protest of the widespread rapes of Bosnian Muslim women (Moon 2008). The Women’s Action Coalition also held weekly vigils outside the United Nations in order to demonstrate solidarity with the Women in Black Against the War, a women’s group protesting the war in Belgrade (Women’s Action Coalition). In spring of 1993, MADRE organized the “Mother Courage II: Emergency Response to the Crisis in the Former Yugoslavia,” a national tour where Yugoslav women discussed their experiences in the conflict in the former Yugoslavia (MADRE 1993).

In addition to demonstrations, women’s advocacy groups organized massive letter writing campaigns and raised funds to aid rape survivors in Bosnia. The Women’s Action Coalition, in conjunction with rape crisis centers in the U.S. and the Bosnian Red Cross, raised funds and sent rape crisis volunteers to Bosnia to conduct trainings (Women's Action Coalition 1993). Pamphlets by the Women’s Action Coalition included lists of contact information of prominent UN officials and U.S. congresspeople, senators, and the president along with pleas to contact them and advocate on behalf of rape victims. Also enclosed in one pamphlet was a red, metallic sticker with “RAPE” in white block letters to be adhered to STOP signs (Women's Action Coalition). It is difficult to know with certainty whether letters from this campaign directly contributed to changes in policy or awareness about the rapes in Bosnia; nevertheless a letter from Senator Daniel P. Moynihan of New York to Ms. Janet Wright dated May 27, 1993 discusses his decision to endorse Senate Resolution 35, which condemned the ethnic cleansing and rapes in Bosnia–Herzegovina.

Knowing of your interest regarding Senate Resolution 35 concerning systematic rape in the former Yugoslavia, I am providing you with a legislative update. This past November I traveled to Croatia and Bosnia. What is going on there is virtual genocide. And among the most heinous of the war crimes being committed daily is the rape of Bosnian women. A report by the European Community investigative team estimates over 20,000 women have been raped since the violence began in the former Yugoslavia. [paragraph] Let us be clear. This is a moral outrage, but it is more. It is a crime. In order to emphasize how strongly I feel about this shocking conduct, I joined my colleagues as a co-sponsor of Senate Resolution 35, a condemnation of the Serbian aggression and systematic rape in particular. Be assured that I will continue to speak out against these grave violations of international law and to encourage the Administration to take strong action to bring these crimes to an end (Moynihan 1993).

In addition to drawing awareness and attention to the issue of conflict rape, the advocacy campaign also directly shaped the ways in which the burgeoning tribunal addressed sexual violence. In 1993, an international call for “Gender Justice,” written by the International Women’s Human Rights Clinic of CUNY Law School, was sent to the Secretary-General of the UN, the UN Commission of Experts, the UN Security Council, and the UN Office of Legal Counsel (Green et al. 1994). This memorandum argued that the creation of the ICTY presented an opportunity to go beyond recognizing sexual violence as a violation of international criminal law and to successfully prosecute rape and sexual violence.

In 1993—after the ICTY was established—women’s and human rights groups also lobbied the tribunal to adopt rules and procedures that would enable successful rape prosecutions. An open process of rule making allowed states and NGOs to help formulate the rules and procedures of the ICTY (Copelon 2000). A subgroup of the Task Force for Accountability for War Crimes in the Balkans led by the International Women’s Human Rights Law Clinic of CUNY Law School and staff and students at the Harvard Law School Human Rights Program drafted a submission of rules and procedures to the ICTY relating to crimes of sexual assault. The rules that were adopted included those pertaining to the protection of victims and witnesses, specifically the creation of a victim and witnesses unit and the rules on evidence in cases of sexual assault (Green et al. 1994). More specifically, the progressive Rule 96 of the ICTY regarding evidentiary rules for crimes of sexual violence appears derived from the proposed rules—four of the five proposed rules are included in Rule 96 (Green et al. 1994; ICTY 2010). Feminist groups also organized around the election of the two female nominees, Gabrielle Kirk McDonald and Elizabeth Odio-Benito, for tribunal judgeships—both nominees were subsequently approved (Green et al. 1994).

Once the tribunal began operation, women’s and human rights groups engaged in letter writing campaigns, media work, protests, and conferences to pressure the ICTY to address sexual crimes (Barkan 2002; Green et al. 1994). In an assessment written by Richard Goldstone, the first chief prosecutor of the ICTY and the ICTR, he writes of the immediate pressure placed upon him by advocacy groups to address the crimes of rape and sexual violence.

From my very first week in office, from the middle of August, 1994 onwards, I began to be besieged with petitions and letters, mainly from women’s groups, but also from human rights groups generally, from many European countries, the United States and Canada, and also from non-governmental organizations in the former Yugoslavia. Letters and petitions expressing concern and begging for attention, adequate attention, to be given to gender related crimes, especially systematic rape as a war crime. Certainly if any campaign worked, this one worked in my case, because it definitely made me much more sensitive, concerned and determined that something should be done about the proper investigation of allegations of mass rape in the former Yugoslavia and Rwanda (Goldstone 1996, 234).

Sustained pressure on the ICTY by women’s and human rights organizations also included more direct intervention in tribunal cases through the submission of amicus curiae or “friend of the court” briefs. These briefs are filed with the court but can be written by public, nonaffiliated entities and can act as a form of public pressure to address rape and sexual crimes. The first two amicus briefs were submitted by the Blaustein Institute, the Women’s International Human Rights Clinic, and the Harvard University Human Rights Program in response to the first papers that chief prosecutor Goldstone filed with the ICTY, which downplayed the rape of female prisoners in an Omarska prison and focused more on beatings of male prisoners (Barkan 2002; Copelon 2000). In response to the amicus briefs and with the support of Judge Odio-Benito, a motion that addressed the rapes of female prisoners was granted (Copelon 2000). Two amicus briefs were also filed by women’s and human rights groups in the Tadic case to support witness protection measures and two more were filed in the Furundzija case to counter the defense lawyer’s claim that the rape victim’s condition of post-traumatic stress disorder limited the credibility of her testimony (Copelon 2000).

Transnational advocacy networks pressuring for rape prosecution did not mobilize around the ICTR to the extent that they mobilized around the ICTY. Transnational advocacy networks did not actively pressure the ICTR until 2 years after the establishment of the tribunal. This is not to say that transnational advocacy was absent, but it was slow to mobilize and never generated the broad-base mobilization that surrounded the issue of rape in Bosnia. Because of this, the campaign was never able to generate the sustained advocacy to force the ICTR to produce the political will to shift the default strategy from marginalization and devaluation of sexual violence prosecution.

Initially, human rights groups assumed that the gains made within the ICTY about sexual violence would travel to the ICTR, especially since the two tribunals shared the same prosecutor.

So you had the prosecutor for the ICTY also being the prosecutor for the ICTR, Richard Goldstone. You had him making very strong statements about the fact that rape could constitute a war crime and that they were committed to doing so. So, it was a very exciting time from the perspective of gender justice... The Yugoslav tribunal was really the first time that mass rape and crimes against women were going to be recognized as international crimes. And we just assumed that these gains would carry over to the Rwanda tribunal. [W]e started watching the Rwanda tribunal and it was becoming clear that they were not paying attention to this issue, and that it was not being included in the investigation work that was underway.¹¹

In 1996, following the recognition that the attention and prioritization of sexual assault at the ICTY would not carry over to the ICTR, transnational advocacy networks engaged in two ways. First, the Coalition for Women’s Human Rights in Conflict Situations, a group of sixty organizations, organically formed following an unsuccessful letter writing campaign of disparate groups to pressure the ICTR to enact gender-sensitive policies (Coalition for Women's Human Rights in Conflict Situations 2009). In addition, Human Rights Watch sent a team of individuals to Rwanda to obtain documentation regarding systematic sexual assault during the genocide since little information existed at that time. This documentation of sexual assault was subsequently transmitted to the ICTR, but did not result in any policy changes at the tribunal (Nowrojee 1996).

In 1997, external advocacy and internal advocacy within the tribunal converged to prompt an amendment to the Akayesu indictment to include charges of sexual assault. In terms of internal advocacy, Judge Pillay—the only female judge hearing the case—asked that the trial be postponed for the prosecutor’s office to investigate rape after inquiring about rape from a witness during the trial (Copelon 2000; Buss 2002). Following this questioning by Judge Pillay, external advocacy led by the International Centre for Human Rights and Democratic Development submitted an amicus brief to the ICTR pressuring the tribunal to amend the indictment of Jean-Paul Akayesu to include rape and to ensure the prosecution of sexual violence (International Centre for Human Rights and Democratic Development 1997). In response to this advocacy, a rape charge was added to the indictment of Akayesu, and the evidence of sexual violence and rape proved some of the strongest in helping convict Akayesu of genocide, including rape as genocide (Copelon 2000).

Following the amicus brief in the Akayesu case, transnational advocacy groups were never again able to recreate the convergence of advocacy and political will that would lead to comprehensive changes in addressing sexual violence at the ICTR. Yet, transnational advocacy coalitions continued to mobilize vis-à-vis the ICTR on the issue of sexual violence. In 2001, another amicus brief was submitted by the Coalition for Women’s Human Rights in Armed Conflict Situations in the Cyangugu case to amend the indictment to include rape (Coalition for Women's Human Rights in Conflict Situations 2010). This case represented a very similar case to the Akayesu case in terms of having the support of women’s groups and witnesses willing to testify to sexual violence.¹² Chief prosecutor Carla del Ponte filed a response to the amicus brief asking the court to deny it, which it subsequently did. A leader within the advocacy movement stated in response to the lack of political will to prosecute sexual violence after the Akayesu case:

[M]aybe there wasn’t a perceived need on the side of the tribunal to do this again... because they could have done it in the case of Cyangugu... Akayesu was the first one... maybe one sexual violence conviction like the Akayesu case is considered to be sufficient and so there’s no need to go and seek others.¹³

If transnational advocacy mobilization has the potential to spark the will to adopt and implement laws relating to crimes of sexual violence, then understanding the derivative causes of differing levels of transnational mobilization vis-à-vis each Tribunal can further explain the divergence in rape prosecutions. Building off existing literature, this article argues that three antecedent variables create the conditions for transnational advocacy: media and advocacy groups engaging in information politics, the framing of the issue of rape to utilize or overcome geopolitical location, and interest alignment coupled with connections with local organizations and movements.

For most movements—including transnational advocacy campaigns—mobilization hinges on their reaching out to preexisting and potential supporters through public discourse (Gamson and Wolfsfeld 1993). The media represents an integral part of the creation of public discourse. The relationship between the media and movements is not solely unidirectional, where the media acts only as a conduit for information dissemination, but it can also be two-way (Ron et al. 2005). Informational politics, or these exchanges and interpretations of information, is integral for mobilization of transnational advocacy campaigns by providing facts and testimony that denote blame and symbolically frame the issue (Keck and Sikkink 1998). The media’s role in information politics contributes to the crafting of the narrative of the problem, including the facts on the ground, who is to blame, and what should be done about it. When successful, the widespread dissemination of this narrative—through the codirectional channel of the media and advocacy organizations—creates awareness and stimulates debate, mobilization, and action.

In the case of Bosnia, the media actively engaged in informational politics by gathering and disseminating information and constructing a narrative about the widespread rapes and rape camps. The initial media reports on rape in Bosnia (in the summer of 1992) were largely ignored, but the continuous reports eventually sparked further governmental investigations, public debate, and mobilization by women’s and human rights groups on the issue (Stanley 1999). In the 18-month period between April 1992 (when the mass rapes began) and September 1993 (6 months after the creation of the ICTY), 139 media stories ran in major world publications with “rape” in Bosnia in the headline of the story.¹⁴ The media reports ran continuously from July 1992 through the entire 18-month period covered in the analysis and ranged in types of stories from editorials about intervention to stop the rapes, an op-ed piece by Geraldine Ferraro, harrowing testimonials by survivors of rape camps, discussions about rape as a weapon of war, Vatican pronouncements about the use of birth control for nuns living in the former Yugoslavia, and international adoption policies for the children born of rape. During this time, Ms. Magazine featured the testimonials of three Bosnian rape survivors, which were later reprinted in the op-ed section of the New York Times and were mirrored in many other publications including Newsweek and the Philadelphia Inquirer Magazine. Public documents released by Amnesty International about Bosnia during 1993–1994 parallel the media’s coverage of the Bosnian rapes. During this time, Amnesty International released 20 public documents about Bosnia—including country dossiers, newsletter articles, press releases, and reports—of which eight mentioned rape and four solely focused on rape (Amnesty International 1993b). Viewed in percentage terms, 60% of all public documents released by Amnesty International about Bosnia–Herzegovina during this time discussed the mass rapes. This mirrored relationship between Amnesty and the media speaks to the codirectionality and mutually reinforcing exchanges of information within the transnational advocacy network. It also suggests an informational momentum that contributed to sustained awareness and subsequent demands for action and mobilization.

In contrast to the profusion of media attention to the rapes in Bosnia, only eight media stories with headlines of “rape” about the Rwandan genocide appeared in major world publications in the 18-month period between April 1994 (the beginning of the conflict) and September 1995 (11 months after the creation of the ICTR). All of these eight media stories discussed the widespread rapes during the genocide through the subject of the thousands of children born of rape. In addition, all stories were reported between February and August of 1995, which is about 9 months after the genocidal period and coincides with the birth of the children born of the rapes. During 1994–1995, Amnesty International’s public document releases also reflect the silence of the rapes during the Rwanda genocide. None of the 32 documents regarding Rwanda mention rape (Amnesty International 1994). The media attention about the widespread rapes in Rwanda was almost negligible, occurred markedly after the fact, and only through the discussion of children of rape, and thus never garnered the sustained momentum to create widespread awareness and the demand for action that pulsed through the media campaign about the rapes in Bosnia.

The media not only draws attention to the conflict and disseminates information, but also interprets events and constructs narratives of the conflict, often drawing on existing frames or narratives. Frames generalize grievances into broader claims as well as construct shared identities (Tarrow 1998). Through utilization of frames, the conflict event derives meaning from the larger narrative it becomes embedded within (Gamson and Wolfsfeld 1993). These frames may be cocreated with transnational advocacy networks or transnational advocacy networks may work within frames created by the media because the frames resonate with political allies and facilitate mobilization (Carpenter 2005).

One frame that the rapes in Bosnia were embedded within is the larger analogy of the genocide in Bosnia to the Holocaust and the Nazi concentration camps. Out of the 139 media articles that discuss the rapes in Bosnia, 20 of them directly reference the Nazis, the Holocaust, or death camps. This analogy not only pertains to the mass killings in Bosnia but also extends to the rape camps and their similarity to the Nazi “joy division” of female concentration-camp inmates where mass rapes occurred (Branson 1993). In another newspaper article, the efforts of feminist advocates in the former Yugoslavia to stop the genocide and widespread rapes are likened to courageous anti-Nazi resistors who fought against the destructive aspects of unchecked nationalism (Landsberg 1993).

In examining how the Holocaust analogy frame was successfully utilized and perpetuated in the media surrounding the Bosnian conflict, the geopolitical location of Bosnia cannot be overlooked. Informational politics does not emerge evenly across issues or within issues but takes place within value-laden contexts of national interest, national historical relationships, and implicit and explicit racism. While it is important to recognize the positive aspects of informational politics on mobilization described by Keck and Sikkink (1998, 1999), geopolitical factors, and values can underlie the lopsided attention and mobilization given to similar causes. In the most extreme depiction of this lopsidedness, Bob (2002) likens global civil society to a dog-eat-dog, Darwinian marketplace, where groups fight for attention, money, and sympathy. In this competitive marketplace, many groups are overlooked and never gain access to key media centers in order to garner the necessary attention to muster mobilization and action Bob (2002).

In the case of the drastically uneven nature of the media attention and subsequent advocacy mobilization around the issue of conflict rape in Bosnia and Rwanda, global media access was not the problem. Rather, the conflict in Rwanda was not in the sphere of interest of the mainstream media. During the height of the genocide, information was gathered and disseminated about the killings and rapes by advocacy groups such as Human Rights Watch, UN peacekeepers, and newspaper journalists (Power 2003). The lack of prioritization of the conflict in Rwanda by the media reflected the larger apathy by the world community and the U.S. government to prioritize Rwanda as part of the national interest. In the spring of 1994, an officer of the U.S. Defense Department’s African Affairs Bureau was told by his boss, “Look, if something happens in Rwanda-Burundi, we don’t care. Take it off the list. U.S. national interest is not involved and we can’t put all these silly humanitarian issues on lists... Just make it go away” (Power 2003, 342). In addition to viewing Rwanda as outside of the national interest, implicit racism fueled by deep prejudices and misconceptions about long-standing bloody ethnic wars in Africa, also altered people’s values and expectations about the comparative worth of human life and suffering. In response to the shooting down of Rwandan President Habyarimana’s plane that first triggered the genocide, Canadian Major General Romeo Dalliare, the commander of the United Nations peacekeeping forces in Rwanda stated:

Burundi had just blown up, and 50,000 had been killed in a few days... So when the plane went down, we actually expected around 50,000 plus dead. Can you imagine having that expectation in Europe? Racism slips in so it changes our expectations (Power 2003, 350).

While geopolitical location and the media affect the levels of transnational advocacy mobilization, the relationship and interest alignment of local women’s and human rights groups with transnational advocacy coalitions has the greatest influence upon levels of mobilization. Keck and Sikkink (1998) argue that strong connections with local movements are necessary for successful transnational mobilization. In addition to prior connections with local movements, interest alignment between local and transnational groups on the prioritization and definition of human rights abuses must also occur. Hertel (2006) argues that discord between the priorities of transnational advocacy coalitions and local movements can result in blocked campaigns and reprioritization of rights issues, particularly the inclusion of economic and social rights. In terms of the cases studied in this article, issue alignment means that local groups and transnational groups are in agreement that sexual violence is a priority and should be addressed through the transitional justice mechanism of the international criminal tribunal.

In the former Yugoslavia, relationships between local movements and transnational organizations were strong and had long established ties with women’s and feminist movements in Europe (Benderly 1997). In 1991, local and transnational feminist and peace organizations mobilized against the Yugoslavian conflict and the ethnic cleansing by staging marches, antiwar protests, as well as providing social services to affected women through shelters and hotlines (Benderly 1997). In addition, local women’s groups quickly embraced the international criminal tribunal; during the conflict, these groups actively documented abuses and gathered evidence to be used at the ICTY (Benderly 1997). Connections between Yugoslav feminists, NGO workers, and prominent U.S. feminists such as feminist attorney Catherine MacKinnon also helped establish notable relationships within the transnational advocacy network that sparked increased attention to a broad base of U.S. feminists. In October 1992, MacKinnon recounted receiving information from an American researcher of Croatian and Bosnian descent working with refugees about the scale of the ethnic cleansing and the widespread rapes (MacKinnon 1994). Four women’s groups in Bosnia and Croatia subsequently retained MacKinnon as their counsel and filed a civil lawsuit in U.S. District Court against Bosnian national Radovan Karadzic under the Alien Tort Claims Act (Benderly 1997; Posner 1996). The lawsuit was successful, resulting in an award of $745 million in damages to the plaintiffs for genocide, war crimes, and violations of international law (Posner 1996).

In Rwanda, local women’s organizations did not have the same depth of connections with transnational organizations as the Yugoslav groups and did not have issue alignment over the prioritization of sexual violence justice through the mechanism of the international criminal tribunal. Rape was not an issue that Rwandan women’s groups initially mobilized around. After the genocide, AVEGA, the largest women’s organization in Rwanda, mobilized around the issue of widowhood and chose not to focus on sexual violence (Rombouts 2006). In 1996, when women’s and human rights advocacy organizations began to document the sexual violence that occurred during the genocide, women’s groups were not interested in the issue of rape, but in social and economic issues such as healthcare and reparations.

[T]he Rwandan women’s groups made it very clear that they were absolutely not interested in the issue of international justice for rape victims. And their rationale for this was that they were basically... trying to rebuild their lives. There were so many other pressing priorities that they wanted dealt with. And so they said, “...these women are living in poverty, they have no houses, they’ve got children of their own and orphans they’re trying to put through school. They are in dire need... they have lost their husbands... some of them are unable to support themselves. If you want to do something useful... give them things that they can use... housing, schooling, healthcare.”¹⁵

At this time, the major human rights organizations were bifurcated between civil and political rights and economic and social rights.¹⁶ Therefore, transnational advocacy groups had to reshape their prioritization of issues and listen to the needs of Rwandan women, which meant shifting their focus away from retributive justice.

While most Rwandan women’s organizations did not mobilize around the issue of rape, not all groups dismissed the issue of criminal justice for sexual violence. Connections with one social worker from Taba named Godelieve Mukasarasi proved instrumental in the successful prosecution of rape in the Akayesu case (Neuffer 2002). In 1996, when transnational advocacy groups first traveled to Rwanda to document the genocidal rapes and most women’s groups did not want to discuss rape, Godelieve aided the investigators by linking them to rape survivors within her community of Taba.¹⁷ These interviews and documentation of rape in Taba later constituted the evidence of rape committed in Taba used in the amicus brief submitted in the Akayesu case (International Centre for Human Rights and Democratic Development 1997). Once the Akayesu indictment was amended to include rape charges, Godelieve served as a liaison between the ICTR investigators and rape survivors in Taba, who later testified at the Akayesu trial and provided some of the strongest evidence of his complicity in genocide.¹⁸