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«Dissertation zur Erlangung des Doktorgrades der Juristischen Fakultät der Universität Regensburg vorgelegt von Kathrin Greve Erstberichterstatter: ...»

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Several female judges have said that they support the introduction of a women’s quota for judges, too,3443 or at least the requirement of a “Gender Balance”, as contained in Art. 36 VIII a iii ICC.3444 This could be based on Art. 8 of the United Nations Charter. Besides, the Universal Declaration of Human Rights, CEDAW and other United Nations instruments for the protection of human rights constitute at least a moral obligation of the United Nations and a legal obligation of member states to implement equality between women and men. The argument that positive discrimination of women at the expense of men is not the right tool to end women’s inequality has been rejected by the United Nations Administrative Tribunal: In order to improve the effects left by the unsatisfactory history of the employment and promotion of women, it has been judged admissible. 3445 Finally, only equitable participation of women within the United Nations System, including at ICTY and ICTR and comparable judicial institutions, would lead to a veritable representation of the peoples of the United Nations, in whose name the Organisation was founded.

More specifically, the introduction of a women’s quota of 50% would assist the execution of the ICTY’s and ICTR’s mandates by facilitating testimonies of female witnesses and victims of sexual violence and thus obtaining justice. Female prosecutors, investigators, and interpreters could facilitate collecting evidence and/or testimonies from female victims who would possibly be reluctant to speak openly to men,3446 which is also borne out by the experiences made at ICTY and ICTR. 3447 Testifying before an all-male bench also can be intimidating for female victims of sexual violence.3448 Because there is no norm guaranteeing the presence of female judges, in many of the analyzed cases, the Appeals Chamber consisted only of male judges.3449 Further, female judges may be more successful in protecting female witnesses or Greve, Interview de Juge Ramaroson, p. 2; id., Interview with Judge Mumba, p. 2; id., Interview with Judge Pillay, p. 2.

Greve, Interview with Judge Odio Benito, p. 3. These norms were elaborated on the basis of the experiences made at ICTY and ICTR, especiallz with regard to the efforts of the women working there, see Steains, Gender Issues, p. 380.

UNAT, Judgment no. 671, Case no. 731, Grinblat, 4 November 1994, para. XVII; upheld in UNAT Judgment no. 765, Case no. 837, Anderson Bieler, 26 July 1996, para. V.

Chinkin, Protection, p. 458; Greve, Interview with Judge Odio Benito, p. 3.

Charlesworth, Chinkin, Boundaries of international law, p. 312.

Chinkin, Protection, p. 459.

Prosecutor v. Anto Furundzija, Appeals Chamber, Judgment, 21 Julz 2000, IT-95-17/1-A; Prosecutor v.

Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Appeals Chamber, Judgment, 20 February 2001, ITA; Prosecutor v. Jean-Paul Akayesu, Appeals Chamber, Judgment, 1 June 2001, ICTR-96-4-A; Prosecutor v. Alfred Musema, Appeals Chamber, Judgment, 16 November 2001, ICTR-96-13-A; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Appeals Chamber, Judgment, 12 June 2002, IT-96-23-A & victims of sexual violence from inadequate treatment by the Defence during crossexamination. According to the former President of the ICTY, female judges feel more empathy with a rape victim because they see themselves more as a potential victim and feel her pain, whereas even sensitive men tend to identify with the role of a potential perpetrator and thus pay more attention to the protection of the rights of the Accused.3450 In the Rule 61 B proceedings against Nikolic, it was mostly judge Odio Benito who insisted when sexual violence against women or more generally their treatment in Susica camp was referred to.3451 According to her, there is concrete evidence that the presence of female judges and women in professional posts in the three organs of ICTY and ICTR may lead to the effective prosecution of crimes of sexual violence against women.3452 The experiences made at both Tribunals have shown that the consideration of women’s interests is closely linked to the mandate, as ICTY and ICTR can only be successful if women trust them enough to come and testify. The ICTR’s investigation teams at first could not collect testimonies regarding sexual violence because they did not respect the potential witnesses’ needs. Both Tribunals have stressed that witnesses are more important for proceedings than they were in Nuremberg or Tokyo.3453 For their needs to be taken into account, the presence of women in all organs and at all levels has been shown to be necessary; thus, the increase of women’s representing 50 % at all post levels would help discharging the Tribunals’ mandates.3454 The same case can be made when the mandates are understood as a contribution to pacification in post-conflict areas, consonant with their establishment under Chapter VII United Nations Charter. The creation of the Tribunals is the embodiment of the insight that peace without justice is not possible, and that justice must not consist in the perpetuation of collective myths, but can only be achieved by punishing the perpetrators.3455 Justice, however, presupposes equality between the sexes. Armed conflicts worsen the discrimination and violence women are subjected to everywhere and daily. To end the cycle of violence, the right of all IT-96-23/1-A; Prosecutor v. Zdravko Mucic, Hazim Delic, Esad Landzo, Appeals Chamber, Judgment on Sentence Appeal, 8 April 2003, IT-96-21-Abis.

Sharratt, Interview with Gabrielle Kirk McDonald, p. 33.

Prosecutor v. Dragan Nikolic, Trial Chamber I, Decision on Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, IT-94-2-R61, Transcript of 10 October 1995, p. 287, 321; Transcript of 11 October 1995, p. 396-398, 405-408, 410, 445, 455; Transcript of 13 October 1995, p. 700Greve, Interview with Judge Odio Benito, p. 3.

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo, Trial Chamber II, Judgment, 16 October 1998, IT-96-21-T, para. 595; Prosecutor v. Jean-Paul Akayesu, Trial Chamber I, Judgment, 2 September 1998, ICTR-96-4-T, para. 142; see also Schrag, The Yugoslav War Crimes Tribunal, p. 21.

Greve, Interview with Judge Odio Benito, p. 3.

Rogel, The Breakup of Yugoslavia, p. 72; Sharratt, Interview mit Gabrielle Kirk McDonald, p. 33; Wäspi, Arbeit des ICTY und ICTR, p. 2457.

women to equally participate in the economic, social, political, and cultural life of their societies, must be protected. Without full equality and participation of women, all steps to end systematic rape or sexual enslavement or rebuild post-conflict societies, in the final analysis will fail.3456 This does not only mean that crimes against women must be taken as seriously as those committed against men, but also that the Tribunals demonstrate that women contribute as much as men to justice being done, rather than being only victims or perpetrators.3457 The effect of Arbour signing the Indictment against Milosevic, or Presiding Judge Florence Mumba reading out the Judgment against Kunarac, Kovac and Vukovic, stressing that “Men of substance do not abuse women”,3458 cannot be overestimated.

Equality of men and women cannot only be demanded if it is shown empirically that collectively, women are more sensitive in their treatment of female witnesses or insist more on the prosecution of sexual violence than men, even if the thesis submitted here has at least demonstrated a tendency pointing in this direction for the women employed at ICTY and ICTR.

In spite of the different experiences made by women of diverse geographical and social backgrounds, women globally share the lack of access to power and a greater vulnerability to economic, social, and sexual exploitation.3459 As a justification of parity, it suffices that the experiences of women under present circumstances are not as significant as men's for decisions taken within the United Nations or the Tribunals.3460 Women do not have the opportunity to state their concerns and their possibly differing views of problems. This, however, is not decisive.

Rather, the equality of women and men is not attached to irrefutable evidence of their good or different behaviour, but a right which the Unites Nations have upheld since they were SR Res. 1325/2000, 31 October 2000; McDougall, Final Report, 22 June 1998, UN Doc.

E/CN.4/Sub.2/1998/13, para. 115; Kvinna till Kvinna/Lithander, Engendering the Peace Process, p. 9, 11.

ICTR and ICTY have each indicted one woman, Pauline Nyiramasuhuko, the first woman accused by an international criminal Tribunal, see Second Annual Report ICTR, 13.11.1997, UN Docs. A/52/582, S/1997/868, Appendix V, para. 5, and Biljana Plavsic who has since been convicted, see Prosecutor v. Biljana Plavsic, Judgment, 27 February 2003, IT-00-39&40/1.

Judgment of Trial Chamber II in the Kunarac, Kovac and Vukovic case, 22.2.2001, JL/P.I.P./566-e. See also this description of the testimony: “Kunarac testified that this nineteen year old Muslim girl simply made sexual advances toward him and he did not resist her. Judge Florence Ndepele Mwachande Mumba, the presiding judge from Zambia, had not been asking many questions of the witnesses up to that point. When Kunarac made his claim, however, Judge Mumba interrupted him, leaned over and said, “Mr. Kunarac, are you telling us that she seduced you?” He looked up and he said, “Well, no. I guess you could say that I was forced to have sex against my will.”, see Kuo, Prosecuting Crimes of Sexual Violence, p. 318; see also Prosecutor v. Dragoljub Kunarac and others, Judgment of 22 February 2001, IT-96-23-T & IT-96-23/1-T, Testimony of Dragoljub Kunarac, Transcript of 6 July 2000, p. 4542.

Charlesworth, Feminist Futures, p. 134; Charlesworth, Chinkin, Boundaries of international law, p. 194.

Charlesworth, Feminist Futures, p. 133.

founded, yet have never implemented. Besides, the positive results of women’s initiative plead for the introduction and implementation of a quota of 50% at all levels of both Tribunals.

VI. Conclusion: Tribunals’ work constitutes progress for survivors of sexual violence

–  –  –

While the present thesis has analysed the contribution of women working at the Tribunals to the prosecution and punishment of sexual violence, special attention has been dedicated to female witnesses who have testified to sexual violence. Their contribution has decisively influenced the progress ICTY and ICTR have made in addressing rape and sexual abuse.

The opening question, namely, whether female victims and witnesses may regard the Tribunals’ work as a progress can be answered in the affirmative, with reservation as to the ICTR’s work. Several witnesses have stated this;3462 the fact that so many have testified, in many cases waiving protective measures, speaks for itself. The positive impact her testimony had for a female witness in the proceedings against Kunarac and others, has been described by

one of the female prosecutors:

There was one witness in particular who was scared and said she did not want to look.

Then, as the defendant was being brought in and as she was sitting at the witness stand, she glanced over. It was really amazing, because she looked and she sat up. We could see her getting angry and strong, and we could almost read her thoughts, as if thinking: “You did this horrible thing to me and you thought you could get away with it, but look at me now. I am here in the courtroom and am about to tell the court and the whole world what you did to me, and you can’t say anything while you are surrounded by armed guards.” It was a great empowering moment for all of us to see that the process we were bringing about was having an immediate effect on individuals.

She was able to testify.3463 Prosecutor v. Dragoljub Kunarac and others, Judgment of 22 February 2001, IT-96-23-T & IT-96-23/1-T, Testimony of FWS-95, Transcript of 25 April 2000, p. 2219.

See Prosecutor v. Dragoljub Kunarac and others, Trial Chamber II, Judgment, 22 February 2001, IT-96-23T & IT-96-23/1-T, Testimony of FWS-95, Transcript of 25 April 2000, p. 2219: “I simply cannot think about these things because I was exposed to so much torture. But I’m proud to be here. Let the world know what they did.”; Prosecutor v. Dragan Nikolic, Trial Chamber II, Sentencing Judgment, 18 December 2003, IT-94-2-S, Testimony of SU-032, Transcript of 3 November 2003, p. 285: “I have a lot to say. But first of all I thank this Tribunal because it exists. (…) There is no penalty, no punishment bad enough to make up for the death of a single child, for the rape of a single girl, let alone all the things that actually happened.” Kuo, Prosecuting Crimes of Sexual Violence, p. 317.

This thesis has demonstrated that it was the personal effort of many women that made possible more than could have been hoped for at the moment of creation of the Tribunals. The ICC Statute has made it possible to saveguard many of their achievements beyond the ad hocTribunals’ limited life spans. Yet the decisive factor for the adequate treatment of the experiences of women and girls is not the legal basis, but the determination of those responsible for the prosecution and punishment of crimes.

This factor renders a quota of 50% for women’s participation necessary.

Nachweis der verwendeten Gerichtsentscheidungen und Dokumente der Vereinten Nationen I. Dokumente anderer internationaler Strafgerichte Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945-1 October 1946, Official Text in the English Language, Nürnberg 1947, Bd.1-22.

Zitiert als: Trial of the Major War Criminals before the International Military Tribunal.

Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10, Nürnberg, October 1946-April 1949, United States Government Printing Office, Washington 1950-1953, Xerographierte Version der Originalausgabe, Omnia, München 1979, Bd. 1-15.

Zitiert als: Trials of War Criminals under Control Council Law No 10.

R. John Pritchard, Sonia Magbanua Zaide (Hrsg.), The Tokyo War Crimes Trial. The Complete Transcripts of the Proceedings of the IMTF in Twenty-two volumes, Garland Publishing, New York und London, 1981, Bd. 1-22.

Zitiert als: The Tokyo War Crimes Trial.

II. Dokumente des ICTY und ICTR Soweit nicht anders angegeben, können alle diese Dokumente unter www.icty.org bzw.

www.ictr.org eingesehen werden.

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