Academic journal article Melbourne Journal of International Law

Gender, Shame and Sexual Violence: The Voices of Witnesses and Court Members at War Crimes Tribunals

Academic journal article Melbourne Journal of International Law

Gender, Shame and Sexual Violence: The Voices of Witnesses and Court Members at War Crimes Tribunals

Article excerpt


Although the concept of the rule of law is inextricably tied to the promotion of human rights, there remain serious questions about the law's ability to give or bring about justice after mass atrocity. Successive generations of women both domestically and internationally have highlighted the problems they face when they encounter the justice system as victims and witnesses. Although equality before the law is an integral component of the rule of law, (l) it is not clear that those within the justice sector have given sufficient thought to this fundamental precept or the effect it should have on the manner in which criminal trials are conducted or the rules of evidence and procedure that govern their operation. (2) Articles by academics and materials compiled by non-governmental organisations have documented both the failure of the international legal system to deal adequately with crimes committed against women (3) and the barriers women face when they are in fact asked to participate in criminal proceedings that include charges of sexual violence. (4)

Further complicating this issue is the ever present tension between the law and justice. Justice is an intangible idea and the meanings attributed to it are delineated by speakers in accordance with their background. When a lawyer speaks of justice he or she is often referring to accountability through the legal system. When a victim or a human rights advocate refers to justice, the meaning they associate with the term is broader. It encompasses:

   the restoration of [the victim's] dignity ... reaffirmation of [the
   survivor's] value as [a] human [being], obtaining assurances that
   the larger community understands the impact [the crimes] have had
   on [the survivor's life], and knowing that the perpetrators have
   been punished. It is also about being part of a process that
   empowers rather than dehumanises [the survivor]. (5)

The experiences of women who have testified before the International Criminal Tribunal for the Former Yugoslavia ('ICTY') and the War Crimes Chamber of the Court of Bosnia-Herzegovina ('WCC') demonstrate the disjuncture that exists between the victim's perception of whether or not they have received justice and the understanding of court personnel as to whether or not they are delivering a form of justice. Sara Sharratt in her book Gender, Shame and Sexual Violence: The Voices of Witnesses and Court Members at War Crimes Tribunals documents the views and experiences of witnesses, investigators, prosecutors, judges, mental health experts, members of non-governmental organisations working with survivors of sexual assault and journalists. The book is based on a study the author conducted from 2006 to 2009. Members of each group were asked to complete 'semi-structured questionnaires' and some individuals were interviewed. (6)

Sharratt's methodology included the quantification of data as well as the use of qualitative interviews. The latter allowed for a more nuanced understanding of the perceptions of members of each group. (7) In addition trial monitors followed some of the cases in which crimes of sexual violence had been charged. They were to note the use of protective measures, determine the witnesses understanding of such measures, record their views about the behaviour of the various courtroom 'actors' and make an assessment about the protection given to the rights of the victims including information about reparations. (8)

The strength of the book lies in its reportage of the comments, opinions and ideas expressed by the respondents to the questionnaires and the interviewees. This material offers an important insight into the attitudes and beliefs of the various 'actors' and the extracts from the interviews demonstrate that much remains to be done if we are to improve the 'policies and procedures for survivors, court members, and those engaged in the quest for justice for [crimes of sexual violence]'. …

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