| Photo by Jane Scherr |
Brenda Hollis Interview: Conversations with History; Institute of International Studies, UC Berkeley
| Photo by Jane Scherr |
Page 5 of 8
Let's talk about a particular subject area and situation. One of the issues that obviously comes up in these cases is the systematic abuse, rape, and torture of women. Can you talk a little about the kind of work that is involved in recognizing that these crimes were committed and gathering the evidence and so on? And then let's talk about where it led, in terms of adjudication, that in the end these were recognized as crimes that humanity had to be concerned about.
First of all, there were reports of widespread sexual violence, predominantly against women, but also some sexual violence against men. That was certainly one of the motivating factors for the creation of the tribunal in the first place. The statutes themselves incorporated rape as a specific crime, as a crime against humanity. So the tribunals didn't create the crime, the Security Council created the crime. And they created the crime because the Security Council was convinced that, in fact, it was a crime that was acknowledged in customary law. So that it basically picked up what was a law or a crime, but wasn't spoken about much, and made it very clear by placing as a crime under Crimes against Humanity.
And was that an innovation, the Security Council doing that, or was that already on the books or in treaties or elsewhere?
Singling it out as a crime of itself under Crimes against Humanity was probably an innovation. Rape as an underlying misconduct for other accountability and other liability had already been looked at. But actually setting it on its own as a crime, that's what was innovative about it. And it was set out in both tribunals.
I think one of the things we need to be sure we're clear about is that rape can be a crime now, as itself, under Crimes against Humanity, if the other components are met. It could also be a crime, the underlying misconduct for other crimes, such as outrages on personal dignity, or inhuman treatment. In the Furundzija case, which was a case at the Yugoslav Tribunal that I was involved with, rape was the underlying act that created the severe mental and physical suffering that was a component of torture. And the people were actually charged with torture of the victim, not with rape of the victim. So it can be a component of other crimes, or also a crime in itself.
One of the issues that we had to deal with, that I think every society has to deal with, is the willingness of the victims to talk about the rape in the courtroom, and the willingness of those closest to them to allow that to happen. I don't think that's a Yugoslav problem, I don't think that's a Rwandan problem, I think that's a human problem that we're still grappling with. I believe that a lot of the rapes that occurred, occurred in villages after the men were rounded up and taken off, and women were allowed to stay in the villages for a time. I think a lot of the rapes occurred there. Women who were taken to camps and were raped are now coming forward more, and we've had the trials for the rapes that occurred in Foca, and we have an ongoing trial now for crimes that were committed in Foca against women, sexual crimes.
We also found out as we investigated, that we had sexual assaults committed against men. On many occasions, men would be forced to sexually assault each other as a form of amusement or punishment or a way to break their spirit or subjugate them after they had been taken by members of the other ethnic group. So it was not just women, it was not just rape, it was a variety of forms of sexual assault, and it also was done to men.
In this particular area, is there one particular verdict that stands out as a result of the work of the prosecution that called the attention of the world to the problem and gave authoritative judgment of the wrongness of these actions?
I think there's one case that maybe most of the world would cite, but it's not the first case that dealt with rape. The case I'm talking about that many people would cite was Furundzija, which was a finding of guilt of torture, where rape was the underlying offense, rape and sexual assaults. And it was recognized that it was a crime, and that also it was a component of torture. But the first case in the tribunals that actually came out with a verdict of guilty of rape as a crime against humanity was in the Rwanda Tribunal. I believe it was in the first case, I think it was Akayesu, where it was found to be a crime. And it wasn't actually brought forward in the indictment by the prosecutor.
One of the issues we had is what crimes do you focus on? And early on, I'm sorry to say, we did not focus on rape as a crime as much as we could have. Some of our first cases didn't bring that forward as much as it could have. And that's not due to anyone's ill will, it simply had to do with what we were investigating and the kind of evidence we were getting, because witnesses have to be willing to come forward and testify.
In the midst of the trial in Rwanda, evidence came forward about rape; it had not been charged. And the judges said, "We want this before us, and we want to consider it." And so, in fact, it was an amendment to the charges, to include rape.
You mean, by an amendment in the proceeding?
Yes, during the trial. And so it was really the Rwanda Tribunal that first came out with the judgment of rape as a crime against humanity.
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