By Kirthi Jayakumar
Image: UNICEF/Razan Rashidi Yazidi refugees, including several children, go about their lives in Nawrouz refugee camp, approximately 40 kilometres from the Syrian border with Iraq.
The master’s tools must dismantle the master’s house
Transitional justice should strive to address structural violence through institutional reform. However, practice informs that institutional reform is has been “the most opaque and nebulous” among all sites of transitional justice (O’Rourke 2013). Most prosecutorial approaches have taken a human rights-based approach to justice, focusing more on human conduct as the cause for human rights violation rather than state failure and complicity, as well as structural violence (Aroussi 2018). The focus on prosecuting individuals and convicting them is more about responding to the symptom than to the root cause of the illness – where direct violence is penalized while systemic failures underlying conflict and violence remain ignored (Buss 2011).
Transitional justice initiatives that aim to address sexual violence in conflict should strive to go beyond the letter of the law and offer social, economic, political, and legal remedies that can address the root causes of conflict and gender-based violence, and dismantle the structures that enable its occurrence (Walker 2016). Swaine (2016) suggested a focus on the continuum of gender violence before, during, and after transitions, while McWilliams and McKiernan (1993) emphasized the need to understand the public and private dimensions of sexual violence. A good index to identify whether the route followed by transitional approaches to institutional reform adhere to dismantling structures is to follow feminist intersectionality theory, which helps recognize who gains from the transition (Rooney and Swaine 2012:530).
El-Masri (2018) called “the Yazidi case” as “an extreme one” because, among other reasons, “it was done according to the ISIS’ official and explicit proclamation.” However, the ISIS and its public proclamations authorizing sexual violence constitute only the symptom, not the root cause. Crimes targeting Yazidi women and the LGBTQIA+ people under the ISIS regime are grounded in a long history of structural violence. The Yazidis were/are perceived as “devil worshippers” on account of an interpretation of the central narrative of the archangel they worship, to be the story of Satan in Islam (Asatrian and Arakelova 2014) and this formed the basis for the ISIS to pursue an aggressive campaign of genocide against the Yazidi community (Hafiz 2014).
The ISIS grounds its persecution of the LGBTQIA+ community in an extremist interpretation of Sharia Law (CEP 2017). ISIS appointed courts treated gay sex as a capital offence punishable with brutal acts that include throwing “guilty” individuals off buildings and stoning those that survive the fall – and these “guilty” have also been known to be children (CEP 2017). The persecution of the LGBTQIA+ people is rooted in the structural opposition to their identity that predates the ISIS (International Gay and Lesbian Human Rights Commission 2015). Article 520 of the Syrian Penal Code made gay sex illegal and punishable with imprisonment for up to three years. In Iraq, gay sex was always criminalized, and in 2001, after an amendment, it was punishable by death. The ISIS made this structural violence apparent through direct and open violence (MEMRI 2014).
Since most institutional reforms follow from an understanding of what happened in the past (Teitel 2000: 6), there is a possibility that such reforms may limit themselves to narrow understandings of the past as being a function of direct violence rather than the structural component. This makes it critical to include institutional reform within the scope of transitional justice by addressing structural violence as well.
Making justice accessible
Generally speaking, transitional justice mechanisms have taken the form of restorative justice through truth commissions and retributive justice through criminal prosecution at national, international, or hybrid judicial forums (Bisset 2012: 1). El-Masri recognized the former as stemming from the victim’s right to know, and the latter from the victim’s right to justice and remedy.
Truth commissions serve to complement criminal justice mechanisms by serving as avenues to acknowledge past abuses, but do not indict individuals or assign criminal responsibility for such abuses (Bisset 2012: 26). There have been close to thirty truth commissions worldwide across Latin and Central America and sub-Saharan Africa (Bisset 2012: 29). In Rwanda, truth commissions operated in the form of the gacaca procedures to address sexual violence against women (Human Rights Watch 2004), while the lisan formed a significant part of the transitional justice processes in East Timor (Seiner 2008), and mato oput in Uganda (Murithi 2006).
While truth commissions have assisted in addressing the backlog of cases, are speedier, and place the victim at the centre while encouraging the perpetrators to confess and provide information on their complicity in conflict (Human Rights Watch 2011), they also have their own flaws. Truth commissions may not be as safe a space for survivors of sexual violence as they are assumed to be: the burden of potential reprisals and stigmatization can keep survivors from articulating themselves (El-Masri 2018). Furthermore, the lack of robust procedural rules and evidentiary standards, as well as that perpetrators may not confess as expected, can keep the provision from being friendly to survivors (El-Masri 2018).
National and international courts are other possible transitional justice mechanisms. National courts are deemed courts of first resort (Newton 2006), and it is often the case that the courts of third states or international and hybrid tribunals cannot prosecute unless national courts fail to or are unwilling to prosecute crimes in conflict (El-Masri 2018). The advantages of a national court are that they are local, follow an institutional procedure, established framework of jurisdiction, as well as a capacity to oversee the implementation of its decisions. On the other hand, these forums can be disadvantageous in that they may continue to keep structural violence alive, and survivors may be vulnerable to reprisals. Procedural and administrative inefficiency, judicial delays, and corruption may continue into the prosecution of such crimes. Iraq has tried accused ISIS fighters, and as of December 2017, had “disclosed 194 terrorism-related executions by hanging,” while 6000 are awaiting execution (Gibbons 2018: 1450). Prime Minister al-Abadi ordered the fast-tracking of these trials to “give comfort to the families of the Islamic State victims” (Ibid). However, no efforts have been made to prosecute sexual violence carried out by the ISIS.
In the ISIS context, that the outfit created a separate “state” that it called the Caliphate with its own administrative and judicial machinery does not automatically predispose that “state’s” judicial apparatus as the national court because it was not formally recognized as a state. Third states have been prosecuted their citizens that joined the ISIS, but jurisdictional limitations have kept them from trying other ISIS actors (El -Masri 2018). Neither Iraq nor Syria have made any attempt to prosecute sexual violence (El -Masri 2018). Furthermore, the structural violence in place in both countries make their judicial establishments less amicable to the prosecution of sexual violence under the ISIS. These factors make an international tribunal seem like a viable option for the prosecution of the ISIS. However, prosecution by the ICC and/or the creation of an International Tribunal to prosecute international crimes during armed conflict rely on the Security Council to make a reference (Gibbons 2018). Russia and China have stoutly vetoed efforts to make a referral to the ICC, and no effort toward the constitution of a separate tribunal has been made.
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