Issue #26: Sex Matters: The Invisibility of Women at the Iraqi Tribunal

By Simone Monasebian

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 95 (2006).


“This is a man's world
This is a man's world
But it wouldn't be nothing
Nothing without a woman or a girl.”
-“It’s A Man’s Man’s World”, James Brown, 1964

Shortly after the fall of Saddam Hussein, United Nations Security Council Resolution 1483,(i) affirmed “the need for accountability for crimes and atrocities committed by the previous Iraqi regime.” The same Resolution pledged to affirm gender equality in the rule of law. I guess it sounded like a good idea at the time.

Hopes that Iraq’s recovery and reconstruction would create new opportunities for women, were at first only minimally realized. While coalition officials did meet with women’s groups to hear their demands for a postwar Iraq, not enough was done in the early days of the occupation to address the needs of Iraqi women or include them in discussions about Iraq’s future.(ii) The legal team appointed by the coalition to excise Hussein's anti-human rights amendments to Iraq’s 1969 legal code was made up exclusively of male lawyers and judges.(iii) The United States Department of State noted that the participation of women in the postwar reconstruction process had been inadequate.(iv) In July 2003, hundreds of women demonstrated in Baghdad, demanding inclusion in shaping the political future of their country.

Today, some 100 days after the opening of what has been characterized as the “trial of the century”, little, if anything, is said or written about the invisibility of women in a Y chromosome courtroom -- devoid of women judges, prosecutors, and defense attorneys. And so I feel constrained to ask: Is this a man’s world?

In a tribunal funded to the tune of over $138 million dollars, and represented as an example of the best a New Iraq has to offer its people, it seems the only acceptable role for women in the courtroom has been that of victim. This, despite Iraq’s long tradition of women in public life, dating back to the monarchy, and continuing into the Saddam years.

Although women have played important roles in Saddam’s Iraq, his regime is alleged to have systematically used rape for political purposes.(v) Like its predecessors in The Hague, and Africa, the Iraqi tribunal is empowered to try such crimes of sexual and gender violence.(vi) And as the first woman to appear in the Iraqi court recounted having been forced to take off her clothes by a security agent, beaten and then tortured with electric shocks,(vii) I wondered about the message a male only war crimes tribunal sends.

Holding perpetrators of mass violations against women accountable for their acts has been a slow and tortuous process. It remains to be seen whether or not the Iraqi tribunal will seriously prosecute these types of widespread and systematic crimes against women in the post-Dujail cases. Experience has shown that including women judges in war crimes tribunals makes a difference. Elizabeth Odio-Benito, one of the first female judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) recounted her experience there as follows:

“About one year after the tribunal was set up, we faced the first public appearance of the Court. I was one of the three judges in this trial. I noticed that rape and sexual violence were absent in the indictment. This being my first experience as a judge, I did not always behave in the traditional way. I pointed out the necessity to examine crimes of rape and sexual violence. Everybody was very shocked by this. But soon they learned that this would be very successful. Sexual violence started to appear among the charges.”(viii)

Navanethem Pillay, the first female judge at the International Criminal Tribunal for Rwanda (ICTR), who went on to become the first woman President of that Court, has argued that:

“Who interprets the law is at least as important as who makes the law, if not more so…I cannot stress how critical I consider it to be that women are represented and a gender perspective integrated at all levels of the investigation, prosecution, defense, witness protection and judiciary.”(ix)

And what of Judge Pillay’s statement that sex matters? We know that rape and sexual violence in Rwanda was first prosecuted in the ICTR because of her. In the now landmark case of Prosecutor v. Akayesu,(x) Pillay, the only woman judge at the ICTR at the time, pursued an inquiry into rape with two women called by the prosecutor to testify to other crimes. It was only because of her intervention that the prosecution eventually amended their charges to include sexual violence counts. The Akayesu case became “[t">he first judgment to recognize rape and sexual violence as constitutive acts of genocide, and the first to advance a broad definition of rape as a physical invasion of a sexual nature, freeing it from mechanical descriptions and required penetration of the vagina by the penis. The judgment also held that forced nudity is a form of inhumane treatment, [footnote omitted"> and it recognized that rape is a form of torture and noted the failure to charge it as such under the rubric of war crimes. [footnote omitted">.”(xi)

Learning a great deal from the successes and failures of the ICTR and ICTY, The Statute of the International Criminal Court requires that, in the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account.(xii) “This provision is in recognition of the significance of crimes against women, and the need for expertise at every level to ensure these crimes are effectively investigated and prosecuted. To achieve this it is imperative that individuals with expertise in the investigations and prosecutions of gender crimes are recruited by the Court.”(xiii)

While including women in positions of power does not guarantee sensitivity to issues of gender justice, the experience of women in this respect should not be discounted. Nor should we underestimate the positive impact that having women in the courtroom would have on Iraqis and their neighbors. Including women in positions of power at the various war crimes tribunals set up through the UN made a difference on daily basis. I have no doubt that my experience as a prosecutor at the ICTR was shaped for the better by the presence of powerful women leading that Tribunal. I also saw firsthand the effect this had on the women who testified. Insuring that Iraqi women play a prominent role in their own tribunal could go along way to their acceptance and inclusion in other sectors of the New Iraq. Today, Rwanda leads the world as having more women parliamentarians than any other country. I wish the same for my Iraqi sisters.

We say it is important for the “Iraqi people” to be seen meting out justice to their own in a court of their own, but the term “Iraqi people” has become a euphemism for “Iraqi men.” In a Court where the cast of male characters is ever changing due to death, injury, boycotts, firing, resignation and the like, consideration should be given to finally bringing a woman into the fold. For those who may say “Iraq is not ready for this”, my Iraqi sisters ask, “if not now then when.” Must it always be “women and children last?” Gender parity and justice is never convenient.

A February 2005 Amnesty International report titled “Iraq: Decades of Suffering, Now Women Deserve Better” recounts how women and girls in Iraq have suffered from government repression and armed conflict in disproportionate or different ways from men, and also how they have been targeted as women. It also shows how discrimination is closely linked to violence against women, and the particular ways in which women have suffered from the breakdown in law and order in many parts of the country since the overthrow of Hussein. Now more than ever, it is important that we include women in powerful roles. After decades of suffering, the women of Iraq deserved a prominent place in bringing the Hussein regime to justice. We often justify the controversial hundreds of millions we spend on war crimes courts by arguing that they are not just about punishment; but also about creating a reliable historical record; facilitating reconciliation; and, inspiring the population with exemplary justice - - a model of a fair court that others can aspire to and replicate. A womanless court falls short of that mark. (xiv)

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i UNSCR 13 May 2003.

ii See Iraq: Focus on Women’s Needs, posted on the Internet 29 April 2003. Website of InterAction, American Council for Voluntary International Action, Washington, D.C. (http://www.interaction.org/newswire/detail.php?id=1570).

iii See Role of Women in New Iraq of Concern, Posted on Women’s E News website 22 April 2003. Article by Gretchen Cook, , WeNews Correspondent, New York, New York (http://www.womensenews.org/article.cfm/dyn/aid/1301/context/archive).

iv Interview of Deputy Secretary of State Richard Armitage, BNBC Radio “Today” Transcript 7 May 2003.

v See U.S. State Department Country Reports on Human Rights Practices: Iraq 2002, Released by the Bureau of Democracy, Human Rights, and Labor, on March 31, 2003.

vi See Articles 12-14 of the Iraqi Statute.

vii See 6 December 2005 testimony of “Witness A.”

viii Summary of Statement by Hon. Elizabeth Odio-Benito, former judge at the ICTY, in Women’s Caucus for Gender Justice, “Testimony of Witness A,” Victims and Witness in the ICC, Report of Panel Discussions on Appropriate Measures for Victim Participation and Protection in the ICC, July-August 1999 http://www.iccwomen.org/resources/vwicc/.

ix Hon. Navanethem Pillay, cited in Barbara Bedont and Katherine Hall Martinez, “Ending Impunity for Gender Crimes under the International Criminal Court,” Brown Journal of World Affairs, vol. 6, Issue 1, pp. 65-85.

x The Akayesu case was the first international conviction for the crime of genocide.

xi See Rhonda Copelon, “Gender Crimes As War Crimes: Integrating Crimes Against Women Into International Criminal Law”, McGill Law Journal, November 2000.

xii See ICC Statute at Articles 44(2) and 36 (8).

xiii Women’s Initiative for Gender Justice, “2005 Gender Report Card on the International Criminal Court”, at page 4.

xiv The Statute of the Iraqi tribunal as well as its Rules of Evidence and Procedure, in many respects amounts to a cut and paste job of the legal documents underlying the Special Court for Sierra Leone, the ICTY and the ICTR. It was thought important enough to require the set up of the Iraqi tribunal to include international advisers. That was because it was felt that they had something to add, and that without an express provision calling for their involvement, they would not be included. Had the Iraqi tribunal incorporated some of the ICC’s provisions regarding the value of women in the selection of judges, prosecutors and other staff, we would have seen a very different Court.

Posted @ 6:52 PM | Experts Debate the Issues: The Dujail Trial