Volume 42 | Number 2 Spring 2007
Page 3 of 5
« First
<
1
2
3
4
5
>
Last »
II. Assessing Existing Responses to Rape Survivors and Their Children in East Timor
The response to rape survivors and their children in East Timor has ranged from denial and silence to efforts to respond to their acute survival needs. Those survival needs are based on a welfare paradigm that has reproduced conservative cultural conceptions of mothering and domesticity. In this section, I describe both the lack of recognition by existing transitional justice mechanisms of gender-based violence, and the Catholic Church’s ambivalent and somewhat problematic response to the children and their mothers. Both of these patterns could be improved by incorporating a recognition of the status of these women and children as “veterans” of the war leave as is in post-conflict East Timor.
A. Gaps in Transitional Justice Mechanisms
The situation in East Timor has unfortunate similarities to other post-conflict societies such as Bosnia, Rwanda, and the Sudan. The plight of “children born of war,” defined as children born of rape or exploitation in an armed conflict situation, is generally met with silence or avoidance by transitional governments.55 Bishop Belo, writing of East Timor’s path to freedom, asked the international community to take heed of “the legacy of the past” when watching Timor struggle towards a democratic society “founded on the values enshrined in the Universal Declaration of Human Rights.”56 “[U]p to 3,000 died in 1999, untold numbers of women were raped and 500,000 persons displaced—100,000 are yet to return.”57 The phrase “untold numbers of women” is poignant, and literal—the story of women’s experience before, during and after the 1999 violence remains largely untold despite the extraordinary efforts of Timorese women’s advocates.
The silence of these victims both reflects and perpetuates a situation in which women are not being consulted and are not participating adequately in transitional justice processes. Key decisions about the transitional justice model have been determined primarily by the transfer of power between male elites with very little democratic consultation.58 Key questions about East Timor’s future as a society have been determined so far by focusing exclusively on the personal and economic security of men in the society. As a Timorese editorial stated in mid-2001:
Women have played a critical role in East Timor’s struggle for national independence. Both inside the country and in the diaspora, they courageously challenged the Indonesian invasion and occupation, as well as the international support that made these possible. East Timorese women have survived Indonesian military campaigns of violence, including forced sterilization, rape and sexual slavery. They have shown themselves as leaders, though they are often pushed aside in political discussions. And women have continued to struggle for equality throughout the United Nation’s administration of East Timor. Unfortunately, women’s liberation is not a natural outcome of national liberation.59
East Timorese women should have been in a better position to benefit from precedents in international criminal law. The jurisprudence of the Nuremberg and Tokyo tribunals after World War II has been strengthened by the practice and judgments of the ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR).60 The Statute of Rome, which created an International Criminal Court (ICC) to try genocide, war crimes and crimes against humanity, is a reality at last.61 There are also several credible models of Truth and Reconciliation Tribunals, such as those conducted in post-conflict South Africa and Chile.62 Hybrid international criminal tribunals are emerging, such as the Special Court for Sierra Leone.63 Many states, including Belgium, have implemented domestic legislation conferring universal jurisdiction to their national courts in order to prosecute war crimes.64
Precedents have been even more revolutionary in international criminal law for prosecutions of gender-related crimes. Both the ICTY and ICTR have successfully indicted, prosecuted, and convicted defendants for gender-based crimes, marking the first time in history that such crimes have given rise to international criminal responsibility.65 In the Akayesu case before the ICTR, rape was recognized as a crime against humanity and included as an element of genocide.66 The ICTY in Celebici, Furundzija and Kunerac characterized rape as torture, and included sexual slavery and sexual acts within the definition of inhumane treatment.67
Article 5(g) explicitly lists rape as a crime. The Secretary General wrote, in a April 29, 2004 report to the Security Council, “In its resolution 1410 (2002), the Security Council stressed the critical importance of cooperation between Indonesia and Timor-Leste, and with UNMISET, to ensure that those responsible for serious crimes committed in 1999 are brought to justice.”68
In terms of the transitional justice process so far, this aim has not been realized. There is no real prospect that Indonesia will pay reparations or compensation to the victims of the occupation from 1975 to 1999. Many hope that the truth commission process and UN trials in Dili will assist in creating an accurate historical record of human rights violations in the territory, a process which was set back by the acquittals in the Jakarta ad hoc trials.69 Expectations are dwindling that the UN will create an international tribunal to force members of the Indonesian military to stand trial, despite the recommendations by its own appointed Commission of Experts in 2005. There has only been one successful conviction of rape as a crime against humanity in the Dili Serious Crimes Court; that charge was brought against a low-level Timorese militia member. He may soon be freed if the amnesty legislation is passed as expected, resulting from the agreed Joint Truth and Friendship Commission with Indonesia. The Serious Crimes Unit finished its mandate in May 2005, having filed 87 indictments accusing 373 individuals, most of whom remain at large in Indonesia.
The prospect of justice was bleak for rights violations in East Timor, with rape of women so commonplace that it was perceived almost as a non-issue. Few women were prepared to bear the shame and horror of recounting their appalling experiences. The fourteen women who did recount their experiences before the Reception, Truth and Reconciliation Commission were both brave and exceptional. As Hilary Charlesworth notes, “the players in international law crises are almost exclusively male. . . . The lives of women are considered part of a crisis only when they are harmed in a way that is seen to demean the whole of their social group.”70 The ability of East Timorese victims of rape to gain justice remains low.
Elsewhere I analyzed the Serious Crimes cases of Leonardus Kasa and Lolotae, and concluded that justice for women during the period of Indonesian occupation will be difficult to achieve through the courts. In the Kasa case, the Special Panel of the Dili District Court declared that it had no jurisdiction as the rape had been perpetrated in West Timor. This decision ignored the principle of universal jurisdiction, and precluded all further cases of women who had been forcibly removed from East to West Timor from being tried.71 Courts have applied domestic rather than international law in many cases, which has narrowed the scope of these decisions and ensured the exclusion of pioneering case precedents from the international stage. Even with a successful prosecution, it is unlikely that a judgment would influence international law or provide the financial recovery needed by the families of the rape victims.
The UN could have initiated a precedent-setting trial through the Serious Crimes process where forced sexual slavery or forced impregnation was defined as a war crime, torture or crime against humanity, and it could have properly considered the idea of compensation or reparations for victims.
According to Articles 7 and 8 of the Rome Statute and Sections 5 and 6 of UNTAET Regulation 2000/15, courts are entitled to prosecute war crimes and crimes against humanity of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity.72 Forced pregnancy was listed for the first time as an international crime in the Rome Statute, copied by the UNTAET Regulation.73 It is defined as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out grave violations of international law.”74 This definition was developed in response to the practice of Bosnian Serbs forcibly raping and detaining Muslim and Croat women so they would bear Serbian children.75 Barbara Bedont and Katherine Hall Martinez comment that the forced pregnancy provisions were the most contentious part of the State negotiations concerning what should be included as an offence in the Rome Statute: “While some negotiating took place on the other gender crimes, such as enslavement and gender-based prosecution, none of them was the subject of such intense opposition as forced pregnancy.”76
Bedont and Martinez further report that the Vatican and a core group of Islamic states objected to the inclusion of the offence due to their belief that the aim was to “criminalize the denial of abortion services.”77 These states attempted to limit the offence to ethnic cleansing.78 The additional violations under international law were added on the second to last day of the tribunal. That Jewish women were forcibly impregnated during WWII so that they and their fetuses could be used for experiments influenced the decision to expand the scope of the violation.79
Kelly Askin argues that the phrase “other violations of international law” could include the intent to persecute, discriminate against, or torture the victim.80 She does not address the issue of unlawful confinement. In the case of many Timorese victims, they were not confined in a detention facility, although many Timorese women were raped while in detention.
Forced maternity in Timor was not an afterthought or unintended consequence. However, proving intent under the test required by the Rome Statute may be very problematic for women unless overtly genocidal intent is present.81 Prosecuting forced maternity as genocide or only as it relates to a violation harms the ethnic group and diminishes the fact that the violation is primarily against the woman herself.82 An interesting consideration is whether a criminal case could be brought on behalf of a child born of rape, and what those possible charges could be.83
The question remains, however, whether trials are the preferred outcome for women who survived the violence, or their children born of war. Julie Mertus notes that court trials are inherently counter-narrative,84 despite the best efforts of investigators and prosecutors. The purpose of a trial is to prosecute and punish the major war criminals for violations of the Geneva Conventions. Subsequently, a war crime trial can “only do so much.”85 Victims of sexual violence, for instance, only get to tell a piece of their story, if chosen to give testimony. Further, those experiences remain cloaked in secrecy given that court sessions are often in private out of necessity for protection and safety. The physical and psychological wounds resulting from rape and sexual abuse are generally not an accepted part of rape testimonies, and thus women’s experiences continue to be excluded; emotions are assumed to have no place in the courtroom. Further, retraumatization is a likely possibility within this context. Inevitably, the reconstruction of the story will entail reliving the traumatic event.86 Moreover, discrediting the evidence and testimony of the witness is a routine part of the trial process, which may exacerbate the devaluation of raped women who have come to testify at an international criminal proceeding.87
This leads us to question whether a war crimes tribunal is the appropriate context for sexual violence survivors per se, let alone mothers of children born of war. Given the inherent limitations of a war crimes trial: that a woman’s story is only partially told; that most survivors do not have access to this forum; that retraumatization is a common response;88 and that those who testify may face ostracism upon return to their communities, this indicates that a war crimes trial is not the appropriate context for sexual violence survivors. However, testifying at an international criminal proceeding might be a potentially empowering process for survivors, given that it constitutes a measure of justice backed by legal sanction that is broadcast to the whole world.89 The CAVR report presents evidence of the healing power of testimony, applauding the courage of the fourteen women who testified at the National Public Hearing on Women and Conflict in April 2003. The report also points to the trauma-inducing effect of testifying, noting that most of the testimony was given under false initials.90
Moreover, the outputs of a prosecutorial system are sentencing and reparations, which usually focus on the offense of rape itself, not on the offense of forced maternity. These outputs do not relate to the status and maintenance issues faced by the mother and child in the longer term.91 Reparations could be geared towards the future needs of children born of war.92 Part 11 of the final CAVR Report offers excellent recommendations for dealing with reparations which specifically identify as priority beneficiaries “children born out of an act of sexual violence whose mother is single.”93 It is prefaced by this anonymous quotation from a CAVR interview with a victim of sexual slavery in Uatu-Lari, Viqueque, 18 September 2003:
Because of the war I was used like a horse by the Indonesian soldiers who took me in turns and made me bear so many children. But now I no longer have the strength to push my children towards a better future.94
B. Role of the Church in Responding to or Exacerbating the Culture of Stigma
Since 1999, the Church has carefully defined its role in Timorese politics. Bishop Belo stated in a circular on February 11, 2001, that “[t]he whole process of formation of this people as a nation, all the problems which it will meet, all the challenges it will face, are the problems and challenges of the Church. The Church is one with the people in the gigantic task of building a new East Timorese nation.”95
The Church has played and, given its influence, is likely to continue to play an important role in shaping the culture of this newly independent country. However, the extent to which that influence will benefit women is far more controversial.96 In many ways the struggle that the women of East Timor face in their dealings with the Church is a microcosm of the complex way in which the Catholic Church generally both supports women against certain types of oppression, but aids in perpetuating other forms of oppression. Since the Second Vatican Council in 1962-1965 (if not earlier) the Church has increasingly been prepared to criticize governments for abuses of human rights.97 This is particularly true when a predominantly Catholic population faces domination by a non-Catholic regime—the situation endured by Pope John Paul during his younger days in Catholic Poland during Nazi Poland and faced by the East Timorese during Indonesian occupation.
While the Church has been prepared to call upon leaders acting in the public sphere to comply with human rights principles, it has been far more ambivalent in respect to abuse visited on women within the private spheres of church and home.98 In those instances, women have generally been exhorted to be passive and patient in response to their suffering.
The Church’s differing responses to human rights violations can be seen in East Timor. When women’s suffering under Indonesian occupation can be equated with that of men, the Church has been responsive and supportive of justice for victims. The Church has stood in solidarity with those who suffered greatly under the occupation and has resisted the attempts by the government to ignore past injustices.99 Yet it appears that when oppression has been gender specific—involving rape by occupying forces or domestic violence in the home—the Church does not support the victims as strongly as when the violence is public in nature. In addition, this detrimental demarcation between public and private realms is reinforced by the response of international law to the transitional justice process in East Timor.100
Sexual violence against women is an area in which the Church’s influence has been ambivalent. On one hand, Church leaders have called for reparations for women who have been raped, and they have also argued against the notion that women are to be regarded as sinful or impure as a result of being raped.101 On the other hand, church policies have negatively impacted women.102 Catholic priest Father Jovito, a member of the Commission for Reception Truth and Reconciliation, has consistently sided with women who were victims of the occupation.103 Through his participation in the Commission, he and the Church can offer pastoral care and learn about the gendered experience of occupation. For instance, one participant in the Women and Conflict hearings was concerned that the status of her marriage had been denigrated because she had been raped in 1999 by a militia commander.104 She was reassured by Father Jovito that the rape cannot nullify her marriage.105 Such reassurance by a leading Catholic priest on the question of law and morality could prove invaluable for the particular woman. But this story should also demonstrate to the Church hierarchy the concerns women feel about these issues.
This understanding has spread to some of the general population of East Timor as well. The story of one wife of a Falantil soldier details a horrific set of rapes, assaults, destruction of property, and constant fear:
Fortunately her husband understands that it was not her fault. He told her that they all face risks for the sake of freedom, and that she too, as a woman, needs to face risks.
What she said sounded like a theological statement:
This experience has given me a new perception of my womanhood and my power. I know that almost every other woman in my village has had a similar experience of violence. I am determined to fight for the life of other women. Men may fight with guns, but as a woman I will fight with the power that I have gained out of my suffering, by raising my voice.106
While the official position of the Church is not to blame women for the sexual crimes committed against them, the Church has nonetheless some degree of complicity in the creation of a culture in which victims of sexual crimes, as well as children born of such violence, are mistreated. For instance, in one village it is reported that Church workers have refused to allow baptisms for babies born of rape, or confessions for their mothers.107 More generally, the conservative nature of Timorese Catholic society, particularly in relation to issues of sexuality, is partly the result of a religion in which sexual purity, particularly for women, is given significance. Ms. Abrantes, a member of Fokupers, takes the position that the culture of East Timor is in large part to blame for the reluctance of rape victims to speak out is understandable. Publicity results in shame and humiliation: “Our culture does not allow women to speak out. For some it is very, very difficult. They feel great shame, they are shy and cry.”108
Though the Church has the potential to inspire progressive response to victims of rape and their babies, it has also contributed to the culture in East Timor, which has led to women being blamed for their victimhood and discouraged from asserting their rights to physical integrity. While the Church has officially encouraged women to stand up to those linked to the occupation who committed sexual violence, it has discouraged women from standing up to abuse and violence (including rape) within the home and family.109 The Church is itself a patriarchal institution wedded to ideas of hierarchy and obedience and has supported the patriarchal structure of East Timorese society. Despite struggling against the occupation, the Church for the rights of all victims of the occupation, it must accept some responsibility for creating a society in which women are accustomed to violence and blamed when they try to escape from abusive relationships. In such circumstances it is difficult for women that have subservient in their private lives to forcefully oppose the violence of the occupiers. Failure to understand the grim realities of women’s lives reflects at a more general difficulty in the Church coming to terms with the role of women outside the family—the concept of the woman as more than wife and mother.110
This concept of womanhood resonates deeply with segments of East Timor’s patriarchal population and serves to legitimate male control and dominance of the household, including the use of violence to perpetuate that control. Even Father Jovito has admitted that Catholic doctrines can be mistakenly understood to endorse the idea that men are dominant and that women should be “spiritual law educators.”111 Yet the potential for the Church to play a positive role in transforming East Timorese society remains significant:
The Catholic faith is indeed deeply ingrained in the culture of East Timor. This makes the Church and its leaders, if not the strongest political entity, certainly the strongest moral authority in the land. With its non-partisan voice, the Church could do much in the struggle to end violence between youth gangs, between political parties and within homes. Or, it could continue to prioritise dogmatic ritual and emphasize the spiritual while largely ignoring the physical. How the Church chooses to use its enormous power in East Timor will be one of the great determining factors in the future of this nation.112
At times the Church and women’s groups have spoken in unison, particularly on the issue of justice for victims of the occupation.113 Even with this coalition, the likelihood of formal justice for crimes under the occupation looks remote.114
Despite the end of the occupation, violence against women continues in East Timor. And when the Church has been faced with husbands and fathers as abusers rather than occupying military or militia, its response has been muted. The Church has been more concerned about shaming women who leave their husbands than in asserting the rights of those women to physical integrity and safety. However powerful a voice for women the Church might have been over justice issues, its interests frequently diverge from the interests of women. Groups such as Fokupers recognize the need for women to speak with their own voices and through their own groups rather than relying solely on the Church. Strategic alliances can and have been made between the Church and women’s groups but until the Church is prepared to see women as independent citizens and holders of rights in all contexts, including the home, the positions of the two groups are likely to continue to diverge.