The gendered dimensions of conflict's aftermath: a victim-centered approach to compensation.

Zeigler, Sara L. ; Gunderson, Gregory Gilbert

There is a Somali proverb, "The stains of blood should be cleansed with a fertile virgin woman." Though it may have an archaic ring to modern ears, the saying reminds those who study conflict of traditional methods of forging alliances and merging fiefdoms, for example, through marriage. The exchange of women, often to seal peace settlements, represents trust between clans that will each be responsible for these women, who will in turn perform a reproductive role to replace lives lost in the conflict. (1) Yet this "archaic" proverb was quoted in 1996, and in the context of a very recent conflict. It serves to illuminate the fact that although the resolution of conflicts has a profound effect upon women, there is often little or no consideration of their concerns, their agency, and their needs. Peace agreements and peacekeeping efforts focus on security and bringing an end to armed conflict between militarized groups. The end of military conflict does not, however, usually represent the end of violence--especially for women.

In this essay, we first identify the ways in which women's interests are disregarded and sacrificed as peace agreements are reached, criminal courts and tribunals are established, and relief efforts are planned. Incorporating reports from nongovernmental organizations (NGOs), the UN, and news accounts, we assess the ethical problems with what might be called a "perpetrator-centered" approach to coping with conflict's aftermath that exacerbates and prolongs women's suffering. Not only do conventional trial procedures dismiss the victims' trauma and needs as secondary to the process of adjudicating the question of the perpetrator's guilt, but many also privilege the right of the accused to confront and question the victims over the additional suffering the victims must endure in giving testimony. (2) After delineating the gendered effects of conflict, we then study the operation of compensation boards following recent conflicts. (3) Even in those instances in which rape has been specifically identified and prosecuted as a war crime, existing structures fail to provide significant relief to female victims, as they neglect the underlying social, cultural, and economic practices that reinforce patriarchal systems, and thus hold women accountable for their own victimization; the traditional legalistic models that are typically employed in peace settlements and tribunals simply fail to meet the needs of the victims. (4) Finally, in response to the limitations of peace agreements and tribunals in addressing human suffering, we identify an alternative model for conducting such negotiations and for securing restitution to the victims of wartime abuses and their effects--a "victim-centered" approach to war crimes adjudication and compensation procedures.

In short, we seek to shift the focus of postconflict activity from the perpetrators to the victims by bringing a gender-sensitive approach to the legal processes that parcel out responsibility and by advocating measures to provide closure to victims and to compensate them for their suffering. While a rape victim cannot be compensated in the sense of erasing the trauma of her suffering, she can be provided with the means and tools to rebuild her life. There is certainly a compelling need to bring perpetrators to justice and to hold them responsible for their offenses. The prosecution and conviction of war criminals is necessary, but not sufficient, to ending conflict. Without attention to the victims, the suffering caused by armed conflict continues. Such a shift in the focus of adjudication integrates ethics and pragmatism, by prioritizing the need to end suffering over the need to enter a conviction onto the record. International criminal law, like that of most nations, treats criminal actions as offenses against the community, not as offenses against the victims. While prosecutors may describe the harms done to the victims and may display the victims' suffering for the benefit of the court, they do not bring charges on behalf of the victims. Punishment is, by definition, retributive rather than restorative. We contend that both conviction and compensation are necessary to secure postwar justice, and that a perpetrator-focused approach neglects the victims and too readily concedes the problem of minimizing the postconflict suffering of victims. The approach chosen at the outset determines whether the result will be retributive or restorative in nature. A perpetrator-centered proceeding necessarily focuses on assigning responsibility for wrongdoing and punishing the offender. By contrast, when the priority is to aid the victims, the purpose for allocating blame is to determine who must pay restitution and in what amount.

THE GENDERED EFFECTS OF WAR

It should come as no surprise that men and women experience war differently. A 2002 report of the United Nations secretary-general, summarizing the results of a world study on women and armed conflict, noted, While entire communities suffer the consequences of armed conflict and terrorism, women and girls are particularly affected because of their status in society and their sex. Women do not enjoy equal status with men in any society. Where cultures of violence and discrimination against women and girls exist prior to conflict, they will be exacerbated during conflict. If women do not participate in the decision-making structures of a society, they are unlikely to become involved in decisions about the conflict or the peace process that follows. (5)

Although poverty and an overtly patriarchal social structure compound the miseries of women in postconflict contexts, a review of key reports shows that the same themes emerge repeatedly. Thus, it is helpful to treat each gendered effect of conflict in turn.

Biologically Based Effects (Sexual Violence, STDs, Forced Pregnancy)

The international media gave extensive coverage to the use of rape as a tool for ethnic cleansing in the former Yugoslavia. Although rape was long considered a usual "side effect" of conflict, it only recently made its way onto the list of war crimes for which individuals and leaders may be prosecuted. (6) This is due, in part, to the extraordinarily brutal nature of the rape camps in the former Yugoslavia. While all rape is by definition brutal, these perpetrators took special efforts to add to the emotional and psychological torture of their victims. One typical description of testimony taken at the war crimes tribunal illustrates this point: Almost every night in the summer and fall of 1992, Serb soldiers would enter the detention centers and select their victims from among the female prisoners lying on gym mats, the witnesses testified. The women were taken to classrooms and private apartments where they were sexually assaulted, forced to dance nude and then compelled to perform degrading domestic chores. Some were kept as personal sex slaves by former neighbors--much older men whose wives and families they knew. (7)

It should also be noted that women and girls are not the only victims of sexual violence; however, women are disproportionately affected by rape, and only the most egregious instances are subject to prosecution. It is estimated that 50,000 women were raped during the three years of conflict in the former Yugoslavia. From the creation of the tribunal until the time of the most recent annual report in 2004, eighty-two indictments had been issued, and twenty-one individuals indicted for war crimes remained at large. (8)

Sexual violence continues to affect the victims after the violence itself has ended. Victims may be infected with sexually transmitted diseases and consequently suffer long-term effects ranging from social ostracization to infertility to death. (9) Unwanted pregnancies may result from the assaults (indeed, they may well be intended by the perpetrators), and women may be faced with a choice of either seeking abortions or bearing and rearing the children of their rapists. Many women are not even afforded that choice, given the social prohibitions against abortion and the lack of access to medical care in general. (10) The victims' fear of public exposure and the shame they experience as a result of sexual violence further complicate the process of providing assistance to them. Procedures for securing compensation must therefore allow the victims to delineate the grounds for their claims under seal, with assurances that the grounds will not be made public.

Refugee Status, Economic Disruption, and Sexual Victimization

The vast majority of refugees, both during and after conflict, are women and children. (11) They are the ones left behind when the men go to fight, they are the ones "cleansed" or displaced from their homes as enemy forces move through the area. Among those who are displaced and must live in refugee camps, women are particularly vulnerable and are targeted for abuse. Sexual violence is common in camps, and both male refugees and security forces typically engage in violations. Given poor access to health care, the lack of contraception, and women's greater physiological susceptibility to sexually transmitted diseases, refugee camps effectively offer opportunities for prolonged victimization of women as women.

Even in peacetime, women face disproportionate poverty rates, particularly if laws exclude them from jobs and economic activity on the basis of sex. During conflict, the absence of male family members exacerbates preexisting financial problems. As men leave to participate in the armed forces, women may assume the entire responsibility of caring for a family, often without the resources, skills, and social support to do so. Women may find themselves pursuing new or nontraditional occupations for which they are poorly prepared. Essential tasks become more difficult and dangerous, regardless of whether the women live in a rural or urban environment. (12) Venturing away from home carries significant risks, whereas land mines, cross fire, and sexual violence threaten those left behind. (13) Furthermore, as jobs in the formal sector become scarce, women may resort to illegal activities that put them at additional risk.

The absence of male protectors, the lack of resources, and the disintegration of order all increase the likelihood that women will resort to prostitution and drug trafficking to support themselves and their children. Brothels spring up wherever military units gather--even peacekeeping forces have been criticized for encouraging prostitution and trafficking in women. The Boston Globe reports that UN officials have refused to release reports of sexual violence by peacekeepers, lest the high incidence of abuses jeopardize their missions. (14) Journalists' accounts from Bosnia and Croatia indicate that the presence of UN officials and peacekeepers fueled a marked rise in both prostitution and trafficking in women. (15) The peacekeepers may not only fail to protect victims of sexual violence, they may also perpetrate the very violations they are deployed to end.

Lack of Representation in Leadership

Inadequate female representation extends to almost every sector of military and civilian decision-making, both before and after armed conflict. Few women occupy positions of leadership in the military and thus are excluded from decisions regarding a conflict itself. Feminist scholars studying the military have long argued that militarization and misogyny cannot be separated and that the training necessary to transform men into soldiers relies on treating women with contempt. (16) Men face ridicule when they exhibit compassion or vulnerability, and the most common insults are those that equate a soldier to a woman or to a homosexual. (17) The absence of women in leadership roles in military organizations reinforces their subordination. (18) Additionally, they rarely take a seat at the table during peacetime negotiations and thus have no way to ensure that their concerns are addressed.

Even in the former Yugoslavia, where gendered human rights violations received extensive international attention, no women participated in the negotiations to end the conflict. (19) Women are underrepresented on a panel established to adjudicate war crimes prosecutions involving crimes committed in the former Yugoslavia. (20) Without any opportunity to hear women's concerns, those who broker the peace agreements and who are charged with securing justice for victims may well overlook them. Peace agreements usually contain gender-neutral language, despite the fact that the differential impact of war, based on gendered ideologies and cultural practices, has been well established by the United Nations, NGOs, and feminist scholars. Prior to the 1990s, sexual violence was ignored in treaties and agreements ending armed conflicts. The Nuremburg accords, for example, contained no mention of the widespread sexual violence perpetrated by the Nazis. (21) In her comprehensive work on the trials, Kelly Askin notes that in the entirety of the Hague Conventions, only a single article (IV, article 46) vaguely and indirectly prohibits sexual violence as a violation of "family honor." In fact, the forty-two-volume set of transcripts of the Nuremberg Trial contains a 732-page index that does not include "rape," "prostitution," or even "women" as either headings or subheadings, even though crimes of sexual violence were extensively documented in the transcripts. In the five indexes added to the twenty-two-volume set documenting the Tokyo Trial, "rape" is included under the subarticle of "atrocities." Yet a mere four references are briefly cited, representing but a miniscule portion of the number of times rape and other forms of sexual violence were included within the [International Tribunal for the Far East] documents. (22)

HOW PEACE AGREEMENTS MARGINALIZE WOMEN

In negotiating peace agreements, the overwhelming concern of those involved is security. Immediate priorities include a cease-fire, the identification of those who will participate in negotiations, and immediate humanitarian access to conflict zones. (23) Other issues arise as discussions proceed, including arrangements for interim governments, postconflict political and economic reconstruction, and the rebuilding of the physical infrastructure. International mediators have varying degrees of involvement in this process, depending on the nature of the conflict and the geographic, strategic, and political significance of the parties.

In 2000, the United Nations called for gender balance and gender mainstreaming in addressing postconflict reconstruction. (24) The terms refer, respectively, to ensuring female representation in the negotiation process and to assessing and addressing the gendered implications of all decisions. Although neither balance nor mainstreaming have become the norm, gender mainstreaming is the more challenging aspect of bringing greater gender sensitivity to the peace. Mainstreaming requires that participants routinely and systematically determine the gendered effect of all aspects of the agreement and take special care to ensure that neither men nor women are disadvantaged in the process. While in theory mainstreaming appeared to focus upon women's concerns in postconflict negotiations, it remains a theoretical ideal rather than a common practice. (25)

One of the top priorities for women in the immediate aftermath of conflict is physical security. Violence against women spikes in the postconflict period, as men return home and attempt to cope with their own psychological trauma. (26) Women forced into independence by conflict may come into conflict with male family members frustrated by unemployment and attempting to reassert dominance over the family. (27) Because rape and domestic violence, in particular, are often regarded as internal matters to be managed by domestic criminal law, they may receive little attention in peace agreements. (28) In addition, women and girls who are abducted as sexual and domestic slaves may be excluded from programs designed to locate prisoners and reunite families. (29)

Unfortunately, women's concerns assume secondary significance in the aftermath of conflict, as most policy-making bodies, in the UN and among its member nations, are dominated by men. This is particularly true in the area of international security, which relies heavily on military experts. Because women are not in positions to acquire expertise about peacekeeping and international security, they seldom play a key role in developing strategies for reconstruction. The marginalization of women and their concerns in most societies transfers to the peacemaking and peacekeeping processes: the gendered dimensions of those conflicts are less likely to receive attention, which reinforces patriarchal conditions in the regions affected by the agreement. The women in the conflict zone have little agency and will thus exert little influence, thereby becoming still more marginalized. Without doubt, the extensive media coverage of war crimes perpetrated against women as women and the attempts to remedy them on the part of the international community represent salutary developments in the management of conflict's aftermath. Much more can be done by the international community to address the postconflict condition of women.

"REMEDIES" IN INTERNATIONAL LAW Overall, the amounts received for emotional harms, such as mental pain and anguish associated with sexual assaults, were limited, particularly when compared with the compensation provided for the loss of material items such as personal and real property. (30)

The quotation, describing the impact of the United Nations Compensation Commission (UNCC), neatly encapsulates the essential difficulty with restorative models as they currently exist. The UNCC was created in the aftermath of the first Gulf War to provide compensation to victims of the Iraqi invasion of Kuwait. It is one of the few international attempts to employ principles of restorative justice and, as such, will be examined in detail below. It is important to note that the UNCC fell far short of the model we propose because it focused more on compensating for the physical damage done to property than for the long-term effects of violence. Because it is easy to place a value on property-land, equipment, belongings all have market value--they are wont to be the first items on the list of things to restore. It is always morally uncomfortable to set a price for an individual's suffering. Indeed, while restitution-based (or restorative) models of justice have been proposed, they are often dismissed as being inappropriate to human rights violations. (31) How, one might ask, can a war criminal offer restitution to a woman who has been raped multiple times by many different men over the course of months? How does the individual who commanded such actions offer restitution to a woman who has been impregnated by one of many rapists? How does a soldier who participated in the mass murder of a village's men to "cleanse" it offer restitution to their family members for the lives lost and the economic burdens that resulted? Some victims cannot be made whole.

It is even more challenging to place a value on a type of suffering most often experienced by women, who are underrepresented among decision-makers and judges. Yet while the question of putting a price on a life or upon sexual violation raises important ethical questions, these questions should not be used as a justification for dismissing the harm done to victims, nor do they eliminate the need to offer some compensation, however inadequate it may seem. For this reason, we offer the following priorities for postconflict management, which take into account the gendered effects of armed conflict, the male-dominated realm of peace negotiations, and a fragmentary international judicial system that borrows heavily from norms that devalue women's victimization. (32) These priorities reflect the ideal toward which we would have the United Nations and other bodies move. Because they are quite broad, we do not expect that they will be adopted in the immediate future.

PRIORITIES FOR THE PEACE

* Ensure representation of women in international courts and tribunals charged with adjudicating claims that is proportionate to their estimated representation among potential claimants in the combat zone.

* Encourage involvement of women in negotiations of peace agreements through cooperation with women's organizations and grassroots peace movements. (33)

* Integrate specific reference to the gendered effects of conflict and its aftermath in all peacekeeping instruments designed to provide guidance to personnel participating in peacekeeping operations. (34)

* In developing mandates for postconflict adjudication of criminal conduct, incorporate gender perspectives explicitly into the definitions of conduct that may be subject to prosecution. Specifically, the mandates should recognize that men and women experience conflict's aftermath differently, that cultural and societal norms may disproportionately impede women's ability to recover (emotionally and economically), that women are more likely to be responsible for dependent children, and that the sex-specific violence perpetrated against women may carry stigmas that make women reluctant to seek assistance, particularly from men. These are only a few examples of the gendered aspects of recovery.

* Integrate female personnel in postconflict peacekeeping operations and provide all personnel with training in dealing with victims of sexual assault.

* In all instances that do not involve criminal proceedings, limit access to the details of compensation claims in order to protect the victims' privacy.

These measures are essential to providing a system of redress that considers the gendered aspects of postconflict suffering, that recognizes and validates the claims of the victims, that acknowledges the primacy of the ethical obligation to end suffering, and that orients discussions of justice around the needs of the victims rather than around the rights of the perpetrators. At this point, a detailed discussion of the United Nations' effort to apply restorative justice in dealing with the aftermath of the Iraqi invasion of Kuwait is instructive, since its success in addressing gender-specific violence is largely due, we shall argue, to the fact that it incorporated some of the priorities suggested above and because the personnel involved in administering the Commission insisted that crimes against the person be given precedence over the destruction of property. Because some individuals applied gender-mainstreaming principles, female victims received greater attention than they would have under the traditional compensation schemes employed prior to the Kuwaiti conflict, which provide redress to states rather than to individuals.

THE UNITED NATIONS COMPENSATION COMMISSION

At dawn on August 2, 1990, Saddam Hussein launched the Iraqi invasion of Kuwait. Utilizing a superhighway that led from the Iraqi border directly into Kuwait City, 100,000 troops and 300 tanks stormed into the neighboring country. Hussein's troops took less than four hours to traverse the eighty miles from the border to Kuwait City, meeting little resistance along the way, and immediately seized the emir's palace, the Kuwaiti Central Bank, and the TV and radio stations. Within a few hours it was all over; Saddam Hussein announced that Kuwait no longer existed and was now, as far as the Iraqi leader was concerned, the nineteenth province of Iraq. The Iraqi occupation of Kuwait was under way.

For the residents of Kuwait, the Iraqi occupation was brutal. Amnesty International reported that thousands were arrested and imprisoned. Furthermore: Torture was routine and widespread. The methods used reportedly included prolonged beating all over the body, breaking of limbs, extinguishing cigarettes on the body and in the eyes, gouging out of the eyes, electrical shocks, sexual assaults and mock executions.... Rape victims were said to include women and young men. Some detainees reportedly died under torture and had their bodies dumped in the street or outside their home. Scores of Kuwaitis reportedly "disappeared" following arrest; it was learned that many were extra judicially executed.... Iraqi troops were said to have deliberately killed unarmed civilians ... often in front of their families. (35)

Rape is an endemic problem in warfare, and the Iraqi invasion of Kuwait was no different; Iraqi soldiers raped more than 5,000 Kuwaiti women. (36) Based on his research in Kuwait, the United Nations Special Rapporteur, Walter Kalin, reported that both Kuwaiti and foreign women were raped during house searches and at a nurses' hostel, that some women were abducted for the purpose of rape, and that rape and sexual assault were used as a method of torture. (37)

Rape during armed conflict is an illegal and wrongful act according to international law under the rubric of war crimes and crimes against humanity. (38) It is obvious that during the Iraqi invasion and occupation of Kuwait, many women in Kuwait experienced acts of sexual violence that could be classified as violations of international law and, potentially, as war crimes. The appropriate course of action, under retributive principles, would be to punish the perpetrators. In short, the goal of retribution is to prosecute the perpetrator, and if he or she is convicted, administer punishment so that the perpetrator, too, suffers. Restorative justice seeks to make the victim whole, to restore her to the condition and circumstances that prevailed prior to the wrongful act. In short, the goal of restorative justice is to promote healing--for the victim and for the community. (39) Restorative principles, then, demand a broader sense of responsibility, even as they utilize those same coercive powers to require perpetrators to make restitution. (40) Remedies may include restitution or rectification, which restores precisely what has been taken; or compensation, which provides something equal in value to what the victim has lost. According to a decision of the International Court of Justice: The essential principle contained in the actual notion of an illegal act ... is that reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it--such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. (41)

In the case of rape, restitution in kind is hardly possible, and courts must focus on determining appropriate compensatory measures. Difficult as this task may be, it is a worthwhile endeavor. Compensation and similar actions taken against the perpetrators of international crimes convey political messages that go beyond the immediate punitive effects. Holding perpetrators culpable and requiring that they confront the consequences of their actions give substance to international conventions on human rights. More important, for our purposes, compensatory remedies serve several important functions for the victims. They may provide psychological and sociological rehabilitation for the victims. International action on behalf of those victims confirms for the victims that they were not responsible for what happened to them and assures them that the world acknowledges what has happened. (42)

Remedies such as compensation are also of practical importance to victims who may have lost their homes, possessions, loved ones, or other support structures. This can be especially important for women, who, as discussed above, often fare differently in armed conflict than men. Here, there are four important concerns:

* Women have fewer opportunities for economic recovery than do men following the end of hostilities, because women often have less mobility due to their roles as primary caregivers and because of their lower levels of education and skill training.

* The conflict leaves many women as widows and in need of monetary assistance to reestablish their lives successfully.

* Similarly, refugees and displaced persons, the majority of whom are women and children, need monetary assistance to reestablish their lives.

* Women may also have financial obligations as victims of sexual assault, such as the costs of ongoing medical treatments (including treating sexually transmitted diseases), costs associated with pregnancy, and costs associated with raising children resulting from rape. (43)

When the Security Council charged the UNCC with the daunting task of overseeing the righting of wrongs resulting from Iraqi actions in Kuwait, the Commission had to take these difficult moral issues under consideration. In a significant departure from past practice, the UNCC represents the first time the international community has sought to compensate individuals, not governments, for losses resulting from armed conflict. (44) Furthermore, it is unique in its recognition of the distinctive losses and treatment women suffer during warfare.

Even before the end of the Gulf War in 1991, the United Nations Security Council notified the Iraqi government that it would be held responsible for the damages and consequences of the conflict. Security Council Resolution 674 of October 1990 "reminds" the Iraqis that under international law they are liable for the damages, losses, and injuries to Kuwait, its nationals, and other third parties arising from its invasion of Kuwait. (45) Furthermore, Resolution 687, which Iraq accepted at the termination of hostilities in April 1991, reaffirms that Iraq is "liable under international law for any direct loss, damage ... or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait." (46) This resolution, along with Security Council Resolution 692 (May 1991), created the United Nations Compensation Commission.

The UNCC was tasked with handling the difficult compensation issues arising from the first Gulf War. It was expected that millions of claims for compensation would be forthcoming. In order to streamline the process, governments were required by the same resolutions that created the UNCC to consolidate the claims for individuals and file them on their behalf. (47) For stateless persons, the UNCC was authorized to accept claims filed from an "appropriate person, authority or body," such as a nongovernmental organization. (48) Claims could be filed in six categories: (49)

* Category "A" claims were for damages arising from forced departure from Kuwait or Iraq between August 2, 1990, and March 2, 1991.

* Category "B" claims covered serious personal injuries or the death of a spouse, parent, or child.

* Category "C" claims were for individuals claiming personal losses up to $100,000 (50) for actual losses (those that could be extensively documented), such as death, personal injury, loss of income, loss of or damage to personal property, medical expenses, or costs of departure from the conflict area.

* Category "D" claims were for individual claims of over $100,000, covering the same types of losses as category "C."

* Category "E" was for the claims of corporations or "other entities."

* Finally, category "F" claims came from governments or international organizations.

In a departure from past practices, such as those used by the Iran-United States Claims Tribunal, where the initial focus was on large corporate claims, the UNCC "believed things should be reversed: the smaller claims of individuals, who presumably were in greatest need, should come first." (51) In one of its decisions, the UNCC decided to give priority to the claims of individuals based on humanitarian concerns, especially those that fell into category "B." (52) The deadline for individual claims to be filed was January 1995. (53)

Decisions were made to limit the amount of claims made under Categories "A" and "B" since the expected claims would number in the millions. For category "A," an individual claim was paid at a fixed amount of $2,500, or $5,000 for a family. In the event that a category "A" claim was to be the only claim made to the UNCC by a particular individual or family, the fixed amounts were raised to $4,000 or $8,000 respectively. For category "B," the fixed amount of a claim was to be $2,500 for an individual or up to $10,000 for a family. Carlos Alzamora, the first executive secretary of the UNCC, noted, "These fixed amounts might appear very small to Western eyes, but may make all the difference when a person has lost everything and has to start again from nothing." (54) Indeed, the UNCC's claims process marked significant forward progress concerning individual victims of war crimes.

Claims were to be paid from a fund managed by the UNCC, the source of which was a 30 percent levy on Iraqi oil sales. At first, Iraq refused to abide by the conditions the UN placed on it and did not export oil, thereby restricting the fund's revenue source. In 1995, however, Iraq reached an agreement with the UN, the Oil-for-Food program, and began exporting oil. Money thus became available to start paying some of the claims filed with the UNCC. (55) By October of 1997, the UNCC had finished processing 2.4 million of the 2.6 million claims it had received and had awarded over $6 billion in compensation. (56) The vast majority of these claims were from individuals in categories "A" through "C." These individual compensatory payments represent a unique type of wartime reparations, targeting the individuals and families that need the most, and most immediate, help.

THE UNCC AND THE GENDERED ASPECTS OF WARFARE

Earlier, we discussed the gendered effects of armed conflict and the difficulties women experience during armed conflict. In its attempts at remedying the wrongs done by Iraq during its invasion and occupation of Kuwait, the UNCC addressed many of the distinctive aspects of warfare that cause such difficulties. We now examine the UNCC's approach to compensating the victims of the Iraqi actions in Kuwait from a gendered perspective.

Refugees and Displaced Persons

We noted earlier that women and children make up a vast majority of the number of refugees and displaced persons following armed conflict. During the invasion and occupation of Kuwait, many persons were forced to flee the fighting and subsequent brutal behavior of Iraqi forces. The UNCC recognized that these persons deserved compensation for their displacement. It therefore held that being forced to flee from Iraq or Kuwait was itself a compensable injustice under category "A." Additionally, claims for serious injury occurring in a refugee camp were considered to be a result of the invasion and were also compensable. (57)

Loss of Family Member

Women are often widowed because of armed conflicts. In many societies, men continue to represent most of the economic earning power in a household. Thus, the loss of a husband might well mean poverty for many women. Indeed, such losses may drive women to engage in illegal economic activities, such as drug dealing and prostitution, just to provide subsistence for themselves and their children, as noted above. In acknowledgment of this situation, the UNCC allowed for claims resulting from the death of a spouse or other family member under category "B." For individuals who could document losses due to the death of a family member greater than the awards allowed under category "B," higher amounts of compensation were possible through claims in the "C" and "D" categories. It was even possible to obtain compensation for mental pain and anguish suffered while witnessing intentional harm to a loved one. (58)

Sexual Violence

As noted above, women are disproportionately affected by rape during armed conflicts. The effects of sexual assault may continue to affect victims long after the end of hostilities through sexually transmitted diseases, pregnancies, social ostracization, medical problems, and so forth. While the UNCC did not address all of these possible harms of sexual violence, it did consider sexual assault to constitute a compensable offense. In its Decision 3, the Governing Council of the UNCC noted, "For purposes of recovery before the Compensation Commission, 'serious personal injury' also includes instances of physical or mental injury arising from sexual assault, torture, aggravated physical assault, hostage-taking or illegal detention." Later in Decision 3 the Commission added, "Compensation will be provided for non-pecuniary injuries resulting from such mental pain and anguish as follows: ... the individual suffered a sexual assault or aggravated assault or torture.... The individual witnessed the intentional infliction of events described [above] on his or her spouse, child or parent." (59)

Claims for rape by Iraqi military personnel most often fell under category "B." Understanding the difficulty in documenting wartime rape, the UNCC took a progressive approach to providing compensation for the victims of sexual assault. The UNCC realized that, due to the problems associated with medical care in times of armed conflict, many women could not provide medical documentation regarding sexual assaults committed against them. The Commission accepted general documentation regarding the scope of sexual assaults by Iraqi forces and recommended compensation for sexual assaults based solely on circumstantial evidence. (60)

It is not clear why the UNCC deviated from the usual patterns that reinforce marginalization of female victims, nor why it chose to be more sensitive to the needs of those who suffered sexual assault, in particular. An exhaustive search of documents related to the establishment and activities of the UNCC, as well as a review of the limited secondary literature, has yielded no insights. The explanation may lie in the uniqueness of the UNCC itself and in the definition of its role and mission. The UNCC was designed, as the name suggests, as a compensation commission rather than as a war crimes tribunal. Its mission was to aid the victims of war crimes rather than to assign responsibility for the crimes to specific perpetrators, as responsibility had already been attributed to the Iraqi government. That crucial difference allowed the UNCC to dispense with concerns regarding due process for the perpetrators and to shift its focus to alleviating the suffering of the victims. By defining the mission differently at the outset, the UN shifted the perspective and put the victims at the center of the Commission's work. Clearly, the UNCC's various findings and decisions that led to direct compensation of war crimes victims sets a new precedent for the international community. Though the economics of the Iraqi-Kuwaiti conflict were unique in that there was an obvious source to tap for postwar reparations of this type--Iraqi oil revenues--the actions of the UNCC following the Iraqi occupation of Kuwait nonetheless constitute an increased level of concern for individuals and, more particularly, for women victims of armed conflict. The categories established by the UNCC should serve as a template for international decision-makers in the future so that those individuals who are routinely absent from remunerative consideration--namely, women, and sexually victimized women in particular--have access to and become part of the process of war crime compensation.

The Commission attended to many of the concerns and recommendations we offered at the beginning of the section (albeit by virtue of the sensibilities of the commissioners rather than by design), and we believe that the UNCC's success in this regard should be transferable to other postconflict contexts. The fact that the commissioners were able to alter the process to give higher priority to individual claims and needs speaks to the importance of commission/tribunal personnel in ensuring that women's perspectives are represented. Although the UNCC ultimately adopted a gender-sensitive method of managing claims relating to sexual violence, the gendered dimensions of postconflict management were not considered during the design of the restorative scheme, leading to an initial focus on property claims rather than on harms done to persons. Yet the UNCC's shift in focus, the precedent it established in prioritizing the needs of victims, and its successes in distributing compensatory awards to victims provide evidence that restorative models can work. The UNCC also provided aid that was characterized as compensation rather than charity--an important philosophical distinction.

Nonetheless, some features of the UNCC example cannot be transferred to other conflicts. Because the agreements ending the Gulf War did not establish a peacekeeping presence, the specific priorities that we suggest be highlighted in designing measures to manage the aftermath of sexual violence were not tested. Nor did the UNCC have to confront the gender-specific challenges that accompany peacekeeping operations, which may subject women refugees to subsequent threats of sexual violence. In addition, because many negotiated peace agreements are simply that--negotiated--there is usually no defeated party whose resources can be seized and whose cooperation can be coerced. Resource allocation remains one of the most intractable problems for compensatory justice. Scarcity of resources should not be a bar to pursuing such models. The UN, its member nations, and NGOs must find resources to fund peacekeeping operations, to prosecute war criminals, and to engage in extensive monitoring and lobbying efforts. Without dismissing the serious problem of paying for the peace, however, we believe that the first step toward a victim-centered conception of justice must be an ethical one.

STALLED PROGRESS

While the UNCC took an important step by recognizing sexual assault as injury and extending that definition of injury to include the aftermath of violence, it is only a first step. Unfortunately, no additional progress has been made. While the International Criminal Tribunal for the former Yugoslavia (ICTY) is prosecuting those accused of mass rape, it employs the same legal standards as Anglo-American judicial systems, which require the victim to confront her rapist, to be subjected to rigorous cross-examination, and to publicly disclose her identity. For many victims, particularly those who suffer from post-traumatic stress disorder, this process is overwhelming and emotionally intolerable. As a result, offenses will go unaddressed. The tribunal has a limited authority to order restitution--the perpetrator may be required to return property and proceeds acquired by criminal conduct to their original owners. (61) Here, the UNCC had an advantage, as there was a clear "culprit" with ample resources who could be charged with the costs of providing compensation. Blame could be neatly allocated to the Iraqi government and funding diverted for payment via the Oil-for-Food program. The situation in the former Yugoslavia does not lend itself to such a solution--because no provisions for restitution or compensation have been made, rape victims will have to be satisfied with the willingness to prosecute and the possibility of conviction. In short, they may achieve moral vindication.

Such vindication is crucial and affirms the international community's abhorrence of sexual violence. It does not, however, focus on alleviating the suffering of the victims, and it does not assist victims in coping with violence's aftermath. The fact that the UNCC gave consideration to rape victims and that the ICTY is actively pursuing rapists represents progress. The injuries perpetrated by the rapists are still not compensated on the same level as a loss of property, however. To regard rape trauma on an equal footing with the loss of property would constitute further development: a true realization of the values embodied in the key conventions condemning war crimes and the willful infliction of trauma upon other human beings. In order to truly affirm the values associated with the conventions that articulate international respect for human rights, a shift in perspective from perpetrator-centered retributive justice to victim-centered restorative justice is crucial. Compensating the injured must take precedence over assigning responsibility. One may object that the cost of such compensation might be too high, and that the UN lacks the necessary resources. But the UN has found the means to undertake a decade-long effort to prosecute war criminals in the former Yugoslavia. Some of those resources could--and should--be devoted to providing redress to the victims themselves, rather than to prosecuting, convicting, and incarcerating the perpetrators. Of course, as was the case with the UNCC, claims on the resources of the UN and its members should be considered only after the resources of the perpetrators and the criminal regimes they led are exhausted.

Such a shift in focus to the victim would require that member nations, particularly those nations claiming to extend juridical equality to their male and female citizens, change their own practices. Without strong female representation among foreign policy advisors and diplomatic delegations, member nations cannot provide the UN with the personnel needed to increase female representation in its own bodies. Unless member nations regard the abuse of women as crimes worthy of foreign policy attention and political pressure, women's concerns will continue to be treated as afterthoughts. Until, to paraphrase an Amnesty International report, women's rights are regarded as human rights, efforts to mitigate the long-term humanitarian effects of conflict will ignore a majority of the population and be doomed to failure.

The United Nations, through its creation of international criminal tribunals and its actions to intervene in conflict and to engage in peacekeeping operations, has assumed a certain duty to manage the aftermath of conflicts and to bring closure to the victims. Compensation to those victims--at least in the form of providing the means of subsistence and insuring that the process of adjudication does not exacerbate suffering--should be an integral part of the process. A victim-centered system of compensation offers an ethically defensible approach to coping with conflict when bringing perpetrators to justice simply isn't possible. As a practical matter, achieving peace often results in allowing perpetrators to escape the consequences of their actions. No regime that anticipates indictment by a criminal tribunal is likely to agree to such indictment. Monetary compensation is neither a conviction nor an admission of guilt, however, and must be a part of any just settlement. A victim-centered approach would allow for compensatory arrangements either to complement a system established to prosecute war criminals or, when political realities make such prosecution impossible, to serve as an alternative means of achieving closure for victims.

(1) Bridget Byrne, "Gender, Conflict and Development," Report 34, Institute of Development Studies (Brighton, U.K.: Institute of Development Studies, 1996) p. 29; available at www.ids.ac.uk/bridge/Reports/re34c.pdf.

(2) Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law (Chicago: University of Illinois Press, 2004), p. 120.

(3) In other works we have examined the operation of war crimes tribunals vis-a-vis the special circumstances of female victims of armed conflict. See Sara L. Zeigler and Gregory G. Gunderson, "Pernicious Patriarchy or Prosecutorial Progress: Confronting Culture, Combat, and Rape in International Law," Journal of Conflict Studies 25, no. 2 (2005).

(4) Scott Splittgerber, "The Need for Greater Regional Protection for the Human Rights of Women: The Cases of Rape in Bosnia and Guatemala," Wisconsin International Law Journal 15, no. 1 (1996), pp. 198-200.

(5) "Report of the Secretary-General on Women, Peace and Security," S/2002/1154, New York, October 16, 2002, p. 3. For a particularly powerful treatment of sexual violence in multiple genocidal contexts, see Catherine MacKinnon, "Genocide's Sexuality," in Melissa Williams and Stephen Macedo, eds., Political Exclusion and Dominations (New York: New York University Press, 2005), pp. 313-56.

(6) Zeigler and Gunderson, "Pernicious Patriarchy."

(7) Jerome Socolovsky, "Bosnian 'Rape Camp' Survivors Testify in the Hague," Women's Enews (July 19, 2000); available at www.womensenews.org/artide.cfm?aid=204.

(8) "Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991," A/59/215-S/2004/627, New York, August 16, 2004, p. 91; available at www.un.org/icty/glance/index.htm.

(9) Byrne, "Gender, Conflict, and Development," p. 35.

(10) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Reservations (New York: United Nations, 2002); available at www.unhchr.ch/html/menu3/b/treaty2_asp.htm.

(11) Kerstin Greback and Eva Zillen, "Engendering the Peace Process, a Study on the Dayton Peace Accord, Updated Version," EMG/Peace/2003/EP.2 (Ottawa: United Nations Division on the Advancement of Women, 2003), p. 5. See also "Report of the Secretary-General on Women, Peace and Security," p. 1; and Byrne, "Gender, Conflict, and Development," p. 28.

(12) Byrne, "Gender, Conflict, and Development," p. 25.

(13) "Report of the Secretary-General on Women, Peace and Security," p. 2. See also Greback and Zillen, "Engendering the Peace Process," p. 11.

(14) Women's International Network News, "Women Proposed as U.N. Peacekeepers," reprinted from the Boston Globe in WIN 25 (Lexington, Mass.: WIN News, 1999), p. 13.

(15) Fred Pelka, "Voices from a War Zone," Humanist 55, no. 2 (1995), p. 6.

(16) Sara L. Zeigler and Gregory G. Gunderson, Moving Beyond G.I. Jane: Women and the U.S. Military (Lanham, Md.: University Press of America, 2005), pp. 121-24.

(17) Ibid., p. 132.

(18) Byrne, "Gender, Conflict, and Development," pp. 13-15.

(19) Greback and Zillen, "Engendering the Peace Process," p. 3.

(20) Amnesty International, "International Criminal Court: Amnesty International's Urgent Appeal to Countries that Have Ratified the Rome Statute Creating the International Criminal Court to Address the Disturbing Lack of Nominations for Female Candidates for Judges," IOR40/034/2002 (London: Amnesty International, 2002); available at web.amnesty.org/library/index/engior400342002.

(21) MacKinnon, "Genocide's Sexuality," pp. 313-56.

(22) Kelly D. Askin, "Women and International Humanitarian Law," in Kelly D. Askin and Dorean M. Koenig, eds., Women and International Human Rights Law, Vol. I (Ardsley, N.Y.: Transnational Publishers, Inc, 1999), pp. 46-47.

(23) Christine Chinkin, "Background Paper: Peace Agreements as a Means for Promoting Gender Equality and Ensuring the Participation of Women," EGM/PEACE/2003/BP.1 (Ottawa: United Nations Division for the Advancement of Women, 2003), p. 5; available at www.un.org/womenwatch/daw/egm/peace2003/documents.html.

(24) UNSC Res. 1325 (October 31, 2000), pp. 1-4.

(25) Chinkin, "Background Paper," p. 14.

(26) Anna Lithander, ed., Engendering the Peace Process: A Gender Approach to Dayton--and Beyond (Stockholm: The Kvinna Till Kvinna Foundation, 2000), p. 24.

(27) Chinkin, "Background Paper," p. 21.

(28) Zeigler and Gunderson, "Pernicious Patriarchy."

(29) Chinkin, "Background Paper," p. 22.

(30) Judith G. Gardam and Michelle Jarvis, Women, Armed Conflict, and International Law (The Hague: Kluwer Law International, 2001), p. 241.

(31) Carolyn Boynes-Watson, "In the Belly of the Beast? Exploring the Dilemmas of State-Sponsored Restorative Justice," Contemporary Justice Review 2, no. 3 (1999), PP. 261-82; and James Bonta, Suzanne Wallace-Capretta, Jennifer Rooney, and Kevin McAnoy, "An Outcome Evaluation of a Restorative Justice Alternative to Incarceration," Contemporary Justice Review 5, no. 3 (2002), pp. 319-39.

(32) For an analysis of the foundations of international law with respect to adjudication of sexual violence against women, see Zeigler and Gunderson, "Pernicious Patriarchy."

(33) We recognize that the United Nations and the international community cannot control the composition of the leadership of parties to conflicts and therefore cannot dictate the sex of participants.

(34) For a detailed discussion of gender issues and PKOs, see Zeigler and Gunderson, Moving Beyond G.I. Jane, especially ch. 7.

(35) As quoted in Ghanim Alnajjar, "Human Rights in a Crisis Situation: The Case of Kuwait after Occupation," Human Rights Quarterly 23, no. 1 (2001), p. 195.

(36) Christine Chinkin, "Rape and Sexual Abuse of Women in International Law," European Journal of International Law 396, no. 3 (1994), p. 1. In this case, unfortunately, the sexual assaults did not stop with the defeat of Iraqi troops in Kuwait by coalition forces. After the liberation of Kuwait, large numbers of female foreign workers were subject to sexual assaults. "An American adviser to the Kuwaiti government was quoted as saying that the reason for the prevalence of rape was a combination of a shortage of police officers, plus the fact that the 'police don't care because they are only Filipinos or Sri Lankans,'" Chinkin, "Rape and Sexual Abuse," p. 2. For more on the occupation of Kuwait, see "Report of the Special Rapporteur on the Situation of Human Rights in Kuwait Under Iraqi Occupation," E/CN.4/1992/26, New York, January 16, 1992.

(37) Catherine N. Niarchos, "Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia," Human Rights Quarterly 17, no. 4 (1995), p. 667, n. 116.

(38) It is beyond the scope of this paper to explain fully the relationship between rape in armed conflict and international law. For a more complete discussion, see Zeigler and Gunderson, "Pernicious Patriarchy."

(39) Howard Zehr and Harry Mika, "Fundamental Concepts of Restorative Justice," Contemporary Justice Review 1, no. 1 (1998), pp. 47-56.

(40) Dinah Shelton, "Righting Wrongs: Reparations in the Articles on State Responsibility," American Journal of International Law 96, no. 4 (2002), p. 835; Boynes-Watson, "In the Belly of the Beast?" p. 265.

(41) International Court of Justice, Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Report 166 (The Hague: United Nations, 1973), P. 47.

(42) Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 178-81; and Dinah Shelton, "Reparations to Victims at the International Criminal Court," prepared for the 1999 Meeting of the Preparatory Commission for the International Criminal Court (New York: Center on International Cooperation, New York University, 1999), p. 4; available at www.nyu.edu/pages/cic/pubs/ReparVictimsNewPrint.html.

(43) Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 178-81.

(44) The payment of reparations for damages and losses during armed conflicts is a long-standing tradition in the history of international relations. See David J. Bederman, "The United Nations Compensation Commission and the Tradition of International Claims Settlement," New York University Journal of International Law and Politics 27, no. 1 (1994), pp. 1-42. Reparations of this type have normally been paid as a lump sum from one government to another, however, usually from the defeated to the victor, to be used as the victorious government saw fit. Therefore, the reparations payment does not necessarily reach the civilians who have been harmed by the conflict.

(45) Carlos Alzamora, "The UN Compensation Commission: An Overview," p. 4, and Ronald J. Bettauer, "Establishment of the United Nations Compensation Commission: The U.S. Government Perspective," p. 30, both in Richard B. Lillich, ed., The United Nations Compensation Commission: Thirteenth SOKOL Colloquium (Irvington, N.Y.: Transnational Publishers, Inc., 1995).

(46) As quoted in Ronald J. Bettauer, "The United Nations Compensation Commission--Developments Since October 1992," American Journal of International Law 89, no. 2 (1995), p. 416.

(47) John R. Crooks explains the claims filing process this way: "Claims and supporting evidence are gathered from individual claimants by national governments, using standardized forms developed by the Commission. Individuals have no further involvement in the system until eventual payment. Claims are presented to the Commission by governments in consolidated groups." John R. Crooks, "The UNCC and Its Critics: Is Iraq Entitled to Judicial Due Process?" in Lillich, The United Nations Compensation Commission, p. 79.

(48) UNCC Decision Number 10 (1992). All decisions of the UNCC are reprinted in Appendix C to Lillich, The United Nations Compensation Commission, pp. 397ff. Hereafter, we simply cite UNCC decisions by their number and date.

(49) Gardam and Jarvis, Women, Armed Conflict and International Law, p. 234; Alzamora, "The UN Compensation Commission," p. 6.

(50) All amounts are in U.S. dollars.

(51) Bettauer, "Establishment of the United Nations Compensation Commission," p. 39.

(52) UNCC Decision Number 17 (1991).

(53) Some exceptions would be made for the filing of late claims in certain circumstances. See Gardam and Jarvis, Women, Armed Conflict and International Law, p. 235.

(54) Alzamora, "The UN Compensation Commission," p. 6.

(55) United Nations Division for the Advancement of Women, "Women 2000--Sexual Violence and Armed Conflict: United Nations' Response" (New York: United Nations, :998); available at www.un.org/womenwatch/daw/ public/w2apr98.htm.

(56) Veijo Heiskanen and Robert O'Brien, "UN Compensation Commission Panel Sets Precedents on Government Claims," American Journal of International Law 92, no. 2 (1998), p. 340.

(57) Gardam and Jarvis, Women, Armed Conflict and International Law, pp. 235-36.

(58) UNCC Decision Number 3 (1991); Gardam and Jarvis, Women, Armed Conflict and International Law, p. 238.

(59) UNCC Decision Number 3 (1991). The fact that the UNCC felt compelled to clarify this issue and "decide" that sexual assault constitutes an injury is telling and illustrates the androcentric slant of prior definitions of injury. Italics added by authors.

(60) United Nations Division for the Advancement of Women, "Women 2000"; Gardam and Jarvis, Women, Armed Conflict and International Law, p. 239.

(61) Under Rule 105 of the ICTY's Rules of Evidence and Procedure, the ICTY may order restoration of property to a victim. Under Rule 106, the victim has the right to sue for compensation in national courts. International Criminal Tribunal for the former Yugoslavia, Basic Legal Documents: Rules of Evidence and Procedure 2005, rev. 36 (The Hague: United Nations Publications, 2005); available at www.un.org/icty/legaldoc-e/index.htm.