GKM. No[emphatic]. The principal answered my question by saying that he did not know, that a madness had just taken over. So in effect you had these latent feelings, similar to those existing in the United States, these old wounds dating back from World War II or maybe even from 1389 when the Ottoman Turks defeated the Serbs. They held onto these feelings and passed them down from generation to generation. Then, you have a group of power-hungry politicians on both sides who are feeding and fueling these old wounds and old grievances that have never been resolved. Of course, I do not expect the same thing to happen in the United States, but there are similarities.
SS.
I want to go back to something. You said that maybe there should be an apology to Mrican-Americans, that more needs to be done. I was thinking in terms of race and in terms of women here. Should there be a monument for rape victims? Should we have international declarations of repudiation of rapists? Should we do more or do things differently?
GKM. I was talking to Elizabeth [Judge Odio Benito was also interviewed in this volume] just this morning about the number of rape Indictments. Yes, there should be a monument, but before you get one, you have to be seen to deserve it. The way that you do that is to get the story of rape out. We know it happens in war all the time but what we hear is, "Oh, I guess boys will be boys."
I recently confirmed an Indictment and rape had not been charged. There were one, two, three Indictments, major Indictments and while rape had been charged in one Indictment, but it was not charged in the major one. As soon as I looked at the Indictment, I called the prosecutor assigned to the case and asked him about it and he said, "We do not have any statements. There is no support for it."
So I said, "You know me. I am going to go through every single page, every single page of this material, and if I find something, I am going to tell you." I worked through it all and I found numerous statements referring to rape. One of the physicians who had treated rape victims had not even been contacted to find out whether there were any who would want to talk about it. In the statements, the women said that they would be willing to testify. It was not like they were saying, "This happened to me and I don't want to talk about it." That is usually the excuse given, that they do not want to talk about it. If they do not want to, that is another story.
Sara Sharratt
31
I called a legal assistant and I said, "We have some problems here and I need you to help me." We prepared a whole list of references to rape in the material. So when I confirmed the Indictment I said,
"Now I want to get into something else. Rape has not been charged.
Let me go through what I have found." I went through it affidavit by affidavit. I turned each page and just kept on going, affidavit by aftidavit. Then, in one Indictment, rape was charged on the basis of an affidavit that had been redacted; they had deleted all the names and everything about the woman that would identify her. In another Indictment, the whole atfidavit was in there but was not redacted.
Right there in the material. The prosecutor was not even charging rape. They were shocked by that. So I say that before you get a monument, you have to earn it, meaning that rape has to be charged; it has to be brought out; it has to be a part of the trial. So far, this has not happened. The numbers are certainly there: 20,000 or more women have been raped in this war. You do not get a monument unless there is an acknowledgment that you are a hero or a heroine.
SS.
So you are saying that there are not enough indictments?
GKM. Yes. I saw the prosecutor a couple of days later at a party and he came over and said, "Gaby, I am sorry." He acknowledged it, and was personally committed to charging rape as a war crime, yet since he left us there has been no movement on this front. This case has gone on and there is no word of rape. They charged rape in the biggest of the cases and I bet they do not have more evidence than was available here.
There is a danger, in my estimation, of running away from the issue. It can be very difficult to identify with women's issues, for men because of their position of power, and for women because some may be reluctant to be identified as women. They want to pretend that they are equal and that they made it on their own. When we talk about sex crimes, sex and gender are important. Many women do not want to acknowledge gender or race. Yet in this way the former Chief Prosecutor was an exception, he was committed to the cause.
SS.
You said race ... And that is true, too.
GKM. All through my life it has always been race first and gender second, and when I became a judge there were some women's groups who said, "Look, you haven't been active in women's groups." I said, "I have t11ed lawsuits against every major corporation in this area and 32
Assault on the Soul: Women in the Former Yugoslavia
all the petro-chemical companies." You can only take on one cause at a time and I have taken on the women's cause. I mean on the rape issue, I participated in the First National Women's Political Caucus, spoke on the same panel with Sarah Weddington of Roe vs. Wade.
But in my experience it has always been race first.
SS.
Has it shifted?
GKM. Yes, it has shifted. It has shifted particularly in the Tribunal because rape has been used as a weapon of war and therefore gender issues have become very important. It is more obvious to me now.
SS.
I am wondering, do you think that your election as President of the Tribunal represents a turning point?
GKM. Yes, I suppose so. I have already given one interview to Human Rights Watch who were doing a study on rape. I told them, "Rape has been used as a weapon of war in this instance in the Former Yugoslavia, and for the first time it is specifically listed as a crime.
We should treat it like any other new weapon. If there was a new rocket that was devastating in its destructive capacities, wouldn't we want to focus on it and make sure that we stopped it before people started using it all the time?" Rape does not only destroy women, it destroys the family.
SS.
In the States, many women don't want to testify because they feel they are being violated again by the system. Is, for example, cross-examination unfair?
GKM. Yes, that is true. Our rules establish the principle that consent is not a valid defense and also that prior sexual conduct is inadmissible. So our rules are very far-reaching in this respect.
SS.
But it does depend on who is the presiding judge. I have seen judges here in the Tribunal who do not exercise sufficient control, resulting in the abuse of the victim.
GKM. I wouldn't have allowed that to happen to any witness but obviously I have more sensitivity because of who I am. As a woman, I can feel the act of rape. I can empathize with it. Men look at it differently, if they are sensitive. It is almost as though they see themselves in the shoes of the perpetrator, and they see more the damage that can be wrought because they could be a perpetrator themselves. I feel, as a Sara Sharratt
33
potential recipient, that I can feel the pain more. I don't want to be too graphic, but I can feel it in my body more than they can.
SS.
Because cross-examination is so much a part of the common law system, many women in Europe are shocked that rape victims are subjected to this process. They see it as extremely violent. Are we, for historical reasons, placing too much emphasis on the rights of the accused, and not enough on the rights of the victim?
GKM. Certainly the rights have to be balanced, particularly at the ICTY, because our statutes direct the judges to provide rules for the protection of victims, and especially victims of sexual assault. No other system has a similar provision.
In the United States it is horrible because women are put on the stand. I mean they are put on trial For example, the whole business with Mike Tyson, the discussions that I have had with my son who is not at all sexist. The frequent arguments that my daughter and I had with him about why she went to Mike Tyson's room. She went to his room, but that doesn't mean she was going to consent to sex, and even if she went there thinking about it, she still had the right to say
"No" at any particular time. I can go up there to have drinks or whatever, but I don't have to have sex. I can change my mind and say, "I don't want a drink anymore."
SS.
I wonder if, as a North American, your sense of justice has changed since being here?
GKM. I suppose so. The trials we've held are not just about individual accountability, although that is our primary goal. There has to be individual accountability so that there won't be group stigmatization.
We also have to record what has happened so that it won't happen again. Never again. So, I look upon justice now in a somewhat broader fashion.
SS.
What do you mean by group?
GKM. We don't want to stigmatize a whole group of people, but it is a major problem. It is not just one man killing someone, or one man killing several people. It is the question of why did he do that? What was the cause of this? What was the role of the media? What was the role of the politicians? What were the group dynamics? Not that you blame all Serbs, Croats or Muslims in the group. During the Tadic trial there was evidence which suggested that these politicians had 34
Assault on the Soul: Women in the Former Yugoslavia
completely taken over the media, and look what happened. Although we talk about individual accountability, there is more to it than that because it is a community problem. It is a community problem because of the attitudes that people, as a group, have for one another.
However, that doesn't mean that when a Serb is tried the whole Serb nation is on trial. But in a sense it does go beyond the individual, because you need to look at what caused the individual to act in the way he did, so that you can hopefully avoid repetitions in the future.
SS.
When you looked at Tadic what did you feel?
GKM. I used to look at him a lot and I kept him with me a lot. Maybe I became a little obsessive. I kept testimonies in my head because I had to concentrate so much. I'd look at him sometimes and just try to figure out what was going through his head and what kind of a person he was. And the key thing for me was when he said, "Nobody else seemed bothered about what was going on. I don't think anyone is guilty." That kind of thinking is probably what allows him, and other people, to keep their sanity. They feel that what they were doing was all right because everyone was doing it. I'd look at him and I'd catch him looking at me and it was really a strange kind of a relationship that developed.
SS.
A relationship?
GKM. Yes. I'd often look directly at him and he'd look at me. I think that he knew that I carried clout and if he could convince me, I would be sympathetic. He picked up on things when I asked questions, and he pointed out loopholes. He had already seen them. He would then look at me and volunteer the answer to a loophole that I had mentioned during the trial. I don't know. It was a strange relationship.
SS.
Were there times when you liked him? Liked him in the broadest sense of the word?
GKM. No, though I know what you mean. It was not liking so much as he became part of this court family almost. You sit in that room, that little tiny room, week after week, month after month. We went through 73 trial days and he was a major part of the process. I was very conscious of the fact that he was there, very conscious of him.
He became a part of my life, really, for a long time.
SS.
Do you still think about him?
Sara Sharratt
35
GKM. No, I have moved on to other things now. We've got other issues.
And I am very busy as president and see the issues from a broader perspective.
You are talking about the tremendous personal impact that these experiences have and how there is no way of going through them without having them affect your life. I remember when I went back to the States one year, and I was angry that most people knew almost nothing about Yugoslavia. I really get angry about that. I speak to Americans and I tell them, "Americans are not interested because Yugoslavia is thousands of miles away and the people have these funny names you can't pronounce. Why should you care? Because it is important in a moral sense. How can anyone not care about the destruction of humankind?"
SS.
If you are going through a rough time, they often say it means that you are not strong. No, it means that strength encompasses vulnerability.
GKM. Yes, that's true, and being able to acknowledge pain.
In the past there was a commonly heard phrase, "blacks and women," and Alice Walker asked, "What about black women?"
There were black people, mainly men, and there were women, mostly white. Black women were totally out of the picture. For many Mrican-American women, there has been a struggle to identify with feminism. What I gathered from what you were saying before is that for you it had to be a split.
I was in the South and the same women who were feminists were either married to white men who were racist or racists themselves.
You see, racism was so dominant in the South that I had a difficult time connecting with them, especially because I was suing their husbands, or men who looked like them, who were heads of corpora-tions. We are talking about the early 1970s. I went to Houston in 1969. I once saw an article in the New York Times that said that most of society has always looked at black men to speak about black issues, and at white women to speak about women's issues. Where is the black woman? She is not in the equation. If we look at my daughter, she is just as ardent as a feminist as I was in my work in civil rights. She just reminds me so much of myself and she is very active in women's groups, AIDS and other issues. She is an ardent feminist because times have changed. We don't have the same types of race issues, though I still believe that white women have benefited more from the civil rights movement than black people have. You see more white women in managerial positions in the United States 36
Assault on the Soul: Women in the Former Yugoslavia
than you see blacks in those positions. In Europe I don't see that, so it is so nice that one doesn't have to be concerned with race issues on a personal level.
I am now at a point in my life where I am more conscious of the fact that I am a woman who is faced with different issues than the men here. More than being a black person, I feel that I am a woman, and this awareness has allowed me to focus on my gender and what it means in my relationships.
SS.
Does it surprise you that the men in the Foca Indictment have not been arrested?
GKM. When I met with the Minister of Justice in France, who is a woman, I made specific reference to that Indictment even though I have as President said that I was not going to talk about Karadzic and Mladic by name. But I bent the rules a little bit and talked about it and sent her the Indictment. I also spoke with the French Foreign Minister and told him about the case. I told him, "Let me show you on the map where Foca is." He said, "Let me see that map." He gave it to an assistant and told him to make a copy. I said that I would send him the Indictment in French. It will certainly be on their minds.
SS.
You are saying that because Foca is in the French sector. The Indictment is all about crimes committed against women. Do you think that has got anything to do with it?
GKM. I have no idea, but there is an attitudinal crisis that makes it seem like it's okay. "These men are under strain and, after all, they have only raped." I still think they've got the mentality that "Boys will be boys." I remember reading about an Allied military commander in the Second World War who was questioned about this issue and he said, "In times of war this will happen and you can expect it of our troops." You hear rumors about UN troops themselves. That they were implicated in raping also.
In rapes, in forced prostitution. So, it brings up a whole range of issues that I don't think they want to face. We are not talking about women like you or me. We are just talking about women in general.
In the one case that I confirmed, this woman was held for weeks on end and was raped repeatedly by group after group. It would just turn your stomach.
However, they will not find it as justifiable when you talk about it in terms of enslavement. It presents an entirely different dimension of what is acceptable in times of war. If men were held and became Sara Sharratt
37
victims of sexual assault, of course they would want to punish the perpetrators. In Tactic, the testimony about biting a testicle was sensational. That's all they talked about. So if they can talk about that, why can't they talk about rape? I guess I am contradicting myself when I said people don't want to talk about sexual occurrences.
SS.
Thus, what is clearly seen as torture when it happens to men is not as easily seen as such when it happens to women. Most of the women who are writing for this volume went to the former Yugoslavia. My sense through my contacts with them is that they are traumatized.
GKM. Well, maybe I am traumatized and I don't know it. It will take a long while for me to feel the full effects of this experience. It was horrible. I couldn't sleep during the Tactic trial. I think it is still inside me and sometimes when I start to talk about Tactic, I feel tears welling up, I think perhaps because I did not have the luxury of doing so during the trial. Judges don't cry, so you just have to sit up there. When I came back after we t1nally sentenced this man, I felt like I could just let it all out, and I really did cry. I really did, but it's still inside me, so when people ask me "Why?" I find I get really upset, and then I start asking about how can people do that to each other? But I have to let go of the question "Why?" It happened and I don't have to solve it.
SS.
You're a judge and I am an expert in human behavior, and I have no idea. I don't know. I don't understand. I don't know why. I know that soldiers who do that aren't human.
GKM. One woman judge I know, who was strongly affected by some of the testimony, said that maybe she was not cut out to be a judge. I replied that "Maybe it is the opposite. Maybe it's because you get emotional and you feel it, that you should be a judge." If you don't express your emotions, you go crazy. The problem, as I've said before, is that I've learned as a judge to control it. But I've suffered on account of this. I mean you control it all and then, when you t1nally release it, you sometimes do so in what is not necessarily the healthiest fashion.
SS.
I just talked to a Holocaust survivor in Costa Rica, and I asked her about what kind of support she received from her husband when she talked about her experiences in the camps. She said that she never discusses it with him. I know, it doesn't surprise me.
GKM. How could you not?
You know that in the United States in 1957, Central High School 38
Assault on the Soul: Women in the Former Yugoslavia
in Little Rock was desegregated and, in order to do it, President Eisenhower had to send in troops. In Brussels, there is a sister of one of the "Little Rock Nine" and another black woman who was actually one of the "Nine" now lives in Holland. These are all black women. They had a 40th anniversary recently and they got together.
All these people are my age and so their children are in their 20s. For the first time, the children heard about these things because their parents had never talked about them before. I have read about what went on in that high school and I can understand why. You read it and you see the humiliation that you were put through, you were kicked and spit upon, and books slammed and all kinds of death threats. You want to fight back.
SS.
Yes. Thank you for giving me a chance to talk with you. It was very moving for me.
Interview with Elizabeth Odio Benito,
Justice of the International Criminal
Tribunal
for the Former Yugoslavia
Sara Sharratt
SUMMARY. This interview is with a previous Justice of the International Criminal Tribunal for the Former Yugoslavia and current Vice-President and Minister of the Environment of Costa Rica, Elizabeth Odio. Such issues as women's rights as human rights, the relationship of justice and recovery and the nature of evil are considered, among others. [Article copies available for a fee from The Haworth Document Delivery Service: 1-800-342-9678. E-mail address: getinfo@haworthpressinc.comj
KEYWORDS. Human rights, women's rights, rape, torture, genocide, Costa Rica
SS.
What is important for us to know about you?
EOB. Perhaps the most important thing to know with respect to my job here is my past experience working in human rights. I came to the Elizabeth Odio Benito, Lie. in Law, was a Justice of the International Criminal Tribunal for the Former Yugoslavia and has returned to Costa Rica to fill the elected position of Vice President.
Address correspondence to: The Honorable Elizabeth Odio Benito, Office of the Vice-President of Costa Rica, Apartado 2292-1000, San Jose, Costa Rica.
[Haworth co-indexing entry note]: "Interview with Elizabeth Odio Benito, Justice of the International Criminal Tribunal for the Former Yugoslavia." Sharratt, Sara. Co-published simultaneously in Women & Therapy (The Haworth Press, Inc.) Vol. 22, No.1, 1999, pp. 39-52; and: Assault on the Soul: Women in the Fonner Yugoslavia (ed: Sara Sharratt and Ellyn Kaschak) The Haworth Press, Inc., 1999, pp. 39-52. Single or multiple copies of this article arc available for a fee from The Haworth Document Delivery Service
[1-800-342-9678, 9:00 a.m. ·5:00p.m. (EST). E-mail address: getinfo@haworthpressinc.com].
© 1999 by The Haworth Press, Inc. All rights reserved.
39
40
Assault on the Soul: Women in the Former Yugoslavia
Tribunal from this field and not from any background as a judge or criminal attorney. Human Rights started to become prominent after the Second World War, following the horrendous ways in which human rights were violated during that conflict. I am not suggesting that human rights were invented after the war but rather that the International Declaration of Human Rights of 1948 projected onto the international community what had traditionally been handled by different States at the national or regional level.
Thus, it was only in national legal systems that protection of human rights was encoded. After the Holocaust and genocide of World War II, there was tremendous pressure to internationalize the protection of human rights. Nevertheless, it is obvious that since that cont1ict there has not been a true synthesis between this preoccupa-tion and the protection and punishment of individuals, which remain the responsibility of the nation state. We did not create supra-national organizations which could truly protect human rights and punish its violations.
SS.
How did you become involved with Human Rights?
EOB. I was interested since my early life as an academic and practicing attorney. I became aware then of the tremendous discrimination and inequality faced by women in the judicial system, and started, together with other women, to try to change some of the laws that worked against us. That was a time in my life when I believed that changing the laws would change the world. Afterward; I realized that nothing was ever that simple and that it is much easier to change the laws than to change human attitudes and behaviors. In 1978, when I became Minister of Justice of Costa Rica, I focused my attention on the problems of political refugees from Argentina, Uru-guay and Chile seeking asylum in large numbers in Costa Rica.
Shortly thereafter, I became a member of a United Nations Committee which handles funds to rehabilitate victims of torture during armed cont1ict. Since then I have been working with projects to help rehabilitate people who have suffered torture and/or inhumane and degrading treatment during national or international conflicts.
SS.
You have been talking abou