Abstract
This article considers how international criminal courts produce knowledge about women’s experiences of large-scale violence. In 2001, the International Criminal Tribunal for Yugoslavia concluded that the crime of genocide had been committed in Srebrenica in 1995 and that the patriarchal nature of the Bosnian Muslim community was key to the genocide. This paper examines the processes by which the trial and appeal chambers came to know, and author an account of this community as patriarchal. I examine the transcripts of three witnesses who testified about the surviving community of Bosnian Muslim women, tracing how evidence was shaped and reshaped in the courtroom and then in the trial and appeal judgments. I argue here for the importance of exploring the mediating practices and actors that produce legal knowledge, to better understand how complex recognition of gendered harm unfolds, and is sometimes curtailed, through international criminal adjudication.
Keywords
In 2001, the International Criminal Tribunal for Yugoslavia (ICTY) released its trial judgment in the case of Prosecutor v Krstic ruling that the crime of genocide had been committed in Srebrenica in 1995. An usual aspect of the Krstic case, and one that has not received much comment, was the finding by both Trial and Appeal [2001, 2004] chambers that the community of Bosnian Muslims from the Srebrenica area was ‘patriarchal’, and that patriarchy was instrumental to the commission of the genocide.
The ICTY Trial Chamber ruled that when Serbian forces murdered 7000–8000 military-aged men in 1995 and deported the remaining women, children, and elderly people from the Srebrenica area, they intended to destroy this community of Bosnian Muslims. 1 Even though the women, children, and elderly people were still alive, the crime of genocide had been committed because, the Chamber ruled, ‘Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society’ ([2001], para 595). The ‘combination of those killings’, the Chamber continued, ‘with the forcible transfer of the women, children, and elderly people would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica’ (para 595). General Krstic, the defendant, was found guilty of genocide. 2
The centrality of ‘patriarchy’ to the Chamber’s reasoning on genocide is both surprising and somewhat predictable. It is surprising that this concept, normally associated with feminist theorizing of women’s subordination (Walby, 1989), is so pivotal to a court’s technical conclusions that the legal elements of genocide had been met. But it is also somewhat predictable in that women’s inequality appears more often in international transitional justice institutions than might be expected. International courts and transitional justice institutions have recognized that gender and gender inequality produce certain kinds of (gendered) violence and victims during periods of extreme conflict. Most commonly, this link between gender inequality and harm is found in the conclusion that rape in times of armed conflict is profoundly destructive to a community and a ‘fate worse than death’ for women of traditional societies (for a discussion, see Engle and Lottman 2010; Ní Aoláin et al., 2011, Chapter 7).
The apparent willingness of some transitional justice institutions to recognize gender violence and inequality has been the subject of both feminist activism and critique. For many feminists, international criminal courts offer an arena where the gendered effects of armed conflict can be made more visible, thereby ending the historic erasure of women from the postwar accounting of violence and its effects. Naming and recognizing gendered forms of harm, including sexual harm, has been an important feminist political and legal objective, seen as essential to a transitional reconstitution of social and political order (see e.g. Ní Aoláin, 2009, 2012).
At the same time, feminist scholars have critiqued the ways in which transitional justice institutions persistently elide ‘victim’ with ‘women’, and ‘women’ with ‘sexual violence’ (Baaz and Stern, 2010; Engle, 2005; Enloe, 2004; Ross, 2003). The result is a series of ‘blind spots’ in transitional justice (Ní Aoláin, 2012; Shirlow and Dowler, 2010) both about women’s experience of conflict and the structural effects of inequality that are hinged to large-scale violence. Not only is the complexity of violence stripped away by a ‘narrower, gendered focus on gross violations of human rights’ (Ross, 2003: 9) but archetypal representations of the (sexually abused) ‘woman victim’ too easily stand in as a conceptual shorthand for the complexity of atrocity.
While international criminal cases, such as Krstic, offer an uneven arena in which to make visible gendered dimensions of conflict, these courts are also sources of official knowledge about what happened to women and men during that conflict, and hence what harms need to be addressed as part of the ‘transition’ from conflict to ‘peace’. The Yugoslav Tribunal is generally viewed by international and western decision-makers as producing the most thorough and reliable accounting of events in Yugoslavia in the 1990s. It has a patina of authority that is not found with other, more localized, transitional justice institutions. 3 Overtime, the Tribunal has also defined its work as contributing ‘to an indisputable historical record, combating denial and helping communities come to terms with their recent history’. 4 After many years of operation, the ICTY has accumulated a massive archive of documentary and testamentary evidence that is unparalleled in any other transitional justice forum. The Yugoslav Tribunal, like its Rwandan counterpart has become, in the words of Richard Wilson, ‘a system of knowledge [that] filters evidence and establishes an official version of the past’ (2011: 16). The accounts of what happened to women during the Yugoslav conflict emerge out of this ‘knowledge system’.
In this paper, I look at the processes by which international criminal courts come to know and author accounts of women’s experiences of conflict. Like Wilson, I see international criminal courts as producing knowledge, not just about the past but also the social, political, and economic relations that structure violence and its effects. 5
‘Production’, in this sense, refers to the constitution of knowledge by actors through the legal process; hearing, translating, weighing, and applying evidence to legal questions (Valverde, 2003: 5). These practices take place not just at the moment of judgment but in the trial process itself (and earlier), as rules of evidence, investigative processes, court procedure, judicial customs, and individual actors structure how the accounts of what happened unfold and are given meaning. While the recognition of gendered forms of harm can have an important performative dimension (Chesterman, 1997; Cole, 2010) that signals, for example, international condemnation of violence against women, in this paper, I am interested in the more quotidian, sometimes mundane trial processes that are an integral part of international criminal law as a system of knowledge. It is through these mediating knowledge practices (Camic et al., 2011), I argue, that particular vulnerable female subjectivities become intelligible.
The ICTY case of Krstic is the focus of my analysis and I examine how evidence about the ‘patriarchal’ aspects of the society of Muslims from eastern Bosnia was presented and encountered by the judges first in the courtroom and then in the trial and appeal judgments. My analysis is based on a reading of the transcripts from 2 days of testimony by three witnesses who testified about women’s experiences of the violence in Srebrenica in 1995 and afterward. These transcripts record what these women said in their oral testimony and the judges’ extensive interactions with the witnesses. The transcripts reveal how the evidence presented in the courtroom took shape and was reshaped through the interactions between the witnesses and judges.
In part one of this paper, I provide a brief summary of the Krstic case, trial and appeal judgments as they relate to considerations of patriarchy and the genocide against Bosnian Muslims from the Srebrenica area. In the second section, I consider the transcripts from 2 days of testimony by the three witnesses who testified about women’s lives before and after the Srebrenica violence. In this section, I trace how ‘patriarchy’ is introduced as a concept in the Prosecutor’s direct examination of the witnesses, and then how ‘patriarchy’, in the judges’ questions and the witnesses answers, begins to evolve in meaning.
In the third section, I consider the trial and appeal chamber judgments about the role of remarriage in the biological continuity of Bosnian Muslims as a group. The discussion here traces how the concept of patriarchy, which initially seemed to open up a detailed understanding of the gendered harms resulting from the genocide, ended up foreclosing more nuanced accounts of women’s lived experiences of inequality and harm. In the process, the trial and appeal chambers enact some of the very patriarchal relations described in the witness testimony about women’s lives in eastern Bosnia.
The paper concludes by considering the significance for feminists of seeing international criminal law as a ‘system of knowledge’. I argue here that the methods by which knowledge is produced—the daily, seemingly technical aspects of the trial, for example—highlight the actors and institutional contexts that shape what is made known about women’s experiences of harm and in what terms. Knowledge is not simply encountered in international criminal law; it is also produced. For feminists seeking greater legal recognition of women’s experiences of conflict and violence, these processes of knowledge production are important to study, both in terms of how they function to foreclose legal recognition of gendered harm but also open up more avenues for engagement.
Prosecutor v Krstic
The International Criminal Tribunal judgment in the case of Krstic was the first genocide conviction by the tribunal and also the first of several cases concerning the events in the Bosnian city of Srebrenica during the 1990s wars in the former Yugoslavia. Srebenica is a small city in eastern Bosnia, which was declared a United Nations (UN) safe zone in the early part of 1993 and monitored by UN peacekeeping troops. As a safe zone, it became a place of refuge for the largely Bosnian Muslim community from the surrounding area. By early July 1995, when Srebrenica was overrun by Serbian armed forces, 25,000 civilians had already gathered in the Dutch policed area of the safe zone. The Dutch peacekeepers were unable or failed to protect the refugee population in Srebrenica. Most Bosnian Muslim women, children, and elderly people were eventually transported out of the area, and approximately 7000–8000 Bosnian Muslim men and boys were executed by Serb forces ([2001]: para 426).
The defendant, Radislav Krstic, was a career soldier who had been promoted to General of Drina Corps just days before the events in Srebrenica. Drina Corps was found to have played a supporting role in creating a humanitarian crisis in Srebrenica, helping to deport the population, and providing support to troops that massacred the men and boys. General Krstic was charged with, among other things, having individual and command responsibility for genocide.
Genocide is a difficult crime to prove because it has a ‘special’ or double-intent requirement. To prove genocide, the prosecutor must demonstrate that an underlying crime was intentionally committed—namely murder, serious bodily or mental harm, inflicting conditions of life to bring about destruction, preventing births, or forcibly transferring children to another group—and that it was committed with a larger intent to destroy, in whole or in part, a ‘national, ethnical, racial or religious group’ (Statute of the ICTY, [1993]: Article 4). In the case of Krstic, for example, the Prosecutor would have to demonstrate first, the murder of 7000–8000 military-aged men, and second that those murders were part of a larger plan to destroy a community of people defined by certain characteristics (nationhood, race, religion, or ethnicity).
The legal definition of genocide is limited to the physical or biological destruction of that community; it does not include ‘an enterprise attacking only the cultural or sociological characteristics of a human group’ (Krstic [2001]: paras 576, 580). In Krstic, this definition posed a problem. Was it genocide if large numbers of men were killed, and the women, children, and elderly people were left alive, but removed from the area? The defendant argued that the deportation of women, children, and elderly people from the Srebrenica area was evidence that Serb forces did not intend to destroy the community of Bosnian Muslims. Serb forces could have killed all the civilians, but did not. How then could this be a genocide?
The answer for the Trial Chamber was the patriarchal nature of the community. Three witnesses, testifying over 2 days at the end of the Prosecutor’s case, gave evidence about the lives of women who had been transported out of the Srebrenica area by Serb forces in July 1995 and who were, at the time of their testimony in 2000, living in Tuzla, a city north and west of Srebrenica, in state-provided housing. The Trial Chamber drew on these three witnesses to conclude that Bosnian Serb forces ‘had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditional patriarchal society’ ([2001]: para 595).
The trial judgment identifies three main ways in which the patriarchal nature of the society impacted on the women’s ability to survive. First, the women of this patriarchal society had found it ‘almost impossible… to successfully reestablish their lives’ in Tuzla. The reasons for this are varied and not necessarily connected to patriarchy: the women were found to have a ‘reduced standard of living’ in Tuzla, they were crammed into inappropriate housing with little chance of paid employment and were still dealing with the ‘pain and fear’ of losing ‘so many loved ones’. The connection to patriarchy comes through the Chamber’s conclusion that as new ‘heads of households’, the women had ‘great difficulties with the unfamiliar tasks of conducting official family business in the public sphere’ ([2001]: para 91).
Second, the patriarchal nature of the society impacted on the recovery of adolescents from the events in Srebrenica, and here the court pointed to the difficulties rising from the ‘absence of male role models’ ([2001]: para 92). Third and finally, the Chamber found that the survivors were suffering from Srebrenica syndrome, a ‘new pathology category’ that refers to the unique difficulties arising from the (then) large number of unconfirmed deaths of the Muslim men from Srebrenica. The 7000–8000 men killed in Srebrenica had been buried and then moved out of mass grave sites, making identification of their bodies difficult. At the time of the trial, many of the men were still classified as ‘missing’. The suffering caused by this uncertainty posed a particular problem for this community, the Chamber ruled, because ‘for Bosnian Muslim women it is essential to have a clear marital status’ ([2001]: para 93).
Hence, the Trial Chamber concluded, ‘by killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever reestablish itself on that territory’ ([2001]: para 597). These acts constituted the crime of genocide.
The Appeal Chamber upheld this conclusion, but shifted the emphasis somewhat to focus on the community’s inability to reproduce itself. It noted that ‘with the majority of the men killed officially listed as missing, their spouses are unable to remarry, and consequently to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction’ ([2004]: para 28).
Translating Patriarchy
The events in Srebrenica in 1995 were—and are still—horrifying. Thousands were killed, the civilian population was made to endure extreme physical suffering, and the evidence clearly demonstrates a pattern of cruelty particularly in the days prior to the deportation of the women, children, and elderly people from Srebrenica.
International criminal adjudication can perform an important role in this context, by naming that suffering, recognizing the multiple victims of Srebrenica, and condemning the actions of the perpetrators as an international crime. The Krstic trial decision can be read, on one level, as doing just this, and doing so with demonstrable sympathy for the victims of the Srebrenica massacre. Against the backdrop of this suffering, my scholarly analysis of the judicial mobilization of ‘patriarchy’ could appear as a curious, intellectual exercise, detached from the horror of extreme violence. But the terms by which categories of victims are recognized and the delineation of the suffering seen as constituting victimization have implications for how violence is understood and how post conflict and post violence ‘social repair’ should take place (Ross, 2003: 17). In the case of Krstic, for example, the categorization of suffering was instrumental to the court’s determination that a particular crime—the crime of genocide—had taken place.
The naming of harm and characterizing of suffering in transitional justice contexts tend to have a distinctly gendered quality. ‘Woman as Victim’ has emerged as a powerful symbolic representation of the wrongs of large-scale violence (Zarkov, 2007). The representational power of this iconic woman victim is possible in part through ‘integrating specific lived experiences, of specific women and men within specific political and cultural contexts, with supposedly universal meanings’ (Zarkov, 2007: 13). The universal meanings attributed to Woman as Victim have similar resonances across varied transitional contexts. In South Africa, for example, some women’s experience of politically inflected violence was overwritten during the truth and reconciliation process as sexual violence with women’s identities as political actors subsumed by their (sexual) victimization (Ross, 2003, Chapter 4). In the wars in the former Yugoslavia, women, and not men, tended to be seen as victims of sexual violence and as innocent ‘in matters of war and violence’ (Zarkov, 2007: 13). In scholarship on Northern Ireland, women tend to be portrayed in their capacity as ‘wives’ of political prisoners and not as agents with political identities in their own right (Shirlow and Dowler, 2010). And at the International Criminal Tribunal for Rwanda, rape and sexual violence are portrayed in gender and ‘ethnic’ terms, so that only women are victims of rape, and victims of rape are presumptively one ethnicity (Tutsi) and not another (Hutu) (Buss, 2009).
In each of these examples, the complexity of women and men’s experiences of violence is flattened by a reframing of that experience in gendered terms; men are agents, women are victims; men experience human rights abuse, women experience sexual abuse. The universalizing of women’s experiences as victims renders some victim subjects visible at the expense of others (Zarkov, 2007). In the context of the wars in the former Yugoslavia, and their aftermath, Bosnian Muslim women have been particularly prominent in the international imaginary as victims (Zarkov, 2007). International media and scholarly attention, starting in the early stages of the 1990s wars, came to rest on the raped and stigmatized Bosnian Muslim woman as emblematic of victimization and the extreme violence of the wars. A number of scholars made assertions about the presumed conservative, patriarchal (and Islamic) nature of the Bosnian Muslim community, concluding that Bosnian Muslim women raped during the wars would thus experience heightened social stigma (for a discussion of this literature, see Zarkov, 2007, Chapter 7). This characterization, which elided Muslim societies in the former Yugoslavia with those in the Middle East, was uncritically taken up and reproduced, particularly in some legal literature in the 1990s (for a discussion, see Engle, 2005; on discourses of shame more generally, see Engle and Lottmann, 2010).
The depiction of Bosnian Muslims as particularly patriarchal has had a number of consequences. Dubravka Zarkov (2007: 149–154), for example, argues that other victims of rape, those not identified as Bosnian Muslim women, have been made invisible particularly in media accounts of the Yugoslav conflicts. And Monika Hauser (2009; see also Kesic, 2002; Skjelsbaek, 2009), in a recent report by the organization Medica Mondiale, notes that assumptions about patriarchy and the presumed stigma faced by rape victims is used by Yugoslav Tribunal officials to justify their poor record on prosecuting sexual violence crimes (arguing that women are unable or unwilling to testify about sexual violence). While noting that some women may indeed be silent, Hauser reiterates (2009: 6) that the image of the shamed, silent Muslim woman victim is patently inaccurate: ‘no journalist would have been able to write a single word about war rapes if Bosnian women had not spoken about these crimes directly in front of their cameras. They talked about these crimes with openness and anger, not shame’.
The testimony of the three women witnesses who gave evidence in Krstic, thus, unfolded within a context of heightened visibility of Bosnian Muslim women as victims of the wars. In Krstic, Bosnian Muslim women were not seen as victims of sexual violence, but their lives as women in ‘traditional patriarchal’ society is the dominant lens through which their experiences of conflict and violence are understood. Their identities as ‘Muslims’ rather than, say, ‘Bosniaks’, emerge as the defining feature of their identities as victims of a genocide.
Evidence about the patriarchal character of Bosnian Muslim society was presented in Krstic primarily through the testimony of three witnesses, all women from the former Yugoslavia (though not all Bosnian Muslim). While several witnesses at the trial testified to the gendered nature of the violence—that most of the men were separated from the rest of the civilians and killed, while most of the women, children and elderly people were gathered onto buses and deported—only these three witnesses testified specifically to women’s experience of the violence and their lives afterward.
The ICTY, like most other international criminal courts, operates in several official languages, in this case English, French, Bosnian/Croatian/Serbian, and/or Albanian and Macedonian. All hearings and documents (usually) are translated into or from these languages. The testimony of witnesses, such as the three witnesses discussed below, are recorded, translated, and produced as daily transcripts, available for download on the Tribunal’s website (to anyone with a computer and a reliable Internet connection). The transcripts record any verbal utterances in the courtroom, whether testimony of the witness, or statements made by judges, lawyers, translators, court clerks, or the accused.
Witness DD, the first of the three witnesses I discuss here, testified as a survivor of the Srebrenica violence, speaking of her life before the conflict, the events in Srebrenica itself, and then her life as a refugee in Tuzla. The other two witnesses, Jasna Zecevic, the director of Vive Zene, a nongovernmental organization that provides psychosocial support for war victims, and Teufika Ibrahimefendic, a counselor in the Vive Zene centers, were not themselves survivors but gave evidence about the survivors’ lives in Tuzla. While neither of these witnesses was formally presented to the court as an ‘expert’, both were treated, and occasionally referred to as such (see e.g. Krstic Transcript, 27 July 2000: 5856; 27 June 2001: 10006–10008). The judges sought their expertise on the patriarchal nature of Bosnian Muslim society and the particular suffering, called the ‘Srebrenica syndrome’, endured by the survivors after the events in Srebrenica. Together, the three witnesses provided ‘context’ evidence about the gendered nature of Bosnian Muslim society prior to the conflict and the types of harms, some of them gendered, experienced by the women survivors.
Defining Patriarchy
Witness DD was the first of the three ‘patriarchy’ witnesses to testify. The Prosecutor’s questions to DD in direct examination were grouped into three categories: Witness DD’s pre-conflict life and experience of marriage, her experience in Srebrenica and the loss of her family members, and her life since her deportation from Srebrenica.
The first group of the Prosecutor’s questions served to define the constituent elements of patriarchy and then to establish Witness DD as a typical member of a community structured by patriarchy. Witness DD was asked about: her education level and if a lower level of education for women than men was common, age of marriage and if early marriage was a community norm, the average number of children in families, the different roles of women and men in the family, the decision-makers in the family, and men’s roles in dealing with finances and authorities (Krstic Transcript, 26 July 2000: 5744–5746).
Witness DD, born in 1954, testified she had 4 years of elementary school and was aged 23 when she married. In July 1994, before the Srebrenica events, Witness DD had four children (two of whom died, or were presumed dead, as a result of events in Srebrenica in July 1995).
What level of education did you achieve at school?
Four years of elementary school.
Why didn’t you proceed any further in your elementary schooling?
We didn’t have the means, especially not for girls. Rather, boys were educated to a higher level if possible.
So what was the normal educational level for girls in your village?
Well, so-so. Girls attended to the household and housework; they engaged in knitting and embroidering and farming.
How old were you when you got married?
I was going on to 23.
Was it normal in your village for girls to get married at this age or an earlier age or at a later age, if at all?
It was quite normal for girls to get married at that age; some at a slightly earlier age. But from 23 on, it was reckoned that she was a bit late.
Like many families living in the rural areas around Srebrenica, Witness DD’s husband worked in a local industry as a manager of a transportation company, while Witness DD’s role was primarily focused on the home, but with an extensive list of duties (Krstic Transcript, 26 July 2000: 5745–5746):
And what was your job or role?
My role was to be a faithful housewife, to work hard, to take care of the household and its needs, to look after the children, to do the housework, and the farming and the land, everything that was necessary. To tend the livestock as well.
And who made the decisions in your family?
My husband was head of the family and the household and everything, but we would consult if necessary and take decisions. If I were to suggest something, he wouldn’t humiliate me; we would decide together. But he was the number one.
Now, who out of your family dealt with the authorities and any paperwork that you had to complete or family needed?
That was all my husband’s affair.
And who out of your family managed the finances and the money?
My husband earned the money and brought it home, and then together we would decide what we needed, what for, and how much, and we spent it like that.
Was the way in which your family was organised common or uncommon in your village?
It was very common.
Witness DD’s evidence is the most detailed before the Chamber about what ‘patriarchy’ meant in the pre-conflict lives of rural Muslims of eastern Bosnia. The picture that emerges with DD and the other two witnesses, is of a rural community shaped by clearly delineated gender roles, and characterized by what anthropologist Tone Bringa describes as ‘mixed households’, that is, family units that ‘drew their subsistence from both agriculture and industry’ (1995: 50).
The ‘patriarchal’ character of this society takes on a much firmer, arguably sharper, meaning, however, over the course of the trial and the decision-making process. For example, Witness DD testified to her life experience as a married woman, and while her evidence suggests her family life could be defined as ‘patriarchal’, it wasn’t absolutely so; she married at the not very early age of 23, and while her education levels were minimal, her evidence suggests this was both an economic and gendered aspect of rural life; although there was a gendered division of labor in the family, within an agrarian economy, Witness DD’s list of responsibilities was long and crucial to the family’s access to food; finally, while her husband was unquestionably ‘the boss’ in the family, DD was consulted on decisions.
Witness DD’s account corresponds with the experience of Muslim women in another part of Bosnia, studied by anthropologist Tone Bringa (1995) in the 1980s, just before the outbreak of war. In Bringa’s study, Bosnian Muslim life in rural areas exhibited many of the aspects of ‘patriarchy’ described by Witness DD, but Bringa notes (1995: 118) that this situation was less true for more urban Bosnian Muslims and, more importantly, that rural life, and gender relations were undergoing rapid change throughout the 1980s (1995: 50, 117–118). A recent study by Inger Skjelsbaek (2009) suggests that the social arrangements described by Witness DD were also true for some Croatian and Serbian communities.
The second witness, Jasna Zecevic, the Director of Vive Zene testified that as a geological engineering student, she spent 1 month in Srebrenica, where she observed a ‘very calm and nice community with some patriarchal structure in their community’ (Krstic Transcript, 26 July 2000: 5776). She was asked, based on her contact with the women and children survivors from rural eastern Bosnia, to ‘describe the respective roles of women and men in their society’ (Krstic Transcript, 26 July 2000: 5778).
In the society of Eastern Bosnia, or I can say that in the villages in Bosnia not just in Srebrenica, I can describe it as a traditional patriarchal family structure. So the point was that men were responsible for the family, so he was the one who made decisions, the decision-maker. He was working outside of the house, I mean public – he was responsible for the public work; he earned the money. And the woman was responsible and worked in the house more and in the field. So she was responsible for the children but she didn’t make the decisions.
In this and other exchanges between Jasna Zecevic and the Prosecutor, the witness is treated more like an expert. This contrasts with Witness DD, whose role is to provide the ‘story’ of her life. This one woman and her narrative account stands in for the whole of Bosnian Muslim women from the Srebrenic area. The evidence of Jasna Zecevic and Teufika Ibrahimefendic, in contrast, is given authority through the Chamber’s treatment of them as de facto ‘experts’. Jasna Zecevic, for example, is asked to give opinions and make determinations about social facts; the existence of patriarchy, its familial arrangements, the widespread knowledge about those arrangements, and social expectations in eastern Bosnia. The evidence about patriarchy on the trial record thus begins to take a slightly different shape from Witness DD’s testimony about her life, to the more conclusive, generalized statements of the ‘expert’. And, as I discuss in the next section, the evidence about patriarchy begins to move and evolve further once the judges are involved.
Enter the Judges
The judges’ own questioning of the witnesses forms a significant part of the transcript. The ICTY, like most other international criminal courts, is a blend of common and civil law traditions. A panel of three judges hears each trial, with the judges, like the lawyers and other court personnel, drawn from across the globe. Each trial chamber, particularly in the early stages of the ICTY, engaged in a side-line process of defining its own understandings of procedural rules and professional and court etiquette (Eltringham, 2011).
In Krstic, the judges pursued their own lines of questioning with the ‘patriarchy’ witnesses, with each judge tending to return to a pet theme or line of questioning. Presiding Judge Almiro Rodrigues from Portugal displayed an interest in different therapeutic techniques used by the counselors in Vive Zene, perhaps reflecting his background and interest in legal psychology. 6 Judge Riad of Egypt 7 was the most active questioner of the three, pursuing a number of different lines of inquiry. He, more than the other two judges, focused on patriarchy. Judge Wald from the United States, the only female judge, asked the fewest questions, reflecting the practice in common law jurisdictions (for a discussion of Judge Wald’s career, see Askin, 2011). She asked no questions of Witness DD, and her limited questions of the other two witnesses focused on the absence of male role models for adolescents, and the possibilities for a future life for this community.
The judges’ questioning of witnesses reveals in part the judges’ own interests or preoccupations with the evidence, and ultimately helps to shape the evidence presented in the courtroom. Judge Riad’s interest in patriarchy, in particular, gives rise to important moments in the translation and production of evidence about ‘patriarchy’ and its meaning for the purposes of this case. Judge Riad asked the second witness, Jasna Zecevic, the Director of Vive Zene, the following question:
Now, how much you think these women who have not been ready to face life, because you said it was a patriarchal society and were completely sheltered (sic), how much are they, in your opinion, capable of now starting a new life? (Krstic Transcript, 26 July 2000: 5794–5795)
Jasna Zecevic focused her reply on answering the essence of the question; they will ‘start a normal life’ if they have access to housing and related infrastructure (Krstic Transcript, 26 July 2000: 5795). But the witness’s answer leaves unchallenged the judge’s interpretation of women’s lives under patriarchy as ‘completely sheltered’. This interpretation does not in fact reflect fully the evidence of either Witness DD or Jasna Zecevic, both of whom suggested that while there was a gendered division of labor, and the men negotiated the public dimensions of life, the women were far from sheltered. They had a long list of responsibilities including farming and tending the livestock in an economy where families produced much of their own food. Jasna Zecevic also gave evidence that post-Srebenica some of the women living in Tuzla were becoming empowered through their new role as head of the family. Zecevic recounted the story of one woman in the shelter who struggled to recover from the trauma of Srebrenica, but found her strength in negotiating with public authorities in Tuzla: ‘it was a shock for all of us, that she really show her power, that it’s coming back to her, that she is very strong, and she can survive that, and she can take responsibility for this issue’ (Krstic Transcript, 26 July 2000: 5789).
Judge Riad’s interpretation of patriarchy and its particular manifestation within this Muslim community was fleshed out more fully in an important and long question he posed to Teufika Ibrahimefendic, the witness most commonly treated as an expert. Judge Riad’s question came at the end of the witness’ testimony and after each of the judges, including Judge Riad had asked a round of questions of the witness. Before she left the witness stand, Judge Riad posed a further question. He began by noting that his questions stemmed from something his colleagues on the bench touched upon, the ‘continuation of life for this community’ and whether it would ‘rise up again’ (Krstic Transcript, 27 July 2000: 5855–5856):
In this community, in particular, some of the other experts who spoke here mentioned to us that in this Islamic community, it’s a patriarchal society, with all the effects of a patriarchal society. The man is the spine.…
The Judge then interrupted his question to refer to prior witness testimony about a grandmother in the refugee shelter who felt she had no remaining relatives even though she had female grandchildren. He continued: Now with the men who disappeared, how can this society how can they … go along this new line without the spine, when this society was revolved around the man? Could they completely change, completely become a very ultramodern society, or is there a chance of this complete change? Will it be like a snowball and the society will disintegrate more and more? Can the women remarry? Can they stand on their feet? Can boys and the girls resume their lives?…
Judge Riad’s question reveals his understanding of the evidence to date about the nature of the society of Muslims from eastern Bosnia. The patriarchal aspects of the society are specifically linked to the ‘Islamic’ identity of the community, men are named as the ‘spine’, and the very survival of women, without the men of the community, is now in question. His understanding is somewhat at odds with the picture of ‘patriarchy’ presented by the three women witnesses, which was more uneven—the women and men also made decisions collectively, for example—was undergoing change and was different in rural, semirural, and more urban areas.
In her answer, Teufika Ibrahimefendic, accepted Judge Riad’s rephrasing but also contextualized her response (Krstic Transcript, 27 July 2000: 5857): I think it will be very interesting to see in what way the role of the women will change in these patriarchal, Islamic families. This concerns the rural areas to a greater extent, because in towns women have their jobs, their professions, and they are able to live on their own.
What is interesting here is not just the ways in which the shape and effect of ‘patriarchy’ is positioned through the judges’ questions but also the process by which the witness evidence about patriarchy is restated and translated. In both examples, Judge Riad rephrases the witnesses’ evidence slightly as the foundation on which he poses another question. In answering the question, the witnesses implicitly or explicitly adopt the reformulation of their evidence. For example, Jasna Zecevic accepts Judge Riad’s characterization of her evidence that Muslim women from eastern Bosnia were ‘completely sheltered’. And, Teufika Ibrahimefendic incorporates Judge Riad’s term ‘Islamic’, in her answer to his question.
With the judges’ questions, patriarchy begins to take on a shape and quality that is different from the image of patriarchy revealed in the witnesses’ testimony under direct examination. The exchanges between the judges and witnesses are, in effect, productive moments in the trial where the content of ‘patriarchy’ is fleshed out and then translated by the judges into a framework, which, as I explore in the following section, is used to link the killing of 7000–8000 men and boys to a genocide against the entire community.
Seeing this process in the courtroom as ‘translation’ rather than simply ‘legal determination’ or even ‘interpretation’ is important. Translation—the act of interpreting something foreign into another language or custom—operates on many levels within legal processes. Certainly, linguistic translation can be common in trials, as it is at the ICTY, but the work of lawyers in framing their client’s wishes and evidence into a legal context also could be seen as acts of translation (Trinch and Silgson, 2002; White, 1990). Furthermore, the witnesses themselves are translating what they saw, heard, and experienced into a testamentary form (oral or written) before the court. And judges too are actively involved in translation (Basu, 2010; Khachan, 2010). Judges hear, make sense of, and then rule authoritatively on the evidence they encounter in the courtroom. As moments of translation, these practices do not simply reproduce evidence but shape and reshape it. New and different meanings are produced through translation, which, in turn, supplement the original (Benjamin, 2004: 81). 8
The judges’ questioning and rephrasing of the witness testimony in Krstic are, in effect, knowledge practices through which meanings about violence and the experiences of conflict are produced. The Chambers’ understanding of women’s experiences of patriarchy before and after the Srebrenica massacre in 1995 takes on a distinct quality that is both informed by the witness evidence, but is also slightly different from it. This becomes most evident in the depiction and conclusions about patriarchy in the trial and appeal judgments.
Reproducing Patriarchy
A new line of inquiry is opened up by Judge Riad’s long series of questions at the end of Teufika Ibrahimefendic’s testimony: can this society of Muslim women, children, and some men from eastern Bosnia reproduce itself biologically? This question becomes influential to the final outcome and is highlighted by the Appeal Chamber in its reasons for upholding the legal finding of genocide. It is here that the ‘social fact’ of patriarchy comes to cohere as a legal fact with legal consequences. The variable meanings and complexities of patriarchy, particularly as practiced by this society of Bosnian Muslims, are stripped away (Valverde, 1996), and patriarchy is asserted as a universal experience without nuance or context. The judges’ conclusions about patriarchy, I suggest, can be seen as enacting a form of patriarchy, arguably similar to that depicted by the ‘patriarchy’ witnesses as part of Bosnian Muslim rural life.
The follow-up questions to Teufika Ibrahimefendic from Judge Riad and then Judge Rodrigues revolved around a similar concern: can this society of women, children, and some Muslim men from eastern Bosnia reproduce itself? Judge Riad, for example, asked ‘Can these women, now that the men have disappeared, can they remarry without being looked down upon by society as being not, not in a tradition of faithfulness and so on? Can life be resumed, really, in this area?’ (Krstic Transcript, 27 July 2000: 5857–5858). This question was followed by another about a declining birth rate in the survivor community. Finally, Judge Rodrigues asked: how many generations will it take ‘for the life to return to normal’ (Krstic Transcript, 27 July 2000: 5859).
The witness’s answers to these questions were mixed: the birth rate did decline one year, but increased the next; she can’t say how many generations it will take to return to ‘normal’, but she does note there is a problem for remarriage: ‘Bosnia is the country of women. There are very many women in Bosnia. … There is very few men left who have survived and who are living in these centers’. She provided a number of statistics about the disproportionately large number of single mothers compared to married couples and concluded: ‘So these are very particular social problems which may lead—or may, rather—affect the continuation of life in those parts of the world’ (Krstic Transcript, 27 July 2000: 5858).
The question of remarriage becomes important in the trial and appeal decisions, and the question of the community’s ability to reproduce itself is instrumental to the trial and appeal chambers’ conclusion that the events in Srebrenica in 1995 were genocide. It is useful to recap briefly the trial and appeal chamber findings. The trial chamber concluded that while only men of military age were ‘systematically massacred’, the intent was to destroy the whole group: Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society, an impact the Chamber has previously described in detail. The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children, and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica (Krstic [2001]: para 595).
In upholding the trial determinations on these issues, the appeal chamber focused specifically on the question of remarriage and the inability of the community to reproduce itself. The Trial Chamber found that, given the patriarchal character of the Bosnian Muslim society in Srebrenica, the destruction of such a sizeable number of men would ‘inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica’. Evidence introduced at trial supported this finding, by showing that with the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction (Krstic [2004]: para 28, footnotes omitted, emphasis added).
For the Appeal Chamber, then, the emphasis seems to be on the ability of the community to procreate, and a significant bar to procreation is the patriarchal system that makes it difficult for women to remarry. The evidence of Jasna Zecevic and less-so Teufika Ibrahimefendic does not, in fact, focus on patriarchy as the bar to remarriage; the factors they identify are much more complex. Jasna Zecevic testified that while it was important for women from Srebrenica to have a clear marital status, a new administrative category—‘missing husband’—had been created for these women and this status produced administrative problems for remarriage. Because the women were not widowed—their husbands were ‘only’ missing—they would have to divorce their missing husbands first in order to remarry. In a further, cruel twist, because the women did not have their marriage certificates with them when they fled Srebrenica, they would first have to marry their missing husband, and then divorce him, before remarrying (Krstic Transcript, 26 July 2000: 5785).
The complications did not end there. As survivors with ‘missing husbands’, the women received monthly financial support from the state. If they remarried, they would lose that financial support. Because there were few chances of employment, neither the women nor their potential new husbands would have an income without this monthly payment. Remarriage was impracticable. The problem, Jasna Zecevic testified, was ‘bureaucratic and economic and social’ (Krstic Transcript, 26 July 2000: 5786). In the trial and appeal judgments, however, the reason why women and men survivors cannot remarry and hence presumably cannot procreate is explained simply as ‘patriarchy’.
The trial and appeal chambers thus seem to have come full circle from opening up a consideration of social relations in pre-conflict Bosnia, to a conclusive assertion of ‘patriarchy’ that takes little account of social relations as lived. There are interesting parallels, in this regard, between the judges’ interactions with the patriarchy witnesses and the institution of patriarchy as described by those witnesses. Like Witness DD in her marriage, these women were consulted about their views and two of them were treated as de facto experts. But the judges were, like Witness DD’s husband, the ultimate decision-makers, conferring their authority by rephrasing and translating the witness evidence into legal fact.
The reduction in social complexity through the Chambers’ conclusions about ‘patriarchy’, ultimately served to erase the very expertise accorded the ‘patriarchy’ witnesses. The core social and now legal fact around which the evidence about a group’s destruction unfolded—that the Muslim society from eastern Bosnia is patriarchal—remains on the record, but patriarchy as a complex, uneven social institution disappears. The voices of the witnesses are heard insofar as they confirm the patriarchal nature of the society. But their evidence of the contours of this social fact is sidelined by the judges’ more insistent assertions of patriarchy and its effect.
Conclusion: Knowing Women Here and There
In this paper, I have tracked some of the processes by which legally generated knowledge about women’s experiences in conflict served, ultimately, to reproduce an archetype of the woman victim of large-scale conflict and violence. This conclusion, in the context of the Krstic decision, is somewhat surprising. The transcripts of the three patriarchy witnesses, and the extensive questioning by the judges, provide a richly detailed account of women’s lives before and after the Srebrenica massacre. The judges’ questioning suggests a desire on their part to better understand the broad, gendered harms of the massacre; to go beyond simply counting the dead. The Krstic case thus avoids some of the gender blind spots that feminists have identified as recurring problems in transitional justice contexts.
And yet, the Krstic case ends up reproducing other gender blind spots through its insistent portrayal of patriarchy as the governing feature of Bosnian Muslim women’s lives before and after the conflict. In the trial and appeal chambers’ legal reasoning, patriarchy is the main lens through which Bosnian Muslim women’s experience of violence is known and given meaning. The Chambers’ recontextualizing of women’s experience of the Srebrenica massacre as a problem of patriarchy took place, I argue in this paper, through a series of knowledge practices in the courtroom and in the process of judgment writing. These knowledge practices help to shed light on the actors and contexts within which knowledge claims are heard, weighed, and translated in the legal process.
To say that international criminal trials produce knowledge is not to claim that this is all or even the most important thing they do. However, as I have argued in this paper, knowledge production is also not a minor or neutral sideline to the process of adjudicating guilt or innocence. In Krstic, the Chambers’ conclusions about the harms suffered by the surviving community of Bosnian Muslims from eastern Bosnia were pivotal to its legal determinations about the crime of genocide. The portrayal of women’s lives and experiences post-conflict as a problem of patriarchy invokes the archetypal woman victim subject. As feminists have noted in this and other contexts, this woman victim subject often serves to operationalize the levels of suffering deemed ‘(in)tolerable’ to law (Baillot et al., 2011: 126). The Bosnian Muslim woman victim in Krstic similarly portrays a very specific, controlled account of harm that constrains the available range of meanings that can be attributed to women’s lives in the aftermath of violence.
While the trial and appeal judgments may offer a monolithic portrayal of patriarchy in Bosnian Muslim communities, the transcripts of the three ‘patriarchy’ witnesses would seem to serve as a possible counterpoint. In these transcripts, one can find a more detailed discussion of the nuanced and varied experiences of Bosnian Muslim women after the conflict. While far from complete, the transcripts paint a picture of harm and suffering that reflects an array of problems encountered by women and their strategies for survival post-conflict. In their more detailed accounts, the transcripts, more so than the trial and appeal judgments also suggest possible ways in which the post-conflict reallocation of social goods could be done to enhance women’s security and survival (e.g. through better housing).
The transcripts, as another source of knowledge about women’s experience of conflict, have the potential to impact international criminal justice beyond this one case. The transcripts, for example, have traveled beyond Krstic to at least four other cases at the Yugoslav Tribunal, where they have been entered into evidence. 9 While it is too early to conclude on the significance of these traveling transcripts (Who else will access them beyond a few lawyers and academics? Who else even knows to look for these transcripts? What role do they appear to play in the arguments made in the courtroom, and the decisions of trial and appeal chambers?), they point to the uneven, multilevel processes of knowledge production in international criminal law. For feminists seeking greater formal recognition of women’s experiences of conflict, this is important. In attempting to influence official knowledge, we need to recognize the different sites and processes by which knowledge is produced about women’s experience of conflict. These sites might be, as I explore here, the courtroom and the testimony of witnesses, but they might also include the global intellectual elite who study and document the work of transitional justice. Where do we, in our scholarly and activist work, look for knowledge and ‘authoritative’ discourses about women and their lives in times of extreme conflict?
Footnotes
Author’s Note
Earlier versions of this paper were presented and benefited enormously from discussions at: ‘Dis/Locating Law’, the Canadian Initiatives in Law, Culture and Humanities conference, Carleton University, 2011; ‘Globalization and the New Politics of Women’s Rights’, Sawyer Seminar, University of Wisconsin–Madison, 2011; ‘Regional and International Discourses on Deliveries of Justice in Former Yugoslavia: Histories, Meanings and Narratives’, The Netherlands’ Institute for Advanced Studies, 2012, and ‘Gendering Conflict and Post-Conflict Terrains: New Challenges and Opportunities’, University of Minneapolis, 2012.
Acknowledgements
I would also like to thank Davina Cooper, Donna Sharkey, Christiane Wilke, and the two anonymous reviewers of Social and Legal Studies for their helpful and thoughtful comments.
Funding
This work was supported by a generous grant from the Government of Canada’s Social Sciences and Humanities Research Council, 410-2007-2043.