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| Diewertje Wapstra |
The Democratic Republic of the Congo (DRC) has been
denounced ‘worst place on earth to be a woman’ and has received the infamous
reputation of ‘rape capital of the world’. Ever since the Rwandan genocide in
1994, an overspill of refugees and armed rebels into the Congolese neighboring
country has sparked continuous conflict and wide employment of rape as a weapon
of war. Mass rapes are often accompanied by unparalleled levels of violence and
torture since victims are subjected to intentional transmission of HIV/AIDS and
STD’s, unwanted pregnancies and genital mutilation, leaving women permanently
unable to engage in penetrative sex or conceive children.
Multiple explanatory theories have been formed on
the phenomenon of wartime rape, including combatants’ need for sexual
gratification from a biological perspective and militarized conceptions of
masculinity from a socio-political point of view. However, a key factor that is
often overlooked lies in the local cultural belief in magic. Of the various
rebel groups active in the DRC, the Mai-Mai are among the most powerful armed
forces active in the Kivu regions. They distinguish themselves from other armed
groups by their strong belief and engagement in magical practices, which play a
dominating role in their warfare strategies. Although the use of magic is
characteristic for Mai-Mai soldiers, the belief has spread fast with the
absorption of former combatants of rebel groups into the Congolese national
army (FARDC). Deemed of high importance is a liquid potion called Mai, which is
believed to protect soldiers during battle. Soldiers who wash themselves with
the Mai potion are believed to become inviolable to their enemy’s ammunition,
as bullets will instantly turn into water upon coming into contact with the
liquid. In order to activate the magical properties, a strict behavioral code
needs to be observed by the user. One such requirement calls for sexual
intercourse prior to entering the battlefield. Since combatants are often
stationed far from their wives, women of local communities have come to serve
as substitute. These sexual encounters happen without mutual consent and are
accompanied with force and violence, resulting from soldiers’ sense of
entitlement since the sexual act serves the greater good. This entitlement
sprouts from a militarized mindset in which men and women are expected to use
their qualities in such ways as to advance and serve the nation and its
warriors, including the requirement to make personal sacrifices. Women are thus
expected to serve militaries with their bodies in order to provide them with the
protection of the Mai potion on the battlefield. In this context, soldiers are
provided with a justification for rape as they merely follow the rules of the Mai
code. In the meantime, an own conception of justice is created in which the
unwillingness of women to have sexual intercourse with a soldier is considered
to be an injustice toward the safety and well-being of the combatant.
Present-day formal court systems of the DRC are
reluctant to recognize cultural beliefs in legal procedures, as the acknowledgement
of magic would violate the legal principle of due process under the rule of law
notion. However, ignoring the belief in magic creates a gap between the perception
of justice held by Congolese militants and the trial outcomes served by courts.
Where formal verdicts are not perceived as ‘just’ because they are at odds with
culturally determined world views, civilians will renounce from going to court
as they are certain of receiving an unsatisfactory and even unfair outcome.
Promotion of formal legal systems among the local population can be achieved
through interaction and involvement from both sides: courts must acknowledge
the role of cultural concepts in creating a sense of justice and vice versa
civilian must be provided with a better understanding of the law. The inclusion
of local authorities who are fully aware of and adept in cultural customs and
beliefs, would provide formal courts with a higher legitimacy under the local
population, for it displays the court’s acknowledgment of the role of
socio-spiritual concepts in criminal acts. A similar construction forms the
foundation of indigenous sentencing courts in Australia, also commonly referred
to as Koori courts, where indigenous Aboriginal elders partake in criminal
trials involving indigenous perpetrators. Instead of using customary law, Koori
courts form a hybrid as they follow the Australian criminal code, yet with the
addition of having respected elderly from the aboriginal community partake in
the sentencing process. Application of this concept to the DRC by including well-respected
authorities on the workings of the Mai potion in criminal trials of perpetrators
of rape, creates a justice system that resonates with cultural beliefs while
upholding national criminal laws. The inclusiveness of courts is likely to
bring about a greater sense of accountability, attributing to verdicts being
perceived as fair by the local population. Nonetheless, the acknowledgment of
local beliefs must not be equated with the acceptance of cultural defenses
leading to acquittal of charges, as perpetrators still need to be tried
according to national legislation to provide victims with sufficient
protection.
In conclusion, local beliefs in
the magical qualities of the Mai potion form an important ulterior motive
behind wartime rape in the Democratic Republic of the Congo. The magic practice
has been embraced by a large number of soldiers and armed rebels, creating an
own interpretation of justice in which women are expected to engage in sexual
conduct for the protection of the warriors. This belief implicitly serves as a
justification ground for rape of civilians and leaves perpetrators without
remorse. Formal courts have largely ignored the sociospiritual factors behind
rape and focus on delivering justice through sole application of the law. The
courts’ disregard of cultural beliefs creates a narrow sense of justice which
does not resonate with the civilian population. With the involvement of local
authorities on the Mai potion in criminal procedures, a sense of acknowledgment
of customary values is created, thereby reducing the gap between justice
conceptions.
Guest Post by Diewertje Wapstra (Diewertje is a Dutch scholar and is currently completing at LL.M in Public International Law at Utrecht University)
