Tuesday, November 3, 2015

A Culturally Receptive Approach to Wartime Rape in the Democratic Republic of the Congo

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)

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