SUMMARY. This frank interview with the President of the Tribunal explores the issues of social power and the historical dehumanization of women during times of war and civil unrest. Gender bias as it relates to sexual assault in the context of a war is considered along with recent legal attempts to broaden the scope of war crimes to include rape. Judge McDonald discusses her personal and professional experiences as a civilrights lawyer, a judge and an African-American woman. The intersection of justice and healing is considered. [Article copies available for a fee from The Haworth Document Delive1y Service: 1-800-342-9678. E-mail address: getinfo@haworthpressinc.com]
KEYWORDS. Race, gender, rape, war crimes
SS.
We talk of ending impunity so that the victims can heal. As a therapist, I hear the implicit connection of justice and healing. There is no peace without justice. Can justice be a form of psychotherapy? What can we do to heal such enormous wounds?
GKM.
Well, I guess there are two schools of thought, though there may be several. Some say talking helps to heal and some people believe that if you talk about things, you risk opening up additional wounds and perhaps have further need for a psychologist. I am not a psychologist, but this is my opinion. But having sat through the Tadic trial, I do not really know whether it is one or the other. I don't know how to judge whether it helped or exacerbated the situation for the witnesses because we did not do any follow-up.
I think just generally, though, based on my own life experiences, that it is better to talk about something because when you keep something inside you do not have a discussion with anyone except yourself, and you get only what you give back. So generally I believe in talking things through.
SS.
Have you ever been in therapy yourself?
GKM.
My ex-husband and I went to therapy when we were going through our divorce. We so frightened this white Anglo-Saxon male therapist. He was so shocked [laughs] that we had been yelling and screaming in front of him that he wrote us a letter saying something like "I can see you have very difficult issues to resolve and you must resolve them for the sake of your children." He was not used to black folks. We were married 18 years and they were long tough years. I also went to therapy with my son when he was having some problems, and later I went for help myself.
SS.
Did you find it helpful?
GKM.
No, I didn't. When I look back upon it, I think some of the problems I had should have been identified and acknowledged. She may have known what they were and simply not acknowledged them. But I do not know enough about psychology, and I think some psychologists believe that they should not tell you things, but instead let you find out yourself. So maybe that was her approach. The therapist and I became friends afterwards because she was an African-American woman who belonged to the same club for middle-class MricanAmerican urban professionals.
SS.
But she did not give you much more than silence?
GKM.
Right. For a long time she just sat there while the family was in need of help and I was having problems coping with all the pain. But that is my personal situation and I tell you that only because it gives you a certain perspective on what I perceive as a judge.
SS.
How did that experience influence your work as a judge?
GKM.
I think it makes you more sensitive because I recognize vulnerability in myself that I had never seen before. I had always been, as I found out, a human who was "doing" rather than "being." I thought I could conquer the world and I have always been very cause-oriented. I was a civil rights lawyer and when you give me a cause I'll take it on and I go with it until the end. I believed that I just could take on anything and nothing would stop me and I think that, for the first time, I was going through something that I could not control and could not change. That made me more sympathetic and empathic to vulnerability and to people caught in a situation that they cannot get out of.
Also, I think it has made me more aware of my own feelings, allowing me to respond more naturally to situations. I was much more guarded before and made sure that my emotions were always under control. So in some respects it made it more difficult for me because as I would be sitting there, listening to the testimony, and I would want to cry. I have, in a sense, lost some of the control that I used to have over myself, and so it was more difficult for me, as a judge, to exercise self-control.
I was a judge in the United States for ten years. The pressures were enormous. People expect you to have a greater degree of control and wisdom and that you are always right. As a judge, you do not have the luxury to admit that you do not have all the answers. So what can happen is that you end up transferring this belief into your personal life. I was also isolated as a judge, particularly as a Federal judge in the States. When I became one in 1979 through 1988, I could not keep the relationships I had in the community because I was now part of a white institution that I had always challenged as a civil rights lawyer. That forced me to divorce myself from my whole way of life. I was under constant strain. So what I learned through therapy is that I do not have to have all the answers and that it is all right not to be responsible for everything.
SS.
As psychologists, we learn to protect ourselves. As a judge you have been listening to horrific testimonies of cruelty. How did you protect yourself?
GKM.
I didn't. I don't ...
SS.
During the Tadic case. Some of the cases ...
GKM.
No. I was fortunate to have two judges with whom I was very close. I mean we did not have any conflicts with each other. There was a sensitivity that we had for one another. It is amazing because I was the presiding judge, the youngest, African-American and a woman. But I believe I was respected by both judges. One is ten years older than me, the other 20. Yet they respected me and told me how quick I was and how much control I had over the trial proceedings. I asked one of them when we were assigned another case, "Why don't you take the position of presiding judge?" "No," he answered, "you are doing a good job, just keep doing it."
Also, I think it was a good experience for one of the judges because he has five daughters. Although we never talked about it, I knew his daughters were very active with feminist and human rights groups in his country. I believe he is a rather conservative person in many respects, and so I think it was an eye-opener for him to see a woman in a position of power, who, if I may pat myself on the back [chuckles], did well in a way that didn't make him feel uncomfortable. He was at ease and did not feel bombarded by my style. I wouldn't give myself an A, but I think I did well under the circumstances. My other colleague had tremendous respect for me. His wife is a lawyer so he sees me from a different perspective.
Also, when the judges were working on the rules, some were not vocal when we were addressing the issue of sexual assault. There were others who were. But the experience of working with a woman they respected enabled them to at least camouflage their perspective. However, it's the little experiences which change people for the better. I remember one incident in the Tadic case. A witness testified about reportedly being raped. It was so horrendous, one rape after another. My colleagues were visibly moved and very disgusted by it. I bet if we had considered the rules on sexual assault after hearing this testimony, some of the judges would have had a different attitude. There were a couple of days when I was really upset.
SS.
By the testimony?
GKM.
Yes. Mostly by the magnitude of it and sometimes I still choke up when I think of it. It was not just the graphic nature of it, although there was some vivid testimony. Mostly what affected me was the loss. When you hear people like this woman, let's call her Natasha K, who testifies that she has lost 35 people in her family, and then the prosecutor asks her to look at photo after photo, and she says this was her husband, this was her uncle, and this was her father-inlaw ... You listen to that kind of loss and it's just unbearable.
I read an article by one writer who said that while listening to the testimony, he saw me visibly grimace on one occasion. My face is very expressive, so I probably did. For example, a witness testified that he was at Omarska [detention center and site of numerous war crimes]. One son had already been killed on the way there. He and his other son went to Omarska together. One day he was asked to go and get his son. So he called him and he came out and said, "Father, take care of my family." And he testified that he never saw his son again. I can see this man. I can still see these people.
SS.
So what did you do?
GKM.
I read mystery books by the ton. Because you can just lose yourself. I also talked a lot with my own son. He and I are very close. There is a group of Mrican-American women here and we get together every now and then. Mter the Tadic verdict, I was telling them how upset I was. I stayed up the night before writing, trying to figure out what I would say to this man, and I wrote what I then read the next day. I read it and when I got to the point of reading about the contlict with the Muslims and why did he do it, I said: "Why? Why?" Elizabeth [Judge Odio Benito, the only other female judgeJ thought I was going to cry. I was nervous, but I was also upset. I was not trying to be dramatic because I am not a dramatic person. I asked "why" but I did not expect an answer. But it was the question that stuck with me throughout the proceedings.
And then I said, "Itcame to pass" and I had written that. And when I said it, it was like, "Oh God"; it came to pass because before then there were thousands of Muslims in the area and afterwards there were only about 300. So again I was touched by the loss, by the magnitude of it. It is not just one individual doing horrible things to another. Itis absolute inhumanity to man, as we say.
SS.
Do you think that evil is inevitable? Have your perceptions about people or the world changed?
GKM.
No, no! Because what is happening here is, in a sense, what I have seen as a civil rights lawyer, only that it is happening on a much larger level. Racial intolerance and hatred has not, in my lifetime, risen to this level of destruction. Slavery happened a long time before I was born. But it has changed me in large and small ways. For example, although I was never much interested in "action" movies, I now cannot bear to watch violent films at all. They just make me grimace.
SS.
You say it has not changed your perceptions about people.
GKM.
I do not think so.
SS.
You were the first African-American judge to sit in the federal bench.... and the third African-American woman in the United States ... Are there parallels between what happened to Mrican Americans in the USA and ethnic cleansing in the Former Yugoslavia?
GKM.
Well, it is all based on intolerance and a lack of respect for difference, and also a failure to resolve what has happened in the past. Many people in the United States say, "What's the problem? We have the Civil Rights Act and you are equal. There is no problem." But you just do not beat someone for ten years and then stop and say, "Well, I stopped. What is the problem?" I want you to know that you have beaten me for ten years. I want you to acknowledge the horrific experience of slavery, the complete destruction of a culture. President Clinton said last year that there should be a dialogue and an acknowledgment of what happened. A more direct acknowledgment.
SS.
You are talking about a more direct acknowledgment. What kind do you have in mind?
GKM.
I do not know. I do not know that you can have it on a mass level. I look more to individual human relationships.
SS.
But the French apologized to the Jews and I thought Clinton at one point was suggesting an apology.
GKM.
I do not know what form it would take. I suppose it helps [pensive]. I guess it would affect individual relationships. Sometimes you do not want to even bring up race. I have many white friends, but I do not even want to bring up the topic of race with them.
SS.
Why not?
GKM.
Because, well ... It depends. Ifthey are not close friends, if they are business acquaintances, I know they believe it is all over and happened a long time ago, so let's not talk about it. So you do not want to destroy that kind of relationship. You want to be accepted. What is good about me being here [i.e., Europe] is that I do not have to face this race problem that has pursued me my whole life. That is why I went to Law School.
My mother was half Swedish and half African-American, but she looked white so there were many instances where we had problems. She was lighter than I am, very light. As a single example, once in New York 1 made an appointment over the phone at the same beauty parlor where my mother has her hair washed and cut. However, when I arrived, I was told right to my face that they did not do "that kind of hair," even though my hair is not that different from my mother's.
It is a relief to be in Europe. It is less personally agonizing. When I sit on the bench, I am used to, not to the horrible atrocities, nobody can get used to that, but I am used to the concept of people being intolerant to each other. At the Tadic trial, I asked a principal, "How can you explain these atrocities when Muslims, Croats and Serbs had gone to school together, lived together, intermarried with each other?" Now, I asked him this question because I wanted to know about the contlict, but also because I wanted to know for myself. How can you explain this important battle for desegregation in the 1950s and it's now thought that everybody is going to go to school together and supposedly everything is okay, yet it is not. There is re-segregation and there is intolerance on a different level.
I was once having dinner with an African-American woman at a Thai restaurant in The Hague. I told her, "You know, if I were in the United States right now with this slow service I would put on my NAACP button and think it was racism. But it's .iust slow service." People like Americans here. So it feels like a burden has been lifted from my shoulders not having to expect a daily affront.
SS.
Are you saying they like African-Americans?
GKM.
Americans. Period. I think the Dutch love Americans. I think they look upon me as an American and not as an African-American. For the first time in my life, I do not have to face it. So it might have been easier for me, but italso hurt more because I saw it happening again. So when I asked "Why?" I was trying to get an answer about this conflict, but I was also trying to get an answer for myself. Why do people do this to each other?
SS.
Have you come up with an answer?
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.
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 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, crossexamination 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 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 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?
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 corporations. 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 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 se