SUMMARY. This interview is with a previous Justice of the International Criminal Tribunal for the Former Yugoslavia and current VicePresident and Minister of the Environment of Costa Rica, Elizabeth Odio. Such issues as women's rights as human rights, the relationship of justice and recovery and the nature of evil are considered, among others. [Article copies available for a fee from The Haworth Document Delivery Service: 1-800-342-9678. E-mail address: getinfo@haworthpressinc.com]
KEYWORDS. Human rights, women's rights, rape, torture, genocide, Costa Rica
SS.
What is important for us to know about you?
EOB.
Perhaps the most important thing to know with respect to my job here is my past experience working in human rights. I came to the Tribunal from this field and not from any background as a judge or criminal attorney. Human Rights started to become prominent after the Second World War, following the horrendous ways in which human rights were violated during that conflict. I am not suggesting that human rights were invented after the war but rather that the International Declaration of Human Rights of 1948 projected onto the international community what had traditionally been handled by different States at the national or regional level.
Thus, it was only in national legal systems that protection of human rights was encoded. After the Holocaust and genocide of World War II, there was tremendous pressure to internationalize the protection of human rights. Nevertheless, it is obvious that since that cont1ict there has not been a true synthesis between this preoccupation and the protection and punishment of individuals, which remain the responsibility of the nation state. We did not create supra-national organizations which could truly protect human rights and punish its violations.
SS.
How did you become involved with Human Rights?
EOB.
I was interested since my early life as an academic and practicing attorney. I became aware then of the tremendous discrimination and inequality faced by women in the judicial system, and started, together with other women, to try to change some of the laws that worked against us. That was a time in my life when I believed that changing the laws would change the world. Afterward; I realized that nothing was ever that simple and that it is much easier to change the laws than to change human attitudes and behaviors. In 1978, when I became Minister of Justice of Costa Rica, I focused my attention on the problems of political refugees from Argentina, Uruguay and Chile seeking asylum in large numbers in Costa Rica. Shortly thereafter, I became a member of a United Nations Committee which handles funds to rehabilitate victims of torture during armed cont1ict. Since then I have been working with projects to help rehabilitate people who have suffered torture and/or inhumane and degrading treatment during national or international conflicts.
SS.
You have been talking about discrimination against women and human rights. When did these interests converge?
EOB.
In a way they were always connected but there has certainly been lots of development in my thinking. When I started participating in human rights work, I did so in a genderless fashion. I developed a gender perspective some time later, I would say in 1986, when it became obvious to me that violations against women were more serious because they were being committed against women simply on account of the fact that they were women. My gender perspective was clearly a lens through which I have looked at the world since then. It became clear to me also that international humanitarian law and international public law did not have the mechanisms to demand individual accountability of those who violate human rights laws. It is important to remember that violations of women's human rights occur outside what might technically be called the context of armed cont1ict. Violence against women is clearly a manifestation of the same phenomenon, with domestic violence, street violence, sexual harassment at work, and violence during war cont1ict all being manifestations of power differentials and inequality. What became more evident and painful was the realization that there was in the international community neither the mechanisms nor the political will to hold responsible those who violate women's basic human rights.
Since I started my work in the Tribunal for the former Yugoslavia, it was immediately clear that there had been heinous, massive violations of human rights and women's rights in particular. The situation for women has been especially painful because one sees a new component: the use of rape being as part of ethnic cleansing. In this war, we have begun talking about ethnic cleansing just as we did after World War II. Our challenge from the beginning, and in this I was accompanied by both Judge McDonald, Patricia Sellers from the Prosecutor's office and with the support of Chief Prosecutor Judge Goldstone, was to make sure that the serious nature of the crimes against women was acknowledged, investigated and prosecuted.
SS.
You were the judge who confirmed the petition for a deferral in the case of Dusko Tactic and you publicly appealed to Judge Goldstone when you said, "Do not forget the women." This was broadcast by CNN and other media worldwide. That was an unusual step for a judge. What was the reaction? Did you receive support or not?
EOB.
From the perspective of a traditional judge, I guess it was unusual. But remember that I told you that I did not come to the Tribunal as a judge or academic. I was not a professional judge and I think it is true that they have a different attitude. I came as an activist who expresses concern for the violation of human rights and does not think it may have a negative impact. I guess it was the gesture of a novice.
SS.
Do you regret it?
EOB.
No, not at all. On the contrary. If I had to do it over again, I would do it even more forcefully than the tirst time.
SS.
Are you saying that you were criticized or did not receive support?
EOB.
I was not criticized directly but I was told in the Tribunal of the "concern" expressed by some judges. However, I never received any criticism from my two colleagues. They did not say anything. I found out later from an old friend of mine that there has been a great deal of discussion about the proper behavior of a judge with the clear implication that I had fallen outside of those parameters. It was felt
thatI was pronouncing judgment ahead of time. I thought I was doing that in terms of the application of norms. I was expressing my own worries about the Tribunal's political future and legal work.
If we had started working on cases from an armed contlict in the former Yugoslavia where the United Nations legal documents documented massive rape of women and there was not a single mention of rape in this indictment, I thought I had a very valid reason for expressing my concern. I was worried that once again we were going to invisibilize what had happened to women with the pretext that we did not have any evidence or that no one was talking about rape. However, I also received support: I found out that it was extremely important for many women to hear my intervention, and that it continues to be important for them to know that there is a supporting presence within the Tribunal.
SS.
You were in Vienna in 1992 for the International Conference on Human Rights. Women from all over the world organized a mock Tribunal, of which you were one of the judges, to hear testimony from women about violations of human rights. Mter hearing wrenching testimony, you said with tears in your eyes that maybe you were not made to be a judge. Now, you have been a judge. Do you still feel the same way?
EOB.
[Laughs] We had a very different situation in Vienna. In the first place, I did not really have much idea about what that Tribunal would be like. In Vienna, we had acts of profound solidarity where we created what we called the "Tribunal of Conscience" in order to hear the testimony of women who had suffered, in a number of contexts, heinous violations of their basic human rights. As I said before, we were trying to link the different kinds of violence under the same umbrella. We were struggling to ensure that everyday and "exceptional" violence against women would be recognized as human rights violations and help extract them from the private sphere where they had been kept hidden for centuries. In the Tribunal, we heard testimony from women who had been battered at home, survived incest, had been tortured by police while under arrest or raped during an armed cont1ict. It was very moving, especially to hear women from the former Yugoslavia, Muslims, Croats and Serbs, talking about what they had gone through, and what they expected to go through in the future. At that time it was still in the middle of the war. All of this took place in one session. I was not prepared to hear about that much indiscriminate, unjust and painful violence. I felt totally overwhelmed and publicly said so. I did not feel I could be impartial in the context of so much violence committed against women.
SS.
How does one prepare for such an event and do you think it is possible not to have a multitude of feelings?
EOB.
It is very difficult. I have felt similarly in this Tribunal. I feel this solidarity, which instinctively links me with those who have suffered atrocities and, if anything, I feel even stronger about it than before.
Seeing at close range the tremendous pain and agony of women and men caused by war has only strengthened my commitment to fight against the violation of anybody's human rights. I have seen the violence suffered by civilians who have nothing to do with the political games of these wars. I have seen them and I shudder.
SS.
As I listen to you, it reminds me of my work as a therapist where I learned to protect myself in order to maintain some professional distance, even though I knew it was impossible to avoid having feelings.
EOB.
Exactly. That is the way it is. It is not possible to separate feelings and thoughts. I do not believe in that. In my own case, my feelings are right there and are part of what I listen to when I am paying attention to the testimony. I have also learned that the accused is protected by the presumption of innocence and is also a human being. One has to be very carefuL As judges we evaluate the evidence with freedom of conscience.
SS.
Would you then say that you are cut out to be a judge?
EOB.
I would say that my words in Vienna were said in a different context and my experience here proves that I can be a judge.
SS.
Do you think that it would make you a better judge?
EOB.
Yes. One can be a better judge if one has direct experience with the victims, as happened to me in Vienna.
SS.
It has been over four years since you made your remarks in the Tadic deferral hearing. Did your fears prove to be justified?
EOB.
I would say yes. In spite of my remarks and Judge Goldstone's efforts, the indictments that followed did not retlect the crimes committed against the women. I was responsible for confirming the first formal indictment after that, namely the Nikolic case. In that indictment, there was no mention whatsoever of crimes or sexual abuse committed against female detention camp prisoners.
SS.
Could he have been implicated?
EOB.
Yes, because in the United Nation's report by the Special Rapporteur, that was one of the regions where massive rapes were reported to have occurred. I was told, because I asked, that it had not been possible to gather evidence. Mter that, both Judge McDonald and myself had to really struggle to ensure that what happened to the women would be retlected in the indictments. Therefore, my concern was quite valid.
SS.
In another historical case, the equivalent to a trial in absentia of Karadsic and Mladic, it was obvious that you were spearheading with our colleagues the struggle for rape to be considered one of the weapons of ethnic cleansing. That became part of the oftkial record when the conclusions were read. That was a historical tirst. You are currently one of the judges in a trial where rape has been charged as torture and two female witnesses have testified in court about their own rapes with the alleged rapist in the courtroom. That is again unprecedented in the history of International Tribunals. In spite of all the obstacles, it is obvious that women can have a tremendous impact. Did you believe that before?
EOB.
When the Tribunal was created, all the official United Nations documents mentioned crimes committed against women, especially the massive rapes of women of all ages. Nevertheless, the first unpleasant surprise came when only two women got elected to the Tribunal out of a total of 11 judges. To me that was a bad sign because I had hoped that if more women were part of the Tribunal, their presence would serve to make these crimes more important in the proceedings. The two of us have had a long difficult struggle, although we were supported by some of our colleagues. I imagine Judge McDonald would feel the same way. But the need for more women has been painfully evident during these years. During the next four years, there are only two women again. Always two.
SS.
Was it lonely?
EOB.
Yes. It was true in the beginning and I think it continues to be true today that women's organizations and Non-Governmental Organizations (NGOs) have not kept as close watch over the proceedings as they should have, especially in the very early stages. I think the lack of vigilance was a mistake on our part, and we should have actively supported the Tribunal rather than remaining silent. Also, we should have given more publicity to the Foca indictment. There was almost no reaction when it came out; virulent criticism would have been preferable. When something important happens, we should make it known worldwide. There must be an echo of women's voices so that each time these voices get louder and more difficult to ignore. If they are transformed into isolated screams, if there is not a universal cry, we will have a hard time getting to where we want to go.
SS.
You are currently involved in a case against three Muslims and one Croat. What do you feel when you look at them?
EOB.
I have been really sorry and angry at the irony of life that has made me one of the judges in the only case where the accused are Muslims. They suffered the highest number of casualties in what had been recognized as numerous crimes against humanity; women were massively and systematically raped as part of an ethnic cleansing strategy; their monuments were bombed with the sole intent of destroying their culture. So it is ironic that three out of the four accused are Muslim. It is very painful to realize and I have often asked myself how people who know suffering can become victimizers of others. What happens to solidarity and empathy?
The four men are human beings. When I worked with inmates in Costa Rican jails, I learned very quickly that what separates the perpetrator inside from the one outside has a lot to do with chance and politics. What makes an individual commit an offense is quite complex. I have often met in jail individuals who I would say are very good people, who were helping other people in jail adjust and change. Often the older folks would be worried about the younger ones and advising them on how to stay out of trouble. Lots of them wanted to better themselves and lots of them did. For these reasons, the four in front of me are not any different. How people got caught up in Milosovitch's perverse and criminal discourse is something for all of us to think about. But one thing is for sure: the consequences will be hard to erase.
SS.
You were not reelected in the last elections. When I talked to women's groups in the United States, I was told that they were not informed that the election would be taking place that day. Were you disappointed?
EOB.
I was very disappointed and disillusioned, especially with my own government which did nothing to promote my candidacy. They did not care essentially because I am a member of the opposition party. It also showed a total lack of interest in what is happening at the TribunaL
But I was also very disillusioned because I felt alone. I felt that my friends in struggle from Vienna had disappeared. It is true that the election was not publicized, but it was public. It was known that national governments were making their moves within the United Nations and those who work or lobby there knew very well what was happening. It was known that my candidacy was going to be submitted and I did not get one word of support from any of the women's groups, including those in Costa Rica. As a candidate from a small country, I would have needed a great deal of support from the women's community. Yes, it hurt me and I hope it never happens again.
SS.
Do you think it has something to do with the way we are politically organized? Is that why we often do not follow through or give support at crucial times?
EOB.
I am sure we are not very well organized at alL We must organize globally in order to change the world. Like the old Marxist saying, "proletarians of the world unite," I would say "women of the world unite!" My vision of Yugoslavia strengthens my conviction that we women have to change the world, because men are not really interested, as much as they say they are or as much as they call themselves feminists. We always leave each other alone, almost as if we felt that once we win a battle, everything is accomplished and the women who scored a victory should be able to make it on their own. If we are left alone, our chances of success quickly diminish.
SS.
You have been a strong supporter and defender of the Tribunal. You have repeatedly said that there cannot be peace without justice and that we must put an end to impunity. Do you think getting justice helps with recovery?
EOB.
Justice is not the only means to achieve peace. But let's understand justice in its broadest sense: as something that transcends tribunals and as encompassing the need to somehow redress what happened to the victims. Let's give victims of the cont1ict an opportunity to be heard, to be supported, to be valued and respected in their grief and loss. Only then will we be finding paths towards justice. Without justice, vengeance is given center stage, and vengeance is violence and violence begets more violence. In order to put an end to this downward spiral, victims have to be heard, respected, valued and seen. I also believe that is important to punish individually all or at least some of the direct instigators and perpetrators of these crimes. I believe in individual responsibility for one's actions and that is why I believe in tribunals; they are the only mechanism available to punish the perpetrators while giving them a fair chance to prove their innocence. In this regard I'm wary of the notion of collective guilt because it includes not only the perpetrators, but also the innocent ones and those who actively tried to put an end to the atrocities. Collective guilt can also lead to revenge, whereas individual guilt confronts the perpetrator with his actions. This is also why I support the creation of a permanent international criminal court. History has taught us that we must fight with all our might against impunity.
SS.
You have also been a great spokesperson for the rights of the victims. You come from a juridical system where there is no cross-examination. What is your experience with it, especially with regard to victims of sexual assault?
EOB.
In general, I think it is an inadequate mechanism. I say inadequate because during cross-examination the intent is to impeach the witness and not to seek the truth. This is personally very distasteful to me because it often ends in the humiliation of the witness, and the public exposure of their weaknesses simply because they have come to testify. I find it offensive, especially when it happens to victims and witnesses of rape and sexual assault. It is very cruel and painful to watch, since what the defense is looking for is impeachment and, if this is the case, there is an absence of empathy, respect and human compassion.
SS.
What would be the alternative?
EOB.
What exists in continental law. The witness is not cross-examined but re-questioned which is different as the intent here is to seek contradictions within the witness's testimony. Her personal life, habits and weaknesses are not used to impeach her. And, in the case of rape victims, previous sexual behavior is often used as a way of discrediting her.
I was a practicing attorney for many years and I can think of many instances where it emerged that the witness was lying using their own testimony. I did not need cross-examination nor did my colleagues in Costa Rica. Really, I find North Americans go to frightening lengths to defend their "right" to cross-examine.
SS.
Anglo-Saxon law also has the principle of the right of the accused to face in court his accuser. Do you think that it is an absolute right?
EOB.
No, no. I do not believe in that either. Anglo-Saxon law is based on some old and worthy principles which grew out of the need to protect the rights of the defendant against institutional abuses. The obvious example is the Inquisition, where the accused had no right to know who the accuser was or what the charges were. That was a horrible travesty. However, the right to a fair trial does not automatically imply cross-examination or the right to face the accuser in court. In my opinion and that of others, the defendant should even have the right not to appear during the trial, so long as they are represented by an attorney. I also believe, again contrary to the tradition of Anglo-Saxon law, in trials in absentia. Hence, I do not feel there is a need for the defendant and the victim to face each other in court, especially in cases of sexual abuse.
SS.
Are you suggesting that the rights of victims may have been violated?
EOB.
I would say that primary importance has not been attached to them. However, it's a very delicate situation as a careful balance must be established between the rights of all parties. However, in many instances the rights of the defendant have come first, often at the expense of those of the victim.
SS.
Justice can be puzzling. I have heard that there is a higher probability of going to jail for stealing items from a store than for committing genocide. Do you agree?
EOB.
I am absolutely in full agreement with that. North Americans' obsession for serial killers is absurd if we compare it with the absolute indifference they have shown towards those who are responsible for the genocide in Rwanda or toward what is happening to women in Algeria and Afghanistan. That is another real genocide. But very few citizens of the world worry about that.
SS.
Do you think Costa Ricans worry more about these genocides?
EOB.
I would say that because the United States is the most powerful country in the world, theoretically it should be the most informed. I have learned that this is not the case. In Costa Rica, we are also more preoccupied with individual crimes and with what happens in our cities than with international atrocities. In that way, we are very similar to Americans.
SS.
One parallel is that in war most of the atrocities committed are against civilians and most of these are women and children. In civil society, crimes against women are often ignored, dismissed or trivialized.
EOB.
I agree. It is mostly white men who run the world and make the political decisions. Most victims are women and children and since we lack representation in the halls of power, there is little concern for developing mechanisms to eradicate systematic violence against us.
SS.
Even though crimes committed against women were instrumental in the United Nations creating the Tribunal in the first place, it has often been my experience, especially in the early years, that we as women did not exist.
EOB.
Yes, it was profoundly mystifying and agonizing. Crimes against women are hidden. They disappear when one reads accounts, number of indictments, legal decisions, press reports. I would go back to what I said before: we needed more gender-sensitive women. Given that the ratio of men to women was so uneven, crimes against men were what predominated in all the discourses and concrete actions.
SS.
What has been the price of being involved in the Tribunal for the past four years?
EOB.
One pays many prices. One suffers a lot ...
SS.
Why does one suffer a lot?
EOB.
Because one's identification with human suffering becomes sharper and more intense. I also now have a total incapacity to tolerate violence. I shudder at the slightest hint of it on television or at the movies. I deliberately avoid violent shows. They hurt me at a level which is almost unbearable. That is a price. On the other hand, I also think I have developed a deeper maturity which comes not only from aging.
SS.
What do you mean by maturity?
EOB.
Let's say a greater capacity for empathy, for understanding, for solidarity with others. A profound feeling that I am part of a wounded humanity.
SS.
Can you say more about that?
EOB.
In my previous work with victims of torture, I had identified with their suffering and had seen the devastating consequences in their lives. I had learned that torture was the most perverse punishment int1icted upon a human being. It is more perverse than murder because if one is murdered at least at some level the suffering ends. Torture tries to destroy the person, physically, emotionally and psychologically. It also tries to destroy the victim's family and all that was associated with that person.
Interestingly, though, during all those years nobody talked to me about rape as part of torture: neither the men nor the women. It was only in this Tribunal that I became aware that rape is the most heinous form of torture. I started looking at the four articles of the Tribunal [i.e., crimes against humanity, genocide, war crimes, and violations of the laws and customs of war], and I knew we had to include rape in one of them, and not only if it was massive and systematic as it is the case in crimes against humanity. This is the only place where the word "rape" appears in our Statute. This is a legal point but a very important one. I remember feeling it very poignantly: rape is torture and must be made a crime if only a single woman is raped during an armed conflict. Its intent is to destroy the person, and is an evil act.
SS.
When you spoke of your previous experiences in South America, rape, which we must infer happened, was never spoken about and now it is almost as if your work in the Tribunal has brought you closer to the cruelty and pervasiveness of violence against women.
EOB.
That is true. I have a much keener sense of the enormity of violence against women. By comparison, my previous experience had been focused on individual torture victims. I had worked with them as people, trying to help them overcome some of the post-traumatic stress they all suffered from. But the war victims are so numerous that the whole experience has magnified the context into a universal one of perversity and evil aimed explicitly at women, and this I find very heartbreaking.
SS.
What do you do with this?
EOB.
I have been very fortunate to have a close intimate support network which has allowed me to survive and to process, as you therapists say, these experiences. Had I not had this support, I think I would have given up earlier and the personal price would have been much higher. This confirms my profound conviction that we need emotional support and kindness to live. Without this type of support, it is very difficult if not impossible to live through these kinds of experiences.
SS.
Has your impression of people changed?
EOB.
The daily contact with evil and wickedness was very intense. I am a natural optimist. I believe in human kindness and that there are millions of people who are kind and good. Sometimes when I get depressed I wonder if we are not fewer in number and less powerful than the evil ones. Yet, those moments of despair have also made me want to renew my efforts to get the good people of the planet to join forces. This is why I ask women of the world to unite. I believe a great many of us are on the side of humanity, peace and solidarity. It is not that we do not have problems. The choice before us is whether we are going to use wickedness to resolve them, or whether we are going to use kindness and solidarity.
SS.
I am hearing you say that, in having closer contact with evil, it has also put you in closer contact with purity and human kindness.
EOB.
Yes. Otherwise, I would want to shoot myself.
SS.
Thank goodness you had emotional support. What did you do to have fun?
EOB.
[Laughs] Go to museums. Art is the most sublime manifestation of human kindness. Many artists dedicated their lives to the creation of beauty and I have a great deal of admiration for that.
SS.
After you lost the election to the Tribunal, you have been elected Vice-President of Costa Rica and appointed Minister of the Environment. What do you see in your future?
EOB.
A new opportunity to set new goals and engage in new projects. This is very gratifying for me because it was a team effort and intended to make my country a more just and equal society. I am a great believer in teamwork. Now I have been given the additional opportunity to work in a different context which involves seeing the environment as an integral part of the human development equation. The challenge is not only how to work for nature's preservation but how to become a harmonious part of that nature. This is one of life's curious ironies that I end up working in an area that has been called the third generation of human rights: the right to breathe fresh air; the right to a safe habitat; the right to clean water. We are talking about the right to live in societies which co-exist harmoniously with and