Justice Florence Ndepele Mwachande Mumba is a Supreme Court Judge in Zambia. Following eight years as Zambia’s first female High Court Judge, she became Investigator General (Ombudsman) in 1989, serving as International Ombudsman Institute Board Director and Vice-President until 1996. Justice Mumba served on the UN Commission on the Status of Women from 1992 to 1995; she participated in the formulation of resolutions to characterize rape as a war crime. She became a Supreme Court Judge in Zambia and the first African woman International Criminal Tribunal for the former Yugoslavia (ICTY) Judge in 1997, serving as Vice-President until 2001, and later as an appeal judge for both the ICTY and International Criminal Tribunal for Rwanda (ICTR). She also served as Chairperson of the Electoral Commission of Zambia. In 2009, she was appointed Reserve Judge of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Later, in 2012, she was appointed full-time judge of the Supreme Court Chamber of the ECCC where she is currently serving. In this interview with JURIST Senior Editor Tarazi Mohammed Sheikh, Judge Mumba discusses her role in defining rape as a war crime, challenges faced by sexual violence victims and potential inclusion of LGBTQ rights in these prosecutions.
JURIST: Among many of your pioneering works, one most notable is your role in the characterization of rape as a war crime. In the context of the ongoing conflicts, how do you view this characterization has impacted the prosecution of sexual violence in warzones?
Florence Mumba: What I have observed is that it has contributed to reducing the incidents of rape by former enemy soldiers or armies and such crimes have reduced somewhat from the conflict areas as we see records today. Women in conflict situations are less vulnerable. Going by the evidence being collected so far, in the Russia-Ukraine war, Syria, Israeli-Gaza, and Sudan armed conflicts, there is notably less incidences of rape. It seems to me that judgments in the cases of Anto Furundzija and Kunarac et al of the ICTY, in which I presided, have set precedents which have gone a long way in getting, especially, formal armies being trained to avoid unwarranted victimization of women. In any intended prosecutions, for instance, it will be less onerous on the prosecution to prosecute rape, because definitions are already laid out in these judgements in the ICTY cases. So, the contribution is immense. It’s only beginning to show results because of the less incidents that are being reported in current conflict areas. But we hope for the best in the future.
JURIST: We know that gender-based crimes are hugely underreported and victims are often reluctant to speak out about their experiences for many reasons, such as stigma, fear of retaliation and rejection, or unfamiliarity with the judicial process. Drawing on your experiences in the ICTY and the ICTR, how do you think a safer space can be created for survivors to come forward with their cases?
Florence Mumba: There must be a robust professional approach for victim protection and counseling on the ground where the conflict has taken place and where the victims are to be found, so that they are intentionally approached and encouraged to participate in the administration of justice. They should be informed that their participation will go a long way in remedying these crimes in conflict situations. Because, let’s face it, conflict situations will always arise. States are always ready to fight, and women are, in the process, caught in armed conflicts. The victims must be legally protected so that the identifying features, things like the voice, the physical location, are redacted or disguised. That way, victims will be encouraged to come forward and to give evidence. Their physical location must be somehow secured. Further, it must be made clear that giving evidence in court proceedings must not expose them to any form of indignity. Their human rights must be fully protected. Such conditions will encourage victims to come forward. So, it is imperative that victim protection programs are on the ground where the victims are found.
JURIST: Survivors of sexual violence in conflicts are often neglected and rejected by their own families and communities, and are largely unaddressed in peace negotiations. How do you think the underestimation of sexual violence survivors and their post-conflict sufferings can be addressed so they receive care, justice and redress?
Florence Mumba: Yes, that is very notable in most conflict areas. The post-conflict systems of redressing whatever has happened always leave out victims, perhaps because they are not properly identified. There must be a positive approach to heal emotional and health wounds. A compensation fund must be set up so that proven victims can be compensated. Appropriate damages must be paid to victims. Free medical services and therapy and other treatments must be put in place. For those victims rejected by their families, safe houses must be available to accommodate them.
Humanity must pay for its failures and evils. Individuals and organizations, particularly the United Nations, must all play a crucial role in addressing victim concerns so that post conflict redress programs become a significant part of the healing process.
JURIST: We’ve seen a disturbing trend of terrorist organizations exploiting women and girls, using tactics like child trafficking to radicalize them and commit violence, including war crimes and atrocities like genocide and ethnic cleansing. In your experience, what legal efforts are most effective in combating this specific tactic by terrorist groups?
Florence Mumba: In my view, strict laws to identify and apprehend such perpetrators, and proper training of investigators are crucial in such cases. Because if you don’t have properly trained investigators, it will be very difficult to detect perpetrators. Clear and strict laws on child protection must be enacted with clear, certain and adequate penal outcomes. Investigations and efficient adjudication of such crimes is a must. Sometimes, you find that the administration of justice falls halfway through, because penal provisions are not clear. Efficient adjudication of such crimes is very important with expedited procedures because victims are always in a state of anxiety. Clear, adequate, positive measures, preventive policies and practices must be put in place, particularly in disadvantaged communities. In poor countries, failure of justice is very common. That is where most terrorists exploit children and women for money. No legal loopholes must be allowed to enable tortfeasors to escape.
JURIST: The conversation around wartime women’s rights violations has expanded to include LGBTQ experiences. Some argue that this inclusion makes prosecution more difficult. Is this a concern you share, and if so, how can we ensure all victims receive justice?
Florence Mumba: My view on this is that it very much depends on the definition of crimes. Sometimes definitions of crimes omit gender dimensions because over the years we haven’t had the LGBTQ in focus. Now we have these people. In my view, this is a developing area of law. Fortunately, in a good number of countries, we say, “you take your victims as you find them”. So, sexual orientation must be taken into account when developing procedures for trials because we have these people amongst our populations. They are entitled to human rights like everybody else. Laws must be developed to include definitions of crimes which must accommodate all types of victims. This way, victims of different sexual orientations will not be excluded in the justice systems.
JURIST: Throughout your career, you’ve championed women’s rights overcoming the difficulties. Knowing the complexities of wartime situations, what practical advice would you offer our readers on advocating for women’s rights during conflicts?
Florence Mumba: It’s not easy to deal with conflict situations in any part of the world, but it is important to identify safe limits in such situations. Safe limits vary because in the heat of war, combatants will always have indirect victims. Armed conflict may cause injuries or deaths and even imprisonment when such is not intended by the official lines in the war system.
In my view, war generals or leaders of combatants must be directly approached by NGOs or even government institutions to make it clear that war crimes which may include wholesale victimization and damage to communities must be avoided. Women and other victims in conflict zones must be led to safe places, every victim must be reached. Such an approach is likely to avoid stray victims.
As conflict situations arise, the onus is on each State to promote professional training of armies with emphasis on both prevention of sexual crimes and unjustified victimization of civilian populations including women and children.
