International Criminal Law and Sexual Violence against Women

The Interpretation of Gender in the Contemporary International Criminal Trial

Daniela Nadj

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138652545
• eBook ISBN: 9781317228189
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book explores the prosecution of wartime sexual violence in international criminal law and asks what the juridicalisation of gender-based violence signifies for women. The book explores the portrayal of the various gendered identities that surface in armed conflict and it asks whether the law is capable of reflecting these in subsequent judgements.

Focusing on the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda as well as subsequent developments in the International Criminal Court, the book shows how the tribunals have delivered landmark jurisprudence in the area of sexual violence against women and provided a legacy for how gender justice is incorporated into international law. However, Daniela Nadj argues that in the relevant cases there is a tendency to depict women in monolithic fashion with little agency or sense of identity beyond their ethnicity. By bringing to the surface the complexity and multi-faceted gendered identities in wartime, the book calls for a reconceptualisation of notions of femininity in armed conflict.

1
Wartime sexual violence as a feminist topic of analysis

In times of extreme crisis, identities may become vague or else, perhaps more often, they are starkly defined.

—Maria Todorova, Imagining the Balkans

Introduction

Wartime sexual violence against women is one of the central preoccupations animating international feminist scholarship today, primarily because it is an obviously feminist issue, but also because armed conflict, in particular ‘inter-ethnic’ conflict, has proliferated over the past two decades generating very modern typologies of war that have resulted in increasing casualties amongst civilians.¹ Crucial legal successes have been achieved in international law with respect to the advancement of the twin feminist normative aims of gender equality and gender justice. In particular the acknowledgment by international human rights law, whose principal aims are the promotion of equality and non-discrimination in all areas of public life, that women’s rights are human rights has been a landmark development.

Another undisputed milestone for women’s human rights has been achieved by way of the prosecution of wartime sexual violence cases in international criminal tribunals. International human rights law has been of vital importance to this development, having turned its gaze to armed conflict in an effort to extend rights protections to civilians.² The turn of human rights to a focus on armed conflict is at the same time emblematic of the contemporary liberal moment, which has focused strongly on the suffering of civilians during armed conflict,³ resulting in a ‘hypervisible’⁴ degree of attention paid to the levels of sexual violence committed against women in wartime in contemporary international legal scholarship. This type of attention has not necessarily been an unequivocal success for women, or for the feminist movement.

The prosecution of wartime sexual violence against women has undoubtedly provoked some strong regulatory responses and achieved significant legal victories, but it has also caused controversy and debate in feminist quarters about how to respond to such acts, raising questions about whether feminism has been removed from its original politics. These responses have not always been helpful for the advancement of the twin normative feminist aims of gender justice and equality. The book traces, on the one hand, how international criminal law currently absorbs wartime sexual violence and, on the other hand, analyses how feminist scholars and activists have responded to these developments.

As Anne Orford points out in the context of what she terms ‘feminist complicity’ in the ‘imperialist project’ of international law, the production or reproduction of knowledge about the ‘real world’ of women is one of the ways in which some feminist international legal texts continue to be part of a tradition of imperialism. In this way, the appropriate disciplinary role of feminist theory is to render the ‘Third World’ woman the object of knowledge of ‘First World’ international lawyers. Feminists can take their place as part of a set of human sciences by establishing the ‘native as the self-consolidating other’.⁵ It is therefore entirely conceivable that rather than always offering solutions, an overzealous feminist focus on gender-based violence could occlude attention being paid to more structural forms of violence, such as pay discrimination and food poverty, which are gendered phenomena.

The chapter provides a preliminary sense of the importance of wartime sexual violence for a feminist legal analysis, while revealing some of its concerns with the parameters in which the debate is conducted. Particular concern is raised in relation to the visibility of the violated body in current wartime sexual violence literature. The chapter opens up the debate on what such visibility might imply for women in the contemporary political and legal moment. Subsequently, it assesses counterpoint as a methodological tool for interrogating feminist approaches towards wartime sexual violence. It then analyses the underlying salient discourses that inform this area of the law and reviews their centrality to a discussion as significant as wartime sexual violence in feminist legal scholarship.

i) The violated body of the woman as a subject of analysis

Rape has received particular prominence in the feminist and non-feminist literature surrounding the armed conflict in the former Yugoslavia due to the widespread reporting of such incidents. Both the Yugoslav and Rwandan conflicts have given feminism new epistemic purchase in the debate around the regulation of wartime sexual violence in international law by reiterating the sense that rape most vividly encapsulates the symbolism of sexuality during wartime. By catapulting the violated body of the woman onto the front pages, debates around victimisation, nationality and female suffering in wartime have been reawakened and feminist insights have suddenly become en vogue. From that moment onwards, rape has been a constant concern of legal feminist scholarship. Yet the focus on rape has wittingly or unwittingly created problematic consequences for feminism, as it has intertwined female identity with notions of victimhood. One of the central questions to answer, therefore, is whether, paradoxically, feminists have contributed to the sense that women civilians, when caught up in armed conflict, will inevitably be subjected to some form of sexual violence and are inescapable victims of war, as well as victims of their cultural identity.⁶ That victimisation is a problematic conceptualisation of female identity has been persuasively demonstrated by legal feminist historian Joanna Bourke, who has analysed the historical trajectory characterising the shifting meanings of rape and female identity.⁷ As she has put it:

If Man becomes an amorphous threat, free-floating, signifying danger then Woman is (always) scared. Before His body, she quakes. In this analysis, the female body is portrayed as already and always violated. Further, by virtue of being female, the woman is already the victim, the wounded, suffering, gendered subject. She is defined in relation to ‘it’ – the penis. In this sense, the words fear and rape have become ‘intimately connected’.⁸

History, however, suggests that this has not always been the case. Thanks in large part to the advent of psychoanalysis in the early twentieth century with its understandings of the relationship between the mind and body, sexual violence came to be regarded as an attack upon a woman’s sexual identity creating a ‘psychic wound’, or a violation of the self. As sex became increasingly linked to psychological events shifting away from genitals and reproduction, the ‘wrong’ of acts such as date rape or marital rape acquired much greater significance. These attacks became construed not only as attacks on the body but on the very integrity of the self. Whereas rape in nineteenth century Britain and America, for example, was seen as an attempt to undermine women’s class position, their earning power and respectability, by the twentieth century, the consequences of rape were no longer seen as ‘a question of debauchery’ but were rather seen as a shattering of identity, an incurable wound to which the victim seems doomed.⁹ As Bourke has noted:

This intense focus on the body as marker of identity and as locus of truth is a profoundly modern conception.¹⁰

The rapist endangered the nineteenth-century woman by attempting to undermine her class position, earning power and respectability. Sexual attack then was less a matter of offence to sexual identity than an affront to a woman’s ability to support herself. As a consequence, women placed emphasis on physical injury and the threat of pregnancy. The accuser was ‘spoiling’ or ‘ruining’ a female victim’s gendered social position.

While during the nineteenth-century rape was typically conceptualised less as a matter of identity, or ‘inner trauma’ but more as an external harm, by the twentieth century, rape was considered to be an affront against identity, a rupture against the very self.

According to Bourke:

The historically inflected balance between social (‘external’) and psychological (‘internal’) trauma resulting from sexual violation has had a major impact upon feminist strategy. Earlier generations of feminists were keen to portray women as resilient in the face of sexual violence. The threat to sexual violence was to be fought through comprehensive intervention in social structures.¹¹

By the 1970s and 1980s, a specific temporal juncture that saw a strong reinvigoration of liberal ideas, one influential strand moved ‘decisively towards a trauma model and the notion of women’s pervasive victimisation entirely abandoning the idea of earlier female resilience when confronted with sexual assault’.¹²

So-called ‘second-wave’ Western feminists insisted on emphasising emotion and insight into feelings, which were deemed to be sources of ‘unique truth’. While on the one hand still compassionately committed to building up women’s power and resisting oppressive male institutions, these feminists shifted their emphasis onto female emotional and psychic fragility in the face of injurious social structures. More specifically, femininity became defined as ‘victimhood’, while the related sense of unhappiness was tied to subjugation. The concept of the victim as the ‘revelatory voice’ of experience naturalised the experience of sexual violence by individualising it.¹³ The narratives surrounding female victimisation have therefore undergone a notable development to the extent that they have become disengaged from earlier assertions of collective female agency.

According to Bourke:

Against the persistence of male violence and its destructive effects, many women retain the subject position of victimhood, but in a context where the supportive community has largely fragmented. Feminist camaraderie vanished. Rape certainly did not.¹⁴

The recent turn in international feminist legal scholarship to ‘governance feminism’ can therefore perhaps be understood as a way of bringing back the sense of lost camaraderie or solidarity Bourke refers to. At the same time this renewed form of female solidarity with the plight of the rape victims of the Yugoslav war might not have been uniformly positive, as it came at the expense of women who were deemed to be on the ‘wrong’ side of the war and were left out of the legal narratives and resulting ‘victories’ celebrated in international criminal tribunals.

Violence against women is a widespread and endemic offence against female autonomy affecting the lives of millions of women around the world.¹⁵ Given the scale of the problem, the book revisits the feminist discourses that have informed the debate around wartime sexual violence produced as a result of the Yugoslav and Rwandan wars in order to understand how gender justice for the victims could be best delivered. There is a strong concern around the ‘depoliticisation’ of wartime sexual violence in contemporary feminist scholarship and the renaissance of identity politics. Specifically, a disproportionate amount of attention has been placed on culture as a lens for understanding armed conflict.¹⁶ It has been argued, for example, that the specific character of Yugoslavia, and of the Balkans, stemming from patterns of patriarchal, pastoral and communal life¹⁷ with its own mythical views of heroism and a specific code of shame¹⁸ is to blame for the high incidence of sexual violence against women – a perspective that has in many instances been embraced by leading feminist scholars. This tendency has reified Yugoslav women as a cultural species quite apart from similarly constructed Western women. In this way, dominant feminist discourses have failed to ask pressing and urgent questions regarding the impact of women’s material status during wartime. They have never fully explored the extent to which underlying socio-economic conditions contributed to the outbreak of armed conflict, as well as seldom distinguishing between differently situated groups of women, according to education, occupation and other criteria, as the case law analysis reveals. Moreover, cultural framings of conflict have not been able to account for the absence of sexual violence in certain modern armed conflicts.¹⁹

ii) Counterpoint as a method of feminist inquiry

This book is a critical feminist analysis of wartime sexual violence as it is constructed in international criminal jurisprudence and the surrounding debate. It asks: what is the adjudication of wartime sexual violence in international criminal tribunals, more specifically in ad hoc tribunals, considered to represent for women in the current historical and political moment? In essence, this question is a variation of a critical method that has been formulated by Wendy Brown as follows:

What kind of subject, produced by what kind of politics is led to seek what kind of rights, in the context of what kind of legal, cultural and state discourses with what kind of effects?²⁰

This book is predominantly concerned with the effects and implications of debating wartime sexual violence issues within a contemporary liberal, universalist international legal framework. It does not produce a comprehensive doctrinal legal analysis of all recent developments in international criminal jurisprudence. Rather, it uses the legal materials as a springboard to consider wider issues of gender, ethnicity, culture and violence as they are manifested in the contemporary violence against women debate. It aims to contribute to the wider feminist literature that engages with these discourses. The term ‘critical feminist’ analysis implies engagement with the very parameters of the debate, rather than an advocating for straightforward legal change. This is not to minimise the merit of other feminist as well as non-feminist contributions which migh...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Introduction
• 1 Wartime sexual violence as a feminist topic of analysis
• 2 The evolution of gender-based violence in international law
• 3 The trajectory of wartime sexual violence: from marginalised phenomenon of wartime history to highly visible offence in international criminal law
• 4 Feminist approaches to human rights, gender, ethnicity, culture and conflict
• 5 The dynamics of ‘ethno-nationalist conflict’: the interface of gender and ethnicity in ICTY wartime sexual violence jurisprudence
• 6 The value of critique and the representation of female identity in ICTY wartime sexual violence jurisprudence
• 7 Conclusion
• Bibliography
• Index