War and Rape

Law, Memory and Justice

Nicola Henry

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9780415564724
• eBook ISBN: 9781136861826
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

Wartime rape has been virulent in wars of sovereignty, territory, conquest, religion, ideology and liberation, yet attention to this crime has been sporadic throughout history. Rape remains 'unspeakable', particularly within law. Moreover, rape has not featured prominently in post-conflict collective memory. And even when rape is 'remembered', it is often the subject of political controversy and heated debate.

In this book, Henry asks some critical questions about the relationship between mass rape, politics and law. In what ways does law contribute to the collective memory of wartime rape? How do 'counter-memories' of victims compete with the denialism of wartime rape? The text specifically analyses the historical silencing of rape throughout international legal history and the potential of law to restore these silenced histories, it also examines the violence of law and the obstacles to individual and collective redemption. Tracing the prosecution of rape crimes within contemporary courts, Henry seeks to argue that politics underscores the way rape is dealt with by the international community in the aftermath of armed conflict.

Providing a comprehensive overview of the politics of wartime rape and the politics of prosecuting such crimes within international humanitarian law, this text will be of great interest to scholars of gender and security, war crimes and law and society.

1 Introduction

How the past is made to matter

To understand how collective memory works, we cannot restrict our inquiries to tracing the vicissitudes of historical knowledge or narratives. We must also, and I believe foremost, attend to the construction of our emotional and moral engagement with the past. When looking at public discourse, this translates into questions about how the past is made to matter.

(Irwin-Zarecka 2009: 7)

On 22 February 2001, the Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia rendered its judgment for one of the biggest rape trials in international history. It sentenced Dragan Kunarac, also known as ‘Zaga’, to 28 years’ imprisonment; Radmir Kova

, also known as ‘Klafa’, to 20 years’ imprisonment; and Zoran Vukovi

to 12 years’ imprisonment. The three defendants had no previous criminal convictions, all three were married, and at least two had young children. The crimes of which the three defendants were found guilty included crimes against humanity and war crimes for the enslavement, rape and torture of Muslim girls and women in the Fo

a region of Bosnia-Herzegovina.

The Chamber found that in July 1992 Kunarac had taken two girls to a house where they were raped by several soldiers and where he personally raped one of them, and aided and abetted the gang-rape of the other. In August 1992, Kunarac again took four girls to a house and personally raped one of them and aided and abetted the rapes of the others. In addition to this, on at least two other occasions, the accused took another girl to an apartment where she was raped by him and three other soldiers.

The Chamber found that four girls were taken to the accused Kovac’s apartment in October 1992 and were ‘constantly raped, humiliated and degraded’ (Fo

a Judgment, 2001: para. 749). One girl, who was just 12 years old, was eventually sold off by the accused and was never seen again. The accused also handed two other girls over to Serb soldiers who kept them in another apartment where they were continually raped. Over the proceeding months, Kovac continued to sell off other Muslim girls and women to willing soldiers.

For the charges against the defendant Vukov

, the Trial Chamber could only prove one incident beyond reasonable doubt involving a 15-year-old girl.

The Chamber found that the accused had threatened the girl’s mother with death if she did not tell him where her daughter was hiding, and that in July 1992, the girl was taken to an apartment by the accused and another solider and was raped.

The judgment authoritatively declared:

What the sum of the evidence manifestly demonstrates, is the effect a criminal personality will have in times of war on helpless members of the civilian population... The women and girls were either lent or ‘rented out’ to other soldiers for the sole purpose of being ravaged and abused. Some of the women and girls were kept in servitude for months on end. it is opportune to state that, in time of peace as much as in time of war, men of substance do not abuse women.

(ICTY Press Release, Judgment of Trial Chamber II)

The judgment makes an important contribution to the collective memory of wartime sexual violence. The law shapes, selects and institutionalizes the way the past is remembered (Markovits 2001) through authoritatively declaring which crimes are deserving of international recognition and justice, and which crimes are to be relegated to the forgotten abyss of history. The law is thus both a potent source and site of memory, but also a powerful arbiter of memory. At the very least, trials provide an important avenue for public debate and international courts represent ‘monumental spectacles’ or ‘moments of truth’ because they provide, incite and encourage historical interpretation and moral pedagogy (Osiel 2000: 2-3). War crimes trials create a space for the airing of personal and collective memories of wartime terror and trauma. Ideally, these trials capture the public imagination by giving a voice to both victims and perpetrators, judging guilt, attributing responsibility and vindicating victimhood (Karstedt 2009). Moreover, war crimes courts represent a means to prevent social amnesia and forge a collective memory of the past.

Despite the obvious relationship between collective memory and the law, little socio-legal inquiry has been undertaken to explore the connection between the two (some exceptions include: Bloxham 2001; Campbell 2002; Douglas 2001; Fournet 2007; Karstedt 2009; Osiel 2000; Simpson 2007).¹ The law by its very design, however, is fixated on memory, constructing a narrative of the past, and shaping collective memory indirectly through dictating and selecting the events that are to be remembered (Savelsberg and King 2007). This has important ramifications as far as wartime sexual violence is concerned, particularly since in the past international courts were largely silent on this matter.

Although silence has traditionally shrouded wartime sexual violence both inside and outside law, rape has nonetheless existed as a lasting legacy of violent conflict throughout the centuries. During the First and Second World Wars, countless numbers of women were raped in concentration camps, military brothels and in occupied areas. In the latter part of the twentieth century, rape was no less ubiquitous: the rape of Bengali women during the nine-month conflict in Bangladesh in 1971 created a national crisis when thousands of women became pregnant and husbands rejected their wives (Brownmiller 1976). Sexual violence also forms a well-remembered part of the Vietnam War due to the rapes committed by American soldiers against civilian Vietnamese women, and the fact that few perpetrators have ever been brought to justice (see Weaver 2010). Likewise, during the 1980s conflict in Uganda, women once again suffered the effects of impunity and silence due to widespread forms of wartime sexual violence.

While rape has been both central or peripheral to the history of warfare, it was not until the spate of mass rapes and the systematic sexual enslavement of women during the 1990s conflict in Bosnia-Herzegovina that international legal attention finally turned to war crimes against women. During the Bosnian conflict, rape was an integral component of an ‘ethnic cleansing’ campaign designed to render regions ethnically homogenous through force and intimidation. The consolidation of rape as an appalling crime of war thus emerged dramatically into historical consciousness during this period. This occurred also in the context of the mass rapes against Rwandan women during the 1994 genocide, where ‘thousands of women were individually raped, gang-raped, raped with objects such as sharpened sticks or gun barrels, held in sexual slavery (either collectively or through forced “marriage”) or sexually mutilated’ (Human Rights Watch 1996: 1).

Since the 1990s, for the first time in international history, victims have appeared as witnesses before international courts; perpetrators, both direct and indirect, have been successfully prosecuted; and sexual violence has been tried as a crime of genocide, a war crime and a crime against humanity. These past two decades can be starkly contrasted to the silence and neglect that has previously encumbered the issue since - and long before - the end of the Second World War. Mass media documentation in diverse geographical locations has since revealed both the gravity and extent of wartime sexual violence; truth and reconciliation commissions have heard harrowing victim narratives; and books, documentaries and films have captured the unceasingly common horrors of rape, forced impregnation and sexual slavery. However, despite the growing attention to wartime sexual violence and the codification of rape as a serious violation of international criminal law, rape remains an ‘unspeakable’ crime of war. Victim accounts of rape have not featured prominently in post-conflict collective memory and yet, paradoxically, rape has been manipulated by and through political debates that have pitted nations against each other. Thus when rape is ‘remembered’, it is often the subject of political controversy and heated debate, and victims are often caught in the crossfire of these disputes.

In part, the establishment of the two ad hoc tribunals - the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the International Criminal Court for Rwanda (ICTR) in 1994 - were in response to the extent and perceived gravity of war crimes against women in both the former Yugoslavia and Rwanda. And yet despite the international shock surrounding mass rapes and the subsequent prosecution of these crimes, thousands more women suffered a similar fate during the decade-long war in Sierra Leone from 1991 to 2001, the 1998 Kosovo conflict and the 1999 Timorese war of independence. Patterns of rape and sexual enslavement were also rife in conflicts in Liberia, Haiti, Iraq and many other locations during the latter part of the twentieth century. In more recent times, the use of sexual violence as a method to humiliate, control and displace women has been widespread in the conflicts in the Democratic Republic of Congo and the Darfur region of the Sudan.

In wars of sovereignty, territory, conquest, religion, ideology and liberation, sexual violence has brought about long-lasting physical, psychological, emotional, communal, national, international, as well as intergenerational impacts. We now know that the taboo, silence and shame of sexual violence can have significant repercussions on a woman’s psychological wellbeing, identity and livelihood. Moreover, these crimes can destroy the social fabric of post-conflict communities well after the cessation of violence. As Kai Erikson (1994: 233) states, traumatic events can administer ‘a blow to the basic tissues of social life that damages the bonds attaching people together and impairs the prevailing sense of community’. The intergenerational cycle of unresolved trauma, violence and vengeance obstructs the fulfilment of post-conflict peace and justice, contributing to the perpetuation of conflict and suffering. Victims are often dealing with economic deprivation, displacement, homelessness, cultural property destruction and the deaths of friends, family and people within their communities. The burden of carrying a child under these devastating circumstances is quite simply unthinkable.

The mass rapes that have occurred in recent history contribute to some accepted ‘truths’ about wartime rape. First and foremost, sexual violence has been prolific throughout the history of warfare. Wartime rape and sexual enslavement have been well captured by mythical, artistic and historical representations: from the abduction/rape of Helen of Troy described in Homer’s Iliad , and the rape of the Sabine women as a legendary tale of early Roman history; to the story of systematic rape in the Scottish Highlands during the eighteenth century by English forces, the rape of Belgian women during the First World War, and of course, the many contemporary examples of mass rape that have occurred during and since the Second World War (see Brownmiller 1976).

A second accepted certitude of wartime rape is that women suffer disproportionately from these crimes. While the torture, rape and sodomy of male prisoners held at the Iraqi Abu Ghraib prison in 2004 has vividly imprinted on public memory images of female-perpetrated wartime sexual violence (see e.g. Hersh 2004), and there are many other wars where men have been subjected to horrific forms of sexual violence, few would disagree that women bear the brunt of wartime sexual violence. For the majority of these crimes, it is men who are the perpetrators of wartime sexual atrocities (Bourke 2008; see also Engle 2005 for a critical discussion of this issue). Third, there is little dispute that impunity for wartime rape has been the rule rather than the exception. Although there have been formal prohibitions of rape in national and international legal jurisdictions at various historical junctures (see Khushalani 1982; Krill 1985), and many individuals have been tried for crimes of rape by domestic or international tribunals (Meron 1993a; Piccigallo 1979),² the prosecution of sexual violence against women has been traditionally both selective and sporadic, and wartime rape continues to be demarcated by both impunity and silence.

While few would challenge any of these largely accepted historical truths, the subject of wartime rape has caused, and continues to cause, heated debate. I was quite shocked when someone commented to me last year that they did not see what the big deal was about wartime rape. I could not stop thinking about this remark and where it belonged in the wider discourse on this topic. Although very few people dare challenge the gravity of sexual violence in this way, in scholarly writing new questions about whether or not rape is the worst thing that can happen to women during wartime have been increasingly raised. Atina Grossman (1995), for instance, discusses how rape was not the worst of horrible experiences for German women at the end of the Second World War. Janet Halley (2008a: 80) also argues that the superior ‘badness’ of wartime rape ‘can be deployed in an alarming number of ways to advance contested ends, ends which one might well want to resist’ (see also Engle 2005).

The point that these scholars are trying to make, I imagine, is that the focus on wartime rape can have a range of implications, including obscuring the other harms that occur against women and men during armed conflict (Gardam and Jarvis 2001; Halley 2008b; Nikolic-Ristanovic 2000); prioritizing rape above other human rights violations; positioning women solely as helpless victims of sexualized atrocities (Engle 2005); failing to account for the sheer heterogeneity of survivors of mass atrocities; and treating wartime rape as a universal example of women’s oppression (Halley 2008b). Indeed, in this book I do focus exclusively on wartime sexual violence (whether that be penetrative rape or other forms of sexual violation - and the reader should note that I do not always make a distinction between ‘rape’ and ‘sexual violence’).³ I am aware that such exclusive attention may make me guilty of some or all of the above problems. However, what is concerning to me is the fixation on hierarchies of suffering that are increasingly popular in the current war crimes literature. On the one hand, rape is often included on an actual or metaphorical list of the worst possible crimes, and the recent push of rape up the international criminal hierarchy reflects this perceived gravity. Even as far back as 1919, a post-war commission was set up to investigate breaches of law and customs of war committed by Germany and its allies in the First World War, and out of 32 war crimes, rape was listed at number five and the ‘abduction of girls and women for the purposes of enforced prostitution’ at number six (murders and massacre made the number one spot) (Adatci and Tachi 1920).

On the other hand, although wartime rape has been repeatedly condemned as the ‘worst of crimes’ throughout history in political rhetoric, in practice these crimes have very much been neglected, disregarded, denied and downplayed. The debate about whether or not rape is a fate worse than death (‘Better a Russki [Russian] on top than a Yank overhead’ - quoted in Halley 2008a: 104) not only contributes to a problematic suffering hierarchy, but may also lead to complacency and inadvertently position rape yet again as an inevitable by-product of armed conflict.

It is important to note that there is a distinction between suffering hierarchies within the minds of victims and what I believe is the futil...

Table of contents

• Cover
• Title
• War and Rape
• Copyright
• Contents
• Interventions
• Dedication
• Acknowledgments
• 1 Introduction: how the past is made to matter
• 2 Traces of truth: collective memory and the law
• 3 A history of silence: the Nuremberg and Tokyo trials
• 4 Casualties of law: wartime rape and war crimes courts
• 5 Trials and trauma: the impossibility of bearing witness
• 6 Wartime rape and the legacy of law
• Notes
• References
• Index