Women's Rights, Human Rights

International Feminist Perspectives

J. S. Peters, Andrea Wolper, J. S. Peters, Andrea Wolper

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317325475
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This comprehensive and important volume includes contributions by activists, journalists, lawyers and scholars from twenty-one countries. The essays map the directions the movement for women's rights is taking--and will take in the coming decades--and the concomittant transformation of prevailing notions of rights and issues. They address topics such as the rapes in former Yugoslavia and efforts to see that a War Crimes Tribunal responds; domestic violence; trafficking of women into the sex trade; the persecution of lesbians; female genital mutilation; and reproductive rights.

Violence and Health

21
Gendered War Crimes: Reconceptualizing Rape in Time of War

Rhonda Copelon

Introduction

Historically, the rape of women in war has drawn occasional and short-lived international attention. It comes to light as part of the competing diplomacies of war, illustrating the viciousness of the conqueror or the innocence of the conquered. When war is done, rape is comfortably filed away as a mere and inevitable “by-product,” a matter of poor discipline, the inevitable bad behavior of soldiers rewed up, needy, and briefly “out of control.”

Military histories rarely refer to rape, and military tribunals rarely either indict or sanction it.¹ This is the case even where rape and forced prostitution are mass or systematic, as in both theatres of World War II, which included the rape of German women by the conquering Russian army and the enslavement on the battlefields of 200,000–400,000 “comfort women” by the Japanese army.² It is even the case where open, mass, and systematic rape has ostensibly shocked the conscience of the world, as in the “rape of Nanking”³ or the rape of an estimated 200,000 Bengali women during the war of independence from Pakistan.⁴ Rape was ignored by the International Tribunals at Nuremberg and, although it was discussed in the Judgment of the Military Tribunal in Tokyo, it was not treated as a crime for which the Japanese Commander would be separately charged. In Bangladesh, amnesty was quietly traded for independence.

More recently, the rape of women in the wars in the former Yugoslavia—most often committed by Serbs against Bosnian-Muslim women as part of the campaign of “ethnic cleansing”—broke through media barriers and briefly captured international attention.⁵ The rape of women in Bosnia-Herzegovina, however, appeared unique because the rape of women in history (as well as in the present) has been rendered invisible. Moreover, geopolitical factors—that the locale is Europe, that the conflict threatens to set off a new world war and that the agents are White men and the victims White (albeit largely Muslim) women—cannot be ignored when explaining the visibility of these rapes. By contrast, the routine rape of women in the civil wars and military dictatorships in Haiti, Peru, Liberia, and Burma (to name a few) goes largely unreported until women’s voices are heard.⁶ Nor does the international press report that mercenaries hired by an international agribusiness company rape 50 percent of the women of the indigenous Yuracruz people in Ecuador in order to “cleanse” the land of the Yuracruz people.

When the rapes in Bosnia-Herzegovina were revealed, feminists had already been working for decades on rape and gender violence.⁸ It was also a moment in which women were organizing, regionally and globally, to put recognition of women’s human rights on the agenda at the 1993 World Conference on Human Rights in Vienna. In this effort, violence against women—both official and personal—was a central issue. Thus the issue of the rape of women in Bosnia became part of the broader global feminist effort, less influenced by nationalist diplomacies,⁹ at the same time that it advanced the feminist campaign by underscoring the gravity of ongoing gender violence just two hundred miles from the conference site. The Vienna Declaration and Programme of Action condemned gender violence generally and made special mention of “systemic rape, sexual slavery and forced pregnancy” in armed conflict.¹⁰ The statute of the International Tribunal, created by the United Nations to prosecute war crimes in the former Yugoslavia, included widespread or systematic rape as an indictable offense.¹¹

Nonetheless, the question today is whether the terrible war-time rape of women in former Yugoslavia will disappear into history or survive but be viewed as an exceptional case. Just as, historically, the condemnation of rape in war has rarely become an outcry against crimes of gender, so the mass rape in Bosnia captured world attention largely because of its association with “ethnic cleansing” or genocide. In a single week, a midday television talk show opened with, “In Bosnia, they are raping the enemy’s women,”¹² and a leading Croatian-American scholar distinguished genocidal rape from “normal” rape, with very little reaction from the audience.¹³ When women argued that rape is a weapon of war, rather than a by-product, they were referring to all its various purposes (e.g., to dilute ethnic identity, destabilize civilian populations, or reward soldiers). This assessment, however was accepted by the public only as regards rape as a vehicle of genocide.

The elision of genocide and rape in the focus on “genocidal rape” as a means of emphasizing the heinousness of the rape of Muslim women in Bosnia is thus dangerous. Rape and genocide are each atrocities. Genocide is an effort to debilitate or destroy a people based on its identity as a people, while rape seeks to degrade and destroy a woman based on her identity as a woman. Both are grounded in total contempt for and dehumanization of the victim, and both give rise to unspeakable brutalities. Their intersection in the Serbian (and, to a lesser extent, the Croatian) aggressions in Bosnia creates an ineffable living hell for women there. From the standpoint of these women, they are inseparable.

But to emphasize as unparalleled the horror of genocidal rape is factually dubious and risks rendering rape invisible once again. When the ethnic war ceases or is forced back into the bottle, will the crimes against women matter? Will their suffering and struggles to survive be vindicated? Or will condemnation be limited to this seemingly exceptional case? Will the women who are brutally raped for purposes of domination, terror, booty, or revenge in Bosnia and elsewhere be heard?

The situation presents an historic opportunity (indeed an imperative) to insist on justice for the women of Bosnia as well as to press for a feminist reconceptualization of the role and legal understanding of rape in war.

To do this, we must surface gender in the midst of genocide at the same time that we avoid dualistic thinking. We must examine critically the claim that rape as a tool of “ethnic cleansing” is unique, worse than, or incomparable to other forms of rape in war or in peace—even while we recognize that rape coupled with genocide inflicts multiple, intersectional harms.¹⁴ This is critical if the horrors experienced by women in Bosnia are to be fully acknowledged and understood and if that experience is to have meaning for women brutalized in less-known theatres of war or in the by-ways of daily life.

Although there are significant concerns about the viability of the new International War Crimes Tribunal generally,¹⁵ the rules that have been adapted articulate a commitment to sensitively and effectively prosecute sex crimes.¹⁶ If the Tribunal functions and takes rape and the abuse of women seriously, it will be the first time—even if its actions are largely symbolic. The Tribunal also will be called upon to apply international law to rape in ways that could provide significant precedents for other situations.¹⁷

This essay examines the evolving legal status of rape in war with attention both to the particular context in which rape is occurring and to the general gender dimension, as well as to the tension between them. It focuses on two central conceptual questions: first, whether these crimes are fully recognized as war crimes under the Geneva Conventions—the cornerstone of what is called “humanitarian” law (i.e., the prohibitions that, by regulating war, also acknowledge it as permissible)—and, second, whether international law does, and should, distinguish between “genocidal rape” and mass rape for purposes other than genocide. In this regard, it examines the limitations of, and the potential inherent in, the concept of “crimes against humanity,” as well as the relationship between gender and nationality/ethnicity in the crimes committed against women in Bosnia. The Conclusion suggests the relationship between everyday rape and rape in armed conflict or under military rule.

Rape, Forced Prostitution, and Forced Pregnancy As War Crimes

Although news of the mass rape of women in Bosnia was a significant factor in the demand for the creation of the International Tribunal, international law experts debated whether rape and other forms of sexual abuse are “war crimes” of the gravest dimension, subject to universal jurisdiction and therefore prosecutable before an international tribunal as well as in the courts of every country. The answer is not yet clear.

Rape and other forms of sexual assault have long been prohibited under national and international rules of war, and to prevent rape, the Geneva Conventions require separate quarters for women prisoners, as well as supervision and searches by women only.¹⁸ But these crimes have been categorized as crimes against honor, not as crimes of violence¹⁹ comparable to murder, mutilation, cruel and inhuman treatment, and torture.

Traditionally, rape has been condemned as a violation of a man’s honor and exclusive right to sexual possession of his woman/property, and not because it is an assault on a woman.²⁰ Today, the mass rape in Bosnia is often referred to as the rape of “the enemy’s women”—the enemy in this formulation being the male combatant and the seemingly all-male nation or religious or ethnic group. The victim is male, humiliated and emasculated by having failed as both warrior and protector. While this describes a significant patriarchal dimension of rape, it ignores the fact that women, too, are the enemy, and are raped as such.

The Geneva Conventions characterize rape as a crime against the honor and dignity of women.²¹ But this too is problematic. Women’s “honor” has traditionally been equated with virginity or chastity.²² Loss of honor implies the loss of station or respect, reinforcing the social view—often internalized by womenthat the raped woman is dishonorable. While the concept of dignity potentially embraces more profound concerns, the emphasis on honor obfuscates the fact that rape is violence against women—against women’s body, autonomy, integrity, selfhood, security, and self-esteem, as well as standing in the community.

This failure to recognize rape as violence is critical to the traditionally lesser or ambiguous status of rape in humanitarian law. Under the Geneva Conventions, international crimes are those identified as “grave breaches.”²³ On the level of discourse, this calls attention to the egregiousness of the assault. As a legal matter, only grave breaches are subject to universal jurisdiction under the Geneva Conventions, triggering the obligation of every nation to bring the perpetrators to justice and justifying the trial of such crimes before an international tribunal.

Under the Geneva Conventions, rape is not specified in the list of crimes considered grave breaches, which includes “willful killing, torture or inhumane treatment” and “willfully causing great suffering or serious injury to body or health.”²⁴ Clearly these categories are broad and generic enough to encompass rape and sexual abuse. But if the egregiousness of rape is to be fully recognized, rape must be explicitly recognized as a form of torture.

When the Conventions were drafted, torture was largely understood as a method of extracting information. By contrast, today, as the historian Edward Peters writes, “It is not primarily the victim’s information, but the victim, that torture needs to win—or reduce to powerlessness.”²⁵ Recent treaties define torture as the willful infliction of severe physical or mental pain or suffering not only to elicit information but also to punish, intimidate, discriminate, obliterate the victim’s personality, or diminish her personal capacities.²⁶ Thus, torture is now commensurate with willfully causing great suffering or injury. Increasingly its definition encompasses not only the inflicting of physical pain but also methods of humiliation and debilitation that work directly on the mind. In the contemporary understanding of torture, degradation is both vehicle and goal.²⁷

Although largely ignored by human rights advocates,²⁸ the testimonies and studies of women tortured during dictatorial regimes and military occupations make clear that rape is one of the most common, terrible, and effective forms of torture used against women.²⁹ Rape attacks the integrity of the woman as a person as well as her identity as a woman. It renders her, in the words of Lepa Mladjenovic, a psychotherapist and Serbian feminist antiwar activist, “homeless in her own body.”³⁰ It strikes at a woman’s power; it seeks to degrade and destroy her; its goal...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Backgrounds
• Regional Reports
• Gendered Law, “Public” and “Private”
• Cultural Difference
• Violence and Health
• Development and the Socio-Economy
• The Persecuted, The Voiceless
• Conclusion
• Contributors
• Index