International law’s relationship with feminism is relatively recent yet extremely tangled at the same time. Anything involving sexual violence has been at the forefront of a carceral impulse. I will be questioning the intellectual assumptions that underlie the mainstream feminist consensus on sexual violence in international criminal law. In doing so, I do not wish to imply that I have exhaustively discussed the normative assessments of feminism- the idea is simply to start a discussion on some ignored aspects. Further, I’m writing on this topic because it is extremely relevant to me as a postcolonial, feminist researcher in India and not because its will to power is more underdiscussed than other movements.

Progress narratives suggest that the recent proliferation of international criminal courts and tribunals complements the institutional legacy of the Nuremberg trials as the first international success in imposing individual criminal responsibility for war crimes and crimes against humanity. However, feminists argue that both rape committed by the Axis sufficiently and those committed by the Allied powers were ignored at the International Military Tribunal for Nuremberg because it would not have served the political interests of the time. In a nutshell, their argument is that sex violence was so ubiquitous that any attention to sexual violence on the part of the Axis powers would require an attention to sexual violence on part of the Allied powers, producing what Sarah Nouwen and Wouter Werner have referred to as a kind of Schmittian distinction between ‘friends’ and ‘enemies’ of the ‘international community’. Interestingly, the whole premise of the Nuremberg judgement was precisely to say that it wasn’t just that Germany tortured people but “they usurped the form of the German state for territorial expansion”. Moreover, this narrative suggests that all reasonable women who experienced sexual violence during conflict, would, if given the opportunity, opt for a criminal remedy.

In any case, these feminist critiques laid the groundwork for the early jurisprudence of the both the ICTY and the ICTR where there was a doctrinal recognition of rape as a war crime, a crime against humanity, and, at least in the ICTR, genocide. The biggest issue that concerned feminists was whether sexual assaults of Bosnian women should be treated the same as sexual assault of Serbian women. Catherine Mckinnon was one of the most vocal proponents of rape as genocide. She attempted to articulate an international legal understanding of rape that would not distinguish between everyday wartime rape and rape committed by the Serbs. Interestingly, other feminists responded to this not on the issue of whether rape had been used as genocide but whether a focus on genocidal rape would render rape invisible. Strategically, the rhetorical connection of rape to genocide suggested that it too was a jus cogens violation and thereby bought more media attention to rape in wartime.

The shift to carceral logic internationally  goes hand in hand with the institutionalization of individual human rights. Feminists agreed that prosecution was the only way to achieve justice and were not shy to claim credit for this. Hilary Charlesworth notes: “This recognition [of sexual violence as a potential crime of genocide, a crime against humanity, and a war crime in the statutes of the two ad hoc tribunals and the ICC] was the result of considerable work and lobbying by women’s organizations …” To the end criticisms were voiced was that the tribunals did not go far enough, and not that they went too far.

Genocide unlike waging war is a jus in bello crime. As per Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide can take place during peace or war. In this way, the Convention differs from what we see at Nuremberg where crimes against humanity are only committed during armed conflict. This distinction is precisely what feminists were looking for. This is particularly evident when Catherine Mckinnon talks about the Yugoslavian conflict wherein she says that the root of the conflict lay not in a conflict between emerging states but solely through the lens of “genocidal intent.”  Drawing upon Susan Woodwards work, the point is not that genocide did not happen but the language of ethno-nationalism was a language that was abstracted from the political and economic reasons for war. Further, Engle demonstrates how the term “genocide” was used in numerous ways and often hid problematic suppositions of the cultural, political, and genetic effects of rape of Bosnian women by Serbian men.

Moreover, it gave legal purchase to the idea of rape as an exceptional harm, as a “fate worse than death.” The idea that there is a particular harm associated with sexual violence in wartime, and that it disproportionately affects women and girls is both factually and normatively debatable. As Professor Mrinal Satish points out, albeit in a different context,  stereotyping women’s sexual behaviour, based on the assumption that “purity” of a woman is her asset, is common which eventually leads one to conclude that rape is akin to death. This description of the harm also follows the reasoning of the International Criminal Tribunal for Rwanda in its conviction of Jean-Paul Akayesu of responsibility for acts of rape that were found to be constitutive of genocide, in part because of the public humiliation brought by the rapes and the resulting ‘physical and psychological destruction of Tutsi women, their families and their communities’. Thus, as Karen Engle notes both the ICTY and ICTR have not only reinforced that assumption of individual and communal shame, “they have attributed the shame to culture”. In doing so, they have arguably suggested that certain ethnic groups are responsible for their own genocide or attempted genocide, by presuming that communities are torn apart as they shame and are shamed by women and girls who have been raped.

Further, the current discourse on rape during armed conflict exceptionalizes wartime rape in a way that that assumes the justness of going to war in the first place. In so doing, I argue, we risk undermining the capacity for political agency of the women we study. This suggests that the women’s experience of war was simply of victimisation, rather than agency and participation. Historians have already questioned this myth but this scholarship has been relegated to the margins. The margins’ is a familiar realm for women and their histories, isn’t it?

‘The crimes of which these women were convicted ought to be unimaginable,and will remain, here at least, unprintable.’

–Women in Nuremberg , IntLawGrrls. As with the other accounts in this post, these expectations of course have a history. 

Wendy Lower and Elizabeth Heineman, both feminist historians who have really been trying to unpack the complexities of law and politics during the period, assert that in both general histories of the Holocaust and studies of Nazi women, scholars have greatly underestimated the role these women played both during and after the war. Lower shows that the Nazi genocidal system could not have functioned without the participation of the thousands of women who filled key positions in the Nazi hierarchy as both helpers and overseers. Heineman similarly shows that women’s paid work and labor for the state bureaucracy and not just their reproductive capacity were crucial to carrying out Nazi agenda.

Suddeutsche Zeitung was a book released anonymously that depicted the Soviet rapes. In the diary, the woman records multiple rapes of herself and others by Russian soldiers. She also describes how, on several occasions, she made calculated decisions to agree to and even seek out sexual acts for food, money, and protection. Years later it was revealed that the author had published during the Nazi years, and that at least some of her Nazi- era writings conveyed the excitement surrounding that movement.

Does being raped mean that she loses her political identity?

This forces the reader to question the perpetrator–victim dichotomy and displaces the masculine myth that sees war as simply a masculine front. The feminist truism that women did not and do not participate in the war as anything other than victims is simply not historically true. This requires a move from a perpetrator/victim dichotomy to a more complicated relationship between vulnerability and privilege. As Craig Albert notes, such an exercise is likely to lead to the proliferation of legal rules and popular understandings that reinforce rather than undermine the power dynamics that feminism professes to fight. As Heidi Matthews documents, many women, certainly not all, were more committed to the political potential of the new socialist era that they would be willing to forgo their particular trauma in terms of a carceral solution.

As Janet Halley notes, that this is not to say that governance feminism has done no good- on the contrary, it has been extremely helpful to marginalised communities to ask for change. However, like any socio-political project it has unintended consequences. It is a recognition of women’s agency, which permits us to see both troubling and admirable choices, even by subjects with a limited range of motions, that I believe a feminist theory of international criminal law must account for.