Critiquing the Mainstream Feminist Position on Sexual Violence during Conflict

Feminist legal theory came to international law and discourse later than it came to many other legal fields, but in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. 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 make no pretence of having a lock on the normative assessments of feminism- the idea is simply to start a discussion on some ignored aspects. Further, I focus on feminism because it matters to me so much and not because its will to power is more suspect than other aspirational projects.

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 primary issue that plagued feminists was whether rapes of Bosnian women should be treated differently from rapes of Serbian women and whether they should be treated differently from rapes that happen in all wars. 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.

This turn to individualized punishment in the international sphere is understood to be synchronous 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 aggression, is actually a prohibited means of waging war. According to 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 departs from the Nuremberg paradigm where crimes against humanity have to be committed during aggressive war. This distinction is precisely what feminists were looking for. This is particularly evident when Catherine Mckinnon talks about the Yugoslavian conflict. She talks about it in ahistorical terms, as motivated by genocidal intent rather than a conflict between emerging sovereigns in the aftermath of the Cold War. 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. It is true that over the years, stereotypical and patriarchal notions have developed with regard to women’s sexual behaviour and most of these notions are based on the assumption that the chastity and virginity of a woman are her most important “assets” leading to the conclusion that since rape robs women of these “virtues”, it is comparable or worse than 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, 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. This arguably reinforces, rather than undermines, the problematic assertions about culture from an earlier era.

Further, current legal doctrine exceptionalizes wartime rape in a manner that distracts from broader justice considerations, including policy questions about the justness of the underlying armed conflict itself. 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. Overstating gender differences through the universalizing of harms experienced by women in war is likely to lead to the proliferation of legal rules and popular understandings that further entrench the power dynamics we seeks to combat. 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.

Feminism is by aspiration an emancipatory project and feminists have been, in some cases, highly successful in changing laws, institutions and practices, very remarkably often for the better. 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.

A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

The Role of Mercy in India

There has been such a sustained focus on the right to impose death that it sometimes eclipses its essential corollary, namely the sovereign right to spare life. In India’s modern political system, this power to spare life remains in the form of executive clemency. Executive clemency, enumerated in Article 72 of the Indian Constitution, represents an escape valve where officials unaffiliated with the judiciary can survey the landscape and make decisions on factors beyond the law. Thus, the most logical use of clemency powers is when an individual wrongly convicted, can demonstrate that the system failed or that they are innocent. Critics, however, have argued that this conflicts with the demands of justice and equality, demands a liberal state presumably must heed. Due to mercy’s arbitrary and capricious nature, the state, they argue, should be lawful, not merciful. A study of the mercy petitions rejected by various Presidents in recent history lends some merit to their argument since it reveals a trend of politicization of mercy.

For example, the rejection of Saibanna’s mercy petition came right after the December 16 gang rape; a time when the government needed a facile gesture to show that it was tough on crime against women. He had been sentenced to death for murdering his second wife and daughter after having been convicted for murdering his first wife, however his case was riddled with glaring judicial blunders from start to end. Both the trial court and the High Court convicted and sentenced Saibanna under s. 303 of the Indian Penal Code which provided for mandatory death sentence but had been struck down as unconstitutional some twenty years earlier. The Supreme Court took full notice of the s. 303 issue but then noted that the session’s court faulty finding did not prejudice the cause of the accused since there was no record of any mitigating circumstances.

However what the Court failed to consider was that in cases under s. 303 there is no sentencing hearing, and hence no opportunity to bring on record mitigating circumstances. Moreover, the Court squarely based its death sentence verdict on the erroneous view that Saibanna, already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment. Thus in effect, the Supreme Court revived mandatory death sentencing. So glaring were these errors that a campaign had been launched pursuant to which fourteen eminent retired judges of the High Court and the Supreme Court
wrote to the President asking him to commute these death sentences. They said that it would be unconscionable and a blot on the administration of justice to execute Saibanna whose petition had been pending for 25 years. These factors should have necessitated the commutation of the death sentence by a government with even an iota of respect for the rule of law. Continue reading