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.