Call for abstracts

STUDYING WAR CRIMES:

The ethics of re-presenting mass violence in research

When do descriptions of harm become academic sensationalism rather than re-presentations of violent materialities? Can academic interest and engagement in mass harm ever avoid voyeurism? How can sensational violence be ethically re-presented in research? Across disciplines theorizing mass harm, a consensus is emerging cautioning against sensationalism in re-presentations of perpetrators, victims, crimes, and sufferings, seeing detailed descriptions of violence as academic voyeurism. Yet, how comfortable a read can research that has violent profusion at its core become, before the distance created by language becomes an ethical – and analytical – challenge in its own right?

This edited volume invites experienced scholars to address thoroughly the ethics of doing research on mass harm in general, and of re-presenting and describing mass violence, harmdoing, trauma, and suffering in their own research in particular. Drawing on a range of methodological approaches and empirical cases, the book will address how mass violence and war crimes are brought into research – both as an ethical, a sensational, and an analytical matter.

We ask contributors to reflect on their re-presentations of mass crimes, violence and justice, seeing re-presentations both as an issue to do with individual and disciplinary research ethics but also as a matter to do with power and material structures of academic knowledge production. The purpose is to encourage active engagement with a research ethics that goes beyond ‘procedural ethic;’ to expand the discussion on responsibility for the stories we hear, read, analyze, and re-tell; and to address in-depth the ethics of listening, seeing, and telling in research on mass violence and war crimes.

The book will be relevant for all researchers who wish to engage ethically with the study of mass violence and war crimes.

We invite abstracts that explore the ethics of re-presenting mass violence in research.

Abstracts may also cater specifically to:

  • The ethics of caring, seeing, listening and re-presenting
  • Selection and exclusion: whose stories are told?
  • Understanding harm/understanding as harm
  • “Thick descriptions” and sensationalism
  • Breaking the silence vs silence as choice
  • Emotions, positionality, and reflexivity

Submission guidelines:

Abstract of no more than 500 words to be submitted by November 30th, 2018 to editors at studyingwarcrimes@gmail.com. We only accept original contributions and the abstract needs to clearly demonstrate the chapter’s contribution to the volume.

Please include a 150-200 word bio highlighting your affiliation, work experience and credentials in the field of war and mass violence research.

Further process:

After an initial screening and by December 15th, 2018, editors will invite 8 contributors to develop their abstract into a full chapter (5-7000 words) to be submitted by April 15th 2019. We will apply for funding for a lunch-to-lunch workshop for contributors in May 2019. The final submission date for full chapters will be in August, 2019.

Routledge (Taylor&Francis Group) initiated our work with this collection, and has expressed a strong interest in publishing the book.

About the editors:

Sladjana Lazic is a post-doctoral researcher at the Center for Peace Studies (CPS) at the Arctic University of Norway (UiT). She holds a PhD in Political Science from the Norwegian University for Science and Technology in Trondheim, Norway, on victims’ perspectives on transitional justice and legitimacy.

Anette Bringedal Houge holds a PhD in Criminology and Sociology of Law from the University of Oslo on conflict-related sexual violence, perpetrator re-presentations, and international criminal justice. She has published her research in e.g., Aggression and Violent Behavior, British Journal of Criminology and Criminology and Criminal Justice. Anette is the Head of Humanitarian Needs and Analysis at the Norwegian Red Cross.

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Feminism and the Kenyan TJRC (Part 2)

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Women singing at the launch of the TJRC public hearings in Garissa (April 2011)               (Kenyan TJRC)

Addressing the first feminist critique – the failure to address systemic and structural violence that tends to affect women disproportionately – was easier for us to address compared to other truth commissions given our broad mandate and, in particular, the requirement that we investigate violations of socioeconomic rights. To better analyze systemic and structural issues, including those related to socio-economic rights, we needed to address effectively the second critique – the failure to encourage active participation of women, a failure that had already been experienced by the Mutua Task Force.

 

In addition to dedicating specific parts of our statement-taking form to capturing the experience of women; training our statement takers on gender sensitivity, and ensuring a high percentage of female statement takers (43 percent), we also conducted thirty-nine of what we called women’s hearings in each of the places where we held public hearings. Our challenge was not just to encourage women to participate and speak to the Commission, but also to elicit testimony about violations and related issues experienced by them. The experience of previous truth commissions suggests that women who are willing to speak about past violations tend to speak as witnesses and observers concerning incidents that happened to others, usually the male members of their family. The characterization of such testimony as indirect is itself problematic, as it tends to de-emphasize the secondary effects of violations on family members and community members and more fundamentally emphasize the individualistic, rather than community-oriented, aspect of violations. While women may testify about what happened to others in their family or community because they are reluctant to testify about themselves, they may also focus on violations directly experienced by their family and community members because they see themselves as part of those larger social entities and, thus, are more likely than men to see such violations of “others” as affecting them, their families, and their communities directly. Nevertheless, we were concerned that some women might feel reluctant to share their own direct experiences of violations out of fear rather than because they adopted a more holistic approach to violations and their effects.

In addition to holding women’s hearings in each place where we held public hearings, we often had a prominent woman activist from each community testify about the experience of women generally in that community. We were able to do this in part because of the strong working relationship we had developed with Maendeleo ya Wanawake, the largest women’s membership organization in Kenya. We were thus able to explore at the local level some of the broader systemic, institutional, and cultural issues faced by women. To further broaden this analysis, we devoted one of our national thematic hearings to women. The purpose of the thematic hearing was to supplement the individual stories we had heard in the field – both from witnesses as well as local activists – with a more national and even international perspective on the broader systemic issues facing women in Kenya. Continue reading

Feminism and the Kenyan TJRC (Part 1)

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Commissioners Tecla Namachanja and Margaret Shava at the launch of public hearings in Garissa (April 2011)       (Kenyan TJRC)

In 2004 a task force chaired by Professor Makau Mutua travelled throughout Kenya to determine whether a truth commission should be established to address historical injustices.  In their report, the task force observed that while their provincial hearings were “on the whole” well attended, the number of women participating in the hearings was “low.” The experience of the Mutua task force mirrored that of truth commissions generally. Female participation in truth commission processes worldwide has been low, leading more recent truth commissions to create special units to encourage the participation of more women. Kimberly Theidon discusses attempts to incorporate a greater gender sensitivity to transitional justice processes, focusing in particular on Peru.

 

Christine Bell and Catherine O’Rourke pose three sets of questions as part of a feminist critique of transitional justice generally.  First, where are women (both representation and participation in transitional justice design and process)? Second, Where is gender (where are the voices and experiences of women with respect to conflict, human rights violations and justice)? Third, where is feminism (referring to the feminist critique of justice and its applicability to transitional justice)?

Feminist critiques of truth commissions tend to focus on two issues. First, truth commissions ignore or do not devote sufficient attention to systemic, structural, and institutional violence that tends to affect women disproportionately. Second, truth commissions are not designed to encourage the participation of women, and thus perpetuate the silencing of women in those societies.

The drafters of the Kenyan legislation establishing the Truth Justice and Reconciliation Commission were sensitive to these critiques, requiring that there be gender balance among the commissioners (we began with five male and four female commissioners); requiring that the chair and vice chair be of opposite gender; including sexual- and gender-based violence in the violations we were to investigate, and suggesting that we put into place special mechanisms and procedures to address the experiences of women. During most of our operational period, our CEO was a woman; and during the fourteen months when we conducted most of our external activities (statement taking, public hearings, investigations, and other outreach activities), our acting chair was a woman – in fact Tecla Namachanja Wanjala was the first woman to serve as the chair of a truth commission. Continue reading

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

Continue reading

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.

Will the new crimes against humanity treaty protect women and LGBTI persons?

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               Photo courtesy of Groundswell.

If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.

What you should know is if this treaty goes forward for adoption in its current draft form, only some—not all—people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.

We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.

The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, since the Rome Statute’s codification, such a definition has never been used again.

To understand how this definition of gender came about we have to go back about twenty years. During the 1990s in Rome, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and the other the protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.

Since Rome, two decades of international human rights law has solidified the definition of gender as a social construct across UN Agencies and human rights mechanisms. The term sex is left for biologists. However, while this “footnote” to the term gender is understood to be inclusive, there are states that would gladly use this opaque definition as an excuse to ignore conflict-related gender-based crimes.

So how does an outdated definition to a protected group get adopted into a new crimes against humanity draft treaty?

Bensouda Photo

             Photo courtesy of CUNY Law School

While oodles of rights and protections were taken into consideration during the dialogues on the draft treaty, no one thought to discuss gender. Perusing through the comments over the last four years of discussions and debates by states and experts partied to the drafting process, not one mentions the outdated definition that was cut and pasted into the draft. While issues concerning everything from the rights of witnesses and victims to the cooperation between states have been discussed in great detail, there’s no mention of women, gender, LGBTI people, or even sexual violence. 

At the beginning of the drafting process, a small handful of legal advocates pointed to the definition and called for the drafters to either not include it¾since no other ground of persecution required one¾or adopt a clearer definition as used by the UN. Valerie Oosterveld, an international criminal law professor who was a pivotal delegate at Rome, raised concerns about the problematic nature of adopting a definition into the CAH treaty that was drafted to be deliberately ambiguous (“constructive ambiguity” in diplomatic parlance) in order to resolve polarized positions during the Rome Statute negotiations. Considering she’s one of the foremost experts on the issue of gender under international criminal law, it’s astonishing her ideas were dismissed.

Part of the problem stemmed from the fear that the controversy surrounding the definition twenty years ago would resurface and tank the treaty if the debate on gender were reopened. Some states and drafters have expressed the need to get the treaty passed expeditiously and to keep the original language from Rome intact.

But does a new treaty that codifies an outdated definition of gender serve the interests of justice?

Fighting for recognition of gender-based violence is not new. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. Feminists had to struggle tirelessly to secure the recognition of rape as a form of torture in certain contexts.

In the 1990’s the Human Rights and Gender Justice Clinic of CUNY Law School, (known then as the International Women’s Human Rights Initiative Clinic) served as the secretariat for the Women’s Caucus for Gender Justice, a global coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. Just as there was push-back against the term “gender”, there was also great opposition to recognizing sexual violence as a serious international crime.

A key component to their success was combining advocacy with legal strategy. Gender strategies in the tribunals grew from the notion that “women’s rights are human rights.” Today, advocates are calling for a “gender equal world.”

This is a pivotal moment in history to affirm our understanding of discrimination, including where gender-based oppression dictates narratives for sexual orientation, gender identity and sex characteristics. What we do now will affect people’s rights for generations to come.

It’s time for the international community to take a stand. A treaty meant to protect people against the worst atrocities imaginable by its nature should protect all of us.

 

The Akayesu Judgment at 20: looking back, pushing forward

Twenty years ago, on September 2nd, 1998, the International Criminal Tribunal for Rwanda (ICTR) handed down a landmark trial judgment in the Akayesu case: the first to define rape as a crime against humanity, and the first to recognize that rape and other acts of sexual violence are constitutive acts of genocide. The defendant, the mayor of the Rwandan town of Taba, was found guilty of genocide and crimes against humanity for acts he engaged in and oversaw against Taba’s Tutsi residents, including murder, torture, rape, and other inhumane acts.

Throughout its findings, the ICTR Trial Chamber surfaced gender in its legal analysis, illuminating the gendered experience of mass atrocities, and underscoring how the perpetrators’ and victims’ understanding of gender influenced the planning, commission, and impact of a wide range of genocidal acts.

Akayesu‘s ground-breaking findings owed less to the Prosecution’s case theory – which originally failed to include charges of sexual violence, despite the rape of between 250,000 and 500,000 women and girls between April and June 1994 – than to the Coalition for Women’s Human Rights in Conflict Situations. Formed by feminist activists in 1996, the Coalition mobilized around the ICTR’s failure to investigate and prosecute sexual violence. As prosecution witnesses, who were primarily female survivors of the genocide, gave first-hand accounts of sexual violence, the Coalition submitted an amicus curiae brief calling upon the Trial Chamber to use its authority to invite the Prosecution to amend their Indictment to include charges of rape and other acts of sexual violence.

One of the suggestions in the amicus was that the Prosecution charge rape and sexual violence as acts of genocide, arguing that they were essential components of the genocide, and were designed to “destroy a woman from a physical, mental or social perspective and [destroy] her capacity to participate in the reproduction and production of the community.” An oft-cited passage in the Akayesu Judgment, echoes aspects of this argument:

Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. […] Sexual violence was a step in the process of the destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself.

On the 20th anniversary of Akayesu, two things are evident.

First, despite the judgment’s pioneering nature, a gendered understanding of genocide (and international crimes, more generally) still needs to be consciously asserted in investigations, analysis, and prosecutions. The legal avenues opened by Akayesu were, for a long time, not seized upon by prosecutors; the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecution’s practice of charging rape occurring during the genocide as crimes against humanity and/or war crimes, rather than genocide, continued. Decades later, the analysis and reporting of genocide continues to revolve around an understanding of genocide as a crime committed through organized mass killings. Killing remains the privileged genocidal act, and consequently the examination of the risk and commission of genocide has largely, and unhelpfully, revolved around the numbers killed. Akayesu notwithstanding, the majority of genocide convictions in both the ICTR and ICTY have been based on instances of mass executions, founded upon strategies geared towards achieving the immediate physical destruction of (predominantly male members of) the protected group.

Second, the work of asserting a gendered analysis of international crimes continues largely to be done by feminist jurists and practitioners, most of whom are female. While it is not the role of female lawyers and activists to bring to light the experience of women and girls in jurisprudence, the task has too often fallen on their shoulders. Akayesu would not have been the landmark case it is without the work of the female-led Coalition; the Judges, notably Judge Navanethem Pillay; and the Chamber’s Legal Officers, notably Cecile Aptel. At the ICTY, three female lawyers and investigators led the development of the evidence of crimes committed in Foča with an express focus on building a case that reflected the organized way rape was used as part of ethnic cleansing. As a result, the Kunarac Judgment found sexual enslavement and rape as crimes against humanity. At the International Criminal Court (ICC), it was under the auspices of the first female Chief Prosecutor, Fatou Bensouda, that a gender strategy for investigations and prosecutions was developed.

The red thread of genocide continues to course its way through human history. In June 2016, the UN Commission of Inquiry on Syria determined that ISIS was committing the crime of genocide against the Yazidis of the Sinjar region of northern Iraq. In August 2018, the UN Fact-Finding Mission on Myanmar held that there was sufficient information to support an inference of genocidal intent regarding the actions of Myanmar’s security forces against the Rohingya. Having failed in its obligation to prevent genocide, punishment remains a priority for the international community. The UN’s recent report on Myanmar has reinforced calls for the Security Council to refer the situation in Myanmar to the ICC. For the Yazidi genocide, the path to justice is likely to be forged through national courts, including, hopefully, in Iraq. The Iraqi Investigation Team, created by the Security Council, has just begun its work.

As the push for accountability for the Yazidi and Rohingya genocides continues, it is essential that prosecutors and activists alike ensure that acts of genocide, beyond the act of killing, are fully investigated, properly indicted, and raised at trial. As women and girls are more likely to survive genocide, any ensuing trials rely heavily on what they have seen, heard, and suffered. A conception of genocide that relies on them bearing witness to killings (usually but not solely of male members of the group), and which turns away from all non-lethal acts of genocide (usually but not solely visited on female members of the group) is a harm to the survivors, the group, the historical record, and to our understanding of the crime of genocide.

When genocide is recognized only its most murderous articulations and gendered genocidal crimes such as rape, torture, forced pregnancy, and enslavement are ignored, States and international organizations lose much of their power to uphold the legal obligations to prevent and punish genocide. When the gendered crimes of genocide are excluded from prosecutions, the living survivors of genocide are denied justice and history yet again erases the experiences of women and girls.

In 1998, Akayesu’s gendered analysis was ground-breaking. In 2018, it’s never been more necessary.