Part I Introduction
As explained in the introductory chapter, the thesis is a critical feminist analysis of wartime sexual violence jurisprudence and the surrounding feminist debate. The previous two chapters provided an overview of the salient themes and concepts underlying the thesis and detailed how gender-based violence has become a subject of interest for international law, while wartime sexual violence is today no longer a footnote of history but a fully recognised international crime. These chapters have sought to provide ground for the critical feminist analysis that this thesis ultimately pursues. They have provided a bridge between a discussion of the key legal developments in the areas of gender-based violence and wartime sexual violence and their ensuing analysis. The present chapter constitutes the first of the two limbs in the transition from an analysis of the existing law and the theory surrounding violence against women to the original thesis put forward in Chapters V and VI, which provide the second limb in this transition, where the actual ‘critical feminist’ approach of the thesis is fully crystallised.
As is evident from the previous chapters, the wartime sexual violence debate is a fusion of issues cutting across human rights, gender, ethnicity and culture. The present chapter thus overviews various feminist approaches to these intersecting discourses, highlighting their respective advantages and disadvantages from the point of view of pursuing an analysis of an issue such as wartime sexual violence. These will consist of four principal approaches that have been salient in recent feminist debates: first, liberal and universalist feminism; second, radical and structural feminism, or governance feminism as its more modern manifestation, third, poststructural and postcolonial feminism and, fourth, intersectionality approaches, which have significantly influenced the development of the feminist critique underlying this thesis. These approaches provide the focus of Parts II, III, IV and VI respectively. Part VII concludes and summarises the chapter. Inevitably, the analysis in this chapter implies a considerable degree
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of generalisation and selectiveness. This is defensible in so far as the chapter’s objective is to trace the most salient feminist approaches to the analysis of human rights, gender, culture and armed conflict, as they have been manifested in feminist scholarship and activism in recent years. Where appropriate, references will be made in this chapter to the ways in which the overviewed approaches have dealt with the issue of wartime sexual violence in the Yugoslav context.
Part II
Liberal/ Universalist feminists
Although the ‘liberal’ and ‘universalist’ orientations in feminism are not, strictly speaking, identical, there is a significant degree of conflation and overlap between them as liberalism usually rests on strong universalist presumptions.425 There is a long tradition of liberal feminism: indeed, ‘first wave’ feminists explicitly adhered to liberal, universalist ideology in their pursuit of equal rights for women. However, more recently liberal feminists began to pay attention to the ‘endless variety’, as well as the ‘monotonous similarity’ of gender oppression.426 It is fair to say that such attention within liberal feminism has tended to concentrate on ‘culture’ or ‘culture and religion’ as the factors perpetuating the ‘endless variety’ of gender oppression.427 Liberal feminists generally perceive culture and gender to be in antagonism.
The idea that cultural contexts play a key role in producing gender roles and expectations based on sexuality is exemplified by the approach adopted by Susan Moller Okin in her controversial essay ‘Is Multiculturalism Bad for Women?428 Okin’s central point is that the
ascent of multiculturalism and celebration of cultural difference is profoundly anti-ethical to
425 Eg S. Mullally, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford: Hart Publishing, 2006)
distinguishes between ‘universal’ and ‘universalist’, the latter being imbued with negative connotations.
426
The phrase ‘endless variety and monotonous similarity’ (of gender oppression) was coined by Gayle Rubin: G. Rubin, ‘The Traffic in Women’ in R. Reiter (ed.), Toward and Anthropology of Women (New York Monthly Press, 1975), 157 at 160.
427
There are, however, critiques that expose the heteronormative bias of liberal feminism, e.g. W. Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995) is arguably among the stronger ones. See V. E. Munro, ‘Feminism(s), Law and Liberalism(s)’ in V.E. Munro, Law and Politics at the Perimeter: Re-Evaluating Key Debates in Feminist Theory (Oxford: Hart, 2007) for an insightful overview of feminist critiques of liberalism in general.
428 S. Okin, 'Is Multiculturalism Bad for Women?' in, Is Multiculturalism Bad for Women, in J. Cohen, M. Howard &
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women’s rights.429 The crucial connection between gender and culture is manifested in the sphere of personal, sexual and reproductive life as the central focus of most cultures with certain ‘cultural practices’ having a much greater impact on women since far more of women’s time and energy goes into preserving and maintaining the personal, familial and reproductive side of life. The more a culture requires or expects of women in the domestic sphere, the less opportunity they have of achieving equality with men in either sphere.430 On Okin’s view, many societies appear to accept violence as appropriate discipline for certain kinds of behaviour and women who do not conform to traditional sexual expectation often become subject to violence from within their own communities. Most controversial, however, is Okin’s premise that minority cultures are more hostile to women than the majority (i.e. liberal western) culture. She writes:
‘While virtually all of the world’s cultures have distinctly patriarchal pasts, some- mostly, though by no means exclusively, Western liberal cultures-have departed far further from them than others. Western cultures, of course, still practice many forms of sex discrimination….But women in liberal cultures are, at the same time, legally guaranteed many of the same opportunities and freedoms as men. In addition, most families in such cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that their sexuality is of value only in marriage, in the service of men, and for reproductive ends. The situation, as we have seen is quite different from that of women in many of the world’s other cultures, including many of those from which immigrants to Europe and North America come.’431
Inevitably, Okin’s argument has attracted much criticism from feminists and non-feminists alike. In a truly classical liberal vein, she understands ‘culture’ as the opposite of liberalism.
429
Ibid at 9.
430
Moreover, cultures have as one of their principal aims the control of women by men, whether in the founding myths of Greek and Roman antiquity, or of Judaism, or of Christianity, and Islam: the history books are replete with stories of control and subordination of women, particularly strongly in traditions within formerly conquered or colonised nation-states found right across Africa, the Middle East, Latin America and Asia thus 'distinctly patriarchal’ societies. Ibid at 12-14.
431
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This is a rather unhelpful, strongly essentialised approach that simultaneously casts culture as the hierarchialised opposite of modernity, the West and human rights. This understanding of culture is central to both contemporary liberalism and (neo)colonialism. Okin creates a monolithic picture of ‘culture’, which comprises all non-Western cultures, and which acknowledges no ‘local traditions of protest, no indigenous feminist movements, no sources of political and cultural contestation.’432
Furthermore, her argument reflects the broader liberal presumption that the opposition between culture (as saturating and defining non-Western people) and moral autonomy (as signifying the rational subject of liberalism) is total, and requires that the former must be subdued by the latter. Wendy Brown has argued that the fiction of autonomy’s triumph in liberalism is made possible thanks to the strong Kantianism underlying liberalism’s ideology, in which liberalism figures as uniquely capable of being ‘culturally neutral and culturally tolerant.’433 She explains that, within liberalism, the possibility of an ‘optional relationship’ with culture is secured by the conceit that ‘the individual chooses what he or she thinks,’434 which posits culture as extrinsic to the subject. Thus, for liberal individuals in the West, culture is a mere ‘background’, a house one can enter and exit. In contrast, for non-liberal people, including ethnic and religious minorities within liberal societies, culture is not only fixed and static, but ‘saturating and authoritative.’435 This is exactly the dichotomised view employed by Okin, who believes that the perpetuation of discrimination against women in the rest of the world is so uniquely serious because it is formally inscribed in (non-liberal law), which ‘openly avows its religious and cultural character.’436 Thus, Okin’s writing exemplifies liberalism’s denial of its own entanglement with cultural norms, themselves deeply imbued with hidden but pervasive signs of male superiority, while advocating a specific western mode of culture.
432
H.K. Bhaba, ‘Liberalism’s Sacred Cow’ in J. Cohen, M. Howard & M. Nussbaum (eds.),Is Multiculturalism Bad for Women?, (1999), 79 at 82.
433 W. Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire, (Princeton, NJ: Princeton
University Press, 2006), at 151.
434 Ibid at 152. 435 Ibid at 154. 436
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It is relevant to recall at this point that mainstream human rights discourses share, by and large, the classical liberal vision of culture as exemplified by Okin. In international human rights law, the term ‘culture’ is synonymous and/or interchangeable with ‘tradition’. Thus, UN instruments dealing with violations of human rights, such as those produced by the UN Office of the High Commissioner of Human Rights, use the formula of ‘harmful traditional practices’, notably when confronting such issues as female genital cutting and early marriage.437 As Sally Engle Merry has noted:
‘Labelling a culture as tradition evokes an evolutionary vision of change from a primitive form to something like civilization. In the evolutionary model, all cultures are positioned on a continuum from the private to the modern. Variations are exclusively temporal. So-called traditional societies are at an earlier evolutionary stage than modern ones, which are more evolved and more civilized. Culture in this sense is not used to describe the affluent countries of the global North but the poor countries of the global South, particularly in isolated and rural areas. When it does appear in discussions of European or North American countries, it refers to the ways of life of immigrant communities and/or racial minorities.’438
Indeed, Brown has argued that the discourse of civilisation, although distinct from and much older than liberalism, is an additional dimension in the project of modernity and as such complements liberalism.439 A civilisational discourse is, thus, used across the political spectrum in order to define what is tolerable. In this way, the anxieties of neo-conservatives and right-wing Christians about the decline of western civilisation coincide with those of liberal, human rights activists and feminists (such as Okin), who advocate zero tolerance towards cultural practices such as female genital cutting or veiling. The question of ‘What should be the attitude of the tolerant toward the intolerant?’ is, thus, deeply ingrained in civilisational discourse.440 In this model, tolerance operates as a principle of demarcation,
437
See: UN Office of the High Commissioner of Human Rights, Fact Sheet No.23 ‘Harmful Traditional Practices Affecting the Health of Women and Children’, available at: http://www.unhchr.ch/html/menu6/2/fs.23.htm. (last accessed in April 2011).
438 S. Engle Merry, Human Rights & Gender Violence, (Chicago: University of Chicago Press, 2006), at 12. 439 Brown (2006) at 7.
440
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defining intolerable ‘cultural’ practices with the limits of tolerance as the limit of civilisation itself.
There are, however, liberal feminists, who are not as extreme as Okin in their opposition to culture. Martha Nussbaum’s ‘friendly amendment to liberalism’441 is a prominent example of a more sensitive, ‘new-wave’ liberal feminism. Nussbaum’s main concern is that feminists have been increasingly distancing themselves from liberalism and she is therefore keen to highlight its advantages for feminism. She proposes a ‘human capabilities approach’-grounded in ‘international, humanist ‘liberal’ feminism and ‘concerned with sympathetic understanding’.442 The ‘combined capabilities’ concept is meant to stress a combination of ‘internal’ capabilities of a human person set against external, material conditions.443 She is particularly interested in the application of ‘feminist methods’ to the ‘real lives of women’ worldwide in order to prove that human rights are not an exclusively Western discourse. International human rights discourse is, thus, central to her project, although she does not dismiss cultural diversity and the arguments of anti-universalist feminists out of hand. One of the problems with this approach, however, is that it is unlikely to challenge material inequality, as Nussbaum concentrates on autonomy, rather than equality in her analysis of female poverty.444 While providing a benchmark for poverty, the ‘human capabilities’ laundry list is thus nonetheless an inadequate measure of equality.445
Nussbaum has also been criticised by post-colonial feminist scholars such as Ratna Kapur for adopting a ‘simple theory’ that converges with the ‘victimisation rhetoric’ described in Chapter II, as a problematic trope, which has origins in colonial feminism and has flourished in international human rights discourses over the past two decades.446 Like Okin, Nussbaum’s work appears informed by a presumption that culture is to blame for violations of non-
441
M. C. Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 1999) and Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000).
442 Nussbaum (1999) at 6. 443
Nussbaum (1999) at 44-45.
444
For a critique, see: A. Phillips, ‘Feminism and Liberalism Revisited: Has Martha Nussbaum got it Right?, 8(2) Constellations (2001), 248 at 258., as cited in Mullaly (2006), at 62.
445 Mullaly (2006), at 62. 446
R. Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native Subject” in International/Post- Colonial Feminist Legal Politics', 15 Harvard Human Rights Journal, (2002) 1. This has been reprinted as a revised version in R. Kapur, Erotic Justice: Law and the New Politics of Postcolonialism, (London: Glasshouse Press, 2005), at 91.
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western women’s human rights. Thus, these women need protection from their dangerous, non-liberal men, and it is the western, liberal feminist who is to protect them. Simple theory then has been criticised as endorsing ‘[a] child’s view of history and politics: idealist, personal and replete with heroes and villains, good values and bad.’447
A related trope in feminism, which is of great significance to this thesis, and can be most relevantly located under the heading of liberal/universal feminism, is the distinct prioritisation on the part of many such feminists of practically-orientated activism and advocacy. Many scholars, who advocate a ‘practical feminism’-that is a feminism that is orientated towards finding real-life solutions to ‘real problems’ and improving the lives of ‘real women’-reject theory and theorising practices as at best irrelevant to their work and at worst dangerous and corrupting. Indeed, as Brown has argued, this crisis of feminist theory appears to reflect the broader contemporaneous ‘pressure on theory…-to apply, to be true, or to solve immediately real-world problems.’448
This is demonstrated in striking fashion in recent feminist mobilisations around international criminal tribunals, which have entailed significant recourse to practically-orientated feminist work. In these instantiations, there has been a notable preponderance of ‘simple theory preferences’, which generally signifies some straightforward version of liberal or radical feminist theory, to the almost certain exclusion of postmodern and poststructuralist varieties. In the context of international(ist) liberal feminism especially, much of late twentieth century feminist scholarship has been strikingly anti-theoretical.449 The next part of the chapter dedicates itself to exploring the anti-theoretical turn in feminism in greater detail.
To sum up, the discussion in this part of the chapter argued that calls to return to a universalist and/or liberal agenda usually rest on a commitment to some refashioned version of liberal concepts such as autonomy or freedom.450 The main critique of such perspectives is that they often rely on assumptions of a clear, unified concept of the subject, which is deemed
447
Brown (2006), at 18.
448 W. Brown, ‘At the Edge’, 30 Political Theory (2002), 556 at 573. 449
For a discussion, see: T. Murphy, ‘Feminism Here, Feminism There: Law, Theory and Choice’ in D. Buss & A. Manji (eds.), International Law: Modern Feminist Approaches, (Oxford and Portland, ON: Hart, 2005), 67 at 84.
450 See Chapter VII for an exploration of the autonomy rhetoric in the contemporary wartime sexual violence
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necessary for a meaningful pursuit of a feminist project. As explained in the introductory chapter, the thesis is a critical feminist analysis of the way in which gender, ethnicity and culture are constructed in contemporary ICTY wartime sexual violence decisions and the surrounding debate. In the next segment, two other broad varieties of feminist engagement with human rights, gender, culture and ethnicity are considered: namely radical, or structuralist feminists.
Part III
Radical Feminists and Governmentality Feminists
This school of thought is of particular interest to the thesis for its domination of feminist discourse over the past two decades. As a theory, radical legal feminism first assumed prominence during the 1980s and it is rooted in the idea that society entrenches female subordination, which is contingent upon male domination.451 In broad strokes, radical feminist theorists consider the law to be a reflection of historical evolution, which excluded women from the public world. Laws, thus, inscribe gender oppression, as they are directly reflective of society’s patriarchal values and relationships of power. Since men have power over women, the laws reflect and reinforce these power relations particularly in the area of sexuality and sexual relations, as laws are constructed in such a way as to project the male view of the world. The law is thus never impartial, objective and rational.452
Catherine Mac Kinnon, more than any other radical feminist scholar, has shaped this field by producing a plethora of foundational texts that have notably contributed to the visibility of
451
This is expounded upon in one of MacKinnon’s seminal texts: Feminism Unmodified: Discourses on Life and Law, (Cambridge, MA: Harvard University Press, 1987).
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Moreover cultural difference feminism as embodied in Gilligan’s ‘Ethic of Care’ theory has emphasised that the law and its imagery entrench concepts such as rationality, objectivity and abstractness, or characteristics traditionally associated with men. These stand in contrast to traits such as emotion, subjectivity, and contextualised thinking, all typically associated with women. Gilligan argued that legal reform was of limited utility because the language of ‘equal rights’ and ‘equal opportunities’ and the strategies with which they are pursued, such as litigation and advocacy, all tacitly reinforce the basic organisation of society, which is male. In C. Gilligan, In a Different Voice: Psychological Theory and Women's Development, (Cambridge, Massachusetts: Harvard University Press, 1982). Ibid at 12-15. Gilligan's Ethics of Care theory has been subjected to criticism from various feminist camps largely for its tendency to essentialise women’s ‘natural’ characteristics, such as caring and nurturing, thus representing a throwback to the grand narratives characterising radical feminism.See: N. Fraser & J. Nicholson, ‘Social Criticism without Philosophy', in J. Nicholson (ed.), Feminism/Postmodernism, (New York and London: Routledge, 1990) at 33.
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this rich strand of feminist legal scholarship.453 By foregrounding the ‘[c]oncrete conditions of all women as a sex,’454 she has, for example, in typical radical fashion defined sexuality as:
‘[t]hat social process, which creates, organizes, expresses, and directs desire, creating the social beings we know as women and men, as their relations create society.’455
On this strongly structuralist view, the social relations between the sexes are organised so that