Part I Introduction
The thesis is a critical feminist analysis of ICTY wartime sexual violence jurisprudence, as it is constructed in current feminist scholarship and the surrounding debate. As stated previously, sexual violence against women has been a greatly topical issue within recent years in both scholarship and the popular imagination. There have been important legal developments within international law, which have provoked much academic, and in particular, legal commentary. On one level, the thesis contributes to this commentary. At the same time, it aims to contribute to broader feminist theory, which engages with questions of human rights, identity, gender, armed conflict, culture and violence.
This chapter provides the context for the analysis of key ICTY wartime sexual violence jurisprudence, as it contains a historical overview of distinctive events of gendered violence in armed conflict and illuminates upon some of the reasons for its traditional marginalisation from international law. Moreover, it provides a sense of the gendered dimensions of contemporary international wartime sexual violence jurisprudence by focusing on the key
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legal developments that have emerged from the international ad-hoc tribunals for Yugoslavia and Rwanda. Given the limitations inherent in a project such as a doctoral thesis, the chapter does not conduct a comprehensive study of the historical roots of wartime sexual violence, but singles out for analysis a handful of ICTY and ICTR decisions adjudicated to date, as these have arguably dramatically altered the legal standing of wartime sexual violence in international law.
The chapter is primarily intended to give a general sense of how sexual violence crimes have evolved in modern-day international criminal law, thus, preparing the ground for analysis carried out in subsequent chapters. The chapter limits itself to a summary of the main legal developments emerging from the two international ad-hoc tribunals, as they share similar legal characteristics, normative objectives, and are both considered international community projects. They stand in contrast to the more localised hybrid tribunals such as the Special Court for Sierra Leone215, the Extraordinary Chambers in the Courts of Cambodia216, the Special Tribunal for Lebanon217 and the East Timor Tribunal218that were set up with the
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The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It was established for the purpose of trying those, who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. For an overview see: The Special Court for Sierra Leone, established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council Resolution 1315 (2000) of 14, August 2000. Agreement available at: http://www.sc- sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176 (last accessed in June, 2011).
216 This Special Court was created by the Cambodian National Assembly in 2001 to try the serious crimes
committed by the Khmer Rouge regime during 1975-1979. The court is called the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the period of the Democratic Kampuchea (Extraordinary Chambers of ECCC). The U.N. ultimately reached an agreement with the Cambodian government in June 2003, which outlines how the international community will assists and participate in the Extraordinary Chambers. Overview available at: http://www.eccc.gov.kh/en/about-eccc/introduction (last accessed in June, 2011); Information about the collaboration between the United Nations and the Cambodian government is also available on the specifically dedicated U.N. website, United Nations Assistance to the Khmer Rouge Trials (UNAKRT). Available at: http://unakrt-online.org/04_documents.htm (last accessed in August, 2011).
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The Special Tribunal for Lebanon was set up at the request of the Lebanese government to establish an international tribunal to try those individuals believed responsible for the attack in Beirut of 14 February, 2005 on former Lebanese Prime Minister Rafiq Hariri and resulting in the death or injury to other persons. The Special Tribunal was thus established via Security Council Resolution 1664 in 2006 in agreement with the Lebanese Republic. For an overview of the activities of the court, see: http://www.stl-tsl.org/section/AbouttheSTL. (last accessed in June, 2011).
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Also known as the Special Panels for Serious Crimes (SPSC) established by the United Nations acting as the transitional authority between the end of the Indonesian occupation in 1999 and the independence of East Timor in 2002, the Tribunal on May 20, 2005 completed more than four years of trials that had arisen out of the context of the 1999 violence following the referendum in which the East Timorese voted overwhelmingly in favour of independence from Indonesia. On May 20, 2005, the Tribunal completed more than four years of trials that had arisen out of the context of the 1999 violence following the referendum in which the East Timorese voted overwhelmingly in favour of for independence from Indonesia. Although the work of the Tribunal was cut short
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consent and complicity of the respective state affected. Moreover, the thesis does not engage in any substantive way with the International Criminal Court, as it is a creation of treaty law with substantially different scopes and aims than the ad-hoc tribunals. Most notably, the evolution of gender-based crimes is manifested through a discussion of the key legal developments shaping contemporary international criminal law in the area of wartime sexual violence. A more critical analysis of the relevant case law is examined in greater depth in Chapters VI and VII. As will become apparent throughout the thesis, the feminist debate accompanying key wartime sexual violence advancements in international criminal law constitutes an integral part of the analysis.
As outlined previously, wartime sexual violence is obviously a feminist issue, as it is a crime that disproportionately affects women. As a topic, it has received prominence primarily as a result of the prosecution of gender-related crimes in international criminal tribunals. Its relevance as a subject of interest has been sustained by a plethora of legal successes delivered by international criminal tribunals, which have (on numerous occasions) successfully reinterpreted, or expanded international humanitarian law to encapsulate the gender-specific harms perpetrated against women. In this way, the tribunals are said to have advanced the twin feminist aims of gender equality and justice into the normative framework of international human rights law, whose principal aim is the promotion of equality and anti- discrimination in all areas of public life, regardless of sex.219 The chapter is intended to provide a snapshot of these developments, while also beginning to tighten its analytical noose in order to query what the prosecution of wartime sexual violence in international criminal law represents for women in the current political and legal moment. It aims to show how wartime sexual violence has been transformed from a perennially marginalised footnote of history to a
by a decision of the United Nations to end the UNMISET missions of which it was part, it completed 55 trials, most involving relatively low-level defendants. Information available at: Berkeley War Crimes Studies Centre: http://socrates.berkeley.edu/~warcrime/ET.htm#SeriousCrimesUnit (last accessed in June, 2011). For further information see: United Nations Transitional Administration in East Timor (UNTAET) UNTAET/REG/2001/25, Regulation on the Amendment of UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor and UNTAET Regulation No. 2000/30 on the Transitional Rules of Criminal Procedure 14 September, 2001.
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The Preamble of the CEDAW, for instance states that: ‘extensive discrimination against women’ continues to exist. The persistence of discrimination continues, despite the states’ obligations under the human rights covenants to ensure the equal rights of men and women, and despite the adoption of other international covenants, resolutions, declarations and recommendations promoting equality between women and men. See Convention on the Elimination of all Forms of Violence against Women (CEDAW), 1249 U.N.T.S. 13, 19 ILM 33 (1980), adopted by GA. Res. 180 (XXXIV) (18 Dec. 1979), entered into force: 3. Sept. 1981 at Preamble.
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widely recognised and theorised phenomenon of armed conflict. Part II provides a brief historical overview of the Vietnamese and Bangladesh conflicts (both predating Yugoslavia) to suggest that historical heteronormative notions of rape as a natural, foreseeable, and unavoidable consequence of war-a measurement of success, a reward to the victor, or even a ‘message between men’ provide only a piece of the puzzle in the history of wartime sexual violence against women.220 A constant theme of this thesis is to stress that socio-economic deprivation and institutional structures that naturalise women’s subordinate status in society are as central in accounting for the widespread sexual abuse of women in armed conflict, yet are often occluded from the legal narrative, thus, invisibilising the underlying conditions of inequality that characterise many women’s lives. Just as war has come to be accepted as an inevitable part of history, so too rape has come to be regarded as an unavoidable side product of war, a form of collateral damage, if not a ‘just reward’ for soldiers engaged in the battlefield. As radical feminist Susan Brownmiller has argued,
‘War provides men with the perfect psychologic backdrop to give vent to their contempt for women. The very maleness of the military-the brute power of weaponry exclusive to their hands, the spiritual bonding of men at arms, the manly discipline of orders given and orders obeyed, the simple logic of the hierarchical command-confirms for men what they long suspect, that women are peripheral, irrelevant to the world that counts, passive spectators to the action in the center ring.’221
In a deliberate move, this segment does not focus upon sexual violence incidences stemming from World War II and it does not analyse the war crimes prosecutions at Nuremberg and
220 For a detailed overview of the historical treatment of gender-based war crimes see: J. Campanaro, ‘Women,
War and International Law: The Historical Treatment of Gender-Based War Crimes’, 89 Georgetown Law Journal (2000-2001), at 2557-2592. The historical treatment of rape has been theorised widely, and among some of the most forensic and detailed analyses are Catherine Niarcho’s contribution to the debate demonstrating that historically, rape was seen as a tactical function of war, an expression of the totality of the victory, as rape for the men of the conquered nation represented the ‘ultimate humiliation’ rendering starkly evident ‘masculine impotence’ ascribed to the conquered as a result of his failure to protect his own women. In C. Niarchos, ‘Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’, 17 Human Rights Quarterly (1995), 660; a non-feminist analysis of the historical treatment of wartime sexual violence is provided by Simon Chesterman, who argues that notions of ‘Booty and Beauty’ were long associated with success in battle. They represented an opportunity for the victorious army to march through the defeated enemy’s territory, thus, clearly delineating the intimate relationship between rape and the ‘macho military project of conquest.’ In S. Chesterman., ‘Never Again…and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond’, 22 Yale Journal of International Law (1997), 325.
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Tokyo, as these have been theorised extensively elsewhere.222 The Nuremberg International
Military Tribunal and the International Military Tribunal for the Far East (IMTFE) are central in
providing the current context underlying sexual violence prosecutions, as they ushered in the notion of individual responsibility and superior command responsibility for war crimes223, while at the same time highlighting the hidden, yet pervasive224 incidences of sexual violence
222 For a discussion of the Laws and Customs of War on Sexual Violence after World War II, and the work of the
International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Tribunal, and the International Military Tribunal (IMT) held in Nuremberg see K. D. Askin, & D. Koenig (eds.), Women and International Human Rights (Volume 1), (Ardsley, New York: Transnational Publishers, 1999) 51-54. As Askin describes, gender-based violence during World War II was commonplace, and women were murdered, tortured, enslaved and otherwise abused, as were men. Yet unlike the treatment of most men, but consistent with the treatment of women in previous and subsequent wars, hundreds of thousands of women and girls were also raped, forced into sexual slavery, forcibly sterilised, and subjected to other reproductive crimes, as well as subjected to sexual mutilation, sexual humiliation and forced to endure countless other forms of sexual violence and persecution. Nonetheless, when it came to hold the perpetrators and other responsible parties accountable for the gender-based crimes charges were conspicuously absent. In the post-war trials held at Nuremberg and Tokyo, although crimes against women were extensively reported and documented, these crimes were omitted from the jurisdiction of the International Military Tribunal (IMT) Charter, they were not charged in the indictment and they were not prosecuted. Thus, captured German documents presented at the Nuremberg War Crimes Tribunal in 1946 corroborate the routine use of rape as a weapon of terror, and detail, for instance, the sexual humiliation that German SS unleashed upon the Jewish women in the Warsaw ghetto, despite the stern prohibition against ;’race’ defilement-the injunction against contaminating Aryan ‘blood’ contained in the Nuremberg race laws of 1935 that extended under its own twisted logic to forcible intercourse, as well as to marriage or extramarital liaison. For a more detailed overview of sexual violence perpetrated against the female Jewish population at the hand of the Nazis during World War II see: Brownmiller, ‘War’ (1975), 31 at 49-56. For a historical account of the rape of German women at the hands of the Soviet Red Army during the fall of Berlin in 1945, see Janet Halley’s exposition of A Woman in Berlin: Eight weeks in the Conquered City: A Diary, which she eloquently summarises and deconstructs the ‘tight association of truth with moral certitude and of literary artifice with ideological spin’. In J. Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’, 9 Melbourne Journal of International Law (2008), 78 at 91. For a critique of the failure to prosecute wartime sexual violence at Nuremberg and Tokyo, see also C. Mac Kinnon, ‘Turning Rape into Pornography’ in Reflections on the Universal Declaration of Human Rights, (The Hague: Martinus Nijhoff Publishers, 1999), 160 at 167.
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For a discussion of the development of the superior command responsibility doctrine in the Nuremberg and Tokyo contexts, see: A. Zahar & G. Sluiter, International Criminal Law, (Oxford: Oxford University Press, 2008).
224 The ‘Rape of Nanking’ after the nature of the atrocities was finally revealed to the world ten years after the
event, soon passed into common usage as the world-wide metaphor for that city’s invasion. The events leading to the ‘rape of Nanking’ stemmed from the Japanese Army’s capture of China’s then capital city in December, 1937. Given that General Chiang Kai-shek had pulled out his National forces prior to the invasion, moving the capital westward to Hankow, any Chinese civilian with any means had fled leaving a defenceless city to the poorest classes and a handful of foreign missionaries, including some American who chose to stay. What happened next has been described by Brownmiller as:
‘[a]n orgy of wholesale assault against the remaining civilian population,’
In a subsequent report compiled by the Nanking International Relief Committee, the missionary group that remained in the city, in June 1938, it found that among the injured females, 56 percent were between the ages of 15 and 29, although the terms and methods of inquiry excluded rape per se. Subsequently, during the trial of General Iwane Matsui, the man in charge of the Nanking invasion, and one of the central defendants in the docket at Tokyo, it was established that ‘approximately 200,000 cases of rape occurred within the city during the first months of occupation.’ It was the considered opinion of the Tribunal at Tokyo that the invasion and wholesale destruction and looting of the city had been ‘either secretly ordered of wilfully committed’. Although command responsibility for sexual violence was not tried as an independent crime, but as a crime tried in
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against women, such as the Rape of Nanking. Part III examines the genealogy of gender- specific provisions of international humanitarian law using a feminist legal perspective. It surveys the principal international humanitarian law treaties that regulate contemporary armed conflict and recognise it as comprising international customary law to show that these have not necessarily had the desired effect of providing for enhanced safeguards for female civilians in armed conflict. Moreover, it argues that the laws regulating armed conflict continue to perpetuate portrayals of women along fixed binaries and dichotomies, which always situate them in relation to men and in this way emphasise their powerlessness. This part provides the critical legal context for the ensuing analysis, as it cautions against investing too much capital into a legal system that from its inception has reproduced hierarchical relations between men and women.225 Despite its inherent shortcomings, however, international humanitarian law has been progressive in its ability to reimagine wartime sexual violence as one of the gravest offences against mankind, as the current chapter goes on to show.