THE GR IP O F S E X UAL VI O LE N CE IN CO NFLI C T
Stanford Studies in Human Rights
The Grip of Sexual
Violence in Conflict
Feminist Interventions in International Law
Karen Engle
S tanford Univer sit y Press
Stanford, California
Sta nf ord Un iv e r sit y Pre ss
Stanford, California
©2020 by the Board of Trustees of the Leland Stanford Junior University.
All rights reserved.
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Cover design: Rob Ehle
Cover art: Vanja Hamzić, The Aftermath, acrylic on canvas, 2010
(private collection).
Typeset by Kevin Barrett Kane in 10/14 Minion Pro
To Sissy Farenthold
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Table of Contents
Foreword
xi
Acknowledgments
xiii
Introduction 1
I. The Common Sense: An Illustration 3
II. Unpacking the Common-Sense Narrative
a. The “Worst Crimes”
7
7
b. Perpetrated by Male Monsters against
“Innocent” (Female) Victims 10
c. Criminal Law Will End Sexual Violence in Conflict 12
d. Sexual Violence Prevents Peace 15
III. Countering the Common Sense: A Preview
15
1. Sexual Violence in Conflict and Women’s Human Rights:
A Genealogy
I. Mainstream Responses to Wartime Rape
in the Former Yugoslavia 20
II. Early Feminist Engagement with Human Rights 21
a. Liberal Inclusion Approaches
23
b. Structural-Bias Critiques 23
c. Third World Feminist Critiques 26
18
viii
Contents
III. “Women’s Rights Are Human Rights” at Vienna
28
a. Culturally Sensitive Universalism 32
b. Violence against Women 34
c. Sexual Violence in Conflict 37
IV. The Turn to Criminal Law 44
V. Unintended Consequences: A Prelude 48
2. Calling in the Troops
50
I. Military Humanitarian Intervention
after the End of the Cold War 51
II. Feminist Debates over the Meaning of Rape
in the Yugoslavian Conflict 55
a. Genocidal Rape versus Rape on All Sides
56
b. Genocidal Rape and Ethnic Essentialism 62
c. Shared Assumption: The Force of Shame 67
III. The Military Stakes of Finding Rape: The Case of Libya
70
IV. The Continuation of Crisis Governance 77
3. Calling in the Judges: The Former Yugoslavia
80
I. Feminist Engagement with the ICTY Statute and Rules 83
II. The Mediation of Feminist Disagreements 86
III. Solidifying the Common Sense: Jurisprudence
on Rape and Sexual Violence 90
a. The Worst Harm 90
b. Sexual Agency and Ethnic Difference 94
IV. Adding to the Common Sense: Male Victims 98
4. Calling in the Judges: Rwanda
101
I. The Doctrinal Function of Shame 104
a. The ICTR Charges against Akayesu
b. The ICTR’s Reasoning in Akayesu
105
107
Contents
c. Feminist Reasoning and Akayesu
ix
110
d. The Legacy of Akayesu in Subsequent Jurisprudence 112
II. Shame as Prosecutorial Alibi 116
III. The Redistribution of Shame
120
5. Calling in the Security Council for Women,
Peace, and Security
122
I. Overview: Human Security, the WPS Agenda, and Beyond
125
II. Naming the Victims and Types of Violence 132
a. Victims: Gender Specificity versus Gender Neutrality
b. From “Gender-Based Violence” to
“Conflict-Related Sexual Violence”
132
134
III. The Shame of Sexual Violence in Conflict 136
IV. The Carceral Turn: Calling in the Judges 140
V. Counterterrorism: Calling in the Troops 147
Epilogue: Beyond Social Death
I. Women at War
151
155
II. Women and Sex at War 160
III. The Force of Shame Revisited
162
IV. The Context of War Foregrounded
168
V. The Redistribution of Shame Reconsidered
VI. Conclusion 171
Notes 173
Bibliography
Index 255
233
170
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Foreword
Karen Engle’s The Grip of Sexual Violence in Conflict works to unsettle and reorient human rights studies at three different levels. On the first, the book confronts
head-on what Engle describes as the “common-sense” narrative about the causes,
consequences, and ethical implications of sexual violence in conflict. What Engle
demonstrates—from historical, theoretical, and empirical vantage points—are
the ways in which the problem of wartime sexual violence underwent profound
discursive transformations as a key pillar in the development of women’s human
rights during the critical early post–Cold War period. In the effort to ensure
that violence against women was given heightened prominence by the international human rights community, sexual violence in conflict came to symbolize the unique vulnerabilities that women around the world experienced. In
Engle’s clear-eyed analysis, the symbolization of wartime sexual violence against
women eventually came to dominate international activism, thereby obscuring
or diminishing—however unintentionally—other ways in which women experienced structural, ethnic, and class-based violence. This symbolization of sexual
violence in conflict became doubly problematic when it was made the basis for
criminal prosecutions within the embryonic international tribunal system. As
Engle shows, the rise of international criminal tribunals as the mechanism for
tackling the problem of sexual violence in conflict must be understood as an
expression of a broader trend toward carceral governance, which fundamentally depends on what she describes as the “strong arm of the state.” In Engle’s
analysis, the over-reliance on criminal tribunals puts the complicated and highly
diverse phenomena underlying sexual violence in the hands of institutions that
are distinctly unable to carry such a “heavy burden.”
xi
xii Foreword
At another level, The Grip of Sexual Violence in Conflict is a penetrating
study of how cultural and legal categories that form the basis for humanitarian intervention and human rights activism are constructed and mobilized in
ways that can run counter to underlying intentions. In this, Engle is inspired by
the example of the historian Joan Scott, who was careful to emphasize the fact
that her account of the politics of the veil in France was not principally about
French Muslims themselves, but about the ways in which they were perceived
through dominant French historical and cultural discourses. So too with Engle’s
unraveling of sexual violence in conflict: instead of focusing on victims or the
nature of sexual violence, her account foregrounds what she calls the “particular
imaginaries” that have shaped global understandings of both sexual violence in
conflict and the legal and political responses to such violence. And just as Scott’s
study revealed the ways in which dominant narratives of citizenship in France
worked to constrain and even pervert the background values from which these
narratives emerged, so too with the particular imaginaries about sexual violence
in conflict that form the core of Engle’s book. As Engle demonstrates, dominant
approaches to sexual violence in conflict—while animated by a laudatory spirit
of global solidarity and a desire to improve women’s lives—likewise are based
on distorted understandings of gender, sex, sexuality, and ethnicity.
And finally, The Grip of Sexual Violence in Conflict takes its place as a powerful
intervention within contemporary debates over both the limits and the future
of human rights. If scholars like Samuel Moyn have focused on the ways in
which the existing human rights system provides insufficient responses to major
global problems like economic inequality, Engle’s study shines a critical light
on two other dilemmas: first, the ways in which rights frameworks are always
and necessarily reductive in relation to the complex cultural and psychological phenomena that get classified as “violations”; and second, the fact that the
pervasive turn to international criminal law as the primary response to human
rights violations constitutes what Engle describes as an “individualized approach
to human rights,” something that strips the social context from conflicts and in
the process elides the importance of a wider range of relevant actors, including
“bystanders and beneficiaries.”
Mark Go odale
Series Editor
Stanford Studies in Human Rights
Acknowledgments
This book is the culmination of countless conversations and engagements over
the past decade with an enormous list of remarkable people to whom I am extremely grateful and to whose contributions I cannot possibly do justice here.
I am especially thankful to Janet Halley and Dianne Otto for invaluable contributions at multiple levels. They each provided important scholarly spaces for
me to develop my thinking and also offered detailed and insightful comments
on multiple chapters that always pushed me to a higher level. Others who have
influenced the book and its direction since nearly the beginning include: Helena
Alviar García, Doris Buss, Hilary Charlesworth, Joshua Clark, Dennis Davis,
Vanja Hamzić (whose art graces the cover), Gina Heathcote, Neville Hoad, Ratna
Kapur, David Kennedy, Duncan Kennedy, Ranjana Khanna, Helen Kinsella,
Karen Knop, Frédéric Mégret, Zinaida Miller, Vasuki Nesiah, Fionnuala Ní
Aoláin, and Patricia Viseur Sellers. Thank you all!
The project benefited from a variety of residencies, fellowships, workshops,
and conferences. I am particularly grateful to the Rockefeller Foundation for the
use of the Bellagio Center, which provided the perfect space and surroundings to
begin to structure the book, and to the Institute for Advanced Study in Princeton,
the ideal community and atmosphere for completing a draft of the manuscript.
I received terrific feedback from presentations of various parts of the work at
both of those institutions as well as at Berkeley Law School, Cornell Law School,
Duke University, Fudan University Law School, Harvard Law School, Melbourne
Law School, Rutgers University, SOAS University of London School of Law,
Temple Law School, Ulster University School of Law, the University of Cambridge
Lauterpacht Center for International Law, the University of Los Andes Faculty of
Law, the University of Texas, the University of Wisconsin-Madison, the United
States Institute of Peace, Yale Law School, and Yale University.
xiii
xiv Acknowledgments
Along the way, I interacted with many people who helped me improve the
work. I am especially indebted to engagements with Aziza Ahmed, William
Alford, Lori Allen, Elizabeth Anker, Roland Betancourt, Gabriella Blum, Amy
Borovoy, Linda Bosniak, Cynthia Bowman, Lina Céspedes Baez, Nick Cheesman, Madelaine Chiam, Jeffrey Dunoff, Maria Elander, Didier Fassin, Laurel
Fletcher, Peter Goddard, Inderpal Grewal, Bernard Harcourt, Isabel Cristina
Jaramillo Sierra, Nam Li, Alice Miller, Samuel Moyn, Sarah Nouwen, Ayşe Parla,
Mark Pollack, Jaya Ramji-Nogales, Rachel Rebouché, Peter Redfield, Joan Scott,
Columba Stewart, Miriam Ticktin, Elizabeth Wood, and Emily Zackin.
I have had the privilege to engage with a number of University of Texas students on this project over the years. Those who served as research assistants for
extended periods and had significant impact on both substance and form are
Maddy Dwertman, Simone Gubler, Helen Kerwin, and Kyle Shen. I am grateful
to them, as well as to Anne Quaranto, who, over the final year and a half of the
project, provided outstanding research and editing assistance, fresh insights, and
meticulous organization that was indispensable to propelling the project over
the finish line. Thanks also to Karen Lee, Liz Rowland, and Emily Spangenberg.
Supportive friends, family, and comrades abound. While writing the book,
I have been codirector of the Bernard and Audre Rapoport Center for Human
Rights and Justice at the University of Texas. My colleagues there have been
unbelievably encouraging and accommodating. Thanks especially to Daniel
Brinks, William Chandler, Julia Dehm, Sarah Eliason, and Kate Taylor for their
involvement with the book at multiple stages and, just as importantly, for ensuring that the center kept going when I was away. Ana Almaguel has been my
constant companion in this endeavor as in life. I could not have written the book
without her support, intellectual engagement, and willingness to keep our world
running during my physical absences.
I am grateful to Michelle Lipinski at Stanford University Press and Mark
Goodale, series editor of the Stanford Studies in Human Rights, for their enthusiasm for the project. Michelle did a fabulous job of shepherding the manuscript
through its various stages, while providing useful editing advice and staying in
touch along the way.
I am fortunate for the influence and friendship of Sissy Farenthold, to whom
I dedicate this book. I learn something new in every conversation with her, and
will always be inspired by her anti-imperial and anti-militarist feminist politics,
grounded in grassroots collaborations across class, race, and nation.
Acknowledgments xv
Two dear friends and colleagues who had tremendous influence on my intellectual path left this world entirely too early. This book is in memory of them—
Srinivas Aravamudan and Barbara Harlow. I hope there is some evidence of
their legacy in these pages.
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THE GR IP O F S E X UAL VI O LE N CE IN CO NFLI C T
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INTR O D U C TI O N
T H I S B O O K I S A B O U T T H E G R I P O F S E X U A L V I O L E N C E on legal and political
discourse about gender and conflict. It explains how and why sexual violence in
conflict emerged and persists as a dominant concern for many feminists engaged
with international law and many international lawyers engaged with feminism.
It therefore concentrates on those who advocate for, design, and implement legal
and political responses to sexual violence in conflict, and on their understandings
of why, where, how, to whom, and by whom such violence occurs. It considers
the effects of their work on both feminism and law.
International institutional attention to what is now referred to as “sexual
violence in conflict” or “conflict-related sexual violence” dates to the early 1990s,
when the world began to learn of rapes taking place during the conflict in the
former Yugoslavia. Feminists inside and outside the region were among the
first to bring attention to the rapes, but they were assisted by nongovernmental
and intergovernmental inquiries, as well as by journalists and policy-makers.
A confluence of factors—from concerted organizing of women’s human rights
advocates around violence against women (VAW) to Security Council–sanctioned collective action partly made possible by the end of the Cold War—meant
that the treatment of rape would play an important role in the post–Cold War
development of feminist advocacy as well as of international law and politics.
Indeed, I contend, it has played too large a role in each.
As feminists from around the world, especially through the women’s human
rights movement, began to pay an enormous amount of attention to wartime
rape and what they would eventually construct as a broader category of sexual
violence in conflict, they often did so at the cost of attention to other issues with
which they had previously been concerned. In particular, the convergence of
1
2
Introduction
their efforts on sexual violence in conflict displaced much of the anti-militarism
of the women’s peace movement, the sex-positive positions of many feminists
involved in debates about sex work and pornography, and Third World feminist
critiques of economic maldistribution, imperialism, and cultural essentialism.
This book offers a detailed examination of how these feminist commitments
were not merely deprioritized, but often undermined, by efforts to address the
issue of sexual violence in conflict.
Sexual violence in conflict emerged as an important issue in a post–Cold War
moment that was critical for the future of both international human rights advocates and internationally engaged feminists. Together, the two groups reached a
general and enthusiastic consensus around the need to combat sexual violence
in conflict. But they did little to indicate that the topic would eventually occupy
as much feminist energy as it did, or that its treatment would result in the ascendance of one feminist approach at the expense of others.
My concern is not only that anti-militarist, sex-positive, and Third World
feminist critiques took a backseat as eyes turned toward sexual violence in conflict. In ways both overt and stealthy, prevalent understandings of the nature of
sexual violence, and the proper responses to it, came to be shaped by a particular
form of what I term “structural-bias feminism.” This approach largely emerged
from the work of feminists in the global North, and characteristically held that
male sexual domination and female sexual subordination constitute the greatest structural impediment to women’s emancipation. I contend that the success
of this perspective has had negative effects on international law and politics as
well as on feminism. Its influence helped to consolidate the components of an
international, mostly institutional, “common sense” about sexual violence that
relies upon and reinforces negative images of sex and sexuality, and problematic
understandings of gender, ethnicity, and war and peace.
That common sense includes the following propositions: rape and sexual
violence are the worst crimes committed during conflict; much of their harm
is due to the shame they inflict on individuals and communities; they are perpetrated by individual male monsters; they are committed against innocent
women, girls, men, and boys, though they are primarily aimed at women and
girls; and investigation, prosecution, and punishment of individual perpetrators
offer the best recourse, not only for ending sexual violence in conflict but also
for promoting peace.
I trace the development of this common sense to the success of a certain form
of feminism, but also to its interaction with particular approaches to international
Introduction
3
human rights, humanitarian, and criminal law. I am critical of the ways in which,
together, they have brought a hyper-attention to sexual harm, and often have
pursued extraordinary measures to respond to it. When some feminists began to
call for military and criminal intervention to respond to rape and sexual violence,
they drew upon and strengthened relatively new approaches to human rights and
humanitarian law that rely upon force and courts for enforcement.
Human rights advocates and scholars today continue to debate whether and
when to use military force in the name of human rights. Yet they widely agree that
criminal law, including international criminal law, should constitute the principal
response to certain violations of human rights and humanitarian law, including
sexual violence in conflict. This near consensus around criminal accountability
has reinforced an individualized approach to human rights and humanitarian law
violations, losing much of the context of conflicts, including the roles of bystanders
and beneficiaries.1 Relatedly, it has also provided a new avenue for the human rights
movement to strengthen its condemnation of certain conduct during wars, rather
than condemning the fact or causes of the wars themselves.2 Although this individualization and decontextualization might appear to run counter to the structural-bias
emphasis of the feminism that eventually prevailed in legal and political discourse
about sexual violence in conflict, some of the strongest supporters of criminalization
have also been loyal adherents to, and even pioneers of, that feminism.
Through an account of feminist engagement with international law over the
past twenty-five years, I aim to show that sexual violence in conflict was not as obvious a focus as it may now appear to be. Further, I argue that once sexual violence
became central, it was not inevitable that feminists would encourage or acquiesce
to mainstream representations concerning the harm of rape or the deployment of
militarism and criminal law to address it. I am thus as interested in what has been
lost or displaced by this emphasis on and approach to sexual violence in conflict
as I am in what has been gained. As I detail in Chapter One, the development of
the common sense around sexual violence in conflict had the effect of suppressing
earlier productive disagreements among feminists over a variety of issues. I revisit
those debates with the hope of contesting that common sense and its embeddedness in the institutional spaces that the remainder of the book explores.
I. The Common Sense: An Illustration
Let me begin with a vivid illustration of the common sense, by describing and
contextualizing in some detail a 2014 video released by the UK Foreign and
Commonwealth Office. The video was meant to set the stage for the Global
4
Introduction
Summit on Sexual Violence in Conflict, hosted by William Hague, who was then
UK Foreign Secretary, and Angelina Jolie, who—in addition to (or perhaps as
a part of) being a celebrity—serves as Special Envoy of the UN High Commission on Refugees. The summit was the culmination of work that Hague and Jolie
had done together, in coordination with Zainab Bangura, who was then the UN
Secretary-General’s Special Representative on Sexual Violence in Conflict. That
work began in 2012, when Hague and Jolie announced their Preventing Sexual
Violence Initiative (PSVI). It picked up steam in 2013, under the UK’s presidency of the Group of Eight (G8). In April of that year, following the G8 Foreign
Ministers’ annual meeting, Hague shared the stage with Jolie and Bangura for a
press conference. Although the ministers had considered a wide range of issues
during their meeting, Hague announced that he had succeeded in achieving his
personal priority, which was the G8 Declaration on Preventing Sexual Violence
in Conflict signed by all G8 Foreign Ministers.3
Calling sexual violence in conflict “the slave trade of our generation,” Hague
stated: “We know that this violence inflicts unimaginable suffering, destroys families and communities, and fuels conflict.” For Jolie, sexual violence victims are the
“forgotten victims of war: responsible for none of the harm, but bearing the worst
of the pain.” Hague presented the G8 Declaration as “historic” in its statement
that rape and sexual violence constitute war crimes and grave breaches of the
Geneva Conventions. Although the G8’s response to sexual violence in conflict
was multipronged, the press conference largely focused on criminal sanctions.
Hague noted in particular the responsibility of states to bring to trial or extradite
those accused of such crimes and to refuse to include amnesty for sexual violence
in peace agreements. He emphasized that the G8 agreed to develop a protocol
for criminal prosecutions and to “help build up the judicial, investigative and
legal capacity of other countries in the area.” Bangura acknowledged the health,
legal, psychological, and social needs of survivors of sexual violence, but noted
that “we now also throw a more concerted spotlight on the perpetrators.” For
them, “there can be no hiding place, no amnesty, no safe harbor.”4
Shortly after the passage of the G8 Declaration, Hague, Jolie, and Bangura
successfully advocated for a new UN Security Council resolution on sexual violence in conflict, which recognized the G8 Declaration.5 Six months later, at the
General Assembly, Hague and Bangura launched the Declaration of Commitment to End Sexual Violence in Conflict, which at least 156 UN member states
eventually signed.6 In June 2014, Hague and Jolie cohosted their Global Summit
in London, where they officially introduced the PSVI.
Introduction
5
Days before the Global Summit, the UK Foreign and Commonwealth Office
posted on its website a short (just over one minute) animated video titled “Don’t
believe the thumbnail, this video is the stuff of nightmares.”7 The animation is
two-dimensional, resembling the work of a child. It portrays a wartime rape. The
voice of a girl narrates the story, although a caption appearing in the opening
seconds of the video announces that it “may not be suitable for under-16s.” Even
as it is framed as a child’s view of sexual violence in conflict, the video includes
common language from international legal and political discourse on the subject.
The animation opens with an apparently nuclear family—father, mother, boy,
girl, and dog—in front of a house surrounded by green trees and blooming flowers (see Figure I.1). On one side of the screen, the father grills on a barbecue. On
the other side, the rest of the family plays. Birds chirp and the dog makes frisky
noises. The sun is shining, and the sky is blue. This image is the thumbnail that
the line from of the video instructs its viewers not to believe.8
By the third second of the video, the scene changes dramatically. As the
narrator declares, “There is a weapon that doesn’t just leave physical wounds, it
leaves emotional wounds,” the blue sky disappears, and black clouds move in,
followed by military helicopters. The family members, except for the dog, run
into the house, as military ground vehicles arrive. Male soldiers exit the vehicles.
One shoots the dog. The soldiers enter the house, and the narrator continues: “A
weapon of power, violence, and control.”
The animation then shows the perspective from inside the house, before the
soldiers have entered. The male head of household escorts his wife and children
inside. Behind a kitchen table sits a shelf with art objects. Above it hangs a framed
painting of the family outside the house—the same image with which the video
began (the thumbnail). After moving his family into the room, the man stands
in front of the door, attempting to bar it with his body. But his chivalrous efforts
are outdone. The narrator says: “A weapon that is just as scary as bombs and
bullets, but invisible—rape.” At the moment the narrator says “rape,” the armed
soldiers enter the house and one hits the man on the head with his gun. They
begin to fire their guns into the air. Someone screams. The narrator explains that
“rape and sexual violence are used against women, girls, men, and boys.” The
perpetrators surround the kitchen table, visually obscuring the rape that begins
to take place. There are sounds of clothing being ripped and of evil laughter.
Through the gaps between the soldiers, one can see that the person being raped
is wearing blue, just like the mother, and only the mother, in the earlier scenes,
leaving little doubt that she is the victim.
6
Introduction
Figure I.1. A still from “Don’t believe the thumbnail, this video is the stuff of nightmares.”
“Victims are sometimes abandoned by their families,” the narrator continues.
The face of one of the perpetrators mutates into that of a monster. He bares his
teeth and growls in the foreground, while from the background another scream
is heard, followed by wailing. Over the wailing, the narrator says: “And the anger
and shame left behind can tear communities apart and make wars last longer.
Especially when the monsters who do it are allowed to get away with it, even
live near their victims.” During this last statement, the perpetrators have left the
house, and the girl of the family stands at the window holding a teddy bear. A
male figure walking by outside suddenly turns his head and moves toward the
window as the narrator says, “even live near their victims.” He again transforms
into a monster, baring his teeth and growling. The young girl recoils and pulls
down a yellow window shade.
Black scribbles begin to be drawn over the shade and eventually take over the
screen, as the narrator states: “But it doesn’t have to be this way. Rape and sexual
violence are the worst crimes you can imagine.” Suddenly the black becomes
the robe of a judge (of uncertain gender) in a courtroom. The judge gesticulates
toward the defendant, who is one of the monsters now wearing his human face.
The narrator states: “But they are not an inevitable part of war.” The screen then
zooms in on the perpetrator. “It’s time to end sexual violence in conflict.” Prison
bars drop in front of him. The screen zooms out and is filled with repeating
identical images of him behind bars. The narration continues: “Time to bring
Introduction
7
those responsible to justice.” The video moves to a new image, with a number of
civilians, including the family we originally encountered, holding a banner that
reads “no moar nightmare” (intentionally misspelled and in a child’s writing).
“Time to act to let governments know enough is enough. Time to act so that
those who live in fear of sexual violence have a chance to feel safe.”
With this last sentence, the original idealized image of the house and family returns. This time, the husband and wife stand happily at the door together,
while the children and dog once again play in the front yard. Only the dog,
which is bandaged, shows any visible signs of the attack. The family has apparently bounced back from the otherwise devastating harm because of the healing
effects of criminalization. In any event, the image is one of a family that feels
safe, despite the war that we can only assume continues to rage, even if the video
tries to make us forget it.
II. Unpacking the Common-Sense Narrative
Nearly every aspect of the common-sense narrative suggested by these G8 and
UN actions, including the video, can be traced to or found in the institutional and
discursive spaces around which I have organized this book—spaces concerned
with international human rights, military intervention, international criminal
law, and international peace and security. While the video itself might seem
overly simplistic, even too easy a target, I take it seriously because of its basis in
both the feminist advocacy and the international legal and political discourse
that have developed on sexual violence in conflict. I use it here to introduce some
of the arguments I make in the book—arguments about the sources as well as
the consequences of the narrative.
A. The “Worst Crimes”
The video describes rape and sexual violence as the “worst crimes you can imagine.” In doing so, it participates in a problematic rhetorical refrain casting rape
and sexual violence as a “fate worse than death.”
In addition to downplaying other harms of war, including death, the insistence that rape and sexual violence cause the ultimate harm depends upon an
understanding of victims as forever condemned by those actions to shame and
stigmatization. Although the video states that rape is invisible, it also suggests
that much of its harm in fact comes from its visibility, which is required for “the
anger and shame [it leaves] behind.” That anger and shame are felt not only by
the victims. If families sometimes abandon victims, it is because the families bear
8
Introduction
shame. Indeed, the anger and shame “tear communities apart.” While the video
images show us an ideal victim family that does not seem to be torn apart by the
rapes, its words best depict the dominant message. Rape presumably works as a
tool of war because it can cause targeted groups to turn on their own members
who are victims of sexual violence.
This message is far from new. Traditionally, rape was seen as useful in war
because, like pillage, it destroyed the enemy’s property. It also constituted an attack on the honor of families and communities.9 Indeed, partly for these reasons,
rape has long been considered a war crime, and has even been prosecuted as
such at various times through the centuries.10
In the mid-twentieth century, international humanitarian law arguably began
to acknowledge rape as causing harm to individual victims. But honor continued
to play an important role. For example, the Fourth Geneva Convention of 1949,
on the treatment of civilians, provides: “Women shall be especially protected
against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.”11 The 1977 Additional Protocol II to the
Geneva Conventions listed rape as a specific example of prohibited “outrages
upon personal dignity,” placing it alongside “enforced prostitution and any other
form of indecent assault.”12
When feminists began to consider rape in conflict in the early 1990s, many
insisted that international law in the late twentieth century should differ from
these earlier legal prohibitions by considering the rapes as harmful to women in
ways that did not center around loss of honor to themselves or their communities.
At some level, as the video demonstrates, feminists succeeded in changing the
narrative, by introducing recognition of the physical and emotional wounds to
rape victims themselves. But shame and dignity continue to be central to those
emotional wounds, and are connected with presumed harm to communities.
The staying power of shame and stigma as the predominant harms of rape
manifests itself in nearly every chapter of this book. Journalists, human rights
advocates, UN actors, diplomats, prosecutors, and judges all assume that rape
causes both individual and communal shame, including when they are unable to
find individuals who will attest to having been victims of it. Chapter Four, on the
International Criminal Tribunal for Rwanda (ICTR), most clearly demonstrates
the operation of these assumptions in law. The ICTR jurisprudence finding rape
to have been a constitutive act of genocide, widely considered pathbreaking by
feminists and non-feminists alike, makes the presumption of communal stigma
and shame central to its analysis. Because genocide requires an intent to destroy
Introduction
9
an ethnic group, the finding of genocidal rape ties into the refrain that sexual
violence in conflict “destroys families and communities.”
The commonly stated view that rape victims and their communities are forever and uniquely devastated by rape is dangerous not only for the many other
harms of war it overlooks, but also for the understandings of ethnic conflict—and
ethnicity—it promotes. The idea that rape “tears communities apart,” by turning
communities against their own members who have been raped, partially places
the blame for the harm suffered by rape victims on the very groups that have been
subject to crimes against humanity, ethnic cleansing, or even genocide. While the
common sense might see “rape culture” as contingent, it takes for granted shame
culture, especially in the predominantly Muslim and African communities that
tend to be the focus of investigation. As such, it relies upon ethnic and cultural essentialisms to define the harm of rape, while also limiting the repertoire of “normal”
individual and communal responses to it.
To the extent that the various actors considered in this book attempt to
respond to the shame they imagine is pervasive, they generally try either to
manage it in order to facilitate victim testimony (having attributed the failure
of such testimony to shame) or to shift the shame from victim to perpetrator
through criminal prosecution or other sanctions. Both efforts reinforce the presumption of shame, and in fact rely upon it to justify other projects. With regard
to the first, when they are unable to find women who will attest that they have
experienced sexual violence, investigators and prosecutors often use shame to
explain that failure. As to the second, proponents of criminal prosecutions for
sexual violence in conflict have to grapple with the dearth of empirical evidence
demonstrating that their efforts have had any deterrent effect. Pointing to other
benefits of criminal prosecutions helps to justify the enormous amount of time
and attention invested in them. Although they provide no causal explanation for
how shaming one individual through public naming, prosecution, or punishment
might alleviate the shame felt by another, advocates for greater criminalization
often assert, much as Hague did in his remarks at the Global Summit: “We want
to shift the stigma from survivors onto the perpetrators of these crimes, so that
they—not the innocent victims—bear the stigma.”13
In the Epilogue, I propose some alternative ways to think about and address
shame in the context of wartime rape, drawing on literary examples as guides for
building narratives counter to what has emerged as the common sense. I suggest
that, while not denying the ways in which many women often experience shame
and stigma from rape, we acknowledge that not all women are, or need be, forever
10
Introduction
ruined by it. I highlight instances in which women who have been raped during
conflict see the rape or their responses to it as a part of their political or military
struggle, or treat it as but one facet of their wartime experiences. I also consider
one instance in which even a conservative religious community self-consciously
chose not to shame or stigmatize those who had been raped. I use these narratives to call for a discursive and doctrinal shift away from the assumption that
sexual violence is inherently shameful to individuals and communities as well
as the belief that shame, when it exists, necessarily leads to destructive actions
against self and others. Sexual violence should not be addressed, in criminal
law or elsewhere, in ways that reinforce the presumption of shame, justify the
unwillingness of victims or imagined victims to testify, or claim to transfer the
shame from victims and communities to individual perpetrators.
B. Perpetrated by Male Monsters against
“Innocent” (Female) Victims
The animated video makes vividly clear that the perpetrators of sexual violence
are monstrous men, and that their victims are innocent or, as Jolie puts it, “responsible for none of the harm.” This view relies on two assumptions about
women in war. First, they are nearly always victims or potential victims of sexual
violence in conflict. Second, they are innocent; not only do they not perpetrate
sexual violence, they rarely play any political or military role in war. A 2009
speech to the UN Security Council by then US Secretary of State Hillary Rodham
Clinton demonstrates how the two assumptions work in tandem. Speaking in
favor of a Security Council resolution on sexual violence in conflict, Clinton said,
“Even though women and children are rarely responsible for initiating armed
conflict, they are often war’s most vulnerable and violated victims.”14 This view
is also not new. Helen Kinsella demonstrates that women have been coded for
centuries as innocent civilians.15 The international treatment of sexual violence
in conflict reinforces that coding.
By focusing on an area in which men are by far the most visible perpetrators, the concentration on sexual violence further facilitates the perception
that only men participate in the production and harms of war. Of course,
women participate in and even order violent acts, including acts of sexual
violence. Yet the few instances in which women have been criminally charged
with war crimes, crimes against humanity, or genocide have yet to be treated
as occasions for rethinking the common sense. These cases are instead treated
as aberrational, involving almost unthinkable female monsters—worse even
than their male counterparts.16
Introduction
11
More importantly, the focus on sexual violence in conflict, or even more
broadly on crimes committed during conflict, diverts attention from many other
factors at the root of war, including women’s political roles in them. Many women
actively participate in, are bystanders to, or benefit from nationalist, racist, and
ethnic- and class-based politics and violence. As Third World feminist critics
have long pointed out, even feminists in the global North are often structurally
implicated in the causes and consequences of wars in the South.17 The negation
of women’s participation in wars is not merely a symbolic failure. Those who
promote policies, whether broadly for preventing conflict or more narrowly for
deterring international crimes in conflict, will not succeed if they do not attend
to the variety of roles that women, as well as men, play in war and politics (in
both the public and the private spheres).
The common-sense approach to sexual violence in conflict misses more than
women’s complex political and military roles in and in relationship to conflict.
The idea that women are the “most vulnerable and violated” figures in war negates
women’s sexual agency as well. Journalists, investigators, and others, for instance,
often do not believe women who deny they have been raped during war. Indeed,
sometimes they read the denials as proof of rape, given the categorical ascription of shame to rape victims. International criminal rules and jurisprudence
that essentially disavow the possibility of consensual sex between civilians and
combatants on opposing sides of a conflict also diminish women’s sexual agency.
As we see in future chapters, such law, which largely resulted from successful
feminist advocacy, at least in some cases builds upon and reinforces rigid and
highly contested ideas about ethnic hatred.
Though women are generally thought of as victims or potential victims of
sexual violence in conflict, the common sense acknowledges that they are not the
only victims. Indeed, the victim category has proved to be more elastic than the
perpetrator one. As the narrator of the animated video explains, “Rape and sexual
violence are used against women, girls, men and boys.” The statement coincides
with UN institutional discourse over the past few years as well as international
criminal law, both of which recognize sexual violence against men and boys. In
fact, it has become increasingly commonplace, even good politics, to list men
and boys in the category of potential victims, or to use gender-neutral terms
when discussing victims of sexual violence.
But the texts also often make clear that most of the victims are women and
girls—or sometimes women and children—and the largest portion of the examples are female. The video illustrates how the words and representations often
diverge. The man is knocked unconscious with the butt of a gun (for which
12
Introduction
no one seems to be arrested), but the woman is raped. And the monster at the
window threatens the girl, not the boy.
A number of international criminal law prosecutions have included charges of
sexual violence against men. But institutional actors and commentators have paid
relatively little attention to what exactly counts as sexual violence against men, what
the harm of that violence is, and whether and how it is “gender-based.” Advocates
for male victims believe it is not taken seriously enough. While many feminists
simply assimilate it to sexual violence against women, some argue that sexual violence against a man—at least for the man—causes worse harm than sexual violence
against a woman, either because the former loses the power that comes with male
privilege by being treated sexually as a woman18 or, somewhat relatedly, because of
the stigma, often exacerbated by homophobia, that comes with such treatment.19
I contend that this relatively new mainstream acknowledgment of male
victims of sexual violence stems less from a resistance to the gendered binaries
underlying prevailing assumptions about the perpetrators and victims of war
than from the hyper-attention to sexual harm in considerations of gender and
armed conflict. As discussed in Chapter One, feminists were divided for some
time over questions about the extent to which sexual violence was paradigmatic, as opposed to being one of many categories, of gender-based violence.
When women’s human rights advocates began to approach sexual violence
in conflict—and even constructed the category as they expanded it beyond
rape—the former position prevailed, particularly as they examined the issue in
the context of international humanitarian and criminal law. Other institutional
spaces followed suit. Chapter Five describes, for example, how the UN Security
Council’s Women, Peace and Security agenda (WPS agenda) moved in a relatively short time from treating sexual violence as but one form of gender-based
violence, to conflating the two types of violence, and finally to separating them
to concentrate solely on the sexual. This shift from “gender-based violence” to
“conflict-related sexual violence” went hand in hand with at least the rhetorical
inclusion of male victims. Chapter Three shows that a similar, if less explicitly
articulated, strategy was at play in the International Criminal Tribunal for the
former Yugoslavia (ICTY). In both instances, ironically, the analysis of gender
as a structuring category of power largely fell out of the picture.
C. Criminal Law Will End Sexual Violence in Conflict
The endpoint of the video’s animation is punitive action against the monsters
who perpetrate sexual violence in conflict. While the perpetrators might appear
Introduction
13
to be ordinary—even if ordinarily cruel—soldiers, it becomes clear that they are
monsters when they commit or threaten rape. The narrative makes no room for
the concept of the “banality of evil.”20 However widespread rape might be, the
video insists, normal people do not commit it; it is “the monsters who do it.” The
problem to be addressed is that they “get away with it.” Criminal punishment will
“bring those responsible to justice.” This common-sense reliance on criminal law
has had multiple effects that I consider throughout the book.
Feminists, even those who were internationally engaged, did not always see
international criminal law as an obvious or favored site for their work. When
they began to theorize women’s human rights in the mid- to late 1980s, primarily
around violence against women, they did not place armed conflict high on their
agenda.21 International humanitarian law and international human rights law
were still relatively distinct fields. International lawyers generally approached
the former as delineating unlawful conduct during wartime and, at least with
regard to international conflicts, governing relations between (warring) states.
They saw the latter as principally concerned with a state’s relationship to its own
citizens during times of peace. Human rights advocates and scholars were only
beginning to concern themselves with the ways in which international humanitarian law, particularly the part that applied to non-international conflicts, might
be usefully deployed to combat human rights violations during internal strife,
especially in instances when states had suspended certain derogable human
rights protections due to war.22
Even more importantly, in the mid-1980s, modern international criminal
institutions were yet to be created. Thus, to the extent that feminists called on
human rights law and discourse to address VAW, they primarily demanded that
states that did not prevent such violence be “named and shamed”—the principal
attempt at the enforcement of human rights law through the end of the 1980s.
Many were also involved, however, in networking around local efforts to support
victims of VAW in self-help and political work, through the establishment of
shelters, work training, and consciousness raising aimed at addressing cultures
of violence.
It was not until the early 1990s, when women’s rights advocates turned much
of their attention not only to sexual violence but to sexual violence in conflict,
that criminal law emerged as the preferred response. It did so as part of two
broader trends: first, increasing feminist reliance on criminal law to respond to
domestic violence and sex trafficking, akin to what Elizabeth Bernstein identifies
as “carceral feminism”;23 and, second, what I have termed elsewhere “the turn to
14
Introduction
criminal law in human rights.”24 The carceral turn in both feminism and human
rights has meant that feminists have spent much of the past two decades calling
upon the strong arm of the state and of powerful international governmental
alliances to address sexual violence in conflict, primarily through criminal accountability and the development of international criminal law (although, as
we see in Chapter Two and again in Chapter Five, some have also called for
military responses).
Feminist criminalization efforts have been relatively successful. As part of
a move that Janet Halley and collaborators call “governance feminism,”25 feminists and feminist ideas entered many of the halls of power of those very state
and international institutions on which they called. In the process, support for
expanded criminalization of sexual violence in conflict became mainstreamed,
with little or no resistance. Indeed, even relatively early on in the development
of international criminal institutions, mainstream players largely deferred on
issues of sexual violence to the feminists involved.
In addition to missing many more-structural causes of violence in war, this
prioritization of the incarceration of individual monsters makes criminal prosecution carry a heavy burden. I mentioned above that some actors invoke prosecution and punishment as means for eradicating the shame that victims are
presumed to experience, by shifting that shame to perpetrators. Most also imbue
criminal law, as in the video, with great deterrent power. The prison bars will
“end sexual violence in conflict.” Those who otherwise would fear sexual violence
now “will have a chance to feel safe.”
Deterrence is perhaps the most commonly invoked claim about the effect of
criminal punishment in this context. At the G8 Foreign Ministers press conference, UN Special Representative Zainab Bangura contended that the G8 Declaration represented a “resolve to match the ruthlessness of those who would commit
such unthinkable crimes, with our own relentless and unwavering pursuit of
accountability, and ultimately deterrence and prevention.” Hague stated: “Our
goal must be a world in which it is inconceivable that thousands of women, children and men can be raped in the course of a conflict—because an international
framework of deterrence and accountability makes it impossible.” For Hague,
as in the video, the presumed deterrent effect of criminal law means that rape
might not need to be an inevitable part of war.26
This presumption of deterrence, which is rarely backed up with any evidence
or rationale,27 is perilous for at least two reasons. First, it promises something
it cannot possibly achieve—to eliminate sexual violence in conflict. Second,
through that promise, it facilitates a transfer of energy and resources toward
Introduction
15
criminal punishment mechanisms and away from other social, political, and
economic interventions—including through law—that might better address the
structural causes of violence.
D. Sexual Violence Prevents Peace
The video’s claim that sexual violence makes wars “last longer” is also a common refrain. Much like deterrence, its proponents often assert the claim with
little support or explanation. In the video’s narration, the “anger and shame
left behind” cause the continuation of armed conflict. Yet, once the monster is
imprisoned, the nuclear family again plays in the yard, perhaps with the shame
(and anger) displaced onto the monster. Earlier, I said that we must assume that
the war continues to rage, but perhaps not. Maybe the scene is meant to depict
the absence not only of the threat of sexual violence, but also of the threat of
war. It suggests that if incarceration can deter sexual violence and lock away the
shame and anger, peace will ensue.
If, in this telling, criminalization leads to peace, failure to criminalize leads
to war. At the very least, the absence of criminalization (or the presence of impunity) precludes “lasting” or “sustainable” peace. This view is often found in
calls for prohibiting amnesties for sexual violence crimes in peace agreements,
as in the G8 Declaration. Chapter Five demonstrates the prevalence of the insistence on this prohibition in UN Security Council resolutions and other UN
pronouncements.
But what if a peace agreement might be jeopardized precisely by such an exclusion? At the G8 press conference, Jolie followed a broader trend within human
rights law and advocacy to deny any conflict between peace and prosecution.
Specifically, she lauded the G8 Declaration’s position on amnesty, stating, “There
is no choice between peace and justice: peace requires justice.” Wishing away
the conflict between peace and justice, however, does not make it so. In fact, the
threat of criminal accountability can sometimes preclude peaceful settlement,
making this position conflictogenic.
If relying on criminal punishment to end sexual violence is problematic, suggesting that ending sexual violence will lead to peace is equally so. Since the latter
requires the former, it doubly justifies the extensive resources spent on criminal
punishment mechanisms and the downplaying of its adverse consequences.
III. Countering the Common Sense: A Preview
The book has two primary aims: to chronicle and attempt to disrupt the common sense that I have just described. Organized around various sites of feminist
16
Introduction
engagement with international law and institutions, each chapter demonstrates
the particular aspects of the common sense that were forged through the interaction. Each also considers which feminist arguments or approaches were
sidelined by, or at least alongside, the rise of a form of structural-bias feminism
that ascribes women’s oppression to their sexual subordination. Together the
chapters illustrate just how entrenched the common sense has become across a
wide range of legal doctrines and institutions.
Chapter One, “Sexual Violence in Conflict and Women’s Human Rights: A
Genealogy,” sets the stage. It begins with women’s human rights advocacy in the
late 1980s and early 1990s, situating it in the context of feminist and human rights
theory and practice at the time. It pays particular attention to struggles among
feminists as they attempted to formulate the meaning of women’s human rights,
and considers what was lost and gained in perspective with the recognition of
women’s human rights at the UN World Conference on Human Rights in Vienna
in 1993. It was there, I argue, that the emphasis on sexual violence in conflict
emerged and paved the way for what I refer to as the sexual subordination strand
of structural-bias feminism to play a governance role in the international legal
and political spaces that much of the rest of the book considers.
Chapters Two through Five examine in detail a number of ways in which
those feminists invited and deployed international legal and institutional power
to address sexual violence in conflict. Some feminists turned to military intervention, “calling in the troops” on behalf of women who had been raped. Others
pursued the development of international criminal law, advocating for and taking advantage of the international criminal tribunals developed in the former
Yugoslavia and Rwanda. Still others worked through the UN Security Council’s
WPS agenda, which had initially been promoted by the women’s peace movement, to prioritize sexual violence as the greatest harm to women in conflict. As
they fostered international attention to sexual violence in conflict, not only did
they deploy the force of international law, but they also acquiesced in particular
understandings of sex, gender, and ethnicity that contributed to and reified the
common-sense narrative.
In the Epilogue, “Beyond Social Death,” I turn to more nuanced accounts
of gender, sex, and war than those found in most of the legal, political, and discursive sites I study throughout the book. I mine literary sources—from Ernest
Hemingway’s For Whom the Bell Tolls to Yazidi activist and Nobel Peace Prize
winner Nadia Murad’s memoir centered around her time in ISIS captivity—in
order to highlight the complex and overlapping facets of women’s (and men’s)
Introduction
17
lives that are often elided by the grip of sexual violence in conflict. I also use
these alternative accounts to discourage advocates from assuming that shame and
stigma are the natural responses to rape. That assumption both limits our ability
to understand and combat shame and stigma where they do occur and makes
many of those who have encountered sexual violence but have not experienced
or expressed the expected shame or stigma illegible to the system.
Ultimately, the book argues that the common-sense approach to sexual violence in conflict at worst misunderstands and at best oversimplifies the problem:
its causes, its harms, and the range of effective responses to it. But the book is less
about the victims and the nature of sexual violence in conflict than it is about
the ways in which particular imaginaries about them have gripped international
legal and political discourse—on gender, sex, sexuality, and ethnicity on the one
hand, and on militarism, criminal law, and international peace and security on
the other. In this sense, I approach the victims of sexual violence in conflict in
much the same way that historian Joan Scott treats French Muslims in The Politics
of the Veil when she says, “This is not a book about French Muslims; it is about
the dominant French view of them.”28
By detailing how the common sense developed, and dwelling on moments
when the path was uncertain, I hope to revive earlier productive tensions among
feminists within and between the global North and the global South over issues of sex and gender, but also over race and ethnicity, economic distribution,
peace, and culture. And in doing so, I hope to open a conversation about what
the alternatives might be going forward.
CHAP TE R O NE
Sexual Violence in Conflict
and Women’s Human Rights
A Genealogy
I N 19 93, D I S C U S S I O N O F S E X U A L V I O L E N C E in conflict made its way onto the
world stage, not coincidentally at the same time that “women’s human rights”
gained traction within mainstream human rights discourse and institutions. In
this chapter I consider how the two issues became enmeshed and sometimes
even conflated over time, by analyzing the UN World Conference on Human
Rights held in Vienna in June 1993 and events as well as scholarly and activist
literature leading up to and following the conference. In particular, I begin to
link early women’s human rights advocacy to legal and policy changes that took
place in ensuing years, changes that I critique throughout the remainder of the
book—from military intervention to international criminal law.
This chapter also looks closely at two feminist approaches that were sidelined in the process—Third World and sex-positive. Chapter Five details how a
third, anti-war, feminist position also failed to maintain significant traction as
the women’s human rights movement turned its attention to sexual violence in
conflict and to military, security, and criminal responses to it.
The Vienna Conference was only the second world conference on human
rights, and it was the first to be held since 1968. When the UN released its
initial planning documents for the conference, some feminists noticed that the
agenda contained no mention of women’s human rights, despite nearly a decade
of feminist organizing under that banner. They responded by engaging in a
successful internationally coordinated lobbying effort to put women’s rights on
the conference agenda. They then went to Vienna determined to have women’s
rights broadly acknowledged as human rights. They succeeded in that effort as
18
Sexual Violence in Conf lict and Women’s Human Rights
19
well, as the slogan “Women’s Rights Are Human Rights” took off and began to
receive mainstream recognition.
In the years immediately preceding 1993, women’s human rights advocates had made violence against women (VAW) one of their primary issues. In
Vienna, it became their paradigmatic issue. At the time, war was under way in
the former Yugoslavia, and the mainstream media were reporting that rapes
were being committed as a part of the conflict. These reports affected the official governmental conference as well as the NGO activities that ran parallel
to it, both of which addressed rape in armed conflict as an important form of
VAW. The Vienna Declaration and Programme of Action, the outcome document of the conference, named a broad range of women’s human rights. It also
reflected the extent to which rape and other forms of sexual harm in conflict
were condemned in the official sessions. The document stated, “Violations of
the human rights of women in situations of armed conflict are violations of the
fundamental principles of international human rights and humanitarian law.”
Then, listing specific violations, it continued, “All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy,
require a particularly effective response.”1 The conference report also included
a declaration on Bosnia, which called for international action in the former
Yugoslavia and noted that “over 40,000 Bosnian women have been subjected to
the gruesome crime of rape.”2
While this kind of language around women’s human rights might not be controversial today, it is remarkable that it was also relatively uncontroversial at the
time, given that women’s human rights had yet to gain mainstream recognition, as
demonstrated by the UN’s failure to include the topic in the conference’s original
mandate. It is also remarkable that feminists largely agreed on the document’s
language on women’s human rights, given that internationally active feminists
had been embroiled in a number of debates for some time.
One such debate manifested itself primarily, but not only, in competing approaches to the treatment of sex work. It divided sex-positive feminists from
those who condemned a broadly defined category of “female sexual slavery.” A
second debate took place more directly within the women’s human rights movement, although it appeared in many other sites as well. It pitted structural-bias
feminists, who centrally focused on gender—and sometimes sexual—oppression as the most important sociopolitical structure to address, against Third
World feminist critics, who insisted that colonialism could not be delinked from
gender bias.
20
Chapter 1
In the early to mid-1990s, Third World feminism was arguably poised to
prevail, or at least seriously affect the ability of structural-bias feminism to get
a stronghold on human rights. But the end of the Cold War, a compromise
around what I call “culturally sensitive universalism,” the turn to sexual violence as the principal harm of conflict, and the pursuit of criminal law as the
primary remedy, all functioned to subdue much of the Third World feminist
critique, especially its material dimensions. These last two developments did
the same to sex-positive feminism. All four of the developments can be traced
to the Vienna Conference, even though their effects might not have been apparent at the time.
In what follows, I trace the genealogy from liberal to carceral feminist approaches to international law in an effort to understand how and why a particular
form of structural-bias feminism became empowered over the years, as well as to
track what was lost in the process.3 I begin with the international reaction to the
conflict in the former Yugoslavia, as the discourse around this conflict played a
key role in the development of an apparent consensus, as well as in the perceptions of women’s human rights that this consensus concretized and perpetuated.
I. Mainstream Responses to Wartime Rape in the Former
Yugoslavia
In April 1992, as a part of the disintegration of Yugoslavia, fighting broke out
in Bosnia. It was not long before the international media began to report on
rapes taking place there and elsewhere in the region. Feminists of various stripes
inside and outside the country condemned the rapes, as did a number of nongovernmental and intergovernmental organizations. In December 1992, the UN
Security Council passed a resolution stating that it was “appalled by reports of
the massive, organized and systematic detention and rape of women, in particular Muslim women, in Bosnia and Herzegovina,”4 and condemning “these
acts of unspeakable brutality.”5 It demanded “that all the detention camps and,
in particular, camps for women should be immediately closed.”6
The first half of 1993 saw further responses by nongovernmental and intergovernmental organizations. For instance, Amnesty International, the UN
Commission on Human Rights, and the European Council all issued reports
finding systematic rape in Bosnia.7 The UN report explicitly linked rape in both
Bosnia and Croatia to ethnic cleansing.8 In May, the UN Security Council unanimously passed a resolution establishing the International Criminal Tribunal for
the former Yugoslavia (ICTY) to prosecute serious violations of international
Sexual Violence in Conf lict and Women’s Human Rights
21
humanitarian law, based in part on reports of “systematic detention and rape
of women.”9
These reports and resolutions helped pave the way for official discussion of
and response to rape in conflict at the Vienna Conference, as actors at multiple
levels agreed that rape constituted a violation of international human rights
and international humanitarian law. The reports and resolutions also helped to
propel advocacy for the various types of international interventionist responses
to wartime rape and other forms of sexual violence that I consider in the rest of
the book: military intervention, international criminal law, and the UN Security
Council’s Women, Peace and Security agenda (WPS agenda) and related activity.
Feminists, in particular women’s human rights advocates, were involved at every
level in these responses.
As I discuss in greater detail in Chapter Two, rape in the former Yugoslavia
received significant reporting and attention at an important historical moment—
the early years after the end of the Cold War. In those years, the UN Security
Council was newly poised to use its intervention power, including military force,
to respond to threats to international peace and security. Because invoking that
power, found in Chapter VII of the UN Charter, requires the acquiescence of
all five permanent members of the Security Council, the Cold War stalemates
had largely prevented its use.10 The end of the Cold War helps to explain why,
once states began to recognize rape as a part of the Yugoslav conflict, they were
willing to use the Security Council to respond. As we will see, states disagreed
over the type of action the Security Council should take (military intervention
versus criminal tribunals, for example), but they mostly agreed that the situation
warranted some type of intervention.
That history, however, explains neither why feminists were poised to zero in
on sexual violence to begin with nor why they would be attracted to the use of
the Security Council, particularly its Chapter VII coercive powers, as a response.
It also does not explain how feminists were able to get nongovernmental and
intergovernmental organizations to attend specifically to the rapes. For those
explanations, we need to turn to late twentieth-century international feminist
organizing, particularly through the women’s human rights movement.
II. Early Feminist Engagement with Human Rights
International human rights law is a relatively new field, taking off in the late 1970s
and early 1980s.11 International criminal law, as we know it today, is even younger,
emerging in the 1990s. While feminists began to make gains in international
22
Chapter 1
human rights law only in the early 1990s, some of their successes in that arena,
including at Vienna, positioned them to influence international criminal law
from its early stages onward. They were also able to have some impact on other
post–Cold War developments, including military interventions and other forms
of UN Security Council activity.
The women’s human rights advocates who came to Vienna were led mostly
by structural-bias feminists from the global North and their allies on VAW in
the global South, with whom they had been working since the mid-1980s. They
presented a largely united front, despite the fact that they had spent years in
disagreement with each other over various issues, some common to the feminist
movement at large and others more specific to international law and policy. Even
structural-bias feminists were at that very moment tangled in an intense dispute
among themselves over how to understand the rapes taking place in the former
Yugoslavia. In the next section of this chapter as well as in subsequent chapters, I
explore the various modes of consensus-building in which these women’s human
rights advocates engaged as they turned to UN mechanisms, beginning with the
Vienna Conference, to respond to sexual violence in conflict. But first, I consider
the theoretical and political dissensus that preceded the period of collaboration.
I do so in order to recover some of the critiques that were lost as an apparent
consensus in 1993 reduced a number of tensions, not only among feminists but
between feminists and mainstream human rights advocates as well.
The mid- to late-1980s and early 1990s saw the first wave of feminist approaches to international human rights. As feminists began to consider ways
in which human rights law—and related international institutions and nongovernmental advocacy—could respond to women’s concerns, two primary sets of
approaches emerged, one liberal and another, more radical, focused on structural
bias. Soon thereafter, Third World feminist critiques developed, largely in response to the structural-bias feminist critics but with roots in older North-South
struggles.
In mapping these positions, I read them primarily as approaches rather than
as people because, over time, a number of individuals took more than one approach. And although I focus on feminist scholarship related explicitly to human
rights law and discourse, both feminist theorists and advocates (two groups with
significant overlap) had in fact been engaged for some time with international
issues such as peace, education, and labor, dating back at least to the period
between the World Wars.12 When the Universal Declaration of Human Rights
was drafted in 1948, women’s activism played a role in ensuring, among other
Sexual Violence in Conf lict and Women’s Human Rights
23
things, the use of mostly gender-neutral language.13 Women in both the global
South and the global North also participated, sometimes self-consciously through
women’s solidarity movements, in international emancipatory struggles against
colonialism and apartheid. As early as the 1970s, they advocated for the inclusion
of women in development programs.14 Some of the outlets for these issues were
the UN World Conferences on Women, held in Mexico City in 1975, Copenhagen in 1980, and Nairobi in 1985. In fact, many of the tensions and debates
around women’s human rights from the late 1980s onward had roots in earlier
debates among women in these forums.
A. Liberal Inclusion Approaches
Early feminist approaches to international human rights argued that women
should and could be included in international human rights law. Women were
as much subjects of human rights law as were men, and thus, if properly applied, human rights law and institutions could assimilate women’s concerns.
These approaches dominated women’s human rights advocacy and scholarship
in the 1980s.15
Liberal inclusionists argued that international human rights law required
the formal equal treatment of women and men, and many also maintained that
it guaranteed women economic and social rights, as well as civil and political
rights. For proponents of inclusion, the legal instruments that were needed to
assimilate women into international human rights law and institutions already
existed. Any failure to protect women’s rights, in this view, could be attributed
to a lack of will or enforcement, not a lack of law.
Some liberal inclusionists criticized international institutions for their failures
to address women’s issues. While some argued that increasing the number of
women in these organizations would lead to greater attention to women’s needs,
others believed the institutions just needed to take seriously their legal mandates,
which included women’s human rights. For both positions, existing institutions
could address women’s human rights without major structural change. That is,
the right people or the right attention within the institutions would suffice to
bring the proper consideration to women’s human rights.
B. Structural-Bias Critiques
Proponents of another type of feminism, which would soon shape much of the
women’s human rights movement, argued that simple inclusion of women in
international human rights law, or even in international institutions, was much
24
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more difficult than liberal inclusionists had imagined. For structural-bias feminism, human rights law—and international law more broadly—was constructed
by and for men, with structural features that prevented its application to women.
Because the structure of human rights prevented women’s assimilation, women’s
human rights advocates needed to change the regime significantly for women to
be accommodated.16 As Charlotte Bunch put it in an early example of this view
in 1990, “while this [liberal] approach of adding women and stirring them into
existing first generation human rights categories [of civil and political rights]
is useful, it is not enough by itself.”17 Another advocate later explained, “The
fundamental challenge for the movement for women’s human rights is that it
not become a reformist project: its recipe should not read, ‘Add women and stir,’
but ‘Add women and alter.’”18
The assumptions at the analytical core of structural-bias critiques were
that male dominance and female subordination were universal—even if they
manifested themselves differently in different places among different groups of
people—and that they constituted the greatest impediment to the realization of
women’s rights.19 That dominance structure, according to these critiques, could
be found in human rights law, and thus in the institutions and movements that
aimed to enforce it. For one strand of structural-bias feminism, the dominance
structure was organized around sexuality, specifically around male sexual dominance and female sexual subordination.
Structural-bias feminists identified a series of dichotomies in international
law that they believed perpetuated human rights law’s neglect of women. International law, for instance, prioritized the state over civil society,20 and civil and
political rights over economic and social rights.21 These two dichotomies were
related for some. As Bunch argued, “Some important aspects of women’s rights
do fit into a civil liberties framework, but much of the abuse against women is
part of a larger socio-economic web that entraps women, making them vulnerable to abuses which cannot be delineated as exclusively political or solely
caused by states.”22
The most commonly discussed of these dichotomies, and the apparent ground
of many of the others, was the public/private distinction. According to some
structural-bias critiques, the public/private distinction was a concrete reality for
women. And because human rights law excluded the private, or domestic, sphere
from its scope—the very space in which women were presumed to operate—it
could not include women.23 The international legal definition of torture, for example, required direct state action and could not apply to private relations within
Sexual Violence in Conf lict and Women’s Human Rights
25
the home. Thus, human rights law needed to be reconceptualized to include the
private sphere or attend to the acts of non-state actors.
Other structural-bias challenges to the public/private distinction tended to
characterize it as a product of ideology, rather than as embedded in the doctrine
of human rights or international law. Some critics pointed out, for instance, that
few would contend that the international legal regime lacked the authority to
intervene to ensure that states end certain forms of “private” violence, such as
cannibalism or slavery.24 In this telling, the public/private distinction was structural, but perhaps not as intransigent as the other view suggested.25 These critics
therefore argued that a state’s failure to protect rights in the private sphere was
akin to state action, and therefore should be within the purview of human rights.
For some, sexual subordination was at the core of what was labeled the private
sphere. Catharine MacKinnon, for example, entered the international human
rights discussion in 1990 with a lecture called “On Torture,” in which she argued
that human rights law and discourse problematically embodied a distinction
between what is “sexual or intimate” and what is a political act by the state:
“When the abuse is sexual or intimate, especially when it is sexual and inflicted
by an intimate, it is gendered, hence not considered a human rights violation.”26
Noting that “all around the world, women are battered, raped, sexually abused
as children, prostituted, and increasingly live pornographic lives in contexts
saturated more or less with pornography,”27 MacKinnon contended that intimate
sexual violence is indeed political because “the state is not all there is to power.”28
That said, in line with those who argued that the public/private distinction is
an ideological construct, she also pointed out that “the state actually is typically
deeply and actively complicit in the abuses mentioned.”29
Whether or not they saw sexual dominance and subordination as constituting what was often labeled the private, and regardless of whether they saw the
public/private distinction as inherent to human rights law and discourse (versus
as an ideologically driven manifestation of its implementation), structural-bias
feminists tended to locate women’s oppression in what is commonly seen as the
private sphere. That is, they considered women to be at least as oppressed by
their families and communities (or “culture”), as they were by direct government action.
Despite their insistence that gender oppression was universal, structuralbias feminists tended to concentrate on posited Third World cultural practices
as particularly harmful. Some of their most prominent examples were female
genital mutilation (as they called it), dowry deaths, and even apparent food
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taboos that kept women undernourished.30 Structural-bias feminists also generally assumed that First and Third World feminists shared a common goal. As
Hilary Charlesworth, Christine Chinkin, and Shelly Wright put it in 1991 in one
of the earliest pieces to be published on feminist approaches to international
law, this common goal was to challenge “structures that permit male domination,” even though the “form of the challenge and the male structures may
differ from society to society.”31 The focus on the victimization of Third World
women and the assumption of solidarity were at least partly responsible for the
(re)emergence of critique from women in and aligned with the global South.
These Third World feminist critiques did not challenge human rights law as much
as they questioned the particular assumptions and priorities of the structuralbias feminist approaches to it.32
C. Third World Feminist Critiques
Since at least the 1970s, there had been significant disagreement in international
forums between women from the global South and the global North (which
were then referred to as the Third World and First World). Much of that discord mirrored that between developing and developed countries more generally
at the time. That is, at least some women from the global South aligned with
their governments’ resistance to racism, colonialism, and apartheid, along with
their related commitment to a New International Economic Order (NIEO). The
NIEO, initially proposed in the 1970s by a coalition of recently decolonized and
other Third World states, had a broad agenda but was primarily aimed at the
maldistribution of wealth and resources among countries.33 These women from
the Third World often saw those from the First World, including feminists, as
implicated in the economic and other forms of exploitation faced by those in
the Third World. At a minimum, they saw First World feminists as focused on
the wrong issues. The resulting tensions often played out at intergovernmental
meetings, such as the early UN World Conferences on Women. Even when
feminist activists came together through nongovernmental meetings at the conferences, they often reproduced many of the same debates that were happening
in intergovernmental forums.
The turn of feminists, particularly of structural-bias feminists, to human
rights law and discourse in the late 1980s and early 1990s both revived and
transformed the debates. In an earlier era, it could be argued that feminists in
the global North simply had different priorities for themselves than women in
the global South did for themselves, though many in the South were quick to
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27
note that the global economy and history of colonialism made such a distinction impossible. International human rights law provided a new platform for
feminists in the North to address what they considered to be the needs and
rights of their “sisters” in the South. The Vienna Conference in 1993 and the
UN World Conference on Women in Beijing in 1995 offered opportunities for
structural-bias feminists both to provoke anew and to respond to some Third
World feminist critiques.
Third World feminist critiques questioned the solidarity assumed by many
structural-bias feminists on a variety of grounds, ranging from the cultural to the
economic.34 To begin with, many Third World feminist critics called attention to
cultural differences that they believed were either omitted in structural-bias universalizing claims about gender oppression or misunderstood in the condemnations of certain cultural practices in the Third World. Some criticized the failure
of feminists in the First World to distinguish their own interests from those of
women in the South, arguing for the need to take seriously differences in culture
that may underlie differences in interests. Anthropologist Aihwa Ong asserted,
for example, the need for feminists in the North to recognize the “alternative
political moralities that shape the ways women in other societies make moral
judgments about their interests and goals in life, and use other cultural criteria
about what it means to be female and human.”35 Others called on First World
women’s human rights advocates to reexamine their own cultures for forms of
oppression that they may have failed to identify.36
Third World feminists also often argued that structural-bias feminism represented Third World women in ways that denied their agency. Leslye Obiora argued, for example, that structural-bias feminists “tend to conflate the specificities
and meanings of women’s experiences and to perpetuate the dubious portrayal
of women as mere epiphenomena or passive objects of male transactions.”37 That
argument had begun to be made about structural-bias feminist representations
of First World women as well, but Third World feminists saw its effect as particularly insidious, and imperial, in the context of women in the global South.
As Vasuki Nesiah explained, “A discourse about the experience of oppression
often participates in the imperially charged agenda of defining ‘Third World’
women as victims of oppression.”38 Ratna Kapur would later point out that such
a perception of Third World women had “serious implications for the strategies
subsequently adopted to remedy the harms.” Specifically, it encouraged “some
feminists in the international arena to propose strategies which are reminiscent
of imperial interventions in the lives of the native subject and which represent the
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‘Eastern’ woman as a victim of a ‘backward’ and ‘uncivilized’ culture.”39 If white
men had, during colonial times, sought to “sav[e] brown women from brown
men,” in the words of Gayatri Spivak,40 Third World anti-imperial feminist critics
often charged structural-bias feminists with attempting to do the same through
the women’s human rights movement.
Relatedly, Third World feminist critiques also questioned the structural-bias
focus on the private sphere—or family, community, and culture—as the primary
locus of women’s oppression, and the way in which that focus displaced other
issues central to the lives of Third World women. As Obiora later put it: “The
truth of the matter is that, despite popular feminist discourses, culture may not
be the dispositive influence on the responses of women.”41 She also explained
that “campaigns for sexual rights and freedoms [have been] disparaged as the
trite obsession of privileged Western feminists by some feminists who preferred
to emphasize economic concerns.”42
Even when structural-bias feminists from the global North attempted to address economic issues, such as the rights of female workers in the global South,
some Third World feminists argued that they missed the source of the problems
by analyzing them through a structural-bias lens. Ong, for example, questioned
Northern feminists’ sense of solidarity with women in the global South, along
with their understanding of the effects of global capital. Contending that “local
patriarchal norms” are not alone responsible for the mistreatment of female
workers, she argued that “strategic sisterhoods will have to confront not only
cultural practices in Third World countries, but also metropolitan capitalist enterprises that are driven by profits to seek cheap female labor in the South.”43
Although the tensions between North and South were, in many ways, mediated by the women’s human rights movement as it developed over time, structural-bias feminists did not abandon their universalizing assumptions about
gender oppression or their focus on and essentialized assumptions about many
(Third World) cultures. Indeed, as every chapter of this book demonstrates,
attention to sexual violence in conflict both guided and arguably reinforced
those assumptions. Yet, they have operated in ways that have largely resisted
criticism from most other strands of feminism, even while garnering significant
mainstream appeal.
III. “Women’s Rights Are Human Rights” at Vienna
The UN World Conference on Human Rights in Vienna was initially planned in
1989, with the belief that the ensuing end of the Cold War would bring expanded
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29
opportunities for promoting human rights. When the preparatory meetings for
the conference began in September 1991, new disagreements developed that
called into question the anticipated consensus. As the UN Office of the High
Commissioner for Human Rights put it, there were “many difficult, sometimes
divisive, issues regarding national sovereignty, universality, the role of nongovernmental organizations and questions concerning the feasibility, viability,
and impartiality of new or strengthened human rights instruments.”44 Asian
countries, in particular, came together to champion economic and social rights
and the right to development, and to oppose the conditionality of development
assistance on human rights. In doing so, they sparked a debate around “Asian
values” that would animate much of the conference and the preparatory meetings leading up to it.45
Feminists also organized, beginning in December 1991, via the campaign
to have women’s human rights included in the Vienna Conference. Rutgers
University’s Center for Women’s Global Leadership, headed by Charlotte Bunch,
launched the Global Campaign for Women’s Human Rights, which helped initiate a petition calling on the conference “to comprehensively address women’s
human rights at every level of the proceedings.” It demanded in particular that
“gender violence, a universal phenomenon which takes many forms across culture, race, and class, be recognized as a violation of human rights requiring
immediate action.”46 The petition garnered more than 300,000 signatures from
more than 120 countries.47 By the time it was presented on the floor of the conference, according to Bunch, half a million people had signed it.48 Moreover,
women around the world organized to define their issues and to lobby both
governments and human rights NGOs at regional preparatory meetings for
the conference.49
This organizing was done primarily under the “Women’s Rights Are Human
Rights” banner. If women’s rights had been largely missing from the mainstream
thinking about human rights at the time, the human rights lens was also relatively
new for feminists and others concerned with women’s issues. Remarkably, there
had been little consideration of women’s rights as human rights at the three UN
world conferences on women up to that time, which were centered on the themes
of equality, peace, and development. The words “human rights” seldom appeared
in any of the formal documents produced at those conferences, and when they
did, they referenced women more often as advocates for, rather than subjects of,
human rights. Indeed, the terms “women’s human rights” and “human rights of
women” were rarely used at all before the late 1980s. (See Figure 1.1.)
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Figure 1.1. An N-gram, based on eight million of the titles published from 1940 to 2008
and digitized in Google Books, demonstrating an increase in references to “human rights
of women” and “women’s human rights” beginning in the mid-1970s. See generally
Michel et al., “Quantitative Analysis of Culture Using Millions of Digitized Books.” I do
not use this and subsequent N-grams as proof of my analysis, only as some further
confirmation of it.
Bunch dates the use of the “Women’s Rights Are Human Rights” slogan to
a campaign launched in the Philippines in 1988 by the anti-Marcos women’s
coalition GABRIELA.50 As indicated above, feminist critiques of human rights
had begun a bit sooner, but they were relatively rare and largely took place at the
margins of academic and non-academic endeavors alike. In 1987, for example,
I attended the Inter-American Institute’s annual course on human rights in San
José, Costa Rica, aimed largely at human rights practitioners in the region. The
institute offered, for the first time ever, an elective seminar titled “Human Rights
and Nondiscrimination.” It was led by Costa Rican feminist and human rights
advocate Alda Facio, who was clearly ahead of the curve, as the seminar topic
attracted very few participants. Even within our small group, there was significant
resistance to the concept of women’s human rights, particularly by those who had
chosen to attend the seminar to discuss the rights of indigenous peoples. They
were skeptical of rights in general because of their historical association with the
imposition of Western cultural standards, and they saw women’s rights as exacerbating the extent to which human rights might encroach upon indigenous rights.
When, as a law student in 1988, I worked with some fellow students to persuade the Harvard Human Rights Program to sponsor a conference that we
titled “Women’s Human Rights: Possibilities and Contradictions,” my sense of
the marginality of the topic was confirmed. With the help of women’s human
Sexual Violence in Conf lict and Women’s Human Rights
31
rights advocates and scholars Arvonne Fraser and Rebecca Cook, we assembled
an array of feminists who were speaking in human rights terms. But we also
invited representatives from a number of mainstream human rights NGOs to
participate, though few took the conference seriously. The director of one major
human rights NGO in the United States turned down the invitation, stating
that he did not see the need for a separate conference on women. The director
of another attended and, during his talk, explained that violations of women’s
rights were a part of his organization’s mission, so long as they were committed
by state actors in their public roles. Not surprisingly, much of the discussion
at the conference focused on how to convince mainstream nongovernmental
and intergovernmental human rights organizations that they should attend to
women’s rights, particularly by holding state actors accountable for violations
by non-state actors in the private sphere.51
Especially given the resistance we encountered in 1988, it is surprising how
quickly the women’s human rights movement caught on. Bunch, who was one
of the main speakers at the Harvard conference, notes that in the early 1990s,
“women’s caucuses formed within human rights organizations like Amnesty
International, and Human Rights Watch established its own Women’s Rights
division to research global abuses against women and girls in the context of international law.”52 These and related activities, according to her, helped facilitate the
organizing that took place to put women’s human rights on the agenda in Vienna.
The Women’s Rights Are Human Rights campaign succeeded at Vienna.
Even while the intergovernmental conference and preparatory meetings revived
North-South—as well as East-West—debates about culture, development, and the
prioritization of civil and political rights, few opposed the inclusion of women’s
rights. As Bunch noted, “the text on women came to the conference almost free
of brackets, to the surprise of some men in human rights organizations where
the issue was still seen as marginal, if about human rights at all.”53 And, according
to Bunch and collaborator Niamh Reilly, “gender-based violence and women’s
human rights emerged as one of the most talked-about subjects, and women were
recognized as a well-organized human rights constituency.”54 They pointed, in
particular, to the significant number of pages of the Vienna Declaration devoted
to the equal status of women and to its call for the elimination of violence against
women in both the public and the private spheres.55
As already mentioned, the final official document named systematic rape
and other forms of violence committed against women during armed conflict
as human rights violations.56 The timing of the conference and the geographical
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proximity of Vienna to the former Yugoslavia meant that the conflict loomed
large in both the governmental and the nongovernmental portions of the conference. Much discussion of the conflict took place in the context of the Global
Tribunal on Violations of Women’s Human Rights, a sort of people’s tribunal
organized by the Center for Women’s Global Leadership and held on the second
day of the conference. The tribunal aimed to call “international attention to a
pattern of female human rights abuse which must be taken seriously if human
rights are to be an effective and credible component of the global political and
economic order for the 21st century.”57 In general, the Global Tribunal and the
feminist advocacy leading up to it played an important role in articulating the
understanding of women’s human rights that would be pursued two years later
in Beijing at the UN World Conference on Women. But its specific attention to
rape and other forms of sexual harm also set in motion an understanding of the
harm of and necessary responses to rape and sexual violence that would manifest
themselves in the soon-to-be-developed instruments of international criminal
law, as well as in debates about military intervention.
The few histories that have been told of feminist efforts to bring women’s
rights to the human rights table in Vienna, and human rights to the women’s
table in Beijing, suggest that little debate occurred among feminists at or leading
up to the meetings. Those accounts contrast sharply with descriptions of other
international meetings, namely earlier UN conferences on women. Some of the
Third World feminist critiques articulated in the aftermath of the Vienna and
Beijing conferences make it clear that disagreements continued, at least at the
academic level. But women’s human rights advocacy at both Vienna and Beijing
functioned on multiple levels to neutralize Third World critiques. Some of this
neutralization came with the consensus-building that was necessary to attempt to
bring the margin (women) to the center (human rights) in Vienna. That consensus was achieved through three different, albeit related, moves: (1) the creation
and invocation of what I have termed “culturally sensitive universalism”; (2) a
strategic focus on violence against women, building on international feminist
networks that had been developing since the mid-1980s; and (3) the attention
to rape in conflict, and eventually to the larger category of sexual violence in
conflict. Let me consider each in turn.
A. Culturally Sensitive Universalism
Perhaps the Third World feminist critiques that had the greatest impact on Vienna were those that called for the recognition of differences in cultures (and
Sexual Violence in Conf lict and Women’s Human Rights
33
gender relations). Feminists from around the world played important roles in
women’s human rights advocacy at Vienna, and they did so in ways that avoided
some of the controversies of earlier UN conferences on women. The recognition
of difference in fact helped facilitate solidarity between women of the global
South and North, and it was manifested in a compromise on culturally sensitive
universalism that emerged in Vienna and was continued in Beijing.58
In Vienna, the Asian values debate that had captured a great deal of attention
leading up to the conference provided the backdrop to the compromise. On the
surface, at least, that debate was largely over the question of whether and how
differences among cultures (often conflated with states, in the Asian values version of it) could be effectively addressed by a universal human rights system.
The Vienna Declaration demonstrated the compromise in Paragraph 1, stating
that “the universal nature of these rights and freedoms is beyond question,”59
and Paragraph 5, noting, by contrast, that “the significance of national and regional particularities and various historical, cultural and religious backgrounds
must be borne in mind.”60 Paragraph 5 went on to state, however, that “it is the
duty of States, regardless of their political, economic and cultural systems, to
promote and protect all human rights and fundamental freedoms.”61 Hence, the
paragraph arguably ended with universality, but a universality that recognized
difference. The inclusion of both universal and particular language seemed to
satisfy many participants at the conference; its ambiguity could be claimed as a
victory by both sides.62
The Beijing Declaration and Platform, which resulted from the UN World
Conference on Women held in 1995, repeated this language verbatim, ensuring
its application to women’s human rights.63 For some, the culturally sensitive part
of the compromise signaled at least a partial success for the Third World feminist
assertions of cultural specificity and for their wariness of Western feminist assertions of universal values. Obiora, for instance, read the combined universal
and particular language in the Beijing Declaration as containing “a problematic
element of contradiction,” but she suggested that the ambiguity was nevertheless
an improvement over the language in other women’s rights documents that had
expressly disavowed the significance of cultural difference for women’s human
rights.64 If the compromise in the declarations represented a nod toward cultural
difference for some, others claimed it supported universalism.65 In response to
seeing such different interpretations of the language, Dianne Otto argued that
the ambiguity “reflects the paralysis of the debate and leaves the issue firmly on
the international human rights agenda for another day.”66
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Over time, however, the spirit of the compromise seemed to stick. That is, the
culture issue did not re-emerge as an explicit site of contestation, at least not in
the same way as it had in the past. In the five years following 1995, feminists in
both the global North and the global South wrote many scholarly articles with
the aim of finding a middle way between universalism and relativism.67 They
often offered human rights as a unifying tool.
While the newly culturally sensitive language and literature might have responded to some of the Third World feminist critiques of structural-bias feminism’s approach to culture, it failed to respond to the most radical of the critiques,
which was aimed at the unwillingness or even inability of structural-bias feminism to take seriously the role of the global North (including women who live
there) in the exploitation of women in the global South. Taking that anti-imperial
critique seriously would require attention not only to the gendered and cultural
dimensions of the global distribution of wealth, but also to the economic dimensions of politics about gender and culture.
The anti-imperial part of the Third World critique has continued in a variety
of contexts, but it has had little influence on the subsequent development of the
women’s human rights movement or, as we see in subsequent chapters, international criminal law or the UN’s Women, Peace and Security agenda.68 That result
was not wholly unintended. Indeed, even before Vienna, as we see in the next
section, feminists sometimes coalesced around VAW in a deliberate attempt to
displace attention from global economic inequality.
B. Violence against Women
From the beginning of feminist efforts to add women’s human rights to the
Vienna Conference agenda, combating VAW was a central goal. Indeed, the
Center for Women’s Global Leadership initiated the 1991 petition drive during
the launch of its 16 Days of Activism against Gender Violence, a campaign named
to mark the days between the International Day of Violence against Women on
November 25 and International Human Rights Day on December 10.69 While
the petition called for women’s human rights to be addressed comprehensively,
gender violence was the one issue it specifically named.
The Global Tribunal continued that focus, with hearings on “human rights
abuse in the family,” “war crimes against women,” “violations of women’s bodily
integrity,” “socio-economic violations of women’s human rights,” and “political persecution and discrimination.”70 Much of the testimony presented under
these categories concerned physical violence, and often—as I discuss further
Sexual Violence in Conf lict and Women’s Human Rights
35
below—sexual violence. Even the session on socioeconomic violations, according to the summary provided by Bunch and Reilly, concentrated on how such
violations make women more vulnerable to physical and sexual exploitation.71
This approach to women’s economic and social rights was in line with Bunch’s
concerns discussed above about the “socio-economic web that entraps women.”72
Although the discussion of VAW as a human rights issue was relatively new
in the early 1990s, VAW had been a subject of international women’s organizing
at least since the UN World Conference on Women held in Nairobi in 1985.73
Indeed, the Nairobi Conference is often discussed as the site at which VAW first
received significant international recognition. The Nairobi Forward-looking
Strategies, the official document produced by the governmental delegates, stated:
“Women are beaten, mutilated, burned, sexually abused and raped.”74 That language appeared in the section on peace (recall that the World Conferences on
Women had peace, equality, and development as their triple mandate), declaring that violence against women “in everyday life in all societies” constitutes
“a major obstacle to the achievement of peace and the other objectives of the
[Women’s] Decade.”75
The NGO Forum that ran parallel to the governmental conference paid even
greater attention to VAW, with nearly one-third of the workshops devoted to the
topic.76 According to Arvonne Fraser, who was active in the NGO Forum after
having been an official U.S. delegate to the first two UN World Conferences on
Women, VAW was a unifying topic. She observed that at the Peace Tent, which
was part of the unofficial forum and particularly intended to bring together
women whose countries were at war with one another, “women in chadors conversed with Israeli women, violence against women being the meeting ground.”77
Not all would agree that VAW, rather than the promotion of peace, provided
the common ground for the Peace Tent.78 Yet, finding a “meeting ground” for
women from the global North and the global South provided one of the motivations for the emphasis that women’s human rights advocates placed on VAW. In
an account of the origins of the 16 Days of Activism campaign, for example, the
Center for Women’s Global Leadership notes that it convened a group of activists from a number of different countries in 1991 to discuss gender and human
rights and to begin to develop “strategies to increase international awareness of
the systemic nature of violence against women and to expose this violence as a
violation of women’s human rights.”79 The aim of overcoming cultural difference
was at the forefront of their decision: “While violence against women takes different forms according to its cultural context, the problem exists everywhere and
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working on the issue offers unique opportunities to build bridges across cultures,
to learn from both similarities and differences, and to link strategies globally.”80
According to Margaret Keck and Kathryn Sikkink, this strategy intentionally responded to the disillusionment in the mid-1980s of those who had been
working on women and development issues for some time. Although development had provided the first context for bringing women from the North and
South together, they point out, “the issue of women and development never
spawned a major global network or campaign,” in part because the “concerns
were so systemic that they defied individual or group efforts to effect change.”81
Contending that VAW “appeared to offer clearer avenues for activism,” they
quote Bunch: “Sometimes deceptively, sometimes usefully, you feel like you can
do something about it. There are everyday things you can do about it, from
wherever you are.”82 They also note that “some of the most innovative groups
to take on the women and development issue . . . later became leaders in the
campaign for human rights.”83
The simultaneous rise of human rights advocacy and decreased attention to
economic development was not unique to issues of gender or women. In fact,
it could be seen shortly after the end of the Cold War, before women’s human
rights had made it into the mainstream. An N-gram, depicting the percentage
of digitized books in English from 1940 to 2008 that reference “economic development,” on the one hand, and “human rights,” on the other, offers a visual
approximation of this change in both practice and theory during this period.
Figure 1.2 shows the lines representing the frequency of each of those terms
crossing between 1989 and 1990.
Combined with end-of-the-Cold-War market fundamentalism, the women’s
human rights movement’s centering of VAW provided a new way to mediate
debates about culture. It also contributed to the displacement of attention to
(and disagreement over) Third World economic development, in part by subsuming the issue.
Indeed, early discussions of VAW were often articulated in terms of development, but in ways that Jennifer Suchland argues “deprioritize[d] feminist
economic analysis.”84 She critiques two approaches by Bunch and others that
deliberately attempted to link development and VAW and that, according to
Suchland, rely on the “logic of agency.”85 One approach considered VAW to be
an unanticipated outcome of development programs, as male retaliation for
the female economic power resulting from those initiatives. The other viewed
VAW as preventing women from participating in development. In these and
Sexual Violence in Conf lict and Women’s Human Rights
37
Figure 1.2. An N-gram based on eight million of the titles published from 1940 to 2008
and digitized in Google Books, comparing references to “human rights” and “economic
development.”
other linkages between VAW and development, Suchland persuasively argues,
development discourse “operates in conjunction with, rather than as a critique
of, neoliberal governance.”86 It is a far cry from earlier Third World feminist (and
other) critiques of the international global order.
C. Sexual Violence in Conflict
The Nairobi Conference might have set in motion this significant attention to
VAW, but it did not address the issue in the way that it would be taken up several years later in Vienna. As the UN Division for the Advancement of Women
explained in a 1998 report, “The general vulnerability of women to sexual abuse
and rape in everyday life was recognized” in the 1985 Nairobi Forward-looking
Strategies, “but sexual violence was not specifically linked to armed conflict.”87
The Vienna Conference simultaneously addressed that link and the earlier lack
of “explicit recognition that violence against women is a human rights issue.”88
Three moves took place at the governmental and nongovernmental meetings in Vienna that facilitated the heightened consideration of sexual violence
in conflict: (1) an attention to armed conflict as a site of human rights violations and to the international humanitarian law that governs conduct in war;
(2) a focus on the particular effects of armed conflict on women; and (3) the
spotlighting of sexual violence as constituting the greatest harm that women
experience in conflict.
With regard to the first move, we have already seen that the armed conflict in
the former Yugoslavia was very much on the minds of participants at the Vienna
38
Chapter 1
Conference. Discussion of atrocities committed during the conflict undoubtedly
affected the drafting of the Vienna Declaration. The declaration included multiple
references to violations of human rights committed in armed conflict, and called
upon states to observe international humanitarian law.
The second and third moves brought together the focus on armed conflict
and the broader attention to VAW promoted by women’s rights advocates. Those
advocates presented the reported rapes in the Yugoslav conflict as symptomatic
of the type of violence that they urged human rights NGOs and governments
to address. Indeed, the 1998 UN report described Vienna as a “watershed for
women’s human rights,” in large part because of its focus on sexual violence
in conflict, explaining that “at that time, reports of sexual violence committed
against women in the former Yugoslavia had flooded the media. The accompanying worldwide outrage provided powerful support for NGO arguments that
violence against women is a fundamental human rights violation, of concern
to the international community at large.”89 Even if discussion of sexual violence
in conflict began as a compelling example of VAW, the issue soon dominated.
According to the Vienna Declaration, “violations of the human rights of
women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law.” That statement
showed attention to particular harms to women during conflict, demonstrating the second move, but the third move came in its list of examples: “murder,
systematic rape, sexual slavery, and forced pregnancy.”90 With the exception of
murder, the condemned violence is all sexual in nature. The inclusion of that
language in the official Vienna Conference document tracked a much more detailed discussion of sexual violence in conflict that had taken place at the Global
Tribunal. As previously mentioned, a large percentage of the testimony in each
of the sessions dealt with VAW. But, as Alice Miller has demonstrated, much of
that VAW testimony was about sexual violence.91
The Global Tribunal devoted its first session to “war crimes against women.”
Bunch and Reilly identify three themes that emerged, as some women testified
about being “comfort women” during World War II and others spoke of their
experiences during conflict in the former Yugoslavia, Palestine, Peru, Russia,
and Somalia: “women’s bodies are figuratively and actually the site of combat in
wartime; women’s human rights are violated through the exploitation of familial
relationships; and, women suffer diproportionately from economic and social
dislocations caused by conflict.”92 Notwithstanding that these three themes do
not explicitly reference sexual violence (and that there was testimony on other
Sexual Violence in Conf lict and Women’s Human Rights
39
matters), the bulk of Bunch and Reilly’s written description of the testimony is
about it.93 For instance, their discussion of the first theme—women’s bodies as the
site of combat—is exclusively about sexual violence, and they devote three times
more space to it than they do to the other two themes. This emphasis was true in
other areas as well. As Miller concludes, after viewing a video made available of
some of the testimony from the tribunal as a whole, “Of the 15 or so testimonies
shown, at least 10 deal with sexual assault in detention, incest, rape in marriage,
trafficking for forced prostitution, or rape in armed conflict.”94
The sexual violence testimony also captured the attention of Canadian politician Ed Broadbent, whom the organizers selected as the judge for the war crimes
session. Broadbent began his response by noting that he was the first man to
speak all day and then zeroed in nearly exclusively on the testimony of rape.
He labeled the acts of rape that he had heard about during the session as crimes
against humanity, and even stated that they had been used as an instrument of
ethnic cleansing.95 He did not mention the other two themes. The official (unofficial) judgment on the effects of war on women at the Global Tribunal therefore
solely concerned sexual violence.
This near-singular attention to sexual violence in the context of women and
armed conflict further submerged the Third World feminist critique of economic
distribution. As Miller puts it, “Once sex was accepted as an area of concern, a
‘hyper-attention’ to sex perversely operated to exclude attention to other aspects
of harm,” such as “global labor equity,” “participatory equality,” and “life-saving
health interventions and systems for women and men.”96 The focus on sexual
violence in conflict also became another way to avert, even suppress, the debates
over culture, given that no one—feminist or otherwise—could claim that rape in
war was culturally defensible. And few would even suggest that it demanded a
culturally sensitive response. Moreover, the fact that the rapes were taking place
in Europe meant that Northern feminists could attest that they were attending
to issues “at home.”97
Beyond sidelining these Third World feminist critiques, the prioritization
of and near-agreement on sexual violence in conflict facilitated the dominance
of the sexual subordination strand of structural-bias feminism within human
rights, humanitarian law, and eventually international criminal law. Prior to
Vienna, little of the VAW work had been about conflict-related violence.98 Yet,
as already noted, many of the structural-bias feminists who turned to women’s
human rights advocacy had long emphasized sex-related violence against women
in their work. The “W” in “VAW” makes clear that women were its focus. But
40
Chapter 1
that focus rested upon a theory of gender. As Bunch explained in her 1990 article
calling for a transformative approach to human rights:
Victims are chosen because of their gender. The message is domination: stay in
your place or be afraid . . . [Such violence] is profoundly political. It results from
the structural relationships of power, domination, and privilege between men
and women in society. Violence against women is central to maintaining those
political relations at home, at work, and in all public spheres.99
Though Bunch noted that her transformative approach could be applied to any
issue, she stated that those who pursued it “have tended to focus most on abuses
that arise specifically out of gender, such as reproductive rights, female sexual
slavery, violence against women, and ‘family crimes’ like forced marriage, compulsory heterosexuality, and female mutilation. These are also the issues most
often dismissed as not really human rights questions.”100 “Sexual violence” was not
then a term commonly in circulation. (See Figure 1.3.) Yet nearly all of Bunch’s
examples would fit into that category as it became constructed.
In fact, those working to end VAW had been mired for some time in a controversy about how central sexual violence should be to their agenda. Even before
Nairobi, some feminists had organized against what they called “female sexual
slavery.” That term is generally attributed to Kathleen Barry, who published a
book in 1979 on the topic.101 Bunch worked with Barry in the early 1980s to
organize an international network against female sexual slavery, hosting a global
workshop on sex trafficking in Rotterdam in 1983.102 Although the focus of the
conference was what the organizers called “forced prostitution,” Barry’s refusal to
share the stage with Margo St. James, who was a sex worker and noted advocate
for the decriminalization of prostitution, suggested a refusal to acknowledge the
possibility of consensual sex work.103 Moreover, the conference emerged from
earlier meetings that reached well beyond prostitution.104 As Barry explained,
female sexual slavery incorporated women “who are the victims of sex tourism,
who are the victims of gangs that traffic women from South America to Europe,
women who are sexually tortured and enslaved as political prisoners in totalitarian dictatorships and women enslaved in their own homes.”105 Sex, of course, was
seen as the basis of all of these oppressions, and the aim was to connect the “force,
coercion and violence in prostitution to the violence in women’s lives around the
world, in wife battery, rape, incest, bride burning, excision and pornography.”106
Another group, called sex-positive or sex-radical feminists, criticized the
Rotterdam meeting and other work around “sexual slavery.” Many sex-positive
Sexual Violence in Conf lict and Women’s Human Rights
41
Figure 1.3. An N-gram, based on eight million of the titles published from 1940 to 2008
and digitized in Google Books, charting the steady rise of mentions of “sexual violence”
beginning in the 1970s.
feminists allied with sex workers who were concerned that their livelihoods
would be affected even by those campaigns aimed solely at forced prostitution,
as evidenced by St. James’s attendance at Rotterdam. Some used rights discourse
to make their arguments. Indeed, in 1985, St. James and Gail Pheterson founded
the International Committee for Prostitutes’ Rights (ICPR), which held a World
Whores Congress that same year in Amsterdam. The ICPR adopted a World
Charter for Prostitutes’ Rights, which included rights that would provide economic security, both by allowing prostitutes to do their jobs and by providing a
safety net. The World Charter, for example, guaranteed prostitutes “all human
rights and civil liberties, including the freedom of speech, travel, immigration,
work, marriage, and motherhood and the right to unemployment insurance,
health insurance and housing.” Further, it connected the rights talk with larger
efforts to decriminalize consensual sexual conduct, calling for the granting of
“asylum to anyone denied human rights on the basis of a ‘crime of status,’ be it
prostitution or homosexuality.”107
Notwithstanding their relatively early use of rights language, sex-positive
feminists ultimately had little effect on the discourse that prevailed at the Vienna
Conference. When they discussed rape, for instance, sex-positive feminists did
believe its criminal prohibition should be enforced, but they placed it alongside
a very different list of crimes than those enumerated above by Barry, or similar
lists that would make it into the Vienna Declaration and, as we will see, the Rome
Statute. Specifically, the World Charter called for the enforcement of “criminal
42
Chapter 1
laws against fraud, coercion, violence, child sexual abuse, child labor, rape, racism everywhere and across national boundaries, whether or not in the context of
prostitution.”108 Not only were child sexual abuse and rape the only sexual crimes
mentioned, but the World Charter suggested Third World feminist stances as it
took on racism, violence, and all forms of fraud and coercion.
To be fair, some of the anti–sexual slavery feminists were, at least initially,
somewhat open to the Third World feminist critiques as well. In her own writing about the 1983 Rotterdam meeting, for example, Bunch pointed out that the
trafficking workshop looked at how “the exploitation of women in prostitution
and . . . violence against women” are connected to “oppression by class, race,
militarism, and neo-colonialism.”109 Bunch, along with Shirley Castley, insisted
that feminism incorporate the need for “the achievement of women’s individual
dignity and freedom” and control over their bodies and lives, alongside “the
development of a just social and economic order, nationally and internationally.”110 That said, they ultimately thought it was important to address “issues like
those of poverty, cultural devaluation of women, and sexual abuse in the home”
because they were “major conditions which make women and girls vulnerable
to these practices [of female sexual slavery].”111
When Bunch turned to VAW and then to the woman’s human rights movement, she took with her a central focus on sexual subordination. And there,
too, that focus affected the approach to economic and social rights. Indeed,
the language above is strikingly similar to Bunch’s later discussion of the need
for economic and social rights at the Global Tribunal and elsewhere: economic
deprivation makes women vulnerable to sexual exploitation.
Bunch would later say that “it was the issue of sex trafficking presented as an
example of violence against women that highlighted the need to stake out women’s
human rights.”112 Although it might not have been the dominant example offered
by many women’s human rights advocates, the theorizing that helped construct
the category of female sexual slavery made its way into VAW discussions. As Suchland argues, the VAW category is in many ways “the heir to sexual slavery—and
this legacy is certainly important for understanding why such a range of issues
(wife battery, trafficking, rape, prostitution, and pornography) became subjects
of one composite category ‘violence against women.’”113 For Suchland, the Vienna
Conference solidified rhetorically the connection between sexual violence and
sex trafficking. More importantly for my purposes, it solidified the connection
between VAW and sexual violence, by recognizing the former, largely defined by
the latter, as the quintessential violation of women’s human rights.114
Sexual Violence in Conf lict and Women’s Human Rights
43
Given the sex-positive critique, it seems that the move to narrow VAW to
sexual violence should have been more controversial than it turned out to be.
I have already suggested some reasons for the relative lack of controversy over
the prioritization of VAW more generally: namely, the explicit attempt to choose
VAW as a North-South unifying topic and the acceptance of culturally sensitive
universalism. But the narrowing of VAW to sexual violence in the context of
armed conflict was established a bit more stealthily. The Global Tribunal, for
example, appeared to cover a number of topics, but continued to prioritize sexual
harm without ever articulating the connection between it and gender-based
violence as clearly as those who campaigned against female sexual slavery did
(even though many of the same actors were involved).
The narrowing of VAW to sexual violence was perhaps less conspicuous
because it took place primarily in the context of discussions around armed
conflict. The example of rape in conflict provided an opportunity to persuade
official delegates to the Vienna Conference that women’s rights were human
rights. Rhonda Copelon later wrote that, along with other testimonies of “gender violence,” “the very concrete fact, brought home by the participation of
women from Bosnia and the former Yugoslavia, that women were being raped
systematically in Bosnia—just hours from the site of the Conference—prevailed
over objections to incorporating gender violence as a human rights problem.”115
Sexual violence also more easily entered the mainstream when presented in the
context of armed conflict because, though no one emphasized it, that context
puts sexual violence more clearly in the public sphere than many other forms
of gender-based violence. It is therefore not surprising that “sexual slavery”
made its way into the Vienna Declaration in reference to armed conflict. While
in general, the declaration uses the language of “gender-based violence” and
“violence against women,” “sexual slavery” is listed as something to be condemned in war, alongside rape and forced pregnancy.116
If the turn to sexual violence in conflict at Vienna seemed to mediate debates
over culture and signal a victory for the sexual subordination strand of structuralbias feminism, it also managed another bitter division that had emerged among
feminists during the months leading up to Vienna. As we see in detail in Chapter
Two, feminists, mostly in the United States and the former Yugoslavia, disagreed
over whether rapes by Serbs, particularly rapes of Bosnian Muslims, were qualitatively and legally different from those committed by Bosnian Muslims or Croats. In the United States, even those structural-bias feminists who focused on
sexual subordination split on the issue, as illustrated by Catharine MacKinnon’s
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Chapter 1
insistence that rapes by Serbs were uniquely genocidal and Rhonda Copelon’s
forceful advocacy that rape on all sides of the conflict should be condemned.
At Vienna, those on both sides of the divide largely kept to their own corners,
even as they worked in their own ways to urge the conference to name sexual
violence in conflict as a violation of human rights and humanitarian law. When
they left Vienna, their disagreements were still alive, but, as we see in Chapter
Three, the discord began to dissipate as they concentrated their efforts on ensuring that the ICTY would be responsive to wartime rape.
IV. The Turn to Criminal Law
In February 2013, Navanethem (Navi) Pillay, then UN High Commissioner for
Human Rights, gave a speech to the General Assembly reflecting on the twenty
years that had passed since the Vienna World Conference on Human Rights.
She discussed three principal achievements of the Vienna Declaration, two of
which were “its role in advancing women’s rights” and “its impact on the fight
against impunity.”117 Regarding the first, she attributed it in part to the success
of the Women’s Rights Are Human Rights campaign at the conference and the
institutional gains it spawned with respect to VAW. As for the second, she noted
that “perhaps most significantly, just one month after the establishment of the
first ad hoc tribunal since Nuremberg [the ICTY], the Declaration nudged the
International Law Commission to continue its work on a permanent international criminal court.”118
Although Pillay did not connect those two achievements—the recognition
of women’s human rights and the fight against impunity through international
criminal law—the two were intertwined. The ICTY turned out to be the beginning of a rapid proliferation and development of international criminal justice institutions, including the establishment of the International Criminal Tribunal for
Rwanda (ICTR) in 1994 (on which Pillay served as a judge) and the International
Criminal Court (ICC) in 2002, which had been opened for ratification in 1998.
And some of the most vocal of the sexual subordination strand of structuralbias feminists soon turned to international criminal law as an important site of
women’s human rights activism.
Even before the Vienna Conference, a coalition of feminists and feminist
organizations based in New York had formed a group they called the Ad Hoc
Women’s Coalition against War Crimes against Women. That group met regularly, as a New York Times article reported in January 1993, “to discuss how to
put pressure on the international law system to bring people responsible for
Sexual Violence in Conf lict and Women’s Human Rights
45
rape to justice,” including by advocating for the UN to establish a war crimes
tribunal.119 Charlotte Bunch, through her Center for Women’s Global Leadership, and Rhonda Copelon were both active in the coalition,120 which saw itself
as having played an important role in the ICTY’s creation. Bunch would later
state that the “women’s groups were more active in the formation of the new
international institution than ever in history.”121
In Chapter Three, I consider in some detail the impact of women’s rights
advocacy, both direct and indirect, on the jurisprudence of the ICTY. Here,
I simply highlight that women’s human rights advocates began to pursue the
international criminalization of sexual violence in conflict at the same time that
women’s rights began to be mainstreamed as human rights. That turn to criminal
law significantly affected the direction of women’s human rights advocacy in
ways that we will see throughout the book. It continued to mediate a number
of disagreements among feminists, while at the same time providing certain
structural-bias feminists with a new means of implementing their approaches
to rape and sexual violence. Indeed, it placed structural-bias feminists among
those at the forefront of the development of international criminal law.
This reliance on criminal law in the early 1990s was in some ways overdetermined, as feminists and human rights advocates were both headed in that
direction. Indeed, in the 1980s and 1990s, as Aya Gruber has documented, U.S.
feminist responses to VAW had begun to turn away from social services and
progressive grassroots resistance and toward the use and promotion of criminal
prosecutions.122 Although the Violence Against Women Act in 1994 was a visible
representation of that turn,123 Gruber notes that feminists were in fact aligning themselves with an approach to domestic violence that had been pushed at
least since 1984, in the name of “family values” and consistent with the Reagan
administration’s broader war on crime.124
Some have argued that feminist critiques of the treatment of rape victims
led to harsher penalties for perpetrators, at least for those accused of “stranger”
rape. As Dianne Martin put it in 1998, speaking of Canada, “Reform initiatives
aimed at supporting complainants fairly quickly evolved into developing means
to ease the road to convictions and to increase penalties.”125 Discussing feminist
law reform advocacy concerning both rape and domestic violence, she also dates
some of the reforms to the mid-1980s, while recognizing that some feminists
had begun to acknowledge the trend a decade earlier.126
Although Martin’s focus is Canada, she notes that “feminists around the world
identified and addressed the failures of the justice system in regard to wife abuse
46
Chapter 1
in remarkably consistent ways,” so that “an almost irresistible pressure drove
the movement toward criminal justice reform and solutions, and to make use
of ‘law and order’ arguments to ensure that criminal justice actors will become
involved.”127 Jutta Joachim describes how such a shift in attitude at the domestic
level manifested internationally at the 1986 UN expert group meeting titled
“Violence in the Family with Special Emphasis on Women.”128 Notwithstanding that victims of violence had, only a decade earlier, expressed considerable
suspicion of state institutions and that therapy and welfare approaches were still
quite prevalent, the experts called for criminal justice interventions. The choice,
Joachim surmises, was not coincidental: “Involving the courts and the police
had, in the eyes of the experts, symbolic significance.”129
As feminism was moving toward criminal law, so too was the human rights
movement. In the early 1990s, international human rights advocates began to express
concerns about “the culture of impunity” (a term rarely used before 1991).130 Those
advocates would eventually argue that states had an international legal obligation to
defy the culture of impunity by criminally investigating, prosecuting, and punishing
non-state actors for violations of human rights. They made this argument in part on
the basis of a 1988 ruling by the Inter-American Court of Human Rights.
In Velásquez-Rodríguez v. Honduras,131 the Inter-American Court held the
Honduran government accountable for its inaction related to the disappearance of a political activist. Even though the Honduran government denied any
involvement in the disappearance, the court found that state accountability did
not rest only on direct state action. Rather, the state owed “a legal duty . . . to use
the means at its disposal to carry out a serious investigation of violations . . . to
identify those responsible, to impose the appropriate punishment and to ensure
the victim adequate compensation.”132
When the women’s human rights movement began to take off, many saw
Velásquez-Rodríguez as marking a paradigm shift. Indeed, a number of scholarly
articles at the time cited the case as pathbreaking, and noted its great potential use
for the women’s human rights movement’s attempt to break down the public/private
distinction.133 Of course, as human rights advocates began to pursue this approach to
state accountability, they made themselves dependent upon some of the very same
state institutions, particularly penal ones, that they had once criticized.
This shift within the human rights movement was also in line with a more
general trend toward international criminal institutions. Indeed, support for an
international criminal court, which had waxed and waned since the end of World
War II, had been on the rise since 1989. By the end of the Vienna Conference,
Sexual Violence in Conf lict and Women’s Human Rights
47
with the establishment of the ICTY one month earlier and with several provisions
of the Vienna Declaration either condemning impunity or calling for criminal
sanctions for individual rights violators,134 the future for international criminal institutions looked better than it had in decades. Structural-bias feminists
emerged from the conference strengthened in their fight against sexual violence
in conflict and prepared to engage with criminal justice systems, particularly
international criminal institutions, in the process.
As demonstrated in ensuing chapters, structural-bias feminists have in fact
played a governance role in international criminal law, beginning with the ICTY,
where they were successful in affecting rules of evidence and procedures as well
as the interpretation of statutes, particularly with regard to charges of rape as a
war crime and a crime against humanity. They also played an important interventionist role in the ICTR, helping to facilitate the first criminal conviction for
rape as a constitutive act of genocide.
Perhaps the most systematic feminist organizing with regard to international
criminal law occurred during the drafting of the Rome Statute for the ICC. There,
advocates attempted to make up for some of the flaws in, or lack of specificity
about, the treatment of sexual violence that they detected in the earlier tribunals.
As Janet Halley describes in significant detail, the sexual subordination strand
of structural-bias feminism prevailed at Rome, as a feminist coalition focused
its activism on sexual violence and succeeded in criminalizing a broad range of
acts beyond those that earlier statutes had explicitly recognized, including “sexual
slavery.”135 For Halley, the lack of disagreement among feminists was striking,136
but even more so was the “placid calm with which male international law elites
from the West received this [structural feminist critique] as the voice of sweet
reason about how to condemn wartime rape.”137
The criminalization impulses behind the reforms pushed in the 1990s by
structural-bias feminists focused on sexual subordination—along with their understanding of the unique harm of rape and other forms of sexual violence—have
largely become common sense. Their acceptance by mainstream elites can be seen
in a variety of forums well beyond the ICC. One site of repeated commitment
to the criminalization of rape and sexual violence in conflict is the UN Security
Council, which, as I explore in Chapter Five, has passed numerous resolutions
that emphasize the need to respond criminally to sexual violence.138 Another is
the Group of Eight (G8), which, as I discussed in the Introduction, made sexual
violence in conflict one of its main areas of focus under the presidency of the
UK in 2013.
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V. Unintended Consequences: A Prelude
The success of structural-bias feminists in the many efforts I have mentioned
does not mean that their message was received or even eventually pursued in
the ways that they might have hoped for in 1993. Even as international legal and
institutional developments suggest a victory for those structural-bias feminists
who saw sex as the basis of women’s oppression by men, the sexual focus of their
advocacy has had long-term consequences for the understanding of rape and
sexual violence that they may or may not have considered. One such consequence
is that international condemnations of sexual violence generally oversimplify
both sexual violence and conflict. In particular, they assume that shame and
stigma necessarily accompany sexual violence in conflict, in ways that forever
destroy individual victims and their communities. As we see throughout the
book, that assumption often contains an ethnic dimension that brings cultural
essentialization back to the fore.
Furthermore, within the common sense, sexual violence is less frequently
portrayed as a gender issue, or even as an issue about male domination and female subordination. Rather, it is represented as a “weapon of war” (a term initially
promoted by feminists, particularly in the Bosnian context) that frightens and
affects not only women and girls but also men and boys. With the move from
the gendered to the sexual aspects of the violence, and the loss of connection
between the two, comes a hyper-attention to sex, which might help to explain
its mainstream appeal. But it should also give us pause. Seen in this way, much
of the feminist work in response to sexual violence in conflict has aided in the
production, or at least reinforcement, of particular types of “proper” sexuality
(heterosexual, of a certain age, monogamous, within the same ethnic group,
etc.). For Alice Miller, neither result was necessarily accidental. Looking back
on her own role in making VAW and sexual violence central to women’s human
rights advocacy, she says, “In the struggle to gain credibility for women’s human
rights groups, many of us struggled to assert respectability at the price of other
less respectable women. In doing so, we inadvertently used human rights terms
to help reinforce (and not reconsider) the [sexual] hierarchies.”139
Importantly, feminists were not simply co-opted.140 Structural-bias feminists
elevated the harm of sexual violence to the status of the principal harm to women
in general, and especially in war. When they were debating other feminists, sexual
violence was gender violence (and vice versa). And when they went out into the
world, their language of sexual violence resonated with political and institutional
actors across political, national, cultural, and religious lines. As the rest of the
Sexual Violence in Conf lict and Women’s Human Rights
49
book demonstrates, structural-bias feminism has, through acquiescence and
sometimes encouragement, supported military, carceral, and security regimes.
Not only have these regimes failed to ameliorate, and even arguably have exacerbated, the maldistribution of global power and resources that many Third
World feminists had long decried, but they have reinforced negative images of
sex and sexuality—primarily, but not only, for women—as well as reductive and
damaging understandings of gender and ethnicity.
CHAP TE R T WO
Calling in the Troops
I N 19 9 2 , W H E N B O S N I A N M U S L I M W O M E N arriving in refugee camps in Croatia
reported that they had been raped by Serbian men, they captured the attention
of local and, eventually, international media. According to Dubravka Žarkov,
“media representations of rapes and sexual assaults against women treated the
female body as the map on which the new, sexual, geographies of ethnicity
were drawn.”1 If the female body provided the media with the map for drawing
ethnicity, ethnic conflict in the former Yugoslavia offered feminists the terrain
upon which to dispute the political and legal meaning of the rapes.2 In fact, an
intense debate ensued among feminists over a number of issues. Most prominently, they disagreed about whether at least some of the rapes were genocidal
and, relatedly, whether the rapes by Serbs differed from those perpetrated by
other parties to the conflict.
This debate took place largely within the sexual subordination strand of
structural-bias feminism. It brought to light significant differences within the
strand over two issues, at least in the context of that conflict: first, whether and
how ethnicity should affect consideration of the harm of rape; and, second,
whether military intervention would be an appropriate response to the rapes. The
answers to these questions were generally correlated. Some feminists began to
call for outside military intervention against the Serbs, using claims of genocidal
rape as justification for that response. They were sometimes opposed by those
structural-bias feminists who argued against treating the rapes on one side differently from those on other sides.
50
Calling in the Troops
51
This feminist debate both implicated and affected broader debates over military intervention in Yugoslavia, including by human rights advocates. Indeed,
those feminists who promoted military intervention participated in a general
turn in human rights advocacy toward calls for military force to respond to
serious human rights violations. Notwithstanding that attempts to achieve an
international norm on military intervention have started and sputtered in subsequent years, rape has come to be one of the most commonly invoked reasons
for use of force. This chapter concentrates on the very different invocations of
rape in Bosnia in the early 1990s and in Libya nearly two decades later.
Feminists who argued that rapes by Serbs were uniquely genocidal left a
legacy beyond calls for military intervention. In making their claims, they began
to forge a number of aspects of the common sense outlined in the Introduction.
Rape had to constitute the “worst crime” imaginable in order to justify military
intervention. And it had to be aimed at the destruction of ethnic communities
(tearing them apart) to be seen as genocidal. In these early years, they focused
on male-on-female rape much more than on other forms of rape or sexual violence, in part because reproduction, as we will see, was central to some of their
arguments that rape was genocidal.
Those feminists who sharply opposed this linkage of rape, ethnicity, and
genocide—calling for equal attention to rape on all sides regardless of ethnicity—also left their mark on the common sense. They concurred that rape was the
worst crime, even if they insisted it was equally harmful to those on all sides of the
conflict. Further, their insistence on gender as a distinct category of oppression,
regardless of nationality, helped lay the groundwork for its greater inclusion in
contemporary international criminal law, as we will see.
To trace the development and operation of the debates among feminists about
genocidal rape and, relatedly, military intervention, we need to begin with the
larger context of post–Cold War military intervention. Feminists were not alone
in choosing genocide as a place to stake their claims.
I. Military Humanitarian Intervention after the
End of the Cold War
Beginning in September 1991, the UN Security Council passed a number of
resolutions regarding the former Yugoslavia.3 Early resolutions set up a large
peacekeeping operation, the UN Protection Force (UNPROFOR), in Croatia
and Bosnia.4 Subsequent resolutions imposed a variety of sanctions and declared
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“safe” areas under UNPROFOR’s protection.5 But for the most part, the UN and
the NATO members that contributed forces to UNPROFOR resisted calls for
direct strikes by UNPROFOR and discouraged NATO from acting on its own
until mid-1995 when, with UNPROFOR support, NATO engaged in Operation
Deliberate Force.6
All of these resolutions followed significant disagreement among and within
Security Council member states over whether military intervention should be
used to respond to the conflict. Much of that disagreement concerned whether
Serbian action in Bosnia could rightly be labeled genocide. By 1992, the Security
Council had labeled it “ethnic cleansing,” but not genocide.7 The choice in wording was deliberate, since some members of the Security Council believed that
labeling something “genocide” would mean committing themselves to military
intervention.
Some states turned to the UN General Assembly to encourage the Security
Council to go further. Those states achieved the passage of a resolution that
not only called Serbian aggression ethnic conflict, but named ethnic cleansing
“a form of genocide.”8 The resolution used that finding of genocide to urge the
Security Council to authorize the use of “all necessary means” under Chapter
VII of the UN Charter, which provides for coercive sanctions including the use
of force, to ensure that Serbia and Montenegro comply with Security Council
resolutions.9 Even though the United States voted for the resolution—which,
as we will see, was a shift in its position—the other permanent members of the
Security Council abstained, suggesting the unlikelihood that the Security Council
would authorize such intervention.10
Security Council–authorized military intervention in this case was only even
conceivable due to the end of the Cold War. Because each of the five permanent
members of the Security Council holds veto power over any substantive resolution, the Cold War disagreements had produced a stalemate that generally precluded any significant action by the Security Council labeled as military. In the
early 1990s, in contrast, the council was ripe for calls for military intervention.
Most pleas for that intervention foregrounded humanitarian justifications, even
though Chapter VII permits use of force only for self-defense or when organized
under the authority of the Security Council to “maintain or restore international
peace and security.”11 While humanitarian reasons had been given to bolster
military interventions in an earlier era as well (Belgium in the Congo in 1960,
United States in the Dominican Republic in 1965), those actions primarily relied
upon the established justification of self-defense.
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In the post–Cold War era, those who advocated for military intervention
on the basis of humanitarian grounds often stated their case in terms of human
rights. Many liberals as well as conservatives—especially, but not only, in the
United States—adopted this approach, representing a shift for both groups. Conservatives began to turn to human rights, even women’s human rights, discourse
to justify military intervention, and liberals began to use military discourse
and rhetoric to show their commitment to human rights.12 For many “humanrights hawks,” as some liberals would later call themselves,13 treaty-based regime
mechanisms, UN reports and rapporteurs, Human Rights Council investigations
and condemnations, and even the international criminal tribunals being advocated at the time all seemed to pale in comparison to the ultimate enforcement
regime—military intervention premised on humanitarian reasons.
With regard to the former Yugoslavia, both state and non-state actors who
argued for military intervention generally articulated their pleas not only in
humanitarian or human rights terms but by specifically invoking genocide.
Genocide, they contended, constituted a legitimate basis—if not a demand—for
military intervention. Indeed, the question of whether what was happening in
the former Yugoslavia could be labeled genocidal was key to U.S. decisions about
the role it would play in promoting military intervention there.
Samantha Power—who would become U.S. ambassador to the UN in the
Obama administration, and who has advocated for a number of military interventions over the past two decades—has detailed the debate in the early 1990s
surrounding the “g-word,” noting that opponents of intervention were careful
not to discuss the conflict in terms of genocide.14 Prior to voting for the General
Assembly resolution mentioned above, according to Power, “the Bush administration assiduously avoided using the word. ‘Genocide’ was shunned because a
genocide finding would create a moral imperative.”15 As a result, Power explained,
officials opposing intervention spoke in terms of ethnic cleansing: “[National
Security Advisor Brent] Scowcroft believes genocide would have demanded a
U.S. response, but ethnic cleansing, which is the label he uses for what occurred
in Bosnia, did not.”16 Scowcroft justified his choice of terms by saying that “there
is something of a national interest in preventing genocide because the United
States needs to appear to be upholding international law.”17
Given this reluctance, the U.S. vote in favor of the General Assembly resolution naming ethnic cleansing as a form of genocide seemed to signal a shift for
the Bush administration. But it came one month before the end of Bush’s term,
and it was matched by ambiguous statements by members of his administration.
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Power points, for example, to a statement made by Patricia Diaz Dennis, the
Assistant Secretary of State for Human Rights and Humanitarian Affairs during
the final five months of the administration, in which—in Power’s words—she
“equivocated unintelligibly.” The statement read in part:
In Bosnia, our report describes widespread systematic atrocities, including the
rapes and killings of civilian victims to the extent that it probably borders on
genocide. We haven’t yet decided whether or not it’s a legal matter. The conduct
in Bosnia is genocide, but clearly the abuses that have occurred there over the last
year are such that they, as I said, border on that particular term.18
Even if equivocal, the statement confirms Scowcroft’s understanding of the consequences of a (legal) genocide finding, and it demonstrates how reports of rape
can be used to support claims of genocide—a point to which I will return.
The Clinton administration proved similarly reluctant to call the conflict in
Bosnia “genocidal.” John Shattuck, then Assistant Secretary of State for Democracy, Human Rights, and Labor, has since explained that he was unable to get
clearance from the State Department to use the term “genocide” to refer to events
in Bosnia or Rwanda because of the “reluctance of U.S. policymakers to confront
the responsibility of countries that had ratified the Genocide Convention ‘to
prevent and punish’ crimes determined to constitute genocide.”19 Both Shattuck and Power refer to a 1994 State Department memorandum that cautioned
against even investigating possible Genocide Convention violations, given the
department’s reading of the obligations of the United States as a signatory to the
convention: “Be careful. Legal at State was worried about this yesterday—genocide finding could commit the U.S. government to actually ‘do something.’”20
Those within the Clinton administration who did argue openly that genocide was taking place in the former Yugoslavia did so precisely with the hope
of stimulating a military response. These officials included many human rights
hawks, whose pressure for military intervention was especially intense prior to
the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). Even though they would soon turn their efforts toward strengthening
the ICTY, they aimed to keep the possibility of military intervention alive. As
Shattuck puts it, “The United States would never be able to play more than a
limited role in Bosnia so long as the deployment of U.S. ground forces continued
to be ruled out.”21
While international criminal law became the principal agreed-upon way for
the Security Council to respond to Bosnia, at least until the three-week-long
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Operation Deliberate Force in 1995, and the preferred response in many other
places, military intervention and advocacy for it based on human rights violations
have not disappeared. UN member states and officials continue to debate about
proper responses to particular cases of conflict, as well as about the parameters
of the Responsibility to Protect (R2P), an attempt to set forth guidelines for
when states can or should intervene individually or collectively in states that
have failed to protect their own citizens.22 The UN’s own failures to prevent the
Rwandan genocide as well as ongoing debates about whether the Security Council
should have authorized more military intervention in the Balkans, the latter of
which came to a head in 1999 when NATO intervened in Kosovo without such
authorization, provided much of the impetus for R2P. The principal document
outlining R2P in 2001 reflects that history, with genocide and “large scale ‘ethnic
cleansing’” constituting the two accepted bases for military intervention.23 As we
will see, rape and sexual violence are often central to such claims.
II. Feminist Debates over the Meaning of Rape
in the Yugoslavian Conflict
In an award-winning New York Times column from March 1993, Anna Quindlen
called for the United States to consider intervening militarily in Bosnia in light
of what she called “gynocide.” That term appeared in the title of the piece, and
functioned as an answer to a question she posed amidst details of some of the
rapes of Bosnian Muslim women: “Is a particularly sophisticated and brutal form
of genocide going on in the former Yugoslavia, which relies on the psychosexual
destruction of those who would bear the next generation of Bosnian Muslims,
so hated by the warring Serbs?”24 She went on to write, “We women once liked
to think that if we ran the world, there might be less emphasis on brute strength.
But pacifism suddenly seems a pallid ideal beside these stories. And the timidity
of American policy seems ill-suited to this brutality.”25
By naming the rapes genocidal, invoking that genocide to suggest the need
for U.S. military intervention, and rejecting a nonviolent response, Quindlen
aligned herself with one side of a debate among feminists about how to understand and respond to the rapes that were occurring during conflict in the former
Yugoslavia. This debate consumed significant attention and, as I have already
suggested, bitterly divided feminists—not only over the meaning of rape, but
also over whether and how to demand military intervention in the conflict.
Feminists who labeled as genocidal the rapes by Serbian men of Bosnian
Muslim—and early on, Croatian—women, took what I call the “genocidal-rape
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Chapter 2
position.” Especially in their treatment of Bosnian Muslim women, they engaged
in some of the very types of representation that many Third World feminists
had critiqued in the debates considered in Chapter One. In particular, they
treated Bosnian Muslim women as passive victims of oppression, not only by
Serbian men but by Bosnian Muslim men as well. In doing so, they relied upon
biological and cultural essentialisms. Feminists who opposed them took what
I call the “rape-on-all-sides” position, claiming that the genocide formulation
failed to address rapes perpetrated by and committed against those on other
sides of the conflict. Some also opposed the deployment of the formulation to
call for military intervention. The rape-on-all-sides position, however, did little
to challenge either the treatment of Bosnian Muslim women as overwhelmingly
victimized or the ethnic assumptions behind that treatment. These assumptions
deserve our careful attention not only for their role in the former Yugoslavia, but
also for the ways in which they eventually become part of the common sense
about sexual violence in conflict.
A. Genocidal Rape versus Rape on All Sides
Catharine MacKinnon’s primary entry into the discussion of human rights and
humanitarian law came during the early days of conflict in the former Yugoslavia.26 MacKinnon recounts that she was approached in 1992 by “Bosnian and
Croatian survivors of Serbian genocidal sexual atrocities,” who asked her to
“represent them in seeking what they called ‘international justice.’”27 According
to Natalie Nenadic, she, Asja Armanda, and the organization Kareta (of which
Armanda was a founding member) enlisted MacKinnon with the aim of addressing what they had theorized as “femicide,” a concept that “contains genocide, and
in addition something more.”28 Part of that “something more” included mass rape
and other sexual atrocities, as well as the production of “film footage of genocidal
sexual atrocities—the pornography of genocide.”29 Although some argued that
the reports of pornography were exaggerated or at least unproven,30 they were
important for MacKinnon, who used them as a reason for her involvement
and made them a key part of her analysis of the situation.31 That MacKinnon,
along with Andrea Dworkin, took the pornography seriously was important
for Nenadic, who wrote that MacKinnon “is the first major theorist of modern
feminism who understood that Femicide is happening in Bosnia-Hercegovina
and Croatia and has been theoretically accountable.”32
Inside and outside of the United States, MacKinnon soon became one of
the most vocal proponents of the position that the rapes perpetrated by Serbs
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in the Balkans were “genocidal.”33 She did so in part by serving as counsel in a
U.S. civil lawsuit against Radovan Karadžić.34 She also supported the development of the ICTY. Both avenues were meant to respond to what she considered
a “legal abdication” by states. In addition to the legal abdication, she contended
that there was a “military one,” echoing the position that a finding of genocide
was endowed with both legal and military consequences. By not intervening
“to stop the genocide on the ground,” she argued, “the international community
was largely denying that the conflagration was genocide at all.” This denial, in
turn, “was driven by a desire to avoid the consequence of admitting that it was
genocide: mandatory intervention.” In short, for MacKinnon, “Serbian aggression in the region was not being called a genocide in law or in fact not because
it wasn’t, but because no one wanted to have to face them to stop it.”35
To make an argument for intervention based on genocidal rape, MacKinnon
articulated an international legal understanding of rape that would distinguish
the wartime rapes committed by Serbs from other wartime rapes and even from
“everyday” rapes outside of conflict and post-conflict situations. Her insistence
on those distinctions played a central role in the ensuing heated debate among
feminists. The controversy concerned not only the meaning and harm of rape
more broadly, but also its use in shaping sides in the conflict and its consequences
for intervention.
For ease of discussion, I call MacKinnon’s position the genocidal-rape position, but it is the fact that it holds rapes perpetrated by only one side of the
conflict as genocidal that often distinguishes it from other positions. MacKinnon rhetorically asked: “If all men do this all the time, especially in war, how
can one pick a side in this one? And since all men do this all the time, war or
no war, why do anything special about this now? This war becomes just a form
of business as usual.” Her response: “But genocide is not business as usual—not
even for men.”36
This reliance on ethnicity to differentiate between the harm of everyday rape
(in or out of war) and genocidal rape, or between rapes committed by different
groups in war, was arguably in tension with MacKinnon’s own structural-bias
position that saw sex as the organizing structure of (gender) oppression. It also
seemed to go against her general tendency to challenge these types of demarcations. In the 1980s, for instance, she argued that the legal distinction between
everyday heterosexual intercourse and rape was a product of male dominance
and experience, and was therefore inherently suspect.37 Although she has never
disavowed her arguments about genocidal rape in the former Yugoslavia, much
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of her work has turned back to a near-exclusive focus on gender oppression,
even in discussions of rape and other sexual violence against women. Indeed,
she has since argued that sexual subordination can be thought of as genocidal,
even “outside war and genocide,” because it destroys women as a “people.” She
even suggests the genocide might already have been successful, with women “so
destroyed . . . as never to have been thought of as a ‘people’ at all. Women are
thus created as a destroyed group in part through sexual abuse.”38
Those feminists taking the rape-on-all-sides position vehemently disagreed
with MacKinnon. Rhonda Copelon, for example, argued that “to emphasize as
unparalleled [which many had done] the horror of genocidal rape is factually
dubious and risks rendering rape invisible once again.”39 For Copelon, “women
are targets not simply because they ‘belong to’ the enemy. . . . They are targets
because they too are the enemy . . . because rape embodies male domination and
female subordination.”40 Susan Brownmiller agreed: “Balkan women, whatever
their ethnic and religious background, and in whatever fighting zone they happen to find themselves, have been thrust against their will into another identity.
They are victims of rape in war.”41
In fact, this dispute among feminists was not so much about whether rape
had been used as an instrument of genocide as about whether a focus on genocidal rape—attached to one side in the conflict—functioned to downplay the
extent to which all women raped during war, and even outside of war, were
victims. Copelon, for example, never argued that were rape to be found to have
been used as an instrument of genocide, it should not be specially prosecuted
as such. In fact, in suggestions that she would later make to the ICTY through
a widely circulated memorandum, Copelon left open the possibility that rape
could be prosecuted as an act of genocide, even though her primary aim was to
see the recognition of widespread rape as a crime against humanity based on
gender.42 And, as we see in Chapter Four, she played an important role in the
first international legal case to find acts of rape to be genocidal.
At one level, the deepening association between rape and genocide in mainstream discourse benefited both feminist positions, as it helped build the common-sense notion that rape is the worst crime committed during conflict. If
rape was genocidal, it could be used to call for military intervention. But even
for those who did not want military intervention, the association helped secure
a place for rape at the very top of the list of harms. It suggested that what was
happening exceeded “normal” oppression. It was a crisis situation, requiring an
extraordinary response.
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At another level, particularly within the former Yugoslavia, whether one spoke
primarily of genocidal rape by Serbs or of rape on all sides established one’s stance
in relation to a fraught political divide. According to Jelena Batinić, some feminist
groups, which she calls the “patriotic” or “nationalist” branches, prioritized their
national affiliations over women’s solidarity. Other groups, which she calls “nonnationalist” or “antinationalist,” argued for women’s solidarity across nationalities.43 Obrad Kesić describes how the division manifested itself at two international
meetings in Zagreb early in the war.44 At one of those meetings, organizers and
the press attacked Croatian feminists for contending that those who called for
attention to rape on all sides should be condemned for “aiding the Serbian aggressors because they failed to single out ‘Croatian’ and ‘Muslim’ women as the
victims.”45 At the second meeting, which was on women’s solidarity, Kareta and
other groups that Batinić identifies as patriotic criticized the meeting for its perceived neutrality. According to Kesić, “they came to the congress with the hope
of passing a resolution that would condemn Serbian aggression and specifically
name Muslim and Croatian women as the principal victims.”46
These debates put Serbian feminists in a difficult position, especially those
who were anti-war, extremely critical of the Serbian government, and even felt
responsibility for harm being done in their name. One of the most outspoken
groups of Serbian feminists was the anti-militarist group Women in Black. From
its founding in October 1991, the group identified the Serbian government as the
aggressor, saying that “the Serbian regime and its repressive structures (Federal
Army and paramilitary formation) are responsible for all three wars in Slovenia,
Croatia and Bosnia-Herzegovina.”47 Refusing the patriotic position and even
intentionally taking on the role of a “traitor” to their nation,48 they stressed the
importance of women’s solidarity across national lines and expressed “sad[ness]
that some of our sisters from Croatia . . . do not want to communicate with us
anymore.”49
That said, Women in Black opposed the genocidal-rape position, contending
succinctly that distinguishing among perpetrators, but more importantly among
victims, was problematic and ran counter to women’s interests: “We refuse the
politics of instrumentalization of victims. A victim is a victim, and to her the
number of other victims does not decrease her own suffering and pain.”50 They
held silent protests that demonstrated this concern for harms suffered on all
sides of the war, dressing in black in mourning “for the death of all victims of
war” as well as for refugees and victims of rape.51 In their written protests, they
“demanded the return of all recruits and reserve troopers from war-affected
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areas” and voiced their support for “the men who refused to participate in all
military formations . . . above all in the aggressor army . . . as well as in the armies
of the aggressed countries.”52
In her prologue to Mass Rape, a 1994 collection of essays containing versions
of many of the pieces I discuss in this chapter, feminist filmmaker Helke Sander
wrote a fictional letter to Lysistrata, in which she complained about the lack of
solidarity among women (not only feminists) in the former Yugoslavia. Lysistrata
is the character who, according to Aristophanes’ eponymous comedy, ended the
Peloponnesian War by persuading women on both sides to deny their own men
sex as long as they were at war. Sander contrasted the solidarity in the ancient
Greek play with the lack of solidarity among women in the former Yugoslavia:
“You women of Athens and Sparta, kin to hostile groups of men, spoke with one
another.” In the former Yugoslavia, although women “are not the ideologues of
nationalism, . . . unlike you they scarcely speak to one another anymore, and
instead play the role of their husbands’ cheerleaders. It was not always like that.”53
Sander went on to explain that in the beginning, there was strong resistance
from women in both Croatia and Serbia but that the “propaganda machinery”
succeeded: “Earlier, women had the right political instinct, but they were inexperienced and easy to manipulate.”54
By denying, on the one hand, that the Croatian and Serbian women were
nationalist ideologues, even claiming they had the “right political instinct,” and
insisting, on the other hand, that the instinct gave way to manipulation, Sander
at once acknowledged and negated the women’s political agency. Her claim
that women took on nationalist views merely as their husbands’ cheerleaders
is hard to reconcile with a 1994 survey that found that Serbian women were
more nationalist than Serbian men.55 Had she attempted to recognize women
as promoters of nationalism on their own volition, Sander would have better
understood the dynamics of the war, including the elusiveness of feminist, let
alone female, solidarity.
Some of the disagreement among feminists manifested itself in other debates, as many feminists seemed to understand that contending that one side of
the conflict was engaged in genocide or even ethnic cleansing might constitute
soliciting military intervention. Kareta and other patriotic groups, including
one in Bosnia, published a 1993 open letter in the U.S. feminist periodical off
our backs, appealing to American feminists to understand that rapes by Serbs
constituted part of “a Serbian policy of genocide against non-Serbs.” For them,
non-Serbian women “are not only tortured by rape as are all women, but are
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being raped . . . on the basis of their sex and ethnicity both.” Importantly, they
insisted, “this is not happening to all women.”56 The appeal to label the rapes
genocidal often went hand in hand with a call for intervention. Journalist Alexandra Stiglmayer noted at the time, “Bosnian and Croatian feminists contend
that the mass rapes of their countrywomen are an attempt at genocide, unique
in the history of rapes, and many of them demand military intervention to
rescue the women.”57
Whether or not patriotic groups in Bosnia and Croatia explicitly called for
military intervention, their arguments about genocidal rape as well as their debates with other feminists certainly provided fodder for those who did. MacKinnon, for example, condemned those feminists who she said refused to take sides
in the war, often as part of a “blanket critique of ‘nationalism,’” as being involved
in a “cover-up” that functioned “to exonerate the rapists and to deflect intervention.”58 Elsewhere, she asserted that certain Croatian feminist groups “act as the
collaborators [with Serb forces] by trying to hide what it is all about.”59 She also
had a well-known exchange with a Serbian feminist at the 1993 UN World Conference on Human Rights in Vienna: MacKinnon is reported to have responded
to a question posed by Nadežda Ćetković with, “If you are in opposition to the
regime in Serbia, why aren’t you already dead?”60
In her genocidal-rape arguments, MacKinnon invoked the Holocaust. If
genocide is the clearest and most commonly agreed-upon justification for military intervention, the Holocaust provides for many the clearest and most commonly agreed-upon example of genocide. Using this association, MacKinnon
asserted: “These rapes are to everyday rape what the Holocaust was to everyday
anti-Semitism. Without everyday anti-Semitism a Holocaust is impossible, but
anyone who has lived through a pogrom knows the difference.”61
Beverly Allen also referenced the Holocaust in her criticism of the failure of
Western Europe and the United States “to take decisive military action”62 as “a
clear sign of the crisis, if not the end, of moral and ethical systems upon which
Western democratic institutions have been based.”63 In her appeal, Allen favorably
quoted a Sarajevan who likened the “sending of humanitarian aid to Sarajevo
with no military intervention” to “sending Spam to Auschwitz.”64
Anna Quindlen, whose call for intervention began this chapter, was somewhat ambivalent about equating “gynocide” in the former Yugoslavia, as she
labeled it, with the Holocaust, noting that “comparisons are odious, and comparisons with the Holocaust impossible.”65 At the same time, she followed that
very sentence with: “But we should not want to contemplate yet another occasion
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on which a vulnerable people were exterminated and we Americans read the
handwriting on the wall as though we were illiterate.”66
Those who opposed military intervention often expressed concern about
the ways in which rapes by Serbs (whether or not seen as genocidal) were being
used to call for intervention. Jerome Shestack, chair of the International League
for Human Rights, a U.S.-based human rights group that had been involved in a
UN investigation of war crimes, including rape, noted at the time that “there is a
danger that the issue of rape will be used as a propaganda tool by the Croatians to
draw the U.S. into this war.”67 In paraphrasing his argument and contextualizing
it in disagreements about how many rapes had occurred and by which sides to
the conflict, the Philadelphia Inquirer stated that, for Shestack, “to argue about
who is most culpable . . . is to miss the point and invite military intervention.”68
Although the Security Council used its Chapter VII powers to authorize a
number of interventions in the former Yugoslavia, it did so without ever definitively stating that genocide had occurred. Its major intervention was the establishment of an international criminal tribunal, rather than the authorization of
the kind of military force that many advocates had called for. As Chapter Three
demonstrates, even though the ICTY never convicted anyone of rape as a constitutive act of genocide, many of the genocidal-rape arguments made their way
into the common sense about rape in conflict, both inside and outside of Bosnia.
B. Genocidal Rape and Ethnic Essentialism
Whether or not they deployed an analogy to the Holocaust or called for military
intervention, feminists who took the genocidal-rape position manifested various
understandings of the term “genocide,” with the result that multiple ideas took
hold then about how rape could be genocidal. I look at some of those understandings here with an eye toward the implicit conceptions of genetic and cultural
difference operant in discourse about Bosnian Muslims and Serbs, especially
in the insistence that they are distinct, pure, and mutually exclusive groups. I
also consider the conceptions about Bosnian Muslim communities, particularly
their anticipated shaming and ostracization of rape victims and of any children
conceived through those rapes. Together, these views provided some of the cornerstones for the emerging international common sense about sexual violence
in conflict, even as they managed to elude Third World feminist critiques.
To begin to disentangle the various grounds on which rapes by Serbs were
characterized as genocidal, we need to review the generally accepted legal definition of genocide, found in Article II of the 1948 Genocide Convention. The
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definition has two parts. The first requires the intent to destroy “in whole or
in part, a national, ethnical, racial or religious group.” Note that gender is not
a protected category under the definition, a matter that a number of feminists
have criticized.69 The second part of the definition specifies the acts that—when
committed with such intent—are genocidal. Those acts are: “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the
group; (c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; (d) Imposing measures
intended to prevent births within the group; (e) Forcibly transferring children
of the group to another group.”70
Although many taking the genocidal-rape position did not explicitly refer to
the convention, their arguments nevertheless were connected at some level to
this definition. Because the ICTY and all other international criminal tribunals
later incorporated the Genocide Convention’s definition into their statutes, these
various articulations of the relationship between rape and genocide—even if not
always precisely tailored to fit the convention’s definition—became important
for the legal arguments made in international criminal law and for the resulting
jurisprudence.
Feminists made a number of different types of arguments about how rape
might constitute an act of genocide, but two are most relevant for my discussion
here because of the ways in which they portrayed the biological and cultural
effects of rape.71 The first claims that the intended reproductive consequences
of rape make it genocidal, while the second finds the genocidal intent of rape in
beliefs that the act of rape will destroy communities.
With regard to the first type of argument, Charli Carpenter notes that “evidence of a systematic policy of forced impregnation punctuated and supported”
many attempts to classify rape as genocide.72 Some contended that forced impregnation constituted an act of genocide by “intending to prevent births within
a group” under Article II(d) of the Genocide Convention. Those who relied on
this ground contended that when a Muslim woman was forced to carry a child
(or fetus) that resulted from a rape by a Serb, her womb was “occupied” by the
enemy, making her “incapable of conceiving and bearing a child of her own
ethnicity.”73 They often pointed to reports that women were detained after they
became pregnant until a time by which it was too late for them to get abortions.74 As Carpenter explains in a critical discussion of this and related arguments, including some that invoked Article II(e) of the Genocide Convention
to claim that the impregnations constituted forcible transfers of children from
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one group to another, the child was considered to be “explicitly not Muslim; she
is not her mother’s own child.”75 This idea about the occupation of the womb,
of course, assumes that the mother would, in the absence of the rape, otherwise
be bearing a child—and that the father of that child would be Muslim, a point
I return to below.
Others who asserted that genocide had been committed through forced
impregnation maintained that the rapes were intended not simply to occupy a
womb, but to produce Serbian children. Those children, by populating otherwise
Muslim territory, would effectively take it over. Early in the conflict, MacKinnon
imputed this intent to Serbs with regard to Croatian as well as Muslim women,
saying the women were raped in order “to help make a Serbian state by making
Serbian babies.”76 She explained that “because it is ethnic rape, the children are
regarded as clean and purified: their fathers’ babies, Serbian babies. . . . The idea
seems to be to create a fifth column within Croatian and Muslim society, children
(all sons?) who will rise up and join their fathers.”77
For MacKinnon, Serbian ideology compelled the conclusion that children
born of rapes by Serbs would be (pure) Serbian. For others, Islamic law, by being
patrilineal, made it so that the children would be considered Serbian by Bosnian
Muslims themselves.78 For the latter group, the genocidal consequences of the
rape often grew out of the presumed reaction of Muslim communities to those
children.
For all the discussion of forced impregnation, relatively few pregnancies are
estimated to have resulted from the rapes, and even fewer to have resulted in
births.79 Nevertheless, the pregnancies or claims of attempted pregnancies constituted an important part of the genocidal-rape argument, providing insight
into problematic assumptions—sometimes genetic—about ethnic and religious
identity that many advocates helped perpetuate.
At first glance, it might seem that if children resulted from the rapes, there
would be more, not fewer, offspring of Bosnian Muslims. But those who grounded
their genocidal-rape argument in forced impregnation assumed that any resulting children would necessarily be Serbian. In doing so, they turned a blind eye
to the history of Bosnia that demonstrates an abundance of “mixed marriages”
before the war.80 While some advocates referred at times to the offspring or
potential offspring as “mixed,” they attributed the same genocidal intent and
consequences to the rapes—only with less explanation—as those who considered
that the children were Serbian.81 Further, feminists arguing that the rapes were
genocidal based on the ethnicity of the offspring generally failed to acknowledge
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or take seriously evidence that during and after the war some religious leaders
encouraged Bosnian Muslim women to raise as Muslim even those children who
were conceived through rapes by Serbs. For instance, Imam Ševko Omerbašić, a
Bosnian and a high-ranking Islamic authority in Croatia and Slovenia, insisted
that the Islamic community would work to change men’s attitudes, noting, “Our
women and girls . . . have experienced violence, and our community has to accept them as if nothing has happened.”82
Note that these feminists’ logic about genocide does not require that the sex
that resulted in impregnation was coercive. If a Serbian sperm implanted in a
Muslim egg were inevitably to create a Serbian child, lack of consent would not
be necessary to the outcome. Yet, wittingly or not, feminists were beginning with
this argument to participate in the development of evidentiary standards for rape
that forgo reliance on factual consent, arguably affecting consensual interethnic
sex as well. As we will see in subsequent chapters, international criminal law now
essentially infers lack of consent for charges of rape and sexual violence between
combatants and civilians on different sides of a conflict.
The second type of genocidal-rape argument that I focus on here did not depend upon either intended or actual reproductive consequences of rape. Rather,
mapping directly onto parts of the common sense that we have seen articulated
elsewhere, these arguments assumed that rapes of Bosnian Muslim women were
intended to destroy the Bosnian Muslim group “in whole or in part” through
the socially corrosive operation of shame. That is, they believed the rapes would
cause the communities to ostracize or stigmatize rape victims, which would harm
the women and tear their communities apart. Adrien Wing and Sylke Merchán
specifically tied this argument to Article II(c) of the Genocide Convention, stating, “Rape on a mass scale imposes a condition on a group that helps lead to
their physical and spiritual destruction.”83
Importantly, in this argument Bosnian Muslim women and their communities were thought to be uniquely harmed because they were Muslim. One writer
at the time stated, “The significant stigma of rape under Muslim and Islamic law
served to ‘break up families, ostracize victims, and in some cases, leads to the
murder of victims by their family or communities. In many Muslim communities, rape victims are perceived as undesirable, soiled, and unfit for marriage.’”84
Kelly Askin, who later became a legal advisor to judges on the ICTY and the
International Criminal Tribunal for Rwanda (ICTR) from 2000 to 2002, made a
similar argument about the particular harm of rape to Muslim women, although
she referenced Islamic culture more than Islamic law.85 She relied upon Wing
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and Merchán to say that consequences of rape “may be ‘particularly severe in
traditional, patriarchal societies, where the rape victim is often perceived as
soiled and unmarriageable, thus becoming a target of social ostracism.’”86 She
went on to attribute the particular severity of the consequences, again following
Wing and Merchán, to the chastity that is seen as “essential to maintain family
honor. Stealing the virginity of a Muslim woman, even if by rape, causes the
survivor to be considered unworthy of a man, casting shame and disgrace on
the entire family.”87
This line of argument, similar to that critiqued by Third World feminists in
other contexts and defied in this case by the reaction of at least some Muslim
religious leaders in Bosnia, contended that Bosnian Muslim women needed to
be saved from their cultures and their men. Furthermore, this reasoning suggested that Bosnian Muslims played a role in their own genocide through their
presumed “backward” beliefs and practices concerning rape.
Wing and Merchán cited a variety of secondary sources, some broadly about
Islamic law and Muslim culture and some about particular contexts, though
more about Palestine than Bosnia. At one point, they noted that the Muslim
community in Bosnia has a “somewhat more liberal attitude” about intermarriage than would be suggested by its prohibition in Islamic law, but they did not
use that to question any of their other claims about Islamic law or culture, or
their arguments that the rapes were genocidal.88 Similarly, Askin included in a
footnote that “some of the Muslims in the Yugoslav territory had become less
fundamentalist . . . over the years.” Remarkably, she then wrote “nevertheless”
and, to support her broader position, offered one story of a young Balkan Muslim woman who, during World War II, said she preferred death to rape.89 By
casting Muslim culture—and Islamic law—as rigid and immutable, those who
made genocidal-rape claims relied upon an assumption about what Žarkov has
identified as the “greater-than-standard shame” of “raped Muslim women.” She
characterizes this assumption as “a recreation of an Orientalist myth of a conservative Muslim community that is cruel to its women, even with evidence to
the contrary.”90 Žarkov favorably discusses the work of political scientist Cheryl
Benard, who “wrote that while working with raped Muslim women she ‘found
no evidence to support the idea that Bosnian victims of rape or families reacted
differently from other European victims and families’ and found most Bosnian
‘families have been highly supportive.’”91 In their dependence upon this “greater
than shame” narrative, many taking the genocidal-rape position once again failed
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to make room for the possibility that communities might respond differently
from the ways suggested by the stereotypes about them and their cultures.
C. Shared Assumption: The Force of Shame
At the same time that feminists disagreed bitterly about whether rapes in Bosnia
were properly characterized as genocidal, they also agreed on many of the assumptions about shame and stigmatization that we have just seen. In fact, these
assumptions were pervasive, perhaps already a part of the common sense for
feminists and non-feminists alike.
Many of the ideas of shame and stigma that supported the genocidal-rape
arguments were also used to make the sometimes less controversial claim about
ethnic cleansing, in official as well as advocacy and scholarly discourses. The
UN Special Rapporteur assigned to report on the former Yugoslavia in 1993, for
instance, wrote in his discussion of rape as a method of achieving ethnic cleansing that “rape has been used not only as an attack on the individual victim, but
is intended to humiliate, shame, degrade and terrify the entire ethnic group.”92
At a less technical level, journalists and humanitarian workers brought to their
encounters with Bosnian Muslim women many of these same stereotypes.
In articulations of the connection between rape and shame, “shame” functioned as both a noun and a verb. Raped women, their families, and their communities were all treated as having been shamed and also as continuing to bear
their shame. As journalists and humanitarian workers began to seek out Bosnian
Muslim rape victims, they took for granted that the women would be carrying
shame. Those assumptions had significant consequences, leaving Bosnian Muslim women who had been raped little room to assume any identity other than,
or in addition to, being a “raped woman.”93 Further, the association of Bosnian
Muslim women with rape was so strong that it left the women little room to
claim that they had not been raped. Sometimes the journalists even refused to
believe denials from the women themselves.
In a discussion of Croatian press depictions at the time of Bosnian Muslim
(as opposed to Croatian) rape victims, Žarkov explains that nearly all the articles discussed “a specific effect [rape] had on the victim: the feeling of shame.”
Through media interviews with Croatian medical and psychiatric professionals,
she says, “readers invariably learned that Muslim women were deeply ashamed
of their experiences, that they ‘hide behind anonymity’ and ‘do not easily admit
that they were raped.’”94 For Žarkov, the focus on “the mute and humiliated
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Muslim women, and on the Croat experts who provided aid” functioned to
establish “the difference between all Croats and Muslims,”95 exposing Muslim
women “while rendering them invisible, making them public while describing
them [as] hidden, naming them anonymously.”96
This portrayal of Bosnian Muslim women was not unique to the Croatian
press. In 2009, medica mondiale, a German-based women’s rights and relief NGO
that began in 1993 to respond to rapes in Bosnia, issued a report surveying the
media coverage from the early 1990s, including that by Roy Gutman, the U.S.
journalist who won a Pulitzer prize for his early coverage of the war in Bosnia.
The report concluded that “Muslim women, who had survived rapes, were thus
pigeonholed as particularly coy and therefore often described as extremely silent.”97 Significantly, the report went on to present an extended argument that
“the idea that the Muslim society in Bosnia-Herzegovina is particularly prone
to stigmatisation is utterly wrong.”98
Yet journalists, aid workers, and legal advocates often used assumptions about
shame and stigmatization to explain some of the difficulties they encountered in
finding rape victims who would speak with them.99 One such journalist, Slavenka
Drakulić, expressed the frustration many experienced in attempting to find victims who would acknowledge having been raped. “This silence is driving everyone crazy: reporters, feminist activists, UN officials,” she said, describing how
they went into “small and crowded rooms in this or another camp in Croatia,
hoping to get closer to the real picture, to hear eyewitness testimony. But in vain.”
Drakulić asked, “Why won’t they talk? Don’t they know it is good for them?”100
Sometimes journalists and feminist activists refused to believe women’s explicit denials that they had been raped. Drakulić’s description of her interview
of a young girl, Mersiha, typifies the dynamic:
I asked Mersiha, But what about you? She looked at her mother, sitting there
and listening, as if asking her for permission to say more. “No, it did not happen
to me,” she said, but I doubted her. Maybe, if I came on another day, she would
decide to tell me her true story. That is how it works; only patience and empathy
can break the wall of self-protection.101
If female victims of rape have long encountered the difficulty of being believed,
an odd reversal took place here. In Drakulić’s speculation about Mersiha’s “true
story,” she refused to believe the girl who denied that she had been raped.
As silence itself became a testament to the trauma of rape, it became nearly
impossible for a Bosnian Muslim woman to be identified as anything other than
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a “raped woman.” Many attributed the silence to shame. Seada Vranić, in her
introduction to a book of testimonies of Bosnian rape victims, reiterated that “all
of those who investigated the war rapes in Bosnia have noted that the silence of
the victims was the biggest, and often invisible, obstacle to discovering the truth.”
Describing that silence as her “adversary,” she explained: “Very often I felt as if I
were standing in front of a wall, yet it was human beings, not bricks, that were in
front of me. Human beings who were unhappy, shamed, humiliated and lost.”102
Vranić’s use of shame and humiliation (which are often treated as synonyms103)
to explain women’s silence is particularly vivid, but hardly unique.104 As we will
see later in this chapter, the dynamic re-emerged in the context of Libya, where
many read lack of testimony as an index of widespread rape.
For all of the interpretation of silence, in fact many Bosnian Muslim women
did attest to being raped. As the medica mondiale report noted, “No journalist
would have been able to write a single word about war rapes, if Bosnian women
had not spoken about these crimes directly in front of their cameras. They talked
about these crimes with openness and anger, not shame.”105 Yet once Bosnian
Muslims told of being raped, many feminist activists, journalists, and health care
workers treated them as hopelessly traumatized and incapable of choosing—in
any meaningful sense—to engage in political or military action. When Bosnian
Muslims attempted to seek revenge (by joining the army or even expressing a
vengeful desire), some feminists considered them extraordinary. Stiglmayer, for
example, quoted a woman who explained her reasons for wanting to join the army
after being raped: “I think the main reason I put on a uniform is to get revenge . . .
we have to get even somehow, not in the same way, no ’cause then we’d be no
better than they are, but somehow.”106 For Stiglmayer, both this woman and a
teenage girl who also joined the army after being raped were exceptions by which
to underscore the rule: “Most of the rape victims are broken, not thinking about
revenge, for the horror of their rape and expulsion has also taken away whatever
power of resistance they might have had.”107 She even suggested that most rape
victims were so powerless that they did not have anything to do with their own
children.108 Thus they were powerless to fight back or to support those who depended on them. They were “broken.”
For others, the desire for revenge, when it occurred, was pathological. Psychiatrist Vera Folnegović-Šmalc, for example, who worked with twenty-nine rape
victims in a clinic in Zagreb, explained: “Suicidal thoughts are evident above all
in women who have become pregnant as the result of rape. After an induced
abortion, the symptoms change, and depression is replaced by aggression and the
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wish for revenge.”109 This type of account allows very little chance of meaningful
agency for women who have been raped. Instead, it sees them as plagued by one
or another of the illnesses that wartime rapes purportedly inflict upon women.
Note that what Folnegović-Šmalc sees in both cases are symptoms—terminology
that assumes a disorder.110
The shared feminist assumption about the force of shame, including the
silence it dictates, has had incredible staying power as an important element of
the common sense. Indeed, we see it in every subsequent chapter of this book,
articulated by activists, lawyers, judges, and UN and state representatives.
III. The Military Stakes of Finding Rape: The Case of Libya
Advocates for military intervention have continued to invoke rape as a justification. In the early 2000s, for example, many who argued for military intervention in
Darfur emphasized allegations of mass rape. In doing so, they promoted and relied
upon a public association of the conflict in Darfur with rape as well as genocide.
The genocide connection, whether stated or implied, made for a more forceful
argument, given that the 2001 document outlining R2P offered genocide and largescale ethnic cleansing as justifications for military intervention.111 The UN Security
Council ultimately refused either to declare a genocide in Darfur or to authorize
military intervention,112 although it referred the case to the ICC, which eventually
issued an arrest warrant for Omar Hassan Ahmad al Bashir for, among other things,
rape as genocide.113 And while many feminists and human rights hawks soon turned
to international criminal law as a primary means of responding to widespread
human rights violations, some persisted in their advocacy for military intervention,
with accusations of rape, even in the absence of claims of genocide, continuing to
play a central role. Such accusations were key to the Security Council–sanctioned
military intervention in Libya, and to U.S. participation in it.
In 2011, the UN Security Council once again found itself contemplating
the appropriate response to widespread violations of human rights, this time
in the Libyan Arab Jamahiriya. Sporadic protests against Mohammar Gaddafi’s
regime had been under way in Libya for more than a year, but had surged to the
attention of the UN and international media in January and February. In those
months, clashes between anti-Gaddafi protesters and government security forces
led to harsh reprisals and imprisonment of opposition leaders in what would
soon develop into full-fledged civil war. Reports of the government’s repression
of the civilian population soon began to talk of rape, including rumors that
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Gaddafi’s troops were being issued Viagra, a brand-name drug used to induce
erections in men. These rumors once again gave sexual violence a significant
place in debates about military intervention, with pro-intervention voices employing some of the arguments about the harm of rape that were developed in
the context of the former Yugoslavia.
Following particularly explosive events in Benghazi and elsewhere, on February 26, 2011, the UN Security Council passed Resolution 1970, condemning
human rights and humanitarian law violations by the Libyan government. Invoking Libya’s responsibility to protect its population, the Security Council first
turned to international criminal law, referring the situation to the prosecutor
of the ICC.114 But by March 17, the Security Council followed its call for international criminal investigation with Resolution 1973, which condemned “gross
and systematic violation of human rights.”115 Again using the language of R2P,
it reiterated “the responsibility of the Libyan authorities to protect the Libyan
population,” but this time it authorized member states to “take all necessary
measures to protect civilians,” effectively sanctioning the use of force in Libya.116
Specifically, Resolution 1973 set up a no-fly zone and authorized air strikes to
enforce it.117 Despite the increase in calls for R2P over the preceding decade, the
Libyan intervention became the first UN-authorized use of force in the territory
of an unwilling state on explicitly stated humanitarian grounds.
Though the violence in Libya was rarely labeled genocidal, the ghost of the
Rwandan genocide of 1994—and the failure of the United States to intervene—
haunted a debate within the Obama administration about how to respond to
the unfolding crisis in Libya. A number of high-level officials discouraged a
military response, warning that even a no-fly zone would require significant
military involvement and could have costly long-term economic and strategic
consequences.118 They ultimately lost to the proponents of military intervention.
One of the strongest of those proponents was Samantha Power, who was at that
point a senior aide at the National Security Council and who, we should recall,
had criticized U.S. foreign policy for its failures to intervene militarily in Bosnia
and Rwanda. The other was Susan Rice, then U.S. ambassador to the UN, who had
been an advisor to President Clinton on Africa during the Rwandan genocide.119
Rice was widely reported to have said: “I swore to myself that if I ever faced such
a crisis again, I would come down on the side of dramatic action, going down
in flames if that was required.”120
Secretary of State Hillary Clinton joined forces with Power and Rice, announcing the day after Resolution 1973 passed that the United States was willing
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to support (if not lead) military action against Libya.121 Promptly thereafter,
President Obama authorized the U.S. Navy and Air Force to fire into Libya, in
accordance with the Security Council’s resolution.122 On March 21, he invoked
the War Powers Resolution to notify Congress of his actions, which meant that—
were he to act in strict accordance with that law—the authorization would expire
sixty days after the notice, on May 19, 2011.123
Several commentators observed that the divide in the administration over
intervention had largely broken down along lines of gender.124 Maureen Dowd
began her column in the New York Times on the topic: “They are called the
Amazon Warriors, the Lady Hawks, the Valkyries. There is something positively
mythological about a group of strong women swooping down to shake the president out of his delicate sensibilities and show him the way to war.” She continued:
“Everyone is fascinated with the gender flip: the reluctant men—the generals,
the secretary of defense, top male White House national security advisers—outmuscled by the fierce women around President Barack Obama urging him to
man up against crazy Gadhafi.” The flip was about more than gender, though, as
evidenced in Dowd’s additional observation: “How odd to see the diplomats as
hawks and the military as doves.”125 Curiously, but perhaps revealing the ghost of
Rwanda, the New York Times titled Dowd’s column “Fearful of Next Genocide:
Women Lead U.S. to Libya,” though there was no mention of genocide in the
piece and little in the general discourse about Libya.
Indeed, for all the earlier debates about whether to label certain conduct
genocidal—with either the hope or the fear that doing so would lead to intervention—the Libya case suggested that the Obama administration placed
less emphasis on the “genocide” label than had previous administrations. And
although women in the administration, including self-avowed feminists, promoted military intervention, they did not make sexual violence central to their
justification. But as the Libya intervention unfolded, the Obama administration
faced a range of criticisms, on the one hand targeting its limited objectives—decidedly not to oust Colonel Mohammar Gaddafi from power—and on the other
alleging that it had exceeded its mandate and should have sought congressional
reauthorization to continue its intervention.126 Within these criticisms, sexual
violence became a part of the story in ways both familiar and novel.
On March 26, 2011, Eman al-Obeidi, a recent Libyan law graduate, stormed
into a hotel restaurant in Tripoli to tell foreign reporters that she had been abducted at a checkpoint and gang-raped by government troops. Security guards at
the hotel immediately dragged her away, despite attempts by the journalists to stop
them. The ordeal became an international story, about both the lack of freedom
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of expression in Libya and the extent to which rapes by government troops, and
perhaps even rebel troops, were occurring.127 A few days after the event, columnist
Nicholas Kristof used al-Obeidi’s story to respond to some critics of the intervention who argued that “we don’t have an exit plan, that [Obama] hasn’t articulated
a grand strategy, that our objectives are fuzzy, [and] that Islamists could gain
strength.” While acknowledging the legitimacy of some of the criticisms, Kristof
nevertheless lauded the intervention for the rapes he presumed it prevented: “If
we had not intervened in Libya, Qaddafi forces would have reached Benghazi
and there might have been thousands of Eman al-Obeidys.”128
By the end of April, some diplomats and the press began to pay attention
to war crimes being committed by rebel forces in Libya—the same forces the
intervention was meant to aid. As with Bosnia, supporters of intervention felt
compelled to distinguish rapes committed by different sides of the conflict. Indeed, The Guardian reported that, in response to some who suggested in a closed
UN Security Council meeting that there was a moral equivalence between those
crimes committed by Gaddafi forces and those perpetrated by rebels, Ambassador Rice claimed that Colonel Gaddafi was “supplying his troops with Viagra
to encourage mass rape.”129 That claim had surfaced a month earlier in a report
by Al Jazeera that “several doctors [said] they have found Viagra tablets and
condoms in the pockets of dead pro-Gaddafi fighters, alleging that they were
using rape as a weapon of war.”130 The accusation was also repeated by the Daily
Mail.131 For Ambassador Rice, claims of Viagra use and “mass rape” as tools in the
war functioned similarly to the way arguments of genocidal rape had functioned
for advocates of military intervention in Bosnia: they signaled that something
extraordinarily bad was happening, and that it was being carried out exclusively
by one side of the conflict.
Rumors of the use of Viagra by Gaddafi forces spread throughout the month
of May. Libyan opposition forces apparently caught on to the significance of
mass rape allegations, as Al Jazeera reported on May 3, 2011 that “opposition
fighters say they have found Viagra pills in tanks and cars captured from the
Gaddafi forces.”132 ICC Chief Prosecutor Luis Moreno-Ocampo also repeated the
allegations, vowing in an interview with CNN that the ICC would investigate
claims of systematic rape: “There’s some information with Viagra. So, it’s like
a machete . . . Viagra is a tool of massive rape.”133 It is worth noting that at the
time, and until Moreno-Ocampo’s departure from the ICC in 2012, Catharine
MacKinnon served as his special advisor on gender.
I do not think it is coincidental that these discussions of Viagra and mass
rape would regain intensity in June 2011, when the future of the U.S. role in the
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intervention in Libya was becoming increasingly uncertain. Recall that President
Obama’s invocation of the War Powers Resolution implied to many lawmakers
that Congress would need to either authorize funding or declare war in order
to continue the intervention in Libya for more than sixty days—that is, beyond
May 19. But when that date came and went, the Obama administration argued
that in fact it was not required to seek authorization, nor had it even initially
been required to inform Congress of the activities in which it was engaged.134
On June 3, the U.S. House of Representatives passed by a wide margin (268–145)
a resolution rebuking President Obama for failing to seek and receive congressional approval for U.S. involvement in Libya.135 In response, Obama submitted
a formal report to the House explaining why U.S. military operations in Libya
were consistent with the War Powers Resolution and congressional approval
was unnecessary.136
As this dispute heated up, so too did the debate among humanitarian experts
over claims about Viagra distribution and mass rape in Libya. These claims
returned to center stage at the UN when, on June 1, the Human Rights Council
received the report of the International Commission of Inquiry established to
investigate alleged violations of international human rights law in Libya. This
commission, chaired by Cherif Bassiouni, had been created by the Human Rights
Council in February 2011 to investigate potential violations of international
human rights and humanitarian law and, given Resolution 1970’s referral of the
Libyan case to the ICC, “consider events in light of international criminal law.”137
The commission considered as “speculative” the repeated claims that members
of Gaddafi’s special forces “were found with condoms and Viagra pills, leading
those recounting these occurrences to suggest that troops were given instructions to engage in rape.”138 Nonetheless, it mentioned several reports of rape
by government soldiers, including of Eman al-Obeidi, the only victim of rape
with whom the commission spoke, as well as by armed opposition forces and
civilians.139 While concluding that the number of reported cases was small, the
report also recognized that victims would be reluctant to provide information
because of “the trauma, shame and stigma linked to reports of sexual assault”
and the harsh criminal sanctions (flogging) in Libya for sexual relations outside
marriage.140
The message of the report became further muddled when, a week after its
release, Moreno-Ocampo again spoke at the UN about rape in Libya. Though it
was unclear what role (if any) the report played in the decision, he announced
that the ICC would likely add rape to the list of war crimes against Gaddafi. He
claimed that evidence of Viagra use was mounting, and that “we had doubts at
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the beginning, but now we are more convinced. Apparently, [Gaddafi] decided
to punish, using rape.”141
Moreno-Ocampo’s statement led to a strong response from Bassiouni, and
became a source of some tension within the UN. Bassiouni countered MorenoOcampo’s claims by saying that references to Viagra and institutionalized rape resulted from “mass hysteria.” He noted that he heard similar claims from government
officials about the rebels. His explanation was that “when the information spread
out, the society felt so vulnerable . . . it has created a mass hysteria.”142 Amnesty International researcher Donatella Rovera’s findings seemed to support Bassiouni. After
three months in Libya, she had not met a single woman who claimed to have been
raped. “Normally the situation is the reverse—you don’t get many people to focus on
it in society, but you can get the victims to talk,” Rovera said. “Here everyone’s talking
about it, but despite our best efforts, we’ve not been able to meet a single victim.”143
However, the UN Secretary-General’s Special Representative on Sexual Violence in
Conflict, Margot Wallström, supported Moreno-Ocampo. She asserted that there
were “consistent reports [of rape] from people, from organizations, from UN entities
and others on the ground” and that “this is part of the arsenal, the weaponry that
Gaddafi’s troops use.”144 She also disparaged Bassiouni for the use of the term “mass
hysteria,” saying that “for too long, it was not considered proper to mention rape and
sexual violence. That’s why it’s so important to take it seriously.”145
As the U.S. House of Representatives considered further steps regarding the
Obama administration’s involvement in Libya, Secretary Clinton joined MorenoOcampo and Wallström. Though she did not mention Viagra, Clinton referred
to the ICC’s “appalling evidence that rape in Libya is widespread and systematically employed.”146 If this affirmation ended with a call for criminal law “to bring
perpetrators to justice,”147 it was clearly also useful as justification for the ongoing,
and highly contentious, U.S. intervention. Before June came to a close, the House
considered and defeated two bills. One would have would have authorized the
intervention, while the other would have prevented any further funding for U.S.
military operations in Libya. In rejecting both, the House essentially left the
administration free to continue as it wished.148
Over time, the stories of Viagra in Libya dissipated, as no one was ever able
to prove the claims. In February 2012, when the Women’s Media Center issued
its conflict profile on Libya, “Women under Siege: Libya,” it noted that the Viagra
claims were unsubstantiated.149 And when the International Commission of
Inquiry reported again to the Human Rights Council in March 2012, it further
dispelled the claims, noting that “one witness who searched and identified over
two hundred bodies stated he had not found any Viagra or condoms on any dead
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[Gaddafi] soldiers.”150 Furthermore, neither the commission nor Human Rights
Watch found any more evidence of systematic rape than had Amnesty International.151 By its second report, the commission had met with twenty additional
victims of sexual violence, both men and women, most of whom indicated that
sexual violence had been used as a means of torture while they were in detention.152 The commission concluded that “the prevailing culture of silence, the
lack of reliable statistics, the evident use of torture to extract confessions, and
the political sensitivity of the issue combine to make this issue the most difficult
one for the Commission to investigate.”153
Notwithstanding the lack of evidence of widespread sexual violence, a consensus seemed to have emerged, in line with the sentiments expressed in the
commission’s first report, that shame, stigma, trauma, and criminal penalties
combined to keep women from speaking out about sexual violence they experienced. Indeed, much of the discourse about shame and stigma, and about how
rape affects the honor of entire communities, is similar to that from the early
1990s regarding Bosnian Muslims. But, since many women in Bosnia did talk,
something about Libya had to be different. One Human Rights Watch researcher
provided a possible explanation, saying that while ”research on rape is often
challenging due to the shame and taboo,” in Libya it is especially tough “because
of the conservative nature of the society and the hyperpoliticized environment
we are operating in.”154
If the situation was hyperpoliticized in Libya, though, it became so at least
partly because rape allegations were so central to calls for continued military intervention. What Bassiouni described as “mass hysteria” (and what others might
term “sex panic”) had in fact become part of the harm. As the second report of
the commission explained, “The reports of rapes and widespread fear had the
consequence, if not purpose, of terrorizing a community and forcing many to
flee their homes with their children.”155 Or, as the Women’s Media Center put
it, “while evidence of systematic rape remains scarce, it is clear that there were
numerous incidents of rape, and it is equally clear that the threat of rape was used
to instill fear in entire communities.”156 Threats, of course, have to be credible to
have such an effect. In this case, it could be argued that the statements of MorenoOcampo and others about Viagra and mass rape helped provide that credibility.
The lack of available witness testimony, combined with the assumption of
shame, has had repercussions for international criminal law as well. As we will
see in Chapter Four, prosecutors at the ICTR proposed alternatives to witness
testimony due to the difficulty of coaxing rape victims to testify, which they
attribute to shame. Moreno-Ocampo pursued some of these ideas when he
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announced to the UN Security Council in November 2011 that his office had
“adopted a strategy which seeks to limit the exposure of victims,” given that, in
Libya, rape “can trigger retaliation and honor based violence.”157 In the ensuing
months, he clarified that he would seek evidence, not from the victims themselves
but from “the testimony of doctors who received hundreds of victims, hospital
records, video footage and confessions of soldiers in the army who can explain
what happened.”158 He supported this approach to prosecution with reference
to respect for “local traditions.”159 Given the taboo nature of the topic in Libya,
Moreno-Ocampo stated, “we are building a rape investigation without any victim
of rape, so we do not present names or faces of victims of rape.”160
At the end of the day, the Libya case became stalled,161 and there was no
opportunity to test Moreno-Ocampo’s approach. If the ICC were at some point
to succeed in achieving rape convictions without victim testimony, however, it
would do so at a significant cost—not only with respect to due process for the
accused, but by reinforcing the idea that rape is inevitable in conflict and that its
ensuing shame and stigma must be accepted as natural and necessary.
IV. The Continuation of Crisis Governance
Feminists who labeled rapes by Serbs in Bosnia as genocidal both capitalized on
emerging trends in the justification of humanitarian military intervention and
furthered the use of claims of sexual violence to call for intervention, including
in the absence of genocide. Even prior to the Libya intervention, MacKinnon
had continued to make the case that military intervention was a crucial means
of protecting women from violence. In 2006, in a piece called “Women’s September 11th,” she contrasted what she considered the international community’s
willingness to adopt “potent” measures in response to terrorism with its failure
to support a similar response to violence against women.162 Proposing that the
treatment of women “be injected into all levels of discussion of humanitarian
intervention,163 she suggested that the UN Security Council consider responding with military force to certain systematic forms of violence against women.164
As long as the United States and the “international community” were rethinking justifications for humanitarian intervention and were willing to respond to
actions by private actors against private actors in the context of terrorism, she
contended, they should rethink when and how to intervene to protect women
from multiple forms of violence. Her principal concern about calling in the
troops to protect women seemed to be about ensuring that the troops did not
further abuse women, leading her to suggest that “maybe all the blue helmets
on such missions should be women.”165
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I believe that MacKinnon overstated the extent to which most international
law scholars, practitioners, and institutional actors were—at that time—willing
to “legally justify resort to force” to respond to terrorism.166 Most had opposed
the second invasion of Iraq. And, as we have seen, nearly all agree that forceful
humanitarian intervention is reserved for crisis situations. States and international organizations are called to intervene, or are shamed for not intervening,
when a situation is urgent, large numbers of people have already died or been
raped, or “tomorrow we will be killed.”167
Within this crisis dynamic, however, human rights advocates have power.
They make choices about what to bring to the public’s attention and how to do
it. As Kenneth Cmiel put it, “When the larger public becomes interested in a
brutality somewhere in the world, it is usually because some image has successfully conjured up the icon ‘human rights.’” For Cmiel, this interest and sympathy
have not “depended upon a ‘thick’ understanding of those cultures” affected, but
“upon reliable and concrete information about infractions making its way to key
media and political elites, convincing them that the horrors are really taking
place.”168 Human rights nongovernmental and intergovernmental organizations
(both feminist and non-feminist) play an important role in providing such “reliable and concrete” information. In doing so, they exercise significant power in
producing public sympathy for particular causes.
In their rush to ensure adequate responses to sexual violence in conflict—
including but not only through military intervention—the feminist humanitarians we have studied here seized upon that power. As they did so, however,
they backgrounded or suppressed commitments to more nuanced conceptions
of ethnicity, culture, sexuality, and women’s agency. The decline of these critical feminist theories and perspectives and the ascendance of the problematic
common sense with which this book is concerned are not only damaging to
women—including victims of rape—in the contexts in question. Through reifications of ethnicity and reinforcement of the perceived shameful harm of rape,
these feminists have supported, if not provided, justificatory scripts for military
interventions, especially where a cultural “other” is identified to fit the scripts.
Even as calls for intervention began in the 1990s to lead to the creation of
criminal tribunals or referrals to the ICC, instead of or alongside uses of force,
these reifications and displacements continued to have effects. The next three
chapters demonstrate that the common sense that was forged in making a case
for military intervention in Bosnia traveled into international criminal law and
into the UN’s Women, Peace and Security agenda. In that latter site, as we see in
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Chapter Five, sexual violence by terrorists and extremist groups has been identified as constituting a new crisis. Broad UN Security Council support for counterterrorism measures to respond to that crisis suggests that MacKinnon’s appeal
to treat sexual violence against women as “potently” as terrorism might have
been heeded.
CHAP TE R THR E E
Calling in the Judges:
The Former Yugoslavia
T H E E A R LY 19 9 0 S W E R E R I F E with debates about how to name and respond to
conflict in the former Yugoslavia. As Chapter Two demonstrated, the UN Security
Council became a major site of contestation over those issues. Unable to reach the
necessary agreement to authorize large-scale military intervention, especially in
what some considered an internal conflict, the Security Council took a different
tack, eventually favoring international criminal law as its mode of intervention.
In late 1992, partly for “the purpose of appeasing world public opinion,”1 the
Security Council established the Commission of Experts to investigate humanitarian law violations committed in the region.2 Continuing with the reluctance
that we saw earlier regarding the use of the “g” word, the commission’s January
1993 report found that “ethnic cleansing,” which it put in quotation marks, had
been perpetrated through a variety of means, including “rape and sexual assault.”3
Although the report did not include a finding of genocide, it noted that, in addition to constituting crimes against humanity, “such acts could also fall within
the meaning of the Genocide Convention.”4 It called for the Security Council
“or another competent organ” to establish an international criminal tribunal.5
On May 25, 1993, the UN Security Council made the unprecedented move
of deploying its powers under Chapter VII of the UN Charter, not to authorize
military intervention but to establish the International Criminal Tribunal for
the former Yugoslavia (ICTY) as its response to what it named a continuing
“threat to international peace and security.”6 The ad hoc tribunal, to be based
in The Hague, would prosecute those responsible for “serious violations of international humanitarian law” in the former Yugoslavia, from 1991 until a date
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81
to be determined by the Security Council upon the “restoration of peace.”7 The
resolution establishing the tribunal did not mention genocide, but it referenced
mass killings and “ethnic cleansing” (again in quotation marks), as well as “organized and systematic detention and rape of women.”8
As the ICTY developed—through its statute, rules of evidence and procedure,
and jurisprudence—it granted considerable attention to the treatment of rape
and other forms of sexual violence. Feminists, particularly the structural-bias
feminists who occupied much of the discussion in Chapter Two, were involved
at nearly every stage, often putting aside their differences. As such, they had
significant influence on both substantive and procedural aspects of the development of international criminal law. As one commentator observed almost
a decade after the establishment of the ICTY, “From the start, most observers
considered the [ICTY] a sop to human rights and feminist activists who wanted
intervention. . . . Almost no one expected it to succeed. And yet to some extent,
at least for women, it did.”9
The ICTY’s treatment of sexual violence, of course, resulted from more than
the work of feminist advocates. It coincided with growing general support—
including that of human rights advocates—for international criminal law that
could be enforced through tribunals and courts.10 The conflict in the former
Yugoslavia provided feminists and non-feminists alike with the opportunity to
establish an international criminal tribunal that many had longed for, as well
as to consider the treatment of rape in international criminal law. As Theodor
Meron, who later became ICTY president, noted in 1993, “Indescribable abuse
of thousands of women in the territory of former Yugoslavia . . . shock[ed] the
international community into rethinking the prohibition of rape as a crime under
the laws of war.”11
The tribunal’s impact on international criminal law has been significant,
confirming Meron’s prediction in 1993 that “the tribunal’s charter, like that of
Nuremberg, is likely quickly to become a fundamental normative instrument of
the general law of war.”12 Indeed, the creation of the ICTY marked the beginning
of an era of international judicial interventions in both conflict and post-conflict
situations. It was followed in short succession by the ad hoc International Criminal Tribunal for Rwanda (ICTR), which is the subject of Chapter Four, and—over
the next two decades—by various types of international criminal tribunals concerning conflicts in East Timor, Sierra Leone, Cambodia, Lebanon, and Kosovo.
In 1998, the Rome Statute, establishing the International Criminal Court (ICC),
was opened for ratification. It went into effect in 2002, institutionalizing ongoing
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general criminal liability for war crimes, crimes against humanity, and genocide.
International criminal law has, in turn, evolved in important ways through the
statutes, rules, and jurisprudence of these bodies.
I focus on the ICTY in this chapter and the ICTR in the next. Although
the tribunals officially closed, in 2017 and 2015, respectively, with only a small
number of appeals remaining in a different forum, they have produced the largest body of case law to date on international criminal law in general, and on
sexual violence in conflict in particular.13 They continue to serve as a model for
subsequent international criminal tribunals.
Through their engagement with the ICTY and ICTR, feminists embraced
international criminal law as a new vehicle for attacking rape and other forms of
sexual violence. In the process, important elements of the common sense forged
in earlier articulations of the harm of rape began to solidify. Particularly vivid in
the early years of the ICTY, charges of rape as acts of genocide and convictions
of rape as crimes against humanity and war crimes reinforced the assumption
that rape and sexual violence are the worst crimes that can be committed during
wartime. Further—like much of the feminist advocacy leading to it—the ICTY
tended to see women primarily as victims in war. Indeed, through both its rules
of evidence and its jurisprudence, the tribunal presumed that civilian women
were incapable of consenting to—let alone desiring—sex during conflict with
a combatant from the other side of a drawn ethnic line. In addition to denying
sexual agency, that position reinforced ahistorical conceptions of ethnicity in
the region, largely cementing the abandonment of the Third World feminist
critiques of essentialized ethnic identity, at least in this context.
The turn to criminal law added new aspects to the common sense as well.
First, the criminalization focus, by design, conceived of the perpetrators as
individual monsters. Indeed, one of the aims of criminalization was to decrease
ethnic conflict and nationalist identity by showing that individuals—not entire
ethnic groups—were responsible for the harm.14 Even though some argue that
the ICTY fell far short of achieving that aim, it brought claims against some
non-Serb perpetrators presumably with that purpose in mind.15 Second, while
those monsters were, with only one exception, men, the victims included men
and boys. That coverage was partly facilitated by a broadening of rape into a
category of sexual violence, which meant that, at some level, sexual violence
became unmoored from violence against women and even gender-based violence. That unmooring arguably went against the very aims of the sexual subordination strand of structural-bias feminism. Yet, paradoxically, those same
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feminists made the separation possible through their heightened attention to
sexual harm.
I. Feminist Engagement with the ICTY Statute and Rules
In 1992, the Ad Hoc Women’s Coalition against War Crimes against Women
began to strategize about how to ensure international criminal accountability for
the perpetrators of rapes being committed in the former Yugoslavia, encouraging the UN to establish a war crimes tribunal.16 Once the ICTY was established,
some of the coalition members and other feminists began to engage with it in
a variety of ways, ultimately securing broad coverage of sexual violence crimes.
They achieved success despite a statute that was less explicit in naming those
crimes than they might have hoped.
The ICTY statute makes no reference to the term “sexual violence.” It mentions “rape” only once, but the context is significant. Rape appears in a list of
prohibited acts that, when widespread or systematic and directed against a civilian population, could constitute a crime against humanity.17 The other acts listed
are murder, extermination, enslavement, deportation, imprisonment, torture,
persecution on political, racial, and religious grounds, and “other inhumane
acts.”18 This definition of crimes against humanity mirrors the one that the Allied
powers used after World War II to prosecute Germans not otherwise tried by
the International Military Tribunal at Nuremberg.19 Many consider the definition to constitute customary international law—or international law derived
from certain state practices rather than from treaties or other sources—thereby
justifying its inclusion in the ICTY statute.20 Indeed, to preclude the claim that
the statute created ex post facto law, or new law that it applied retroactively, the
ICTY drafters included only crimes that (they contended) already existed under
customary international law. Thus, the tribunal could assert that perpetrators
had been on notice as to the illegality of the acts they committed.21
A number of feminists at the time criticized the ICTY statute for its failure to
list rape as a war crime.22 Yet the absence of that explicit reference did not in fact
preclude its prosecution as a war crime.23 Ironically, silence on this point may
have even given feminists room to maneuver, making way for the prosecution of
a category of crimes that would be referred to in later statutes as “sexual violence.”
Indeed, several years after the tribunal’s establishment, Rhonda Copelon called
the omission of the term “rape” from the statute “fortuitous” because it “made it
easier to argue for the mainstreaming of sexual violence crimes, else they would
be excluded altogether.”24
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In the end, the Office of the Prosecutor (OTP) brought indictments of rape
and sexual violence as war crimes, crimes against humanity, and genocide. The
charges often reflected creative interpretation of the statute, as well as various
understandings of the acts charged and of their harm. Those interpretations
affected how the cases were prosecuted and were therefore often manifested in
the jurisprudence.
Given the statute’s omission of rape in its list of war crimes, for instance,
the OTP brought indictments for rape and sexual violence as war crimes under
“torture,” “outrages upon personal dignity,” and “humiliating and degrading
treatment.” Although none of these crimes was listed as a war crime either,
they—but not rape—appear in common Article 3 of the four 1949 Geneva
Conventions.25 Through early, controversial decisions, the tribunal expanded
the list of war crimes by reading all of common Article 3 into the statute as
customary international law.26 The tribunal later read the war crimes provision
of the statute as implicitly including rape, making it possible for future indictments to charge it directly.27
Since the definition of genocide in the statute followed the Genocide Convention definition verbatim, it did not list rape as an act of genocide. The OTP
brought charges for rape or sexual violence under the definition as acts “causing
serious bodily or mental harm” or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.”28 Because the
ICTY did not convict anyone of genocide for acts of rape or sexual violence, it
offered little theorizing on how the acts might constitute genocide.29 The ICTR
drew the connection in its jurisprudence, as I consider in detail in Chapter Four.
Even though the ICTY statute listed rape as a crime against humanity, the
OTP did not limit its interpretation of rape to the ordinarily accepted legal definitions of the term. It sometimes charged other acts of sexual violence under that
statutory provision, even describing those acts in indictments as “rape which
includes other forms of sexual assault.”30 Indictments often also included charges
of rape and sexual violence as crimes against humanity under the prohibitions
on “torture,” “enslavement,” “other inhumane acts,” and “persecution on political,
racial, and religious grounds.”31
This use of the statute to cover a wide range of sexual violence charges can
be attributed in part to feminist strategy, if not strategies. From the early days
of the ICTY, feminists lobbied the chief prosecutor, Richard Goldstone, to use
the tribunal to prosecute rapes committed as part of the conflict. Goldstone
later recalled: “From my very first week in office, . . . I began to be besieged with
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petitions and letters, mainly from women’s groups, but also from human rights
groups generally. . . . Letters and petitions expressing concern and begging for
attention, adequate attention, to be given to gender related crime, especially systematic rape as a war crime. Certainly if any campaign worked, this one worked
in my case.”32 Once again recalling the effect of these letters, Goldstone said in an
interview in 2015: “I didn’t need any arm-twisting, but it certainly encouraged
me to put this right at the top of the agenda.”33
Goldstone responded to those letters, as well as to his “amaze[ment] at the
gender bias that emerged in our international office,” by naming a Legal Advisor for Gender Related Crimes.34 Patricia Viseur Sellers served in that position
from 1994 to 2007, where she formulated the prosecution’s approach to rape and
sexual violence in both the ICTY and the ICTR.
The ICTY’s rules of evidence and procedure played an important role in these
prosecutions. Indeed, according to Fionnuala Ní Aoláin, the substantive legal
recognition of sexual offenses would have achieved little without the implementation of “radical” procedural mechanisms.35 She notes that the rules “are more
‘victim friendly’ than most parallel domestic criminal codes,” which she partly
attributes to substantial nongovernmental lobbying.36 According to former ICTY
Judge Gabrielle Kirk McDonald, many of the rules stemmed from proposals by
women’s groups and were contentious among the judges, though they nevertheless approved them by consensus.37
The most significant feminist rule victory for my purposes is Rule 96. Not
only did the rule ensure that a sexual assault victim’s testimony would not need
to be corroborated and that evidence of the victim’s past sexual conduct would be
precluded, but it also limited the extent to which consent could be presented as
a defense to sexual assault.38 The consent provision was the most innovative and
far-reaching aspect of the rule, as I discuss more fully below. Many also see Rule
34 as a feminist victory. That rule established the Victims and Witnesses Unit
to provide victims and witnesses with counseling and support, “in particular in
cases of rape and sexual assault.”39 It also instructed that “due consideration shall
be given, in the appointment of staff, to the employment of qualified women.”40
These provisions and procedural innovations indicated a serious commitment
on the part of the ICTY to prosecute rape and sexual violence. That commitment was borne out in the tribunal’s practice. Of 161 individuals indicted by
the tribunal, 93, or 58 percent, faced charges for rape or sexual violence or had
evidence of such violence presented against them at trial. Forty-four percent of
those 93 individuals were convicted.41 Even though many of the accused avoided
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trial by pleading guilty, a significant body of jurisprudence on rape and sexual
violence emerged from the ICTY’s Trial and Appeals Chambers.
II. The Mediation of Feminist Disagreements
By the time the tribunal began its work, many of the disagreements among
women’s human rights advocates seen in earlier chapters had begun to dissipate.
Indeed, for a variety of the reasons demonstrated in Chapter One, the criminalization of sexual violence in conflict, particularly in the former Yugoslavia,
became an issue on which internationally engaged feminists largely agreed. At
the same time, sustained attention to the issue furthered the interests and participation of the sexual subordination strand of structural-bias feminists. Third
World, anti-war, and sex-positive feminists might have acquiesced in the turns
to both sexual violence in conflict and criminal law, but their perspectives had
little effect on how the criminalization process moved forward.
As the disagreements between structural-bias and other feminist approaches
quieted down, a debate raged within structural-bias feminism, as detailed in
Chapter Two. In that debate, both the genocidal-rape and rape-on-all-sides positions basically agreed that male sexual domination and female sexual subordination posed the greatest threat to women, in everyday life as well as in conflict.
But they vehemently disagreed about whether rapes by Serbs should be treated
differently—as genocidal—from other rapes committed during the conflict. Some
who argued that the rapes were genocidal also argued for military intervention.
Even the feminists engaged in this debate largely put aside their disagreements in order to pursue the criminalization of sexual violence in conflict. Yet
the issues over which they initially struggled did not totally disappear, perhaps
because their disagreements reflected deeper tensions about how the law should
treat different sides of the conflict. The tribunal’s work, at least initially, appeared
to mediate the feminist debate. Military intervention might have required taking
sides in a conflict, but international criminal law—as conceived by the ICTY—allowed for prosecutions of individuals from all sides. Early on, ICTY prosecutors
brought charges of rape and sexual violence against individuals who were parties to each side of the conflict. The first three judgments handing down rape
convictions reflected that approach.42
In the first case of the three decided, Čelebići, the tribunal convicted one
Bosnian Muslim and one Croat of torture (as a grave breach and a war crime)
for rapes of Serbian women committed at the Čelebići prison camp.43 Though
this case turned out to be the only one in which a Bosnian Muslim was convicted
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for acts of rape or sexual violence as well as the only one in which such acts were
committed against Serbian victims, it was symbolically important for demonstrating that the statute applied to all sides.44 The ICTY’s second rape conviction,
Furundžija, reinforced this view. There, the tribunal found a Croat guilty of
war crimes against a Bosnian Muslim woman—for torture and outrages upon
personal dignity including rape.45
It was not until the third case, Kunarac, that the ICTY convicted Serbian men
of the rape of Bosnian Muslim women. The OTP successfully designed the case
to highlight the systematic detention and rape of Bosnian Muslim women by
Serbian men in the Foča region, where Bosnia borders Serbia. The judgment was
pathbreaking in a number of aspects. First, it convicted all three of the accused
of the war crime of rape. As mentioned above, it did so by reading the statute’s
provision on war crimes to include rape.46 Second, it convicted all three of rape
as a crime against humanity.47 Third, it convicted two of the accused, Dragoljub
Kunarac and Radomir Kovač, of enslavement, based on findings that they had
detained girls and women and, in addition to raping them, forced them to cook,
clean, do household chores, or obey other orders.48
Responses to the enslavement convictions demonstrate how the debate
among feminists on the term “sexual slavery,” which we saw in Chapter One, had
subsided. Even one disagreement about the interpretation of Kunarac indicates
just how uncontroversial the use of the term had become. While Kelly Askin
criticized the judgment for not explicitly finding the accused guilty of sexual
slavery,49 other feminists lauded the judgment, reading its finding of enslavement as recognition of the crime of sexual slavery. The timing of the decision
assisted in the latter interpretation given that, when Kunarac was handed down
in 1996, many feminists were successfully advocating for the inclusion of sexual
slavery as a crime against humanity and as a war crime in the Rome Statute. According to Valerie Oosterveld, who served on the Canadian delegation to the
ICC negotiations, Kunarac was “precedent-setting” for the ICC statute due to its
“consideration of the crime of enslavement for sexual purposes.”50
The finding of rape as a crime against humanity in Kunarac set the stage
for the doctrinal mediation of the debate over genocidal rape. Although Askin
criticized the OTP for not charging the accused in the case with genocide,51
the judgment in fact relied upon, reproduced, and even reinforced many of the
characterizations of genocidal rape put forth by those taking the genocidalrape position. In particular, it stated that ethnic cleansing (which, recall, many
equated with genocide) had occurred in Foča, found rape and enslavement
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of Bosnian Muslim women to be systematic (which was required for the crimeagainst-humanity convictions), and included references to the intent of at least
individual Serbs to cause their rape victims to bear Serbian children.52
As these three cases show, both sides of the debate about rape as genocide
gained something in the tribunal’s early work: the ICTY prosecuted and convicted rape and sexual violence on all sides, even while more harshly condemning
the systematic commission of those crimes by Serbs. Feminists on both sides of
the debate had already seen that they had a common interest in creating rules
of evidence and procedure that would facilitate prosecution, not only of rape
but of an expanded list of sexual violence crimes including, in addition to sexual
slavery, enforced prostitution and enforced pregnancy. They eventually ushered
this extended list into the Rome Statute.53
Perhaps because feminists were so focused on this new agenda, no significant
disagreements or critiques emerged when Kunarac became the norm, in terms
both of the frequency of indictments and convictions of Serbs (versus other
groups) and of the treatment of rapes by Serbs as particularly harmful. In total,
the OTP brought 75 percent of the indictments for rape or sexual violence against
Serbs.54 Even though the ICTY never achieved a genocide conviction based on
such acts, the OTP charged 11 of the 67 Serbs accused of acts of rape or sexual
violence with genocide for those acts,55 and it charged only Serbs with genocide.
Additionally, the OTP charged all but one of those Serbs with crimes against humanity for rape or sexual violence. In contrast, it charged no Bosnian Muslim with
rape or sexual violence as a crime against humanity. And, although it charged 11
of the 17 Croats indicted for rape or sexual violence with crimes against humanity
for those acts, more than half of those 11 were part of a single case.56
The tribunal’s emphasis on Serbian perpetrators’ ethnic bias against Bosnian
Muslims that we saw in Kunarac became further entrenched in subsequent prosecutions for crimes against humanity. Although rape is included in the statute as
a crime against humanity, and the OTP charged the accused in Kunarac under
that provision, at one point the OTP began routinely to bring charges of rape
under a different crime-against-humanity category, “persecutions on political,
racial and religious grounds.”57 Indeed, for cases resolving after 2001, all but five
of the accused Serbs charged for acts of rape or sexual violence as a crime against
humanity were charged with persecution for those acts.58 Although the OTP
also charged rape as a crime against humanity in many of these cases, resulting
convictions were generally only for persecution, which the tribunal decided
subsumed the rape charges since persecution requires a higher level of intent.59
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This trend toward convictions for acts of rape and sexual violence as persecution—and often not as rape—is somewhat ironic, given that rape is explicitly
included in the statute only as a crime against humanity. Yet, especially aided
by the tribunal’s understanding that “persecution as a crime against humanity
is an offense belonging to the same genus as genocide,”60 the convictions for
persecution served at least two aims of those taking the genocidal-rape position.
First, the requirement of discrimination, including discriminatory intent, in
the crime of persecution bolstered the idea that women were raped primarily
because of their ethnicity.61 Since most of the persecution cases were brought
against Serbs, rapes by Serbs were further distinguished from other rapes during the conflict. Indeed, in at least one case, Brđanin, the very fact that the
rapes were committed by members of the Bosnian Serb police and army against
Bosnian Muslim women made them “intrinsically discriminatory.”62 Although
persecution requires that the accused “must consciously intend to discriminate,”
the Chamber, following earlier case law, noted that intent can be inferred from
context as long as “circumstances surrounding the commission of the alleged acts
substantiate the existence of such intent.”63 It then found that rapes and sexual
assaults of both Bosnian Muslim and Bosnian Croat women were “carried out
with the intent to discriminate,” largely based on “the circumstances surrounding” the acts, again resting much of the analysis on the fact that the perpetrators
were Bosnian Serb soldiers or police officers and the victims were not Serbs.64
The Chamber did add with regard to the rapes that “the direct perpetrators made
abundant use of pejorative language.”65 It even pointed to language similar to
that often employed in the genocidal-rape argument: “One of them made no
secret that he wanted a Bosnian Muslim woman to ‘give birth to a little Serb.’”66
Second, finding that acts of rape constituted persecution indicated that, even
if short of genocide, the acts were particularly egregious. Persecution provided
a way to push rape further up the hierarchy of harms. That other acts of sexual
violence were also charged as persecution extended the sense of egregiousness
to those crimes as well. As explained by a group of former staff members of the
OTP, the crime of persecution offered “an important vehicle for recognizing the
seriousness of sexual violence other than rape.”67 That recognition came only
second to “reconceptualizing sexual violence as an underlying act of genocide,”
which the authors claim as their “biggest breakthrough in terms of communicating more accurately its violent and serious nature.”68 They claim that breakthrough, notwithstanding the absence of actual convictions of rape or sexual
violence as an act of genocide.
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By elevating the seriousness of rape relative to other crimes, the use of persecution to charge rape could have served both sides of the debate over rape as
genocide—had the statute not limited persecution to political, racial, and religious grounds. Indeed, some feminists who argued for attention to rapes on all
sides, including Rhonda Copelon, had advocated early on for ICTY prosecutors
and judges to understand persecution also to include prohibited acts committed
on the basis of gender.69 They lost that battle at the ICTY (long before Brđanin),
but they took their efforts to the drafting of the Rome Statute, where they once
again achieved a victory: crimes against humanity in the Rome Statute include
“persecution . . . on political, racial, national, ethnic, cultural, religious, gender . . .
or other grounds.”70 Even after that win in the Rome Statute, the ICTY continued,
at the urging of prosecutors, to emphasize the ethnic over gender harm of rapes
by Serbs, with few if any criticisms by these or any other feminists.
III. Solidifying the Common Sense: Jurisprudence
on Rape and Sexual Violence
As the tribunal’s jurisprudence continued to develop, both sides of the debate
about rape as genocide saw incorporation of their shared view that rape and
(now) sexual violence were among the greatest wartime crimes, even though the
tribunal often relied upon the honor rationale that most structural-bias feminists
had attempted to move away from. At the same time, the prominent role of
ethnicity in the ICTY’s prosecutions, which seemed to serve the interests of the
genocidal-rape camp, paved the way for the tribunal’s reinforcement of ethnic
essentialism and the naturalness of ethnic conflict.
A. The Worst Harm
The ICTY’s jurisprudence supported the view that rape is a fate worse than
death. It did so in a variety of ways, both doctrinal and rhetorical, primarily
in its treatment of rape and sexual violence as torture and as outrages upon
personal dignity.
As we saw above, the OTP brought many of the charges involving rape and
sexual violence as both war crimes and crimes against humanity under the statutory provisions on torture. The ICTY held that torture requires an intentional act
for a prohibited purpose that causes “severe pain or suffering, whether physical
or mental.”71 The Appeals Chamber in Kunarac ruled that Foča rape victims were
not required to show that they had suffered severely: “Some acts establish per se
the suffering of those upon whom they were inflicted. Rape is obviously such an
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act.” Consequently, “severe pain or suffering, as required by the definition of the
crime of torture, can . . . be said to be established once rape has been proved.”72
Later decisions affirmed this approach. In Brđanin, the Trial Chamber explained that “some acts, like rape, appear by definition to meet the severity
threshold” of torture. In its explanation, it noted the purposes for which rape
(“like torture”) is used, including the “destruction of a person.”73 The Trial Chambers in Kvočka and Simić arguably went further, stating that the mere “threat of
rape or other forms of sexual violence” in the context of detention “undoubtedly
caused severe pain and suffering,” thereby constituting torture.74
In the above examples, the presumption of severe pain and suffering constituted a doctrinal move that alleviated the need for the prosecutor to demonstrate
harm through testimony by or about victims. Those cases might have suggested
that rape is the ultimate harm, but they did not say it. Other decisions, however,
repeated the common sense that rape is a fate worse than death. In Stakić, for
example, the tribunal stated: “For a woman, rape is by far the ultimate offense,
sometimes even worse than death because it brings shame on her.”75
Stakić made explicit the connection that many assume between shame and
the unique harm of rape, and that was even at the heart of much of the discourse
leading up to the establishment of the ICTY. Recall from Chapter Two that the
UN Special Rapporteur of the Commission on Human Rights described in 1993
the role of rape in the conflict, stating: “Rape is an abuse of power and control
in which the rapist seeks to humiliate, shame, degrade and terrify the victim.”76
The description was likely not incidental, given that common Article 3 of the
four 1949 Geneva Conventions lists “humiliating and degrading treatment” as
an example of “outrages upon personal dignity.”
Feminists later worked hard, in their advocacy around the drafting of the ICC
statute, to see rape and other sexual violence crimes moved out of the category of
“outrages upon personal dignity,” where, when included, they had been housed
alongside “humiliating and degrading treatment.”77 As I discuss more fully in
Chapter Four, they did so to avoid the historical connection between sexual
offenses and dignity and honor. But prosecutors at the ICTY took advantage of
the tribunal’s reading of the statute to include “outrages upon personal dignity,
in particular humiliating and degrading treatment,” as they pursued multiple
avenues to achieve convictions not only for rape but also for a broader category of
sexual violence. They did so, in part with the acquiescence of structural-bias and
other feminists, even though shame, often discussed as humiliation, obviously
proved key to many convictions. In the process, issues of honor often returned.
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In Furundžija, for example, the Trial Chamber found that the “severe physical
and mental pain, along with public humiliation” caused by the rape and sexual
assault constituted outrages upon the victim’s personal dignity. It also added,
urged by the prosecutor, that it was an attack upon her “sexual integrity.”78 Especially given the historical connection between chastity and sexual integrity,
this coupling of dignity and sexual integrity suggests yet another way in which
the harm of rape and sexual violence has continued to be understood as connected to honor.
In Češić, the tribunal seemed to go out of its way to read rape as necessarily
humiliating. There, the accused had pleaded guilty to rape as a crime against
humanity and the war crime of humiliating and degrading treatment for forcing two Bosnian Muslim brothers to perform fellatio on each other in front of
guards at the Luka detention camp.79 At the sentencing stage, the Trial Chamber
insisted that a salient distinction between the crime of humiliating and degrading treatment and the crime of rape is that the former emphasizes humiliation,
while the latter stresses “the physical and moral integrity of the victim.”80 Note the
tribunal’s use of “moral,” as opposed to “sexual” integrity here. Perhaps because
the victims were men, the concept of chastity did not quite fit. In any event, the
tribunal articulated this distinction only to make it clear that it had not collapsed
the two crimes when it found “exacerbated humiliation” to be an aggravating
circumstance for the rape charge. At the same time, it stated, “it is uncontested
that rape is an inherently humiliating offense.”81 The chamber based its finding
of exacerbated humiliation on the facts that the victims were brothers and that
guards stood by to see the assault.82
Humiliation played an important role in the tribunal’s understanding of torture as well. The Čelebići decision offers some insight into the nature of the pain
and suffering of rape that per se meets the torture definition. Noting the need to
look not only at the physical but also the social and psychological consequences
of rape, it quoted an Inter-American Commission on Human Rights judgment
describing the effects on a rape victim in one of its cases to include “a fear of
public ostracism; feelings of humiliation; fear of how her husband would react;
a feeling that family integrity was at stake and an apprehension that her children
might feel humiliated if they knew what had happened to their mother.”83 Thus,
both as a feared result and as a cause of pain, the social ostracism associated
with rape moved it per se into the category of torture.84
If humiliation, or shame, is central to the harm of rape, one of the justifications continually given for criminal prosecution of rape, which we see in nearly
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every chapter of this book, is that it will shift the shame from the victim to the
perpetrator. The ICTY signaled this possibility in the Nikolić case sentencing
phase. There, the Trial Chamber considered the accused’s “final statement [in the
hearing] that he genuinely feels shame and disgrace” as a “factor to be of some
importance for mitigating the sentence.”85 In doing so, it arguably suggested that
the public shaming of the accused could somewhat ameliorate the gravity of the
offense, including its effects on a victim who had testified to feeling “miserable,
degraded [and] humiliated as a woman and as a mother.”86
Assumptions about the inevitable consequences of rape for a victim’s life
extended beyond the jurisprudence. They also affected the operation of the ICTY,
because shame came to be seen as an obstacle to prosecution. Indeed, some
feminists attributed the relatively small number of female witnesses (including
victims) testifying before the tribunal to “intense shame and embarrassment,”
“ostracism in their local communities,”87 and “stigma and taboo.”88 These concerns were amplified in relationship to the ICTR, as we see in Chapter Four.
However ingrained it may be today, this common sense around rape as a fate
worse than death was contestable at some moments, even in the context of the
former Yugoslavia. As Gillian Mezey, a participant in a 1992 investigation into
the rapes by what was then the European Community, explained, “For virtually
all victims the sexual assault represents one aspect, but not necessarily the most
significant, amongst other forms of degrading and humiliating treatment.” In
addition to witnessing “the torture or death of family members” and having “their
family dispersed to whereabouts that are unknown,” women have “been shot at,
mortared, experienced extreme physical privations, seen their homes burned
and their communities destroyed, with little prospect of being able to return in
the future or seeing an end to the hostility and aggression.”89
This type of observation was short-lived, however, and received little traction.
These harms to women, some of which would be difficult to trace to individual
monsters who could be brought before a war crimes tribunal, did not demand
the same type of attention as sexual violence did. Even Mezey, despite this observation, ultimately concentrated on the rapes, the motivations behind them,
their normalization during wartime, and their ongoing effects.90
The insistence upon rape as the worst harm not only deflected attention from
other issues that women (and men) faced in the conflict; it also served to deny
some ways in which women might have suffered less because they were women.
In Omarska, for example, women were raped, but the lives of most were spared.
Men, on the other hand, were killed. Women were actually the first prisoners
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to be released from Omarska so that Serbs could deny that they were detaining
women there.91 During the massacre at Srebrenica, Serbian forces separated out
and took into custody boys and men from the ages of twelve through seventyseven, while buses transported approximately twenty-three thousand women and
children to safety.92 The dynamic was, of course, not unique to Bosnia. Fionnuala
Ní Aoláin has argued with regard to the Holocaust that “gender difference does
not always imply greater victimization, and . . . some research has indicated that
gender differences functioned to protect women in contradistinction to men in
similar positions during the Holocaust.”93
The point here is not that women do not suffer from sexual or other forms of
violence in conflict. Rather, even if only because of problematic paternalistic assumptions, women are often protected—as women—from certain types of harm.
Ironically, then, treating women as innocent, victimized, and marginalized from
political and military centers of power might be the best way to save their lives.
B. Sexual Agency and Ethnic Difference
The ICTY’s jurisprudence, particularly as it developed in the context of crimes
against humanity, arguably criminalized any sexual activity between Serbian
male combatants and Bosnian Muslim female civilians during the conflict. It
did so by limiting consent as a defense to rape and sexual assault charges in
conflict zones. Its doctrine betrayed a belief in ethnic hatred so overwhelming
and insurmountable that it made consensual sex in these circumstances virtually impossible. In doing so, it largely relied upon the focus on ethnicity that the
genocidal-rape feminists brought to the table.
The jurisprudence resulted from the interpretation of Rule 96, which, as
mentioned earlier, is the ICTY’s rule of evidence for sexual assault cases. The
rule was amended several times, according to Viseur Sellers, “ostensibly due to a
male-generated outcry because [in the first draft] consent appeared to be eliminated, not qualified, as a defence to wartime rape.”94 Later versions made it clear
that, in some instances, evidence of consent would be admissible.95 Though early
cases differed on the application of the rule and on the proof needed to establish
the elements of the crime of rape, the Appeals Chamber in Kunarac provided
an authoritative ruling on the matter: while the prosecutor technically had the
burden of proving that the sexual acts were non-consensual, a determination of
“coercive circumstances” could fulfill that burden. The Appeals Chamber used
the fact that women were detained in what it described as “de facto military headquarters, detention centres and apartments maintained as soldiers’ residences”
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to conclude that this “amount[ed] to circumstances that were so coercive as to
negate any possibility of consent,”96 therefore alleviating the prosecution of the
need to prove lack of consent for each of the rapes.97
This holding was particularly important because two of the accused had
argued that some of the women they were charged with raping and enslaving
had “freedom of movement inside and outside” the apartments to which they
had been brought.98 Indeed, one of the women apparently admitted that she and
another woman had keys to the apartment.99 The Appeals Chamber essentially
accepted the Trial Chamber’s findings that the women were not actually permitted to move freely,100 or that escape was impossible given the “circumstances . . .
in which Serb soldiers had exclusive control over the municipality of Foča and
its inhabitants.”101 Yet we know from the Trial Chamber’s decision that one of the
victims with keys had escaped, albeit with the help of a Serbian soldier whom
she eventually married.102 Because the soldier she married was not on trial, the
tribunal did not need to address directly whether the relationship was consensual,
but its consent doctrine would seem to negate such a possibility.
The presumed lack of consent in Kunarac was very much connected to the
identities of the accused as Serbian and the victims as Bosnian Muslim. In response to Kunarac’s claim that one of the women he was accused of raping had
consented to intercourse with him, the Appeals Chamber found that the “special
circumstances and the ethnic selection of victims” supported the findings by the
Trial Chamber of both lack of consent and discriminatory intent.103 The ethnic
component of the rape thus combined with the finding of coercive circumstances
to overshadow and minimize any possible evidence of consent.
The relevance of ethnicity to the consent analysis was apparent in subsequent
decisions by the ICTY. In Kvočka, a persecution case involving rape and sexual
violence at the Omarska camp, the tribunal professed its own inability to conceive
of wartime detention (and perhaps conflict itself) absent rape or other forms of
sexual violence. The Appeals Chamber stated that “it would be unrealistic and
contrary to all rational logic to expect that none of the women [all non-Serbs]
held in Omarska, placed in circumstances rendering them especially vulnerable,
would be subjected to rape or other forms of sexual violence.”104 It went on to say
that the inevitability of rape and sexual violence is “particularly true in light of
the clear intent . . . to subject the targeted [ethnic] group to persecution through
such means as violence and humiliation.”105
The Kunarac decision could be read to extend well beyond the circumstances
of detention in Foča—to apply to any sexual encounters between civilians and
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combatants on different sides of the conflict. Indeed, the Kunarac Appeals Chamber painted its ruling with broad strokes, stating that “the circumstances giving
rise to the instant appeal and that prevail in most cases charged as either war
crimes or crimes against humanity will be almost universally coercive. That is
to say, true consent will not be possible.”106
Recall from the torture discussion that Kunarac also created an irrebuttable
presumption that rape constituted severe pain and suffering. Read alongside that
presumption, the consent rule leads to the conclusion that nearly all sex in Foča
between Serbian (male) combatants and Bosnian Muslim (female) civilians also
constituted torture.
Although the Appeals Chamber suggested that consent would be impossible during wartime in nearly any jurisdiction (inside or outside of the former
Yugoslavia), its judgment extended its reach, as a doctrinal matter, beyond Foča.
Kunarac interpreted “armed conflict” to include “the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under
the control of a party to the conflict, whether or not actual combat takes place
there.”107 That broad reading came in response to arguments by the accused that
though there was armed conflict in Foča, it was not occurring in the two other
regions where the crimes were alleged to have taken place. The tribunal made
clear: “A violation of the laws or customs of war may therefore occur at a time
when and in a place where no fighting is actually taking place.”108 Among the
types of evidence that would come into play to determine whether a particular act
was related to the armed conflict were the status of the perpetrator as combatant
and victim as non-combatant, and “the fact that the victim is a member of the
opposing party.”109 This reading of “armed conflict” continued to be accepted
in later cases.110
Taken together, the ICTY’s rules of evidence and jurisprudence on consent suggested the near impossibility of consensual sexual relations between
combatants and civilians of warring ethnic groups, even where no fighting was
taking place.111 As such, the ICTY largely denied the sexual agency of civilians
(generally women), by making them legally incapable of consenting to sex with
a combatant of a different ethnic group. It also denied the sexual agency of
combatants (nearly always men), by considering their similar sexual conduct
to be per se rape.
This approach reinforced some of the essentialized notions of identity that
were often relied upon by feminists in their arguments that rape constituted
genocide. The ICTY, however, not only essentialized certain identities but also
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conceived of the differences among them as insurmountable—responsible for
perpetual hatred and conflict, and preclusive of genuine affection or desired sex.
The jurisprudence therefore bought into an understanding of antagonisms in
the Balkans as “age-old,” “tribal,” and “natural.”112
Yet, prior to the war, interpersonal relationships among various religious and
ethnic groups were common in Bosnia and Herzegovina. People often married,
entered sworn kinships, and celebrated festivities that crossed the ostensible religious and ethnic lines.113 Notwithstanding the divisive and often elusive concepts
of nacija and nacionalnost (roughly translated as “nation” and “ethnicity”114),
many contend that the Yugoslav socialist experiment of “brotherhood and unity”
(bratstvo i jedinstvo) had been successful in Bosnia, adding a layer of “feeling
Yugoslav” (jugoslavenstvo) to an already widespread sense of “Bosnianness” (bosanstvo).115 The heterogeneity of Bosnian religious practices helped facilitate these
complex identities, especially since the powers of official religious institutions
had been significantly curtailed under the socialist system.116
The ICTY opinions that discussed the history of ethnicity and religion in
the region generally did so rather cursorily and with little attention to the contingency and construction of ethnic and religious identity in Bosnia. While
decisions tended to see the period just before the war as one of relatively peaceful coexistence of different groups,117 they often treated or explained away that
apparent peace as a mask for deep, underlying, and—for the most part—real
ethnic/religious differences. The Trial Chamber’s decision in Tadić, for example,
noted that many of the witnesses before the tribunal spoke “of good intercommunal relations, of friendships across ethnic and coincident religious divides,
of intermarriages and of generally harmonious relations.” Yet, it continued, “it
is only subsequent events that may suggest that beneath that apparent harmony
always lay buried bitter discord, which skilful propaganda readily brought to the
surface, with terrible results.”118
For the Trial Chamber in Kvočka, that “bitter discord” might have had at its
core a constructed idea of ethnicity, but one that nevertheless manifested itself in
“nationalist tendencies.” The chamber explained: “Following the Second World
War, Marshal Tito and his communist regime took extensive measures to suppress and control all nationalistic tendencies, but in spite of the government’s
efforts, the Yugoslav population remained very conscious of its so-called ethnic
identity.”119
In each of these cases, then, the tribunal saw the ethnic divides as deeply
entrenched. That sense of great difference and animosity made consensual sex
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unthinkable, particularly—but not only—between dominant Serbian male soldiers and subordinate Bosnian Muslim female civilians. To the extent that anything like consensual relationships might previously have seemed to exist, all
bets were off during war, as the war was read to render anew old, underlying,
but perhaps hidden divisions.
The overwhelming sense of essentialized and ethnicized victimization of
Bosnian Muslim women obscured other, competing narratives that emerged
over time. Some Bosnian Muslim women and girls, for instance, reported that
Serbian soldiers did not rape them, but told them to say they had been raped so
that it would appear that the soldiers had obeyed orders.120 Others testified that
Serbian soldiers helped them escape. And, as we already saw, at least one of the
Foča rape victims married a Serb soldier.
Of course, a presumption of coercion did not mean that every combatant
known to be engaged sexually with a civilian from another ethnicity would be
charged. Prosecutorial discretion, as always, meant that certain cases were chosen for prosecution over others. Viseur Sellers readily acknowledged when she
was a prosecutor that such consensual relations occurred during the conflict,
but she nevertheless supported Rule 96 and the broad judicial interpretation it
was eventually given. Prosecutorial discretion, she contended, would prevent
prosecution of Serbian soldiers in such instances.121 Even if we trusted Viseur
Sellers’s use of prosecutorial discretion (I did), that trust might not be warranted
for all prosecutors. Indeed, Darryl Robinson warns against “sanguine reliance on
prosecutorial discretion” to respond to international criminal law’s often “overbroad doctrines,” by quoting legal philosopher Douglas Husak: “Discretion is
not a reliable substitute for getting the rule right in the first place.”122
IV. Adding to the Common Sense: Male Victims
For the most part, structural-bias feminists on both sides of the debate over
genocidal rape emphasized sexual harm as that which the ICTY should address, largely setting aside concern for other forms of gender-based violence in
conflict. They were also principally focused on male-on-female rape and sexual
violence. Indeed, they practically never mentioned female perpetrators and rarely
discussed male victims of sexual violence. Both omissions fit with the structuralbias perspective on male dominance and female subordination. For instance,
MacKinnon, even with her insistence that “in this war the fact of Serbian aggression is beyond question,” made clear her belief that “the fact of male aggression
against women is beyond question, both here and in everyday life.”123
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Like most structural-bias feminists, the OTP rarely concerned itself with
female perpetrators. Indeed, it brought charges against only one woman, Biljana
Plavšić, who had been president of the Republika Srpska during the conflict. And
it did so in 2000, relatively late in the day.124 Although the OTP charged Plavšić
with counts of genocide and crimes against humanity that included acts of rape
and sexual violence, it dropped those charges in exchange for her pleading guilty
to one count of persecution.125
In contrast to its treatment of female perpetrators and to the approach of
many structural-bias feminists, the OTP from the beginning brought charges for
sexual violence committed against men. It did so as part of a deliberate strategy.
Viseur Sellers recalls, for example, that the OTP successfully requested a 1995
amendment to Rule 96 that replaced the pronoun “she” with “the victim.”126 And
in the case against Furundžija, the OTP “forwarded a gender-neutral definition
of rape, inclusive of male rape, in its pleadings.”127 It did so, even though the only
victim of rape in the case was a woman. In the end, a significant number of men
were in fact convicted of sexual violence against men.128
Valerie Oosterveld criticized both the ICTY and the ICTR for their failure to
charge many of the acts of sexual violence against men as rape, as opposed to other
crimes.129 That, however, might also have been a part of the OTP’s strategy—to
create a separate, broad category of acts of sexual violence that could be charged
in a variety of ways. That the acts were not charged as rape did not, for the OTP,
make them not serious. To the contrary, recall that those who had worked in the
ICTY’s OTP indicated that one of their major breakthroughs was in seeing acts
of sexual violence other than rape taken seriously, by successfully charging them
as persecution, the crime against humanity that most approximates genocide.
Structural-bias feminists also shared this aim of the criminalization of a
broader category of acts of sexual violence. Upon closer examination, then, the
similar treatment of sexual violence against men and women (if not as rape)
could be compatible with their approach, especially if it were to treat sexual
assault against men as reproducing the sexual domination and subordination
dynamics of male-on-female (sexual) violence. Indeed, MacKinnon later articulated such a theory, including through an amicus brief in the United States on
behalf of a man who alleged that he had been sexually assaulted by other men
at his workplace. There, she contended that men suffer even greater harm from
sexual assault than women are capable of suffering, because men “are stripped
of their social status as men” and are “feminized.” For MacKinnon, “this cannot
be done to a woman.”130
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Without the emphasis on sexual domination and subordination, however,
treating cases of sexual violence against men and women together could serve
to eliminate the sexual subordination analysis altogether, so that sexual violence
would resemble any other war crime or crime against humanity that can be
committed against men and women alike. That approach seems consistent with
the work of the OTP. And it is largely the approach taken by UN Action Against
Sexual Violence in Conflict in the treatment of what it has come to refer to as
“conflict-related sexual violence,” as detailed in Chapter Five.131 Female victims
might still capture the imagination, as demonstrated by the visual representations in the video discussed in the Introduction. But, thanks in part to the ICTY,
the institutional and jurisprudential discourse is largely in line with the video’s
spoken claim that “rape and sexual violence are used against women, girls, men
and boys.”132
Even if, or perhaps because, male sexual dominance and female sexual subordination largely dropped out of the picture in the ICTY’s jurisprudence, the
structural-bias feminists who focused on sexual subordination left a significant
legacy. Despite their internal disagreements over the treatment of rape as genocide, they used the ICTY to bring attention to a broad range of acts of sexual
violence (including “sexual slavery”) as some of the most egregious crimes in
conflict. They did so at some cost, however. By foregrounding sexual harm, they
deflected attention from other forms of violence, including gender-based violence, moving further away from the original motivation of many early women’s
human rights advocates and scholars. In addition, the vehicle used to recognize
the serious nature of sexual violence—crimes against humanity—functioned
both to reinforce ethnic difference and to deny women’s sexual agency. As we
see in Chapter Four, the doctrinal recognition and treatment of genocidal rape
in the ICTR mirrored these consequences.
CHAP TE R FO U R
Calling in the Judges: Rwanda
O N T H E E V E O F T H E R WA N DA G E N O C I D E and just over eighteen months after the
establishment of the International Criminal Tribunal for the former Yugoslavia
(ICTY), the Security Council once again used its powers under Chapter VII of
the UN Charter, this time to establish the International Criminal Tribunal for
Rwanda (ICTR). The tribunal’s mandate was to try crimes of genocide and “other
serious violations of international humanitarian law” committed in Rwanda and
by Rwandans in neighboring territories in 1994.1
Like the ICTY, the ICTR proved to be an important forum for the development of international criminal jurisprudence on rape and sexual violence and,
as such, an important ground for feminist engagement and critique. In contrast
to the ICTY, which never found rape to be a constitutive act of genocide, the
ICTR handed down a number of convictions for rape as genocide. Through its
jurisprudence in those cases, it made significant contributions to the formation
and concretization of the common-sense narratives about shame and stigma
that we have seen thus far. Most importantly, in concluding that rape and sexual
violence were acts of genocide, intended to destroy an ethnic group in whole or
in part, it embedded in its jurisprudence the notion that rape destroys individuals
and tears communities apart, in large part due to shame.
The assumption that rape victims are shamed into silence, which we saw so
vividly in Chapter Two, also played a significant role in the ICTR. Prosecutors
consistently cited shame as an obstacle to prosecution as they devised a number
of means to attempt to mediate it. This chapter considers how these two functions
of shame—one that doctrinally links rape and genocide and another that makes
it hard to elicit testimony to prove rape—operated side by side.
101
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Unlike the ICTY, the ICTR was not instituted to intervene in an ongoing conflict, but to respond to genocide after it occurred. The newly installed, Tutsi-led
Rwandan government initially requested the creation of a tribunal in September
1994 and even participated in the drafting of the resolution founding the ICTR.
Nevertheless, it eventually cast the sole vote against the resolution for a variety
of reasons, including that the ICTR would be housed in Tanzania, rather than
Rwanda, and that it would not allow for capital punishment.2
The Security Council resolutions that set up the ICTR and the ICTY differed
in important respects, indicating the principal concerns that motivated them.
While only the ICTR resolution named “genocide,” only the ICTY resolution
mentioned rape. Though rape had been reported by numerous intergovernmental organizations leading up to the establishment of the ICTY, it was not
discussed in the reports of either the UN Special Rapporteur to Rwanda or
the Commission of Experts that was formed to advise the Security Council on
Rwanda.3
The failure of the text of the resolution to mention rape did not, however,
prevent its inclusion in the ICTR statute. The statute followed that of the ICTY
by listing rape as a possible crime against humanity.4 It also added a reference
to rape through its inclusion of an article on serious violations of common
Article 3 and Additional Protocol II of the Geneva Conventions.5 That article was not in the ICTY statute, though the tribunal essentially incorporated
it through its jurisprudence on war crimes.The article listed rape under its
examples of “outrages upon personal dignity,” which were “humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent assault.”6 If this addition made up for the omission of the identification of rape as
a war crime or grave breach in the ICTY statute, it also defined rape in terms
of dignity and associated it with humiliation, two moves that many feminists
were actively trying to avoid.7
Indeed, around the same time the statute was drafted, feminists were beginning to engage actively in the drafting of the Rome Statute of the International
Criminal Court (ICC), aiming in part, as Janet Halley puts it, to “delink” honor
and dignity from sexual offenses. Halley explains that feminists succeeded in
getting the Rome Statute to list “outrages upon personal dignity, in particular
humiliating or degrading treatment” separately from rape and other listed forms
of sexual violence.8 Yet, even as feminist advocates were seeking these changes
in the ICC statute, they also engaged in prosecution and litigation strategies
before both the ICTY and the ICTR that perpetuated the linkage.9 The linkage
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extended beyond the framing and interpretation of war crimes; the jurisprudence
on crimes against humanity and genocide was also highly reliant on interpretations of rape as humiliating, or shameful.10
The feminist debates over genocidal rape that we saw with regard to the
former Yugoslavia did not surface in the context of Rwanda for a variety of
reasons. In contrast to their treatment of the conflict in the former Yugoslavia,
feminist and mainstream advocates and institutions largely agreed from the
start that Hutus had engaged in genocide against the Tutsi group in Rwanda.
Additionally, if controversially, only Hutus were tried by the ICTR.11 Nearly all
of the indictments against them included charges of genocide. Once the Office
of the Prosecutor (OTP) began to investigate and charge instances of rape, many
indictments of genocide included acts of rape.
In 1998, the ICTR handed down its first judgment, convicting Jean-Paul
Akayesu, the Hutu bourgmestre (mayor) of Taba commune, of genocide and
crimes against humanity for acts that included rapes of Tutsi women held in
the commune.12 Many have considered the Akayesu decision pathbreaking for
a number of reasons. Not only was it the first conviction for genocide by any
international tribunal, but it was also the first rape conviction by one of the ad
hoc tribunals, predating all of the ICTY cases examined in Chapter Three.13
Most importantly for many feminists, it was the first international criminal
judgment to pronounce that acts of rape constituted genocide. It did so even
without finding that Akayesu himself committed rape.14 Patricia Viseur Sellers,
former prosecutor and Legal Advisor for Gender Related Crimes at the ICTY
and ICTR, approvingly deemed the decision’s treatment of sex-based crimes in
Akayesu “stunning.”15
Nevertheless, many, including Viseur Sellers, contended that the ICTR did
not live up to Akayesu’s early promise. Some complained that, especially given
what later came to light about the pervasiveness of rape and sexual violence
during the Rwandan genocide, the tribunal convicted relatively few people for
those acts. Indeed, although charges of rape or sexual violence were included
in the indictments of more than half (52 of 93) of the individuals charged, only
36 were eventually tried on those charges. And only one-third of those 36 were
finally convicted of such crimes.16 Of the 12 convicted, 6 were found guilty of
rape or sexual violence both as genocide and as a crime against humanity, while
the remaining 6 were convicted of rape or sexual violence as a crime against
humanity, but not genocide. Five of the 12 were also found guilty of rape or
sexual violence as war crimes.17
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Although a number of feminists have criticized the tribunal for its low conviction rate, few have scrutinized the jurisprudence in those cases that did result
in convictions. Here, I assess and challenge much of that judicial reasoning on
some of the same grounds that I critiqued the genocidal-rape position and its
effect on ICTY jurisprudence in previous chapters. I am particularly concerned
about the ICTR’s reliance upon and perpetuation of problematic assumptions
about shame—or humiliation—and stigma, especially in its judgments finding
rapes to be constitutive of genocide. After considering those decisions, I look
at how similar assumptions are operant in prosecutorial attempts to manage
perceived shame.
I. The Doctrinal Function of Shame
In contrast to the former Yugoslavia, a number of international legal responses to
the Rwandan genocide accepted relatively early on that rape could constitute an
act of genocide. They did so by attributing to the Hutus the intent to use rape to
humiliate and shame the Tutsis as an ethnic group, in ways that would lead to the
group’s destruction. This argument had seeds in reports issued after the ICTR’s
establishment, and it took root in Akayesu and subsequent ICTR case law. It is
partly because of this tight connection between genocide and intended shame, I
contend, that the conception of rape as a violation of dignity and honor has had
such staying power, notwithstanding its explicit disavowal by many feminists.
Perhaps the first official call for the ICTR to consider trying individuals for
acts of rape as genocide came from the Commission of Experts, in its final report
that was released one month after the Security Council resolution establishing
the ICTR. While its preliminary report had omitted discussion of rape, this one
stated, “Disturbing reports have been filed with [us] that document the abduction and rape of women and girls in Rwanda during the period of armed conflict
in Rwanda.”18 It relied upon an African Rights report that it had apparently not
consulted earlier, which had devoted 40 (of 742) pages to “rape and abductions
of women and girls.”19 Importantly, the African Rights report asserted that “rape
is an instrument of genocide.”20 It based that conclusion in part on the claim that
rape “destroys the fundamental fabric of interpersonal relations that constitutes
a community. It shatters the sense of security and identity of the victim, and
isolates her from her family and community.”21
The Commission of Experts’ final report contained significant analysis of the
international legal criminalization of rape, borrowing in part from work done
in the context of the former Yugoslavia. It endorsed the findings of the Special
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Rapporteur of the Commission on Human Rights in the former Yugoslavia, which
had linked ethnic cleansing and the shame of rape by stating, “Rape has been
used not only as an attack on the individual victim, but is intended to humiliate,
shame, degrade and terrify the entire ethnic group.”22 The Commission of Experts
then turned directly to the possibility of genocidal rape: “There are clear cases
where rape, which undoubtedly constitutes ‘serious bodily or mental harm,’ is
perpetrated . . . as a systematic policy.” Quoting the Genocide Convention, the
sentence continued, “alongside or as part of a larger policy that is ‘committed
with intent to destroy, in whole or in part, a national, ethnic[al], racial or religious
group, as such.’”23 It therefore called upon the prosecutor to “explore fully the
relation between the policy of systematic rape . . . as a crime against humanity
on the one hand, and . . . as a crime of genocide on the other.”24
Akayesu provided the opportunity to pursue that relationship. In doing so,
it put into legal doctrine on genocide some of the common-sense beliefs about
communal shame.
A. The ICTR Charges against Akayesu
The case against Akayesu did not begin with the aim of procuring a conviction
for rape as an act of genocide. In fact, the OTP included neither rape nor any
other act of sexual violence in the original indictment against him. Such charges
were absent notwithstanding the seeds planted by the report of the Commission
of Experts and general pressure from the Coalition on Women’s Human Rights
in Conflict Situations, an organization composed of more than forty Rwandan
and international women’s human rights groups set up specifically to ensure the
investigation of sexual violence crimes in Rwanda.25
Rape charges became a part of the case against Akayesu only after the trial
began.26 In short, in January 1997, eighteen days into the trial, a witness testified
during direct examination that when the Hutu Interahamwe (a paramilitary
organization) came to kill her father, they raped her six-year-old daughter.
She also stated that ICTR investigators had not asked her about rape. In response to questions from the bench, she further testified that she had heard
of, though not witnessed, other incidents of rape, specifically of young girls in
the bureau communal (central public building) of Taba commune.27 In March
1997, a second witness testified that she herself had been raped at the commune and that Akayesu had encouraged the Hutu Interahamwe, which the
prosecution contended was under his command, to rape their Tutsi women
prisoners.28 At that point, the presiding judge, Navanethem (“Navi”) Pillay
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(who later became UN High Commissioner for Human Rights), stayed the
proceedings pending further investigation, which she ordered the prosecutor
to conduct.29
The Coalition on Women’s Human Rights in Conflict Situations submitted an amicus curiae (friend-of-the-court) brief to the tribunal. According to
Rhonda Copelon, three organizations took the lead in drafting the brief: the
International Women’s Human Rights Clinic, directed by Copelon; the Center
for Constitutional Rights, with whom Copelon had worked on a U.S. civil lawsuit
against Radovan Karadžić (though representing different plaintiffs than Catharine MacKinnon did30); and the Working Group on Engendering the Rwanda
Tribunal.31 Given the group’s focus on women’s human rights, the brief naturally
relied upon parts of the Vienna Declaration and Programme of Action, discussed
in detail in Chapter One. It urged the Trial Chamber to invite the prosecutor to
amend the indictment, supplement its investigation, and examine why existing
indictments had failed to include charges of rape or sexual violence.32 Citing trial
testimony, the prosecution’s reference to sexual assault in its opening statement,
and numerous reports documenting rape and sexual violence in Rwanda, the
brief argued that the prosecution’s failure to charge Akayesu with acts of rape or
sexual violence raised “questions about the commitment of the Tribunal to the
elimination of gender-based violence as well as the protection and advancement
of the human rights of women.”33
Approximately five weeks after the trial was stayed, the prosecution made
a motion to amend the indictment, which the Trial Chamber granted. The
amended indictment added two charges of crimes against humanity—one for
rape and another for other inhumane acts. It also added a charge of “outrages
upon personal dignity, in particular rape, degrading and humiliating treatment
and indecent assault.”34 The prosecution did not amend the genocide counts,
apparently because it considered the definition of genocide to cover the new
evidence of rape and other forms of sexual violence.35
The amendment of the indictment turned out to be a rare occurrence. Indeed,
subsequent cases in the ICTR as well as in the ICTY and ICC have demonstrated
that judges, and sometimes prosecutors, have been reluctant to amend indictments under similar circumstances.36 But in this case, the tribunal seemed to have
been influenced at least partly by the prosecution’s argument that the previous
insufficiency of evidence linking the accused to rape was attributable not only
to “insensitivity in the investigation of sexual violence,” but to “the shame that
accompanies acts of sexual violence as well.”37 As we see below, this suggestion
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that shame prevents victims from testifying would continue to be offered as an
obstacle to the successful prosecution of rape and sexual violence.
B. The ICTR’s Reasoning in Akayesu
If shame provided something of an alibi for the prosecution’s failure to include
charges of rape and sexual violence in the original indictment against Akayesu,
it played an even more significant role in his genocide conviction. In addition
to finding him guilty of genocide, the tribunal also found him guilty of direct
and public incitement to commit genocide and multiple counts of crimes against
humanity. The latter included those counts from the amended indictment for
rape and other inhumane acts.38 The judgment concluded that Akayesu had
knowledge of acts of rape and sexual violence in or near the bureau communal,
and that he did not attempt to prevent them.39 Moreover, in some instances, he
ordered, instigated, or encouraged the sexual violence.40
Although Akayesu is notable for its finding that rape and sexual violence
constituted a crime against humanity under the ICTR statute, it is best known
for its holding that acts of rape constituted genocide. I dwell here on that part
of the judgment, in particular on the link the Trial Chamber drew between rape
and genocide. It was there that the shame and stigma of rape became doctrinally necessary to the genocide finding. I consider only the trial decision, not
the appellate decision, because Akayesu did not challenge on appeal the legal
conclusion regarding the link between rape and genocide.41
To understand the tribunal’s ruling, we need to revisit the definition of genocide, which is found in Article 2(2) of the ICTR statute and which, like other
international criminal statutes, incorporates the definition from the Genocide
Convention. Under that definition, genocide requires “intent to destroy, in whole
or in part, a national, ethnical, racial or religious group,” and requires that one
of the following acts be done with that intent: “a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; d) Imposing measures intended to
prevent births within the group; e) Forcibly transferring children of the group
to another group.”42
Chapter Two discussed the ways in which some feminists used this definition
to argue that rape constituted genocide in the former Yugoslavia. They were opposed by other feminists, including Copelon, who believed that an emphasis on
genocidal rape took away needed attention to rapes on all sides. Yet the amicus
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brief that Copelon coauthored as part of the Coalition on Women’s Human
Rights in Conflict Situations made arguments that rapes of Tutsi women by Hutu
men during the relevant time period were genocidal. She was able to do so in
part because, as already noted, the ICTR focused nearly exclusively on crimes
committed by Hutus against Tutsis.
That said, the brief ’s argument that rape constituted genocide said surprisingly little about the nexus between rape and genocide. Indeed, only one paragraph addressed the issue head-on. Referencing Article 2(2)(a)-(d) of the statute,
it stated, “Rape and other forms of sexual violence, including killing pregnant
women, also constitute genocide where the requirements of Article 2 are met.”
It then applied the statement to Rwanda, contending that “rape and sexual violence were an integral part of the genocidal campaign, inspired by hatred of
Tutsi women, designed to result in death or to destroy a woman from a physical,
mental or social perspective and her capacity to participate in the reproduction
and production of the community.”43
That paragraph, perhaps in its vagueness, reflected both sides of the debate
among feminists with regard to the former Yugoslavia. While it seemed to focus
on the intent to use rape to kill or destroy “a woman” (rather than the group),
it also added the possibility that the Hutus meant to harm the group by diminishing individual women’s “capacity to participate in the reproduction and
production of the community.” This reference to reproduction, together with
the mention of the killing of pregnant women, implicitly invoked Article 2(2)(d)
of the statute, regarding the imposition of measures intended to prevent births.
But it stayed away from a claim about the womb being occupied by another
ethnicity, a claim on which some had based their genocidal rape arguments in
the former Yugoslavia.44
The brief suggested further ambivalence about the genocide-rape nexus in
its conclusion. It called for the prosecutor to amend the indictment to include
charges of crimes against humanity and grave breaches.45 It was less directive
with regard to genocide, asking the prosecutor to “consider charging Akayesu
with rape as an act of genocide pursuant to . . . the Statute,” quoting the final
report of the Commission of Experts for support.46
The brief avoided mention of humiliation or shame, perhaps suggesting the
advocates’ unease with that language. But it was unable to escape the concept
totally. By using the final report of the Commission of Experts to urge the prosecutor to consider charges of rape as genocide, the brief relied, if implicitly, on
language that named the intent of rape to “humiliate, shame, degrade and terrify”
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both the victim and “the entire ethnic group.”47 Further, other members of the
coalition had been attempting to influence the ICTR with that very language.
Human Rights Watch, for example, had issued a report the previous year calling
for the ICTR to investigate rape and sexual violence crimes. The report, titled
Shattered Lives and written by feminist Binaifer Nowrojee, made shame, stigmatization, and even loss of honor central to its analysis of rape as a weapon of war:
The humiliation, pain and terror inflicted by the rapist is meant to degrade not
just the individual woman but also to strip the humanity from the larger group
of which she is a part. The rape of one person is translated into an assault upon
the community through the emphasis placed in every culture on women’s sexual
virtue: the shame of the rape humiliates the family and all those associated with
the survivor.48
Although Nowrojee also noted that the harm done to individual women is “often
obscured or even compounded by the perceived harm to the community,” she
did so to support her claim that “in Rwanda, as elsewhere in the world, rape and
other gender-based violations carry a severe social stigma.”49 Women’s injuries
“are aggravated by a sense of isolation and ostracization.”50 Perhaps aware of the
risk of putting the blame on the Tutsis for the ostracism of their own community
members, she insisted that the harm is universal. Universal or particular, it is
characterized by loss of honor and shame.
When the Trial Chamber eventually considered the questions of whether
and how rape and sexual violence might constitute genocide, it largely followed
the lead of the Commission of Experts. That is, the Trial Chamber’s judgment in
Akayesu readily accepted that rape and sexual violence “constitute genocide in
the same way as any other act as long as they were committed with the specific
intent to destroy, in whole or in part, a particular group, targeted as such.”51 It
found that “the rape of Tutsi women was systematic,” demonstrating the group
focus.52 It also concluded that rape “was perpetrated against all Tutsi women
and solely against them.”53 Of course, it defies reason to suggest that every Tutsi
woman was raped, so the meaning of the claim is unclear. Perhaps the Trial
Chamber meant to suggest that all Tutsi women were targeted and therefore
raped in some sense. The Trial Chamber’s statement that rape was perpetrated
solely against the Tutsis was, again, less controversial than parallel claims in the
context of the former Yugoslavia would have been. But it was nevertheless complicated by later cases where, in the context of crime against humanity charges,
evidence revealed that Hutu women had been raped as well. Since in those cases
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they had been raped by Hutu men, the tribunal avoided the complication by
finding that they were raped either due to mistaken identity or because of their
affiliation with Tutsi men.54
Akayesu applied the Genocide Convention with a focus on Articles 2(2)(b),
“causing serious bodily or mental harm to members of the group,” and 2(2)(c),
inflicting “conditions of life calculated to bring about its physical destruction
in whole or in part.” With regard to 2(2)(b), the judgment stated that “rape and
sexual violence certainly constitute infliction of serious bodily and mental harm
on the victims and are even . . . one of the worst ways of inflict[ing] harm on the
victim as he or she suffers both.”55 In terms of 2(2)(c), the Trial Chamber found
that “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.”56 As is required by the statute,
the Trial Chamber further found that Akayesu engaged in those acts “with the
specific intent to destroy the Tutsi group, as such.”57
For both Article 2(2)(c) and the specific intent requirement under the statute, the Trial Chamber needed to explain how rape and sexual violence were
intended to destroy the group. The Trial Chamber never explicitly considered
the question under specific intent, but its Article 2(2)(c) analysis, which centered
around shame, discussed as humiliation, is instructive. The judgment cited specific instances of acts by the Interahamwe against Tutsi women, which it stated
were intended to humiliate them. Indeed, part of the psychological harm that
the Trial Chamber attributed to some women who were raped came from their
subjection to the “worst public humiliation.”58 The humiliation to individual
women, however, would not suffice for the statute’s requirements. Ultimately, a
finding of humiliation experienced by the entire community led the Trial Chamber to conclude that sexual violence was “a step in the process of destruction
of the Tutsi group—destruction of the spirit, the will to live, and of life itself.”59
C. Feminist Reasoning and Akayesu
Many feminists, including some who were skeptical of a concentration on, or
even the naming of, genocidal rape in the former Yugoslavia supported the decision in Akayesu. Copelon, for example, considered both the amendment of the
indictment and the judgment as feminist victories and positive examples of NGO
advocacy. She noted that it was ironic, given the initial struggle to have rape and
sexual violence recognized, that the evidence associated with those acts ended
up carrying much of the evidentiary burden for proving genocide.60 Further, she
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contended that “by emphasizing the suffering imposed on the women as well
as its role as a tool of their destruction and the destruction of the group, the
Trial Chamber took a significant step in recognizing women both as subjects in
themselves and as part of their ethnicity.”61
Copelon’s praise for the recognition of both the gender and the ethnic harm
followed at some level the amicus brief ’s attempt to straddle the two. But Copelon
read into the judgment a hierarchy of the harms by arguing that, for the Trial
Chamber, “rape and sexual violence are understood as instruments of genocide
based primarily on the physical and psychological harm to the woman, and secondarily on the potential impact of this on the targeted community.”62 In doing
so, she missed the extent to which genocidal intent requires the focus on the
ethnic community. As much as she might have wanted rape of women classified
as genocidal because it aimed at destroying women qua women, the tribunal in
fact carved out no doctrinal space for such recognition.
I do concur with Copelon, however, on one aspect of her interpretation of
the decision. Although some feminists read Akayesu to find genocide based
on Article 2(2)(d), relating to “measures intended to prevent births within the
group,” Copelon disagreed. Indeed, she commended the tribunal for not resting
its decision on that provision. The chamber did generally recognize that rape
can, “in patriarchal societies,” amount to genocide under Article 2(2)(d) when
perpetrated with the intent to “have [the victim] give birth to a child who will
consequently not belong to its mother’s group,”63 but it did not ultimately connect
the provision to Rwanda, nor cite it as a basis for the conviction. For Copelon,
“it is significant that Akayesu did not, as some had contended, emphasize the
reproductive consequences as the hallmark of rape as a genocidal measure” because “to emphasize the reproductive impact on the community would threaten
once again to reduce women to being simply the vehicles of the continuity of
the targeted population.”64
Just a year after the judgment, Hilary Charlesworth, who shared Copelon’s
aim of highlighting the harm to women, read the decision quite differently from
Copelon. Offering one of the few feminist critiques of the judgment’s reasoning, Charlesworth disagreed with the emphasis on ethnic harm but also saw the
tribunal as having little choice:
The emphasis on the harm to the Tutsi people as a whole is, of course, required by
the international definition of genocide, and the Akayesu decision on this point
simply illustrates the inability of the law to properly name what is at stake: rape
is wrong, not because it is a crime of violence against women and a manifestation
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of male dominance, but because it is an assault on a community defined only by
its racial, religious, national or ethnic composition. In this account, the violation
of a woman’s body is secondary to the humiliation of the group.65
Charlesworth argued that “this understanding of rape perpetuates a view of
women as cultural objects or bodies on which and through which war can be
waged.”66 Charlesworth’s interpretation of both the doctrine and the view it perpetuates has been borne out, as evidenced by the persistence of the commonsense view that rape “tears communities apart.”
In that same article, Charlesworth criticized the ways in which the protection
of men’s and women’s honor has long been used to justify the criminalization
of wartime rape.67 Most feminists have concurred, as seen in the changes made
to the ICC statute considered at the start of this chapter. Notwithstanding these
concerns, feminist engagement with the ICTR helped to facilitate a ruling that,
through its assumptions about individual and communal shame, perpetuated
many of the same social constructs that supported the concept of honor. As a
result, the ICTR’s judgment essentially placed the blame for the genocide (or at
least for the role of rape and sexual violence in it) on the very group that was
the target of it. Although the arguments made about genocidal rape in Rwanda
relied less on stereotypes of Tutsis than similar (if legally unsuccessful) arguments about Bosnia did on stereotypes of Muslims, they still required group
humiliation that would account for, in Nowrojee’s words, the “ostracization and
isolation” of the women who had been raped.
D. The Legacy of Akayesu in Subsequent ICTR Jurisprudence
The Akayesu ruling might not have led to the large number of convictions or even
indictments for rape as genocide that some feminists who originally lauded it had
expected, but it nevertheless had effects. We can see Akayesu’s legacy in a number
of cases that directly or indirectly followed the judgment’s assumptions about
the harm of rape and sexual violence as well as its linkage of rape to genocide.
Doris Buss and Linda Bianchi have both demonstrated that, despite
the relatively small number of convictions, the tribunal nevertheless provided accounts of widespread rape and sexual violence. Indeed, Buss “(re)
reads” the record to show how the tribunal often went out of its way to
discuss such violence, even when it was not included in the charges before it, and Bianchi provides additional examples.68 While for the most
part, Buss and Bianchi see this documentation of widespread rape and sexual violence in the case law as positive,69 I point to problematic ways that
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the tribunal documented that violence. My biggest concerns arise from the
tribunal’s continued reliance on the reasoning in Akayesu.
Some decisions of the tribunal simply restated Akayesu’s conclusion that rape
or sexual violence can constitute an act of genocide.70 Others used Akayesu’s reasoning to reiterate the centrality of humiliation and shame to the harm. Musema,
a case in which the accused’s conviction for genocide included a count of rape,
provides an example of the latter.71 Like most other ICTR convictions of rape as
an act of genocide, the Trial Chamber found that rape and other forms of sexual
violence caused “serious bodily and mental harm” under Article 2(2)(b) of the
statute.72 In terms of intent, it found that women were targets, and that rape and
sexual violence contributed to “their destruction and therefore that of the Tutsi
group as such.”73 The judgment made explicit the common sense about harm
that we have seen assumed elsewhere, saying that a victim “who was left for dead
by those who raped her, had indeed been killed in a way.” It also quoted another
witness’s testimony “that ‘what they did to her is worse than death.’”74
If rape was a fate worse than death for the victim herself, humiliation was
key to the destruction of the group. Indeed, the chamber used the finding that
rape and other forms of sexual violence were “accompanied by humiliating utterances” as proof of genocidal intent, pointing in particular to the accused’s
statement that “the pride of the Tutsis will end today.” For the chamber, such
utterances “clearly indicated that the intention underlying each specific act was
to destroy the Tutsi group as a whole.”75
Similarly, in Karemera, two of the accused were convicted of genocide involving rape and sexual violence and of rape as a crime against humanity. In its
discussion of the acts of genocide, the Trial Chamber reasoned: “Many of these
women were subjected to severe humiliation and physical injuries. As a consequence, these crimes did not only cause serious bodily and mental harm to the
women themselves, but also, by extension, to their families and communities.”76
The chamber went on to note that “many Tutsi women were killed after they
were subjected to rapes and sexual assaults.”77 Their murder, however, was not
required for the genocide conviction. Rather, sexual violence combined with the
subsequent humiliation—to the individual women as well as to their communities—to constitute genocide.
The ICTR began to associate genocide with rape and sexual violence to such
an extent that, in some instances, rape and sexual violence became stand-ins for
genocidal intent. That is, the tribunal sometimes used evidence of rape and sexual
violence to demonstrate general genocidal intent, even in cases in which rape
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or sexual violence had not been charged (properly) as genocide. For example,
in Nyiramasuhuko (the only international criminal case in which a woman was
convicted of genocide, which I discuss further in the Epilogue), the Trial Chamber found the indictment of rape as genocide to be defective.78 It nevertheless
found Nyiramasuhuko guilty of conspiracy to commit genocide and of rape as
a crime against humanity. Inferring genocidal intent for the non-rape charges,
the Trial Chamber stated: “Nyiramasuhuko ordered Interahamwe to rape refugees. This evidences Nyiramasuhuko’s intent to destroy, in whole or in part, the
Tutsi group.”79
In other cases, the tribunal derived genocidal intent from evidence not related to sexual violence and then applied that intent to counts of rape and sexual
violence. Such analysis avoided the need to find genocidal intent for the sexual
acts. Instead, it saw any sexual violence it interpreted as falling under 2(2)(a)-(e)
as having genocidal intent. In Gacumbitsi, for example, the Trial Chamber first
found genocidal intent based on “the scale of the massacres and the fact that
Tutsis were targeted, including in the incitement by the Accused.”80 Then it turned
to Article 2(2)(a) and (b) of the statute for the requisite acts. As for the rapes,
the chamber found that “these rapes caused serious physical harm to members
of the Tutsi ethnic group,” and went on simply to conclude that “Sylvestre Gacumbitsi incurs responsibility for the crime of genocide by instigating the rape
of Tutsi women and girls.”81
A wrinkle emerged in Gacumbitsi, however: one of the rape victims was a
Hutu woman. The tribunal’s treatment of that wrinkle further demonstrated
its prioritization of the harm to the ethnic group over the harm to women, and
even suggested that the tribunal saw the main harm to an ethnic group as falling
to its male members. Because the victim was married to a Tutsi man, the Trial
Chamber reasoned that “through the woman, it was her husband, a Tutsi civilian,
who was the target. Thus, the rape was part of the widespread attacks against
Tutsi civilians.”82 This reasoning related only to a crime against humanity charge
because, as Buss points out, the ICTR considered only Tutsi women as genocide
victims.83 Nevertheless, this notion of harm to the ethnic group resonates with the
one in the genocide analysis as well: Tutsi men (as a stand-in for the group) were
harmed by the sexual violence against women in their communities or families.
Only one sexual violence case before the ICTR veered away from the inferences of genocidal intent found in Akayesu and its progeny. That case, Rukundo,
also brought to the fore assumptions about the harm of sexual assault (short
of rape) and about the role of shame. In 2010, the Appeals Chamber reversed
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Rukundo’s genocide conviction based on sexual assault. According to the Appeals Chamber, the prosecutor had not provided sufficient evidence that the
assault was committed for genocidal—rather than opportunistic—reasons. The
appeals judgment attracted strong dissent and criticism from feminist scholars,
including one who labeled it a “regressive decision.”84
The case involved Emmanuel Rukundo, who was a priest. A Tutsi woman he
knew sought him out and asked him to hide her. He refused, saying that she and
her family must be killed because of the affiliation of one of her family members
with the Rwandan Patriotic Front. He nevertheless let her into his room, after
which he locked the door and sexually assaulted her.85 The Trial Chamber based
its conviction for genocide on a finding that the assault constituted the infliction
of serious mental harm, referencing Article 2(2)(b) of the statute and quoting
Akayesu’s conclusion that rape and sexual violence is “one of the worst ways of
inflicting harm on the victim.”86 It also followed other decisions to say that “‘serious harm’ need not entail permanent or irremediable harm.”87
A dissent in the Trial Chamber challenged the judgment’s implicit assumption
that sexual assault inevitably results in the level of serious mental harm required
for a genocide conviction. It also criticized the majority for presuming that such
mental harm was the only reasonable conclusion to be drawn from the existence
of the circumstances—an ongoing genocide against the Tutsi and the victim’s
being a Tutsi woman who had testified that, in the dissenting judge’s words, the
“shame of the incident prevented her from telling anyone.”88 When the Appeals
Chamber reversed, it did not follow the dissent but found instead “that [the accused’s] act could reasonably be construed as an opportunistic crime that was not
accompanied by the specific intent to commit genocide.”89 The chamber went on
to say that its conclusion “does not alter the highly degrading and non-consensual
nature of the act committed,” but that, although the assault occurred during a
genocide, it “was not necessarily a part of the genocide itself.”90
As the various opinions in the Rukundo case reveal, shame can play a paradoxical role in the analysis of genocide. On one hand, the community is presumed to be shamed, which helps explain why the public nature of rapes and
sexual violence is often mentioned. On the other, shame is often seen to lead to a
victim’s silence. Yet, if the sexual assault is not public and the victim is presumed
to be too ashamed to tell anyone about it, it is difficult to see how the assault
harms the group, making it challenging to argue that it was committed with
the intent of destroying the group. Advocates and judges (as in the Trial Chamber’s judgment in Rukundo) have skirted this issue in a variety of ways we have
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seen here, primarily by assuming, rather than making a finding of fact about,
communal and sometimes individual shame. The presumption of individual
shame is also often proffered by prosecutors as an obstacle to obtaining sexual
violence convictions, an issue to which I now turn.
II. Shame as Prosecutorial Alibi
If many feminists have been loath to challenge the reasoning of the ICTR in its
convictions for rape and sexual violence, they have not, as already suggested,
hesitated to criticize the relatively low rates of indictments and convictions for
those crimes. Critics have attributed the rates to a number of causes, many of
which put the blame squarely on the OTP. Among the institutional problems
identified are scarce resources,91 inadequate training and investigations,92 faulty
drafting of indictments,93 inconsistencies in prosecutorial strategy and charging
practices with respect to crimes involving rape and sexual violence,94 and failure
to appeal acquittals in a timely manner.95 While those within the OTP who were
also disappointed by the indictment and conviction rates often ascribed these
institutional problems to a lack of resources or to “general lack of understanding” and “experience” concerning the investigation and prosecution of sexual
violence,96 outside critics have asserted that these issues merely compounded
an overriding lack of political will in the OTP itself.97
These criticisms are not totally distinct from another concern voiced by some
feminists and policy-makers, but especially by the ICTR’s own internal analyses
of rape and sexual violence prosecutions at the tribunal: the reluctance of victims
to testify about their experiences of sexual violence seriously hindered effective
investigation, trial testimony, and, ultimately, conviction.98 As we have seen elsewhere, including in Chapter Two’s discussion of the ICC investigation in Libya,
prosecutors and investigators, as well as some policy-makers and feminist advocates, often contended that shame and the possibility of being marked by stigma
inhibited the ability or willingness of victims to speak about sexual violence. As
Nowrojee put it in Human Rights Watch’s Shattered Lives, “Rwandan women
who have been raped or who suffered sexual abuse generally do not dare reveal
their experiences publicly, fearing that they will be rejected by their family and
wider community and that they will never be able to reintegrate or to marry.”99
The ICTR regularly invoked this concern to explain the difficulty of obtaining
testimony. Recall, for example, that when amending the Akayesu indictment after
the trial had begun, the Trial Chamber endorsed the prosecutor’s rationale that
there had been insufficient evidence to include sexual violence in the original
Calling in the Judges: Rwanda
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indictment due in part to “the shame that accompanies acts of sexual violence.”100
Several years later, ICTR prosecutor Alex Obote-Odora attributed the difficulty
of investigating sex-based crimes, or even of gaining an accurate count of the
number of victims, to the infliction of “physical and psychological wounds, which
women can conceal, avoiding further emotional anguish, ostracization, and retaliation from perpetrators who may live nearby.”101 His description invoked the
stigma associated with rape, suggesting the incentive for women who have been
raped either to “pass” or to “cover,” in Erving Goffman’s terms.102 This invocation
of stigma was meant to limit the responsibility of ICTR investigators for their
failures to prosecute rape; if the women would not talk to them, investigators
could not do their job.
While many feminist advocates were critical of the claims of investigators
and prosecutors that women would not talk about sexual violence, they rarely
challenged the assumptions of shame and stigma that lay behind such claims.
Rather, they tended to treat the issue as a technocratic problem and to focus on
proposing ways to manage shame.103 They sought methods for coaxing sexual
violence victims to tell their stories to investigators and testify at trial. Their
suggestions included improved training for investigators and witnesses, the addition of more female investigators, and better translation work.104 The idea
was that under the right circumstances women could be encouraged to talk. As
Shattered Lives explained (based on Human Rights Watch’s experience of having had victims tell their stories), “If interviews are conducted in conditions of
safety and privacy, and if Rwandan women believe that telling their testimony
will help bring about justice, they will talk.”105 Although the report took this
position to counter ICTR staff members’ “mistaken assertion” that “they do not
need to devote scarce resources to investigating rape because Rwandan women
will not come forward to talk,”106 it nevertheless reinforced the common-sense
assumptions, contending that “in Rwanda, as throughout the world, there is
profound shame and stigma associated with rape.”107
The OTP responded to criticisms and suggestions for obtaining victim and
witness testimony with a series of “best practices” manuals, beginning in 2008.
The manuals were recommended by the Committee for Review of the Prosecution of Sexual Violence, established in 2007 and chaired by Linda Bianchi. The
final manual, published in 2014, aims to draw from lessons learned at the ICTR
by outlining a number of “protective measures” that should be implemented more
broadly to encourage testimony on rape and sexual violence in conflict. Its “guiding principle” is “to avoid, to the maximum extent possible, re-traumatizing the
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victims,” though some trauma “is inevitable.”108 It explicitly relies on the analysis
of stigmatization and its effects set out in Shattered Lives, and states that “victims
in sexual violence cases are often subjected to public scrutiny of their sexual past,
shamed with the stigma of being ‘dishonored,’ and even ostracized by their own
families and communities.”109 It therefore calls for protective measures to avoid
revealing the identity of victims so as to “secure [their] willingness to cooperate
with the investigation and prosecution.”110
The 2014 manual proposes a variety of methods for managing shame to encourage witnesses to talk. Its proposals range from those addressing the need to
use relatively well-accepted interview techniques in general111 to those focused
on how better to take into account issues of gender and culture.112 With regard
to gender, the manual calls for gender parity, especially in leadership positions
on investigation and prosecution teams, contending that “victims and witnesses
often prefer to deal with investigators and prosecutors of the same gender, age,
and ethnicity as them.”113 It does not, however, make the same call for parity with
regard to ethnicity, though it suggests that having local staff might be helpful in
understanding cultural norms.114 Relatedly, many of its recommendations seek
to raise sensitivity among investigators, prosecutors, and other team members
to the shameful effects of sexual violence within the culture where the investigation is taking place.115 It encourages investigators and translators, for example, to
learn the euphemisms for sexual violence within given cultures, since “in some
societies, it is taboo to talk openly about sexual intercourse.”116
Of course, shame and stigmatization cannot always be managed, particularly at
the trial stage. Indeed, many commentators assume that rape and sexual violence
victims, if they agree to testify, will be further traumatized by doing so, either because of the adversarial characteristics of the system itself or due to the responses
of their families and communities. Elsie Effange-Mbella, former Gender Advisor
to the ICTR Office of the Registrar, for example, contended that judicial proceedings regarding rape and sexual assault “often have a devastating and long lasting
impact on the victim and witness.” Indeed, “the elements of stigmatization by
the family and community, including fear of reprisals upon testifying, are almost
permanently present.”117 The 2014 manual reflects this concern, telling prosecutors
not to “opt for expedience,” but to discuss with witnesses the possibility of “being
ostracized or stigmatized by family and community members” so that they might
“make an informed decision” about whether to testify.118
Concerns about the difficulty of soliciting testimony and also the harmful
impact it might have on victims have led to attempts to find alternatives to
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victim testimony. As Bianchi explained in 2008, “Due to the extreme sensitivity
of eliciting and obtaining this type of evidence [of sexual violence], and the detrimental impact and re-traumatization [that] providing such evidence often has
on a victim, thought should be had as to alternative methods by which to bring
evidence of sexual violence into the courtroom.”119 The best practices manuals
have taken up that thought. The 2014 manual, for example, includes a section
titled “Alternative Means to Oral Testimony.” In line with Moreno-Ocampo’s
strategy on Libya that we saw in Chapter Two, it begins by instructing prosecutors
that evidence can come from various sources, particularly in instances in which
victims “are unable or unwilling to appear.”120 Some of those sources include
expert witnesses, such as medical professionals.121 The manual also encourages
prosecutors, when jurisdictions allow it, to consider using written statements by
victims rather than oral testimony. That said, it recognizes that statements about
the direct role of the accused in sexual violence would likely never be permitted
since those victims would need to be available for cross-examination.122
When the prosecution needs victims to testify, which it often does given
that victims are among the most relevant witnesses, the manual aims to ensure
that they will not be required to testify as to lack of consent. Like the ICTY, the
ICTR retained, through its jurisprudence, lack of consent as an element of rape.
And (again like the ICTY) it allowed non-consent to be inferred in a variety of
circumstances, such as during armed conflict, meaning that a witness would
not need to testify or be questioned about consent.123 The manual endorses
this conclusion, suggesting, as one alternative to oral testimony, evidence of
“general circumstances prevailing at the time of conflict.” It further encourages
the elimination of the element of non-consent altogether in “conflict and postconflict environments.”124
Feminists, especially feminist prosecutors, have paid significant attention to
the impact of shame and stigmatization on individual victims of sexual violence.
They have worked both to prevent that impact from becoming an obstacle to
prosecution and to avoid re-traumatizing victims or introducing stigma that
might result from making the sexual violence public. But these same feminists
have paid much less attention to whether or how sexual violence might be made
less shameful. And they have not considered seriously that sexual violence might
not be shameful and stigmatizing for some, even (or especially) in those cultures
that have been the subject of international criminal legal interventions around
sexual violence. The ICTR essentially foreclosed such consideration through
doctrinal reliance on communal shame and stigmatization.
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III. The Redistribution of Shame
Notwithstanding the proposed alternatives to victim testimony, the reality is
that such testimony significantly enhances the likelihood of a conviction. It is
therefore the preferred approach of prosecutors, even if it risks that victims
who testify will be further harmed in the trial process. Prosecutors and feminist
advocates have often justified that risk by claiming that a successful conviction
will be healing or at least ameliorate the shame and stigmatization of victims.
For Nowrojee, for example, “the importance of holding perpetrators responsible
for their actions cannot be underestimated as an aspect of healing the victims of,
and witnesses to, major atrocity.”125 Even the 2014 manual concurs, at least with
regard to the sentencing stage. Indeed, it recommends that the adjudication and
sentencing stages be separated (which was not the case in the ICTR) because
“allowing victims to be heard at sentencing promotes the healing process and
recovery, and helps restore their personal dignity and respect.”126
Obote-Odora took the argument further, joining those who see international criminal mechanisms as a way to shift the shame and stigma from victim
to perpetrator. After observing in the context of the ICTR that “the victims of
these atrocious crimes feel ignored and invisible,” and calling upon the need to
ensure that perpetrators were “severely punished,” he stated: “The perpetrator
should bear the shame and stigma that society now attributes to the victim.”127
Participating in a case at the ICTR would thus offer to rape victims the possibility
for the burden of shame and stigma that they carry to shift, upon conviction,
to the masterminds of the genocide. Indeed, this might be one of the reasons
that the manual sees shame and stigma as no longer posing a threat to victims
testifying at the sentencing stage: at that point, the shame should already have
shifted to the perpetrator.
This emphasis on shaming arguably has roots in human rights advocacy, in
that it mirrors at some level the “naming and shaming” process practiced and
commended by human rights NGOs for several decades. According to Kenneth
Roth, director of Human Rights Watch, “The core of our methodology is our
ability to investigate, expose, and shame. We are at our most effective when we
can hold governmental (or, in some cases, nongovernmental) conduct up to a
disapproving public.”128 Of course, many advocates saw naming and shaming,
as it was originally devised, as a weak enforcement tool, but the best that the
human rights movement could do with the law it had. That was before the human
rights movement began to help develop and rely upon criminal enforcement
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mechanisms. That said, today’s naming and shaming differs significantly from
that of old. While early naming and shaming was aimed at states, criminal law
targets individuals, even individual monsters, as we have seen in the common
sense.129
The new naming and shaming differs from the old in another way as well,
in that it is partly justified by the claim that it relieves shame. It is as if each act
contains a finite amount of shame, which must be borne fully by one or another
person. However unfounded, that claim at least suggests that the shame of rape
need not forever adhere to victims. But at the same time, it reinforces the idea
that shame is an inevitable response to rape to begin with. It also of course works
on the assumption that those who are criminally convicted of rape will actually
feel shamed, and that the shame will be productive and normatively justified.
The proponents of shame-shifting make no attempt to respond to the many
criticisms that have been voiced of shaming (generally in the context of noncarceral alternative sentencing), which include not only that individual shaming
is indecent and illiberal but counterproductive. Some argue, for example, that
“shame can be a destructive emotion because it can lead one to attack others,
attack self, avoid, or withdraw” and even “promote crime.”130
Perhaps there are other ways to attack shame and stigmatization associated
with rape and other forms of sexual violence. But perhaps there are also ways
to attack the assumption that all rape victims and their communities inevitably
experience the affects and effects attributed to them. In the Epilogue, I will
prompt us to imagine rape victims who are not completely destroyed by shame
or do not, in any event, rely on criminal prosecution (or shaming, by whatever
means) as their only or even best hope for restoration.
By encouraging advocates, prosecutors, and judges to question their assumptions about the necessarily destructive effects of rape, my aim in part is to reduce
the real and perceived efficacy of rape as a tool of war. In my mind, were targeted
communities not to shame or stigmatize victims of sexual violence, or were
victims of sexual violence otherwise not to feel completely destroyed by it, that
would be a significant gain. I reach that conclusion even knowing that reducing
the harm of rape and sexual violence would reduce the extent to which they could
be treated as acts of genocide. But sexual violence in conflict should not need to
be genocidal for either it or the conflicts in which it occurs to engender attention.
CHAP TE R FIVE
Calling in the Security Council
for Women, Peace, and Security
AT T H E T U R N O F T H E T W E N T Y- F I R S T C E N T U R Y, the Women’s International
League for Peace and Freedom (WILPF) joined with a number of other NGOs
to establish the NGO Working Group on Women, Peace and Security (NGO
Working Group).1 The NGO Working Group aimed to engage directly with the
UN Security Council to ensure that the council would take women and women’s
efforts at peacebuilding into account in all of its work. By focusing on peace, the
group also hoped to derail the centrality of women’s victimization to feminist and
mainstream thinking about gender and conflict. Felicity Hill and Maha Muna,
both actively involved in the network, explained: “The strategy was to shift the
focus from women as victims (without losing this aspect of conflict) to women
as effective actors in peace and peacebuilding.”2
In 2000, shortly after its founding, the NGO Working Group achieved a landmark success, the unanimous passage of UN Security Council Resolution 1325.3
That resolution primarily called for measures to increase women’s participation
in peacebuilding. While Resolution 1325 is mostly known for its attention to
women in peacebuilding, it also called for measures to protect women and girls
in conflict, including protecting them from sexual violence. Resolution 1325
became the first of a number of resolutions generally considered to be a part of
the UN Security Council’s Women, Peace and Security agenda (WPS agenda).
These Security Council resolutions differ significantly in kind from the ones
considered in Chapters Two through Four. They were not passed under Chapter
VII of the UN Charter, and therefore did not, at least on their own, authorize use
of force, the creation of courts, or other coercive measures. Despite statements to
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Calling in the Security Council for Women, Peace, and Security
123
the contrary, especially by those feminists who pursued the passage of Resolution 1325, these resolutions are not legally binding upon states in the way that
Chapter VII resolutions are.4 That does not mean the resolutions could not be
written in a way to be binding or that they do not reinforce binding obligations
of states.5 Nor does it mean that they are not significant. They have in fact garnered a great deal of attention from local and global feminist groups and from
UN institutional actors. And they have been important sites of contestation,
including among feminists.
Three of the original members of the NGO Working Group—WILPF, the
Hague Appeal for Peace, and International Alert—were peace-centered organizations. Despite their deliberate aim to move away from a focus on women’s victimization in order to enhance their roles in peacebuilding, they, and what became
the WPS agenda, were soon gripped by the issue of sexual violence in conflict.
The grip of sexual violence is evidenced in many of the Security Council resolutions subsequent to Resolution 1325 and in related institutional developments
at the UN. In 2007, for example, thirteen different UN entities came together to
create UN Action Against Sexual Violence in Conflict (UN Action), to combine
“efforts across the UN system with the goal of ending sexual violence during and
in the aftermath of armed conflict.”6 In 2008, UN Action successfully lobbied
for Resolution 1820, which focused on sexual violence in conflict. A subsequent
resolution in 2009 established the Office of the Special Representative to the
Secretary-General on Sexual Violence in Conflict (Special Representative on
SVIC), tasked with leading UN Action efforts.7
As the Security Council has focused its attention on sexual violence over the
years, primarily but not solely through the WPS agenda, it has both reflected and
contributed to nearly every part of the common sense that we have examined
throughout the book. Indeed, the 2014 Global Summit on Sexual Violence in
Conflict discussed in the Introduction was closely connected with the WPS
agenda. As I mentioned there, Zainab Bangura served as the Special Representative on SVIC from 2012 through mid-2017. She was the keynote speaker at the
2014 Global Summit, and she worked with Angelina Jolie and William Hague
in their advocacy before the G8 and the Security Council.
Almost all of the WPS resolutions, as well as the NGO and intergovernmental
statements that accompany the production and release of them, treat sexual violence as one of the worst injuries that can occur during armed conflict. And, in
line with what we have seen elsewhere, they tend to attribute much of that harm
to the shame inflicted on individuals and communities. They cast perpetrators as
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individuals (and sometimes groups) who can and should be named, shamed, and
prosecuted—domestically or internationally. Although some of the resolutions I
consider call for counterterrorism measures, targeted sanctions, or even arguably
military intervention, most of the resolutions make criminal prosecution and
punishment the primary means for responding to sexual violence. They endow
criminal law with the power, as seen elsewhere, both to redistribute shame from
victim to perpetrator and to deter future conflicts.
While much of the work of the WPS agenda suggests that women and girls
are the central targets of sexual violence, its official discourse has become more
inclusive of men and boys over time. The discourse increasingly uses genderneutral language, which is read as implicitly including men and boys, as well as
explicit references to men and boys, alongside women and girls (who are sometimes flagged as being particularly at risk). This move away from a sole focus on
women and girls (or sometimes on children) has gone along with a broader move
away from the category of gender-based violence to one specifically focused on
sexual injury. While these shifts are in line with the largely unstated prosecutorial strategy of the International Criminal Tribunal for the Former Yugoslavia
(ICTY) discussed in Chapter Three, UN Action has been particularly explicit
about the need to make its terminology reflect them.
At least initially, the Security Council resolutions on WPS and the debates
leading up to them provided an opportunity for the re-emergence of the women’s
peace movement. Although the women’s peace movement has been around at
least since the interwar period (indeed, WILPF was founded in 1915), it has
gained and lost traction over the years.8 The Cold War had revived some of the
efforts of the movement, as many women’s peace activists encouraged women
to connect across the “Iron Curtain”—and other battle lines—to pressure their
states to disarm and otherwise find peaceful solutions.9 But the end of the Cold
War relieved the immediacy of that work, even as new conflicts emerged.
When human rights became the primary avenue for feminist interventions
in the new conflicts, their focus on ending the abuse of women in war, rather
than on ending war itself, sidelined or transformed the women’s peace advocates
and their aims. Feminist calls for military and criminal intervention, ostensibly
to protect women, left little room for women’s peace advocates who opposed the
use of force and promoted women as the solution to, not the victims of, conflict.
Although women’s peace activism resurfaced with the NGO Working Group,
and initially seemed to succeed with Resolution 1325, it did not in the end “shift
the focus from women as victims,” as Hill and Muna had explained the strategy.
Calling in the Security Council for Women, Peace, and Security
125
Indeed, Hill and Muna’s parenthetical commitment to not “losing this aspect of
conflict” prevailed. As victimization narrowed to sexual violence, women’s peace
activists failed to counter the common-sense representations of the harms of sexual violence. To the contrary, they reproduced them, as they included them even
in the resolutions that they promoted on women’s participation in peacebuilding. Further, they arguably added to the power (which we saw in Chapter Two)
of sexual violence to compel military intervention, now largely under the rubric
of counterterrorism. If women’s peace advocates aimed to achieve peace and an
enhanced role for women in waging it, the WPS agenda has turned those efforts
on their head by sparking three developments: the emergence of a common-sense
view that ending sexual violence is key to building peace, an increase in calls for
militarized responses such as peacekeeping forces and counterterrorism measures,
and an insistence on the need for women’s participation in those responses.
Before I trace the ways in which the resolutions and discourse surrounding
them reflect, concretize, and add to the common sense, even as they allow for
some re-emergence of anti-war feminism, let me provide additional context for
Resolution 1325 and subsequent resolutions. Most of the scholarly and policy
work in this area considers only the resolutions explicitly under the WPS agenda.
But to get a sense of the extent to which the issue of sexual violence in conflict
has permeated Security Council resolutions and related discourse, I consider the
WPS agenda alongside other Security Council activity over the past two decades.
I. Overview: Human Security, the WPS Agenda, and Beyond
While the NGO Working Group played a dominant role in the drafting and passage of Resolution 1325, the resolution’s emergence was also linked to another
process at the Security Council. In 1998, a group of states, prompted by Canada
and Norway, joined together to form the Human Security Network, with the
goal of considering specific security issues, such as land mines or children in
armed conflict, particularly in the context of human rights and international
humanitarian law.10 They consulted with NGOs in some of their efforts, through
a procedural mechanism that was later used by the NGO Working Group on
WPS.11 Between August 1999 and August 2000, the Security Council passed
four resolutions on human security, two on the protection of civilians in armed
conflict and two on the protection of children.12 All four resolutions referred
to the status of women or girls as particularly vulnerable subjects in conflict.13
The two on children cited specific concerns about sexual abuse, exploitation,
and violence.14
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At least a portion of Resolution 1325—that part considering women and
girls to be victims of conflict—fit well with this larger human security agenda.15
Resolution 1325 offered additional detail on the ways in which women and girls
were victims of conflict, calling for those engaged in armed conflict to protect
them “from gender-based violence, particularly rape and other forms of sexual
abuse,”16 thereby spotlighting sexual crimes. While it also addressed other issues,
like the needs for greater participation of women in peacebuilding processes and
for “a gender perspective” in peacekeeping operations,17 the civilian-protection
context in which Resolution 1325 was introduced offers a possible explanation
for why the victimization aspect of it has had more staying power than the provisions on peacebuilding and peacekeeping.
Just as the WPS agenda has both broadened and deepened over time, so too
has the human security agenda. The Security Council has produced more than
twenty-five resolutions that deal generally with the treatment in armed conflict
of civilians, children, or women—three distinct, if overlapping categories for the
resolutions. (See Table 5.1 for a partial list.) These resolutions largely embody
international humanitarian law and increasingly seek to apply the rules not only
to state and non-state actors, but to the UN in its peacekeeping operations. Nearly
all passed unanimously and, while some states abstained on some resolutions,
none voted against any of them.18 As with Security Council resolutions in general,
these resolutions contain much repetition and name resolutions on the same
themes that precede them. Each new resolution becomes more specific than
those preceding it about its understanding of the harm that needs attention and
the various enforcement mechanisms that should be used to address that harm.
From 2001 through 2007, the Security Council passed no WPS resolutions,
but it passed four resolutions on the protection of children and two on the
protection of civilians in armed conflict. All but one referenced sexual violence,
and they considered women (together with children) as a group at risk of sexual
violence and exploitation.19
Almost immediately after its creation, UN Action turned its attention to the
Security Council, helping to pass Resolution 1820.20 This resolution connected
sexual violence to peace in a way that would eventually morph into another
part of the common sense seen in the Introduction, in the refrain that “sexual
violence makes wars last longer.” When used as a “tactic of war,” according to
Resolution 1820, sexual violence “can significantly exacerbate situations of armed
conflict and may impede the restoration of international peace and security.”21
Further, responding effectively to sexual violence “can significantly contribute
Table 5.1. UN Security Council WPS resolutions in
the human security context, 1999–2019
Resolution
Date
Focus
1261
8/25/99
Children
1265
9/17/99
Civilians
1296
4/19/00
Civilians
1314
1325
1379
1460
8/11/00
10/31/00
11/20/01
1/30/03
Children
WPS Peacebuilding
Children
Children
1539
4/22/04
Children
1612
7/26/05
Children
1674
4/28/06
Civilians
1820
6/19/08
WPS Sexual Violence
1882
1888
8/4/09
9/30/09
Children
WPS Sexual Violence
1889
10/5/09
WPS Peacebuilding
1894
11/11/09
Civilians
1960
12/16/10
WPS Sexual Violence
1998
7/12/11
Children
2068
2106
9/19/12
6/24/13
Children
WPS Sexual Violence
2122
10/18/13
WPS Peacebuilding
2143
3/7/14
Children
2175
2225
2242
2427
2467
8/29/14
6/18/15
10/13/15
7/9/18
4/23/19
Civilians
Children
WPS Peacebuilding and Sexual Violence
Children
WPS Sexual Violence
The categories in this table (children, civilians, WPS) are based on the identifiers used by
the UN Security Council in its online resolution database. UN Security Council, “Resolutions,” https://www.un.org/securitycouncil/content/resolutions. The table further distinguishes those WPS resolutions mostly focusing on sexual violence from those mostly
concerned with women and peacebuilding. It excludes country-specific resolutions and,
with one exception in those predating Resolution 1325, includes only resolutions that
mention rape, sexual violence, or sexual exploitation.
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to the maintenance of international peace and security.”22 Resolution 1820 also
furthered institutional attention to sexual violence in conflict, in part by calling on the Secretary-General to submit a report to the Security Council on the
implementation of the resolution within one year.23
Some members of the NGO Working Group had initially been wary that this
attention to sexual violence would displace what they saw as Resolution 1325’s
emphasis on women as important constituents for peacebuilding.24 The group
eventually supported the resolution, however, because it comported with their
“bottom-line requirements”: it included the monitoring and reporting just mentioned, and it called for the involvement of local women’s groups in the design
and implementation of any policies meant to protect them.25 The initial concerns,
however, reappeared soon after the passage of 1820,26 and the NGO Working
Group began to promote and support a number of additional resolutions calling
for increased participation of women in peacebuilding. WPS resolutions started
to appear in a leapfrogging pattern. That is, resolutions concentrating on women
as (sexual) victims of conflict were succeeded by resolutions that emphasized
women’s centrality to peace processes, which were in turn followed by resolutions
that centered around women as victims of sexual violence.
In 2009, the Security Council passed four resolutions that, together, represent
this pattern: one on the protection of civilians (Resolution 1894); one on the
protection of children (Resolution 1882); one primarily on women as victims of
war, highlighting sexual violence (Resolution 1888); and one calling for greater
inclusion of women in peacebuilding processes (Resolution 1889). Regardless of
their emphasis, each of the resolutions named sexual violence as a harm, whether
to civilians, children, or women.
Despite this apparently evenhanded treatment of women as peacebuilders,
on the one hand, and as victims of sexual violence, on the other, the apparatus
regarding the latter grew. Resolution 1888, in addition to establishing the Special
Representative on SVIC, made the Secretary-General’s reporting requirement
under 1820 an annual obligation.27 It also mandated that the reports include
information on parties “credibly suspected of committing patterns of rape or
other forms of sexual violence.”28 In 2010, the Security Council passed Resolution 1960, which extended the reporting requirement to those who were credibly
suspected of any acts of sexual violence, not simply patterns of it. It also required
the Secretary-General to publish detailed information on suspected perpetrators
in an annex to each report.29 In 2013, the Security Council followed up with
Resolution 2106, to respond to “the slow implementation” of 1960.30
Calling in the Security Council for Women, Peace, and Security
129
Those who aimed to increase women’s participation in peace processes did
not fully cede the terrain to sexual violence, however, continuing to push for
additional resolutions with the peacebuilding emphasis. They teamed up with the
UN Entity for Gender Equality and the Empowerment of Women (UN Women),
which had been created in 2010, in part to “increase women’s leadership and
participation,” including “in peace and security and humanitarian response.”31
Only four months after Resolution 2106 passed, they achieved the passage of
Resolution 2122. One commentator at the time noted that the “focus on peace
processes in the new resolution is seen by some as a way of rebalancing the emphasis on violence in conflict [seen in Resolution 2106] to the important role
women can play in conflict resolution.”32
The Security Council debate on the resolution evidenced this intent to counterbalance the attention given to sexual violence. UN Women Executive Director
Phumzile Mlambo-Ngcuka spoke at the beginning of the debate and emphasized
the need for sustained focus on women’s empowerment and gender equality
measures.33 The representative of Portugal contrasted the relatively close attention
paid by the Security Council to sexual violence with the tendency “to consider
transitional justice as the second-to-last concern of peace agreements, the last
being the participation of women in peace agreements.”34 Statements by several
other representatives echoed this sentiment.35 Notably, no representative of UN
Action spoke in the debate.
If the WPS agenda seemed to be taking a turn toward peacebuilding, the
broader focus on sexual violence did not disappear. Indeed, as did the other
WPS resolutions on peacebuilding, Resolution 2122 included provisions on
sexual violence.36 Further, in 2014 and 2015, the Security Council passed four
additional resolutions on human security, two on civilians and two on children.
Three of the four mentioned sexual violence among the harms to be addressed
during armed conflict.37
In 2015, on the occasion of the fifteenth anniversary of Resolution 1325, UN
Women published a global study that the Secretary-General had commissioned in
accordance with Resolution 2122.38 In many ways the report pushed back on what
had become the agenda of UN Action and the Special Representative on SVIC. In
addition to emphasizing women’s participation in decision-making at a variety of
levels, it also called attention to women’s rights to education, health, land, and assets.
With regard to sexual violence, it reported that while women in several conflict or
post-conflict regions recognized the need to address sexual violence, “more often the
conversation would turn to reparations, livelihoods and economic empowerment.”39
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Later that year, the Security Council passed Resolution 2242. UN Women
lauded the resolution, saying it “makes clear the substantive links between women’s participation and sustainable peace and security,” and noting that it had been
informed by its global study.40 But UN Women took little note of the fact that
the resolution also paid a significant amount of attention to sexual violence.41
The resolution did so, as I discuss in more detail later, primarily in the context
of terrorism. As such, it identified sexual violence as a “tactic of terrorism,”42
and also called for the participation and leadership of women’s organizations in
devising strategies to counter terrorism and violent extremism.43
In 2016 and 2017, the Security Council passed three additional resolutions
centrally concerned with sexual violence. (See Table 5.2.) In 2016, it passed
Resolution 2272, under the label “peacekeeping.” The resolution concentrated
nearly exclusively on “sexual exploitation and abuse” by UN peacekeeping
forces and authorized the Secretary-General to exclude or repatriate troops
from states that failed to investigate and prosecute allegations of sexual abuse
adequately.44
Two subsequent resolutions concerned trafficking, with a focus on terrorist
groups that engage in it. Both resolutions deployed the term “sexual slavery.”45
Although, as we have seen in previous chapters, that term had made its way into
the 1993 Vienna Declaration and the Rome Statute of the International Criminal
Court (ICC), this was its first significant appearance in Security Council resolutions.46 Its inclusion was uncontroversial, in part because much of the discussion
on the resolution centered on reports that ISIS had rounded up several thousand
Yazidi women and forced them into slavery, including sexual slavery. One such
young woman, Nadia Murad, who escaped from ISIS and later won the Nobel
Peace Prize—and whose memoir I discuss in detail in the Epilogue—was one of
two Yazidi women to speak to the Security Council on Resolution 2331, the first
of the trafficking resolutions. Evidence of the success of her advocacy appeared in
the debate on that resolution, when nearly every speaker referenced or thanked
her for her testimony,47 and in the resolution itself, which specifically condemned
“all acts of trafficking, particularly the sale or trade in persons undertaken by the
‘Islamic State of Iraq and the Levant,’ . . . including of Yazidis and other persons
belonging to religious and ethnic minorities.”48
The Security Council did not classify these trafficking resolutions as part of
its WPS agenda, but placed them among its resolutions on the “maintenance
of international peace and security.” As such, they sit alongside many other
resolutions on counterterrorism, with national, not human, security as their
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Table 5.2. Other relevant UN Security Council resolutions
on sexual violence, 2016–2017
Resolution
Date
Focus
2272
3/11/16
Peacekeeping
(Sexual Exploitation)
2331
12/20/16
Peace and Security
(Trafficking)
2388
11/21/17
Peace and Security
(Trafficking)
These resolutions on sexual exploitation and assault by peacekeepers and on trafficking are not listed by the Security Council under any of the categories in Table
5.1. They are addressed in the Secretary-General’s reports on conflict-related sexual
violence.
concern.49 I return to the security dimensions of these and other resolutions at
the end of the chapter.
In April 2019, Germany held the presidency of the Security Council and
put forward a new resolution on sexual violence in conflict under the WPS
agenda. Unlike other WPS resolutions, this one was not urged or even backed
by women’s groups. In fact, ten German-based women’s civil society organizations issued a statement that, while acknowledging concern for victims of
sexual violence in conflict and even repeating much of the common-sense
understanding of that violence, stated that their government was “treading on
dangerous ground” in pursuing the passage of another WPS resolution. Rather
than opposing particular aspects of the resolution, they warned that any proposed resolution would likely be watered down in the contemporary political
climate. Referencing Russia, China, and the United States, they argued, “Given
the further hardening of anti-democratic and decidedly misogynistic stances
in the UN Security Council, we believe there is a danger of a weak resolution
text ultimately being negotiated and adopted.”50
In fact, the fears expressed in the statement proved to be well founded. Resolution 2467 passed unanimously, with abstentions by China and Russia, but with
important omissions from Germany’s original draft. Those omissions were largely
secured by threats of veto by China, Russia, and the United States, though not
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always on the same issues. In a move that was widely condemned, the United States
successfully used the threat of its veto to omit expression of support for, or even
reference to, the “sexual and reproductive health” of survivors, even though the
proposed language was mostly repeating earlier resolutions. While many critics
of the United States denounced what they viewed as disregard for the health of
survivors, many also criticized the reported motivation of the United States to
avoid language that might endorse access to abortion for rape victims.51
The civil society organizations that opposed Germany’s promotion of Resolution 2467, even in its initial form, had other, perhaps more significant, concerns
as well. They suggested that Germany should, among other things, use its leadership in the Security Council “to shift the focus to conflict-prevention and peacebuilding measures,” attend to “structural inequalities,” “systematically take into
account the continuum of gender-based violence,” ensure greater involvement of
directly affected communities, and increase the control of arms exports and the
arms trade.52 Remarkably, the final resolution contains language that is responsive
to nearly all of these concerns, albeit mostly in preambular paragraphs, leading
even some critics to see “reasons for optimism.”53
Having surveyed this two-decade trajectory, I now turn to a close reading of
the resolutions and related discourse for their characterization of the nature and
victims of sexual violence, as well as of the relationship between sexual violence
and gender-based violence.
II. Naming the Victims and Types of Violence
The Security Council resolutions I review above, alongside their attendant discourses and institutional activities, demonstrate tensions around two significant
questions. First, what type of violence toward civilians in conflict should the
Security Council target? And, second, who are the victims of that violence? These
two questions, and the UN’s responses to them, are intertwined. Over time, the
resolutions have moved from addressing sexual violence in conflict as one of
many forms of gender-based violence to approaching it as the central form. And
the centering of sexual violence has coincided with at least a rhetorical broadening of the category of victims, from women and girls to boys and men as well. I
begin with the second question.
A. Victims: Gender Specificity versus Gender Neutrality
The human security resolutions that predate Resolution 1325 expressed concern
about children, women, or sometimes “women and children.”54 Resolution 1325
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moved away from the use of the term “children,” making it clear that women
and girls were its subjects.55 Between Resolution 1325 in 2000 and the next
WPS resolution, Resolution 1820 in 2008, most of the human security resolutions continued that approach, singling out girls—and sometimes women—as
particularly vulnerable to sexual violence.56 Resolution 1820, with its thematic
focus on sexual violence, generally followed suit.
Almost immediately after it was passed, however, Resolution 1820 faced
criticism. As already suggested, some women’s peace advocates argued that its
representation of women as victims detracted from women’s empowerment,
overshadowing any sense of women as agents of change in the peacebuilding
process.57 More importantly for our purposes here, others contended that the
resolution failed to take into account men as possible victims of sexual violence.
Even though the resolution at times referenced sexual violence against “civilians,”
one commentator maintained that the resolution’s “focus provides no space to
think about the rape of men, nor to think about how forcing a man to rape a
woman can be understood as a form of gender-based violence.”58
While the WPS resolutions on women and peacebuilding continued to refer
to sexual violence victims mostly as women and girls, those that concentrated on
sexual violence, as well as the human security resolutions, began to expand concern
about sexual violence to all children (not only girls) and arguably to all civilians
(men as well as women). The start of the shift can be seen in gender-neutral references to children in three of the four 2009 resolutions.59 Ironically, this meant a
short return to the coupling of “women and children” that has long been critiqued
by feminists for casting women in infantilizing and dependent terms.
In 2010, Resolution 1960 extended the gender neutrality to adults. The move
was relatively seamless, especially since the Secretary-General had already begun
to interpret Resolution 1820 in gender-neutral terms in his reports, in part referencing the case law of the ICTY.60 Resolution 1960, with the exception of a
part of the preamble,61 addressed sexual violence in conflict with no mention of
the gender of its victims. Some applauded this gender neutrality for its implicit
recognition that men could be victims of sexual violence in conflict.62
In 2013, when the Security Council considered Resolution 2106, a followup resolution to 1960, the UN Secretary-General as well as a number of states,
including Botswana, Canada, Jordan, Korea, Liechtenstein, Namibia, and Pakistan, acknowledged that men and boys can also be targets of sexual violence.63
The preamble to 2106 made explicit what some had read into 1960; it included
a specific reference to men and boys as possible victims of sexual violence.
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Subsequent resolutions that have devoted significant attention to sexual violence—WPS Resolutions 2242 and 2467, along with those on peacekeeping and
trafficking—have also contained gender-specific language, including language
about men and boys. Resolution 2331 on trafficking, for example, notes the
vulnerability of boys and names men as potential victims of sexual violence, in
accord with concerns raised by a number of states in the debate on the resolution.64 In proposing Resolution 2467, the German government made it clear
that the inclusion of men and boys was a priority. Its draft resolution included a
specific operative paragraph, which remained unchanged in the final resolution
that was passed, on responses to male victims of sexual violence. In language
that has been widely praised, including by activists for male victims of sexual
violence, the paragraph urges member states to “challenge cultural assumptions
about male invulnerability” to sexual violence.65
This increased explicit attention to men and boys would at one level seem
to have the same impact as gender-neutral language, the decentering of harm
to women and girls. Instead, with the specificity often comes a hierarchy. The
preamble to Resolution 2106, for example, “notes with concern that sexual violence in armed conflict and post-conflict situations disproportionately affects
women and girls.” Resolution 2467 includes similar language in a number of
places, including at the beginning of the operative paragraph on men and boys.66
B. From “Gender-Based Violence” to
“Conflict-Related Sexual Violence”
The move of the resolutions toward the inclusion of men and boys as potential
victims of sexual violence was accompanied by a change in the types of violence
that the resolutions aimed to address. Early human security resolutions expressed
concern about the special vulnerability of women and children, but they did
not limit their attention to sexual violence.67 Resolution 1325, even as it moved
to focus on women and girls, suggested a broader concern than sexual or even
“gender-based” violence. Specifically, it called on actors in armed conflict to
protect women and girls from “gender-based violence, particularly rape and
other forms of sexual abuse, and all other forms of violence.”68
Since Resolution 1325, subsequent resolutions have narrowed the type of
violence to be addressed. Each WPS resolution and nearly every resolution
on children or civilians mentions the need to protect that group from sexual
violence (sometimes connoted by, and sometimes alongside, the terms “rape,”
“sexual exploitation,” “sexual assault,” and “sexual abuse”). References to sexual
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violence are frequent. When resolutions occasionally reference “gender-based
violence,” they almost always put it in the compound “sexual and gender-based
violence.” In those instances, “gender-based violence” is never defined or used
in a way that suggests that it includes violence other than sexual violence, for
either males or females.
I have attempted to treat the categories of victims and the types of violence to
be addressed as conceptually distinct, but UN Action has sometimes conflated
the two issues in its arguments not only for expanding the scope of victims to
include men and boys but also for moving away from the term “gender-based
violence.” In her briefing to the Security Council on Resolution 1960 in 2010,
for example, Margot Wallström, who was at the time the Special Representative
on SVIC—and therefore the chair of UN Action—asserted that “sexual violence
as a tactic or consequence of war could not be captured under existing categories.” Calling for use of the term “conflict-related sexual violence,” she further
explained what she believed was missing in existing categories: “Cases against
men and boys did not fall under ‘violence against women’ . . . and ‘gender-based
violence’ did not reflect sexual violence as a method of ethnic cleansing or a
tactic of terror.”69
Wallström’s view was in line with the UN Secretary-General’s report on the
implementation of Resolutions 1820 and 1888, which had been released three
weeks earlier. That report also used the term “conflict-related sexual violence”
and expressed concern about field report uses of the “broader rubric of genderbased violence,” noting that “gender is a critical but insufficient explanatory
tool.”70 Resolution 1960 reflected the success of UN Action’s strategy. In addition
to responding to some of the criticisms of 1820’s specification of women as the
main targets of sexual violence, it also included a reference to “conflict-related
sexual violence.”71 UN Action soon read the resolution as recognition by the
Security Council that conflict-related sexual violence is a “self-standing issue
of concern.”72
In 2011, UN Action issued a summary of its “Analytical and Conceptual
Framing of Conflict-Related Sexual Violence,” a document put together to determine the criteria by which parties suspected of committing patterns of sexual
violence would be listed under Resolution 1960. “To foster greater specificity and
disaggregation of incidents,” UN Action contended, “conflict-related sexual violence should no longer be treated as synonymous or interchangeable with” a number of terms, including “gender-based violence” and “violence against women.”73
For the listing purpose of Resolution 1960, UN Action’s framing included the
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same list of crimes that structural-bias feminists successfully fought to get into
the Rome Statute of the ICC: “rape, sexual slavery, forced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” and—leaving no doubt about the potential set of victims—added
“against women, men, girls or boys.”74 Here again we see the two issues, of the
type of harm and the victim subjects, combined. UN Action’s framing is now
represented in UN Secretary-General reports that, since Resolution 1960, have
been titled “Conflict-Related Sexual Violence” and include explicit discussion
of sexual violence against men and boys.75
“Sexual violence” has therefore largely displaced “gender-based violence”
as the descriptor of the principal harm to women and girls in armed conflict.
At the same time, the category of victims has broadened to include men and
boys as potential victims. This displacement has not totally escaped criticism,
though the criticism has come largely from those who promote women’s role
in peacekeeping rather than, as one might have expected, from structural-bias
feminists. In response to UN Action’s shift in language, for instance, a 2011
WILPF conference report reiterated the need for sexual violence in conflict to
“be understood as a component of a broader category of gender-based violence.”
Among other concerns, it warned that if the topic is “approached too narrowly,
donor agents run the risk of attacking the symptom while failing to thoroughly
address discriminating gender relations as one of the underlying problems.”76 The
conference report referenced “sexual and gender-based violence” throughout,
presumably as a way to keep the latter term in play.
This type of pushback has received some limited traction. It has manifested
primarily in the inclusion of language about “sexual and gender-based violence”
in WPS resolutions.77 It has also manifested in an institutional separation of
sexual violence in conflict from other aspects of the WPS agenda. The UN Secretary-General, for example, issues annual reports on “conflict-related sexual
violence,” in addition to reports on “women and peace and security.” These latter
reports have often defined sexual violence as a part of gender-based violence,
leading to different representations of some of the same conduct in different
types of reports.78
III. The Shame of Sexual Violence in Conflict
Nearly all of the resolutions and many of the institutional practices under the
WPS agenda perpetuate an important element of the common sense seen in other
chapters: sexual violence in conflict causes overwhelming, even annihilating,
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harm to the victim’s personhood while also tearing communities apart. As such,
even those resolutions and practices that call for women’s increased participation in peacebuilding generally portray victims of sexual violence as incapable
of political, sexual, military, or even economic citizenship.
Perhaps Resolution 1820 most directly states the relationship it sees between
shame and sexual violence in conflict when it describes sexual violence as “a tactic
of war to humiliate, dominate, instill fear in, disperse and/or forcibly relocate
civilian members of a community or ethnic group.”79 This description mirrors the
reasoning of the International Criminal Tribunal for Rwanda (ICTR) in Akayesu,
where the tribunal found acts of rape to be genocidal, in part because of the
humiliation brought by the rapes and the resulting “physical and psychological
destruction of Tutsi women, their families and their communities.”80
Although some resolutions note the need to spur religious and traditional
leaders to discourage stigmatization of victims,81 UN Action has tended to take
for granted that shamed communities will stigmatize their members who have
been raped. A video produced in 2007 by UN Action to build support for Resolution 1820 provides one of the most vivid representations of this perception.82
It was part of a campaign called Stop Rape Now, organized around a Web-based
advocacy strategy on the theme “Get Cross: No Security without Women’s Security.” Although it was launched in 2007, as of October 2019 the campaign
remained the central feature of a website, stoprapenow.org, which has served as
the principal site for UN Action for many years.83 (See Figure 5.1.)
In the video, no victims or survivors speak.84 Indeed, it is as if they are unable to speak; they can only be spoken for. The video opens with a helicopter
flying over desert terrain, as an anonymous narrator lists numbers of women
raped in Rwanda, Sierra Leone, and Bosnia and Herzegovina. The image shifts
to fires moving quickly across the distance of a seemingly different desert terrain, evoking a scorched-earth strategy. The narrator recites the number of
women raped during a six-month period in a “single province of the Democratic Republic of the Congo.” The image shifts again—this time to the hand
of a black, presumably African, woman. The hand covers her eyes. She rubs
her temples as the narrator announces that “every day, hundreds of women
are raped in Darfur.” The narration continues: “These are not the random acts
of individual soldiers. They are military tactics used to shame and demoralize
women, tear communities apart, and control populations.” At this point, the
video shows an image of two black girls, one covering her face and the other
apparently distraught, with her hand over her head. As the language turns to
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Figure 5.1. StopRapeNow.org front page (as of October 2019).
the destruction of communities, the image is replaced with one of a group of
young black boys sitting outside what appears to be a hut of a rural village
somewhere in Africa. The message is not nuanced: boys and girls are divided
by the shame of rape.
The last three clips of the video continue to vocalize and display much of
what has become the common sense about sexual violence in conflict. Brown,
apparently Muslim, bodies, replace black bodies. The narrator’s statement that
“many women and girls suffer torture and mutilation in front of their families” accompanies an image of a presumed mother and young daughter, both
looking distraught. A young girl in a hijab peeks out of and then retreats into
a doorway along with the words “Others are impregnated to shift the balance
of territories.” With the final description of the harm of rape—“All face the
physical, emotional and social consequences of rape”—a black child appears,
partially hidden behind a column.
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The video portrays shame and stigma as an inherent part of rape and sexual
violence, at least in the parts of the world it surveys. These representations combine with UN discourse on sexual violence in conflict to suggest once again (as
with Bosnia and Herzegovina in Chapter Two and Rwanda in Chapter Four) that
certain communities participate in their own destruction by shaming and stigmatizing those members who have experienced sexual violence. For instance, a 2009
Secretary-General report stated: “In many countries around the world, sexual violence continues to be deeply entrenched in inequalities and discrimination against
women, and patriarchal structures. In addition, violence against women committed
in the name of culture or tradition persists.”85 The result is “double victimization”
for those women affected: “first for having been sexually violated and second for
having to bear the fear, shame and stigma that surrounds sexual violence.”86
That theme continued in Secretary-General Ban Ki-moon’s remarks congratulating the Security Council for its passage of Resolution 1960 (and also
alluding to its expanded category of victims). Attributing much of the harm
of sexual violence to shaming by the victim’s community members, he stated:
“Victims are shamed and marginalized. Their husbands reject them. Men and
boys who are sexually attacked often suffer isolation and discrimination. Just
when these individuals need support from their communities, it falls away.”87 He
connected his claim that sexual violence “shatters lives, devastates countries and
destroys hope” to its economic impact on girls, women, and therefore the entire
community: “Victims who might have contributed to development are shunned.
Girls who might have grown into great leaders cannot even attend school.”88
At the same time that UN discourse on sexual violence in conflict pins much
of the shame suffered by victims on their communities, it also often emphasizes
that sexual violence targets the community, not necessarily the victim. As such,
this discourse defies the original aim of many feminists to spotlight the harm to
women, not to their communities. The Secretary-General’s April 2017 report on
conflict-related sexual violence offers a poignant example. Although largely about
terrorism, the report does not distinguish between the aims of terrorism- and
conflict-related sexual violence. “The rape of a wife or daughter is intended to
punish her absent husband, father or relative,” according to the report.89 “Shame
and stigma are integral to the logic of sexual violence being employed as a tactic
of war or terrorism” because “aggressors understand that this type of crime can
turn victims into outcasts, thus unravelling the family and kinship ties that hold
communities together.”90
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As the WPS agenda has developed, it has—as planned—given greater attention to women’s roles in peacebuilding. But the imagined women who might
participate in such activities bear little resemblance to the women depicted as
victims or potential victims of sexual violence in conflict. Even though women’s
peace advocates have criticized the amount of attention paid to sexual violence,
they generally have not questioned or pushed back against the common-sense
representations of the harm of sexual violence to women and their communities.
A 2011 letter by the Global Network of Women Peacebuilders, whose mission is
“to empower women and amplify their voices to build sustainable and inclusive
peace,”91 provides a telling example. Worried that the passage of Resolution 1960
signaled another move away from the commitments of Resolution 1325, the organization wrote, “We are concerned that women’s right to full participation in
all matters of peace and security is being overlooked as women are increasingly
being seen and treated mostly as passive victims of violence and abuse.” The group
criticized the drafters of Resolution 1960 for failing to see “that if women were
recognized as participants in decision making they would be less vulnerable to
attack.” Further, the letter argued that if governments “worked harder to prevent
wars” and regulated “small arms,” there would be less sexual violence. In short, “we
cannot pluck rape out of war for our attention and let the war go on. . . . Rape will
be reduced when violence is reduced and when women are taken more seriously
and treated equally in all decisions on the fate of humanity.”92
By promoting the reduction of armed conflict (with women’s participation)
and the empowerment of girls and women before they are raped, the letter at
least partly challenges the dominant approach of taming the ways wars are fought
rather than attempting to prevent the wars to begin with. The letter does not,
however, challenge the common-sense representations of the harm of rape once
it occurs. Far from it—the letter demonstrates once again the grip of the narrative about sexual violence as shameful and stigmatizing: “Rape is the worst
crime that women or men can endure and survive. The trauma lasts a lifetime
and has ripple consequences of ostracism from family and community as well
as physical damage.”93
IV. The Carceral Turn: Calling in the Judges
Since the passage of Resolution 1325, all WPS resolutions, including those that
primarily focus on women as peacebuilders, have manifested the turn to criminal
law that we have seen throughout the book. They have done so largely through
anti-impunity discourse, articulating the common-sense view that criminal
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prosecution of individual offenders is a potent means to deter sexual violence
and—in some instances—secure peace. As expressed in a 2015 UN SecretaryGeneral report, “The importance of delivering individual justice and addressing
impunity is underscored in all Security Council resolutions on women and peace
and security.”94
Resolution 1325, borrowing in part from language in earlier human security
resolutions, set the stage for this view by emphasizing “the responsibility of all
States to put an end to impunity and to prosecute those responsible for genocide,
crimes against humanity, and war crimes including those relating to sexual and
other violence against women and girls.”95 It also opposed the exclusion of those
crimes from amnesty provisions, “where feasible.”96 As the WPS resolutions
progressed, their focus on impunity intensified. By the time of Resolution 2106,
the anti-impunity focus had become so central that the UN titled the Security
Council debate on the resolution “Addressing Impunity: Effective Justice for
Crimes of Sexual Violence in Conflict.”97 Much of the resolution concerned the
need to combat impunity, noting that the battle against it “has been strengthened
through the work of the ICC, ad hoc and mixed tribunals, as well as specialized
chambers in national tribunals.”98 It called on states to investigate and prosecute
those responsible for sexual violence in conflict committed in their jurisdiction.99
All subsequent WPS resolutions—Resolutions 2122, 2242, and 2467—also directly called upon member states to investigate and prosecute perpetrators of
sexual violence.100
Resolution 2467 demonstrates the continued primacy of a carceral response
to sexual violence, with most speakers during the debate discussing the need to
fight impunity by increasing prosecutions.101 The resolution goes further than
others before it by calling upon states to remove “procedural impediments” to
the successful prosecution of sexual violence, such as the “discrediting of victims’
testimony . . . within judicial and other proceedings.”102 Feminist international
lawyers Christine Chinkin and Madeleine Rees read this language to call for
the prohibition of the cross-examination of those who testify to being victims
of sexual violence. For them, “This is exactly what is needed for justice to be
made accessible.”103 Somewhat surprisingly, they do not mention the caveat in
the same paragraph of the resolution that all actions taken by states in this regard should be “consistent with fair trial guarantees under international law.”
Although the prohibition of the cross-examination of an accuser would almost
certainly extend beyond what is permitted in international law, the resolution’s
very inclusion of it demonstrates yet another attempt to push the procedural and
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evidentiary boundaries of criminal law in order to facilitate the prosecution of
sexual violence victims.
Resolution 2467 also calls upon states to provide “a survivor-centered approach” to sexual violence in conflict and its aftermath.104 While such an approach
might seem to require a shift in attention away from criminal prosecution, the
proponents of the resolution instead linked the two, by assuming both that victims want prosecutions and that they want to testify in court against perpetrators.
Indeed, some of the resolution’s proposed procedural reforms are meant to elicit
such testimony. Germany’s representative to the Security Council explained
Germany’s rationale in the debate: “Only when we help victims to achieve justice, when we hear their voices and let them testify, are we giving survivors the
chance to stop being victims.”105
Of course, for some victims, the right to testify against their perpetrators
is important. When Nadia Murad’s attorney, Amal Clooney, spoke during the
debate on Resolution 2467, she called the resolution “the Council’s Nuremberg
moment, its chance to stand on the right side of history.” Murad, she claimed,
“would trade her Nobel Peace Prize in a heartbeat for the chance to get what
she really wants—the chance to face, in a court of law, those who murdered her
mother and her brothers and those who brutally and repeatedly raped her.”106 As
we will see in the Epilogue, this claim is consistent with Murad’s own statements,
at the UN and in other forums.
Resolution 2467, like Resolution 2106 before it, justifies its attempts to facilitate more prosecutions and convictions by appealing to their deterrent effects,
claiming that “the consistent and rigorous prosecution of sexual violence crimes
is central to deterrence and prevention.”107 This rationale is reflected in the WPS
agenda more broadly, which has embraced deterrence as a principal justification
for privileging criminal punishment. As in the video discussed in the Introduction, the discourse surrounding the resolutions has stressed that successful prosecution of individual, often monstrous, offenders is the most promising means
of prevention available. Deputy Secretary-General Amina J. Mohammed stated
at a 2017 Security Council WPS debate on the theme “sexual violence in conflict
as a tactic of war and terrorism”: “We have a solemn responsibility to convert a
centuries-old culture of impunity into a culture of accountability and deterrence.
. . . All our words and laws and resolutions will mean nothing if violations go
unpunished in practice.”108 Note how the discussion of culture emerges again
here, but now the threatening culture is that of impunity. It can only be challenged
by the creation of a culture of deterrence, which necessarily calls upon criminal
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law. Pramila Patten, Special Representative on SVIC since 2017, has used similar
language, telling the Security Council that she would make “converting cultures
of impunity into cultures of deterrence through consistent and effective prosecution” the first pillar of the strategy for her tenure in office.109
This common-sense assumption that criminal punishment will deter sexual
violence in conflict is often stated but rarely justified. Many agree that sexual
violence in conflict has, if anything, increased over time, despite the enormous
amount of funds and attention that NGOs, other advocates, and national and
international institutions have put toward responding to it.110 Wallström, speaking to the Security Council in 2017 as Sweden’s Minister of Foreign Affairs,
referenced Resolution 1325 to say: “Today, that resolution and seven more have
existed for 17 years, and we are unfortunately still far from eradicating this
horrendous practice. It saddens me, but it also strengthens my resolve.”111 Statements like these have become common at Security Council discussions of sexual
violence in conflict.112
One way in which many insist simultaneously that criminal punishment is a
deterrent and that current efforts to decrease sexual violence have failed is simply
to assert that insufficient numbers of perpetrators have been prosecuted. In late
2018, for example, William Hague defended his and Angelina Jolie’s Preventing Sexual Violence Initiative and the tens of millions of dollars they had spent
on it since its launch in 2014. At the same time that he insisted they had made
“enormous progress,” he acknowledged the difficulty in measuring success, given
the scale of the problem. Tellingly, he suggested prosecutions as the measure of
success, something he and Jolie presumably have little control over: “We’ve made
a tremendous start, but it’s only a start because as things stand, no member of
ISIL or Boko Haram or the armed forces of Burma has been brought to trial for
crimes of sexual violence.”113
Even as those involved in the WPS agenda often speak on behalf of the
needs and desires of victims, the agenda’s promotion of criminal punishment
in fact goes against some of its own research. Indeed, the UN Women’s global
study reported that “it was clear that women in conflict-affected settings favour
interventions that are focused less on perpetrators or potential perpetrators and
more on empowering women and girls and putting them at the front line of
service delivery.”114 That observation, however, seems to have had little impact
on the prioritization of criminal punishment in the treatment of sexual violence.
The embrace of criminal punishment includes a rejection of the possibility of amnesties for conflict-related sexual violence offenses, even if granted in
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exchange for peace agreements. The qualifying language in Resolution 1325,
that amnesties should be excluded “where feasible,”115 soon disappeared from
resolutions and Secretary-General reports. Resolutions 1820, 2106, and 2467,
for example, all call for “the exclusion of sexual violence crimes from amnesty”
provisions that result from peace processes.116
Over time, that exclusion has become understood as a UN “principle.” Secretary-General reports on sexual violence in conflict have consistently opposed
amnesties for sexual violence, paying little attention to what effect the exclusion
might have on peace processes. One report, for instance, called for greater efforts to “ensure that amnesties and immunities exclude those who commit or
commission sexual violence.”117 Another referred to “the principle of no amnesty
for sexual violence crimes.”118 A third declared that, in accordance with Resolution 1820, “peace agreements that include amnesty provisions for crimes of
conflict-related sexual violence should be deemed invalid by the international
community.”119
The call to exclude amnesties for acts of sexual violence in peace agreements is part of a larger resistance to amnesties for certain serious international
crimes or human rights violations. One Secretary-General report explained, for
example, that “any amnesty ordinance reached at the end of a conflict must, as
a matter of consistent United Nations policy, exclude international crimes and
gross breaches of human rights.”120 That same paragraph in the report read sexual
violence crimes into those two categories.121
While some scholars have argued that even amnesties for international
crimes and gross human rights violations are—and should be—legally permitted in peace agreements, few have questioned the exclusion of sexual violence
crimes. Even women’s peace advocates have not challenged it, despite the fact
that it could in principle prevent or disrupt a peace accord. This possibility is
not merely hypothetical. One Security-General report criticized Colombia’s
2012 “Legal Framework for Peace” for the impact it would have on the ability
to prosecute sexual violence crimes. The report asserted that the peace process
“could lead to de facto amnesties benefiting alleged perpetrators of human
rights violations.”122 Around the same time, Amnesty International also decried the possibility of amnesty for sexual violence crimes in the Colombian
peace process. To stave off concerns that prohibiting amnesty might undercut
a peace deal, the organization invoked what has become a common refrain:
“There can be no lasting and stable peace” with such amnesty.123 With this
refrain, Amnesty International endorsed another aspect of the common sense
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set forth in the Introduction. As Angelina Jolie put it with regard to the G8
Declaration’s opposition to amnesty for sexual violence offenses, “There is
no choice between peace and justice: peace requires justice.” Or perhaps,
more accurately, lasting peace requires criminal justice.124 The pressure on
Colombia was successful. While the 2016 final peace accord did include an
amnesty provision for some crimes, a Secretary-General report praised the
agreement’s identification of “sexual violence as a grave violation that cannot
be amnestied.”125
In addition to promoting criminalization based on arguments about both
its deterrence function and its contributions to lasting peace, the WPS agenda
has reinforced another common-sense idea we have seen in the previous two
chapters: criminal law facilitates the redistribution of shame by shifting it from
victims to perpetrators. Perhaps Resolution 1960’s requirement that the Secretary-General reports include an appended list of parties credibly suspected of
patterns of sexual violence most clearly demonstrates this notion.126 Even before
the passage of Resolution 1960, Secretary-General Ban Ki-moon had called a
similar list required by certain resolutions on children a “list of shame.”127 And
when Wallström, as Special Representative on SVIC, issued a report in response
to the listing requirement in Resolution 1960, she stated that through “naming
and shaming,” the report “became an instrument which, in the hands of political
leaders, could help track and address sexual violence.” Suggesting that the report
would alleviate harm to the victim by shifting the shame and stigma to its proper
locus, she claimed that the report and others like it are “historical records,” telling
a history that “had been suppressed chiefly because the victim rather than the
attacker was most often shamed and stigmatized.”128
Of course, whether through naming and shaming or through the encouragement of criminal prosecution, the UN cannot possibly ensure the prosecution of
all perpetrators (despite its oft-stated aspirations). It has, therefore, not limited
shaming to formal criminal punishment mechanisms. In a WPS debate before
the Security Council in 2017, Adama Dieng, who was then Acting Special Representative on SVIC, cited the “need to re-direct the stigma of sexual violence
from the victim to the perpetrator.” That redirection, he explained, would come
from justice being done, and being seen to be done, “not only in the courtroom
but also in the community.”129
When she was Special Representative on SVIC, Zainab Bangura was particularly committed to shifting the shame. In a 2013 Security Council debate,
she blamed impunity, in the context of Bosnia, for the ongoing shame victims
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experience: “While the perpetrators have enjoyed the fruits of peace and have
been free to rebuild their lives, their victims continue to work in the shadows
and in shame, unable to lay the past to rest and to move forward.” Furthermore,
she argued that by concentrating on impunity, the Security Council would assist in the redistribution of stigma in a broader set of conflicts, to “begin to
re-direct stigma and the consequences of sexual violence from the survivors to
the perpetrators.”130
In a meeting at the U.S. Institute for Peace that same year, Bangura suggested
how sites other than the courtroom, like communities themselves, might be engaged in the redistribution of shame. Indeed, she shocked a number of audience
members when she indicated that one of UN Action’s goals was for men who have
raped to internalize shame—even to the extent that they might commit suicide.
In response to critiques of naming and shaming (by Gina Heathcote and myself,
who were also at the meeting), Bangura explained UN Action’s intention to “put
the spotlight on the perpetrators, so they feel ostracized in their own community,
they are isolated, and they are the one[s] who are stigmatized.” Continuing, she
said, “We need to get people to want to say, ‘I want to look forward to the day
when somebody is identified as a rapist, he will commit suicide.’” Aware of her
provocation, she followed up with: “I’m sorry. I don’t believe in the death sentence, but let him take his own action.”131
When the Security Council began to concern itself with sexual violence committed by terrorist groups, and to call for greater female participation in counterterrorism efforts, it also began to rely upon the very traditional leaders it once
blamed for stigmatizing victims, not simply to decrease shame but to displace it
from the victims onto the perpetrators. Thus, the 2016 UN Secretary-General’s
report—echoing Resolution 2242’s emphasis on combating terrorism—called
for community leaders to participate in shifting the blame. For the report, “engagement with traditional and religious leaders, who can help to shift the shame
and stigma of sexual violence from the victims to the perpetrators, is vital to
ensuring that extremists do not win the underlying battle of ideas.”132 The 2018
Report continued the theme by calling for “concerted engagement with religious
and traditional leaders” in order “to shift harmful social norms around honour,
shame and victim-blaming.”133
Resolution 2467 embodies some of these ideas, as it was the first WPS resolution to discuss the possibility of shame-shifting. Even with its focus on criminalization, it emphasizes communities as the site for such efforts, recognizing the
need to support “community mobilization campaigns to help shift the stigma of
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sexual violence from the victims to the perpetrators.”134 This approach suggests
a potential recognition of some limits of criminal law, although the resolution
also calls upon traditional and religious leaders to “address impunity.”135
V. Counterterrorism: Calling in the Troops
In her 2006 piece “Women’s September 11th,” Catharine MacKinnon called on
the “international order” to treat violence against women with the gravity it had
accorded to terrorism—as “so serious that there is no choice but to stop it.”136 At
the time, that largely meant armed intervention—the type that the United States
and its allies had engaged in against Afghanistan and Iraq. As I said in Chapter
Two, I think MacKinnon overstated in 2006 the enthusiasm of the “international order” for Security Council–authorized armed intervention, which had
waned in large part because of wariness about the legality and desirability of the
U.S.-led invasion of Iraq.137 It turned out, however, that she was more spot-on
than I expected about the extent of international commitment to a variety of
counterterrorism measures.
In her plea for serious international responses to violence against women,
MacKinnon saw counterterrorism as a useful analogue: “The post–September
11th paradigm shift, permitting potent response to massive nonstate violence
against civilians in some instances, exemplifies, if not a model for emulation,
a supple adaptation to a parallel challenge.”138 She therefore may have gotten
more than she hoped for in the Security Council resolutions from 2016 and
2017. Those resolutions depict sexual violence not as a parallel challenge to
terrorism, but as part of the same threat. Indeed, Resolution 2242 specifically
calls for “greater integration by Member States and the United Nations of their
agendas on women, peace and security, counter-terrorism and countering-violent
extremism which can be conducive to terrorism.”139
Resolution 2242, the subsequent resolutions on trafficking, and the Security
Council debates around them suggest that criminal law might have run out when
it comes to certain lawless groups. Indeed, Security Council debates and meetings
that bear on these resolutions contain statements similar to those we have already
seen about the failure of the fight against impunity to decrease sexual violence.
If one response to that failure is to fight harder with criminal law, another is
to add new weapons to the arsenal. In a 2016 meeting of the Security Council,
Bangura spoke of the need for “new tools” to combat the “new and previously
unforeseen threats” by extremist and terrorist groups, groups that she claimed
are “beyond the reach of judicial deterrence.”140
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In a similar vein, as a member of the Security Council in 2017, Sweden called
upon the Security Council and member states to “use all of the Council’s tools to
combat sexual violence.”141 Other states used comparable language in the same
meeting.142 Sweden’s “all tools” language was likely influenced by the “feminist
foreign policy” self-consciously and publicly enacted by Sweden’s Minister of
Foreign Affairs, Margot Wallström.143 Five years earlier, as the Special Representative on SVIC, Wallström had stated that the Security Council had “promised to
use all the instruments available to them to fight this scourge,” a development
that she found “very, very promising.”144 Shortly thereafter, Resolution 2106
expressed the UN’s commitment to use “all means at its disposal . . . to address
sexual violence in conflict.”145
Despite the mention of “all” tools, those who advocate for them mostly emphasize the need for targeted sanctions against non-state armed groups and
individuals who are credibly suspected of sexual violence. Indeed, in October
2018, a number of Security Council members hosted an informal meeting on
the theme “Moving from a Culture of Impunity to a Culture of Deterrence: The
Use of Sanctions in Addressing Sexual Violence in Conflict,” reiterating with
its title that criminal law might not be a sufficient deterrent.146 Although WPS
resolutions have, at least since Resolution 1820, expressed the need to ensure
that state-specific sanctions committees consider rape and sexual violence as a
basis for sanctions,147 the meeting aimed to consider “ways to better use” them.
It also pursued the possibility of creating “sexual violence as a single designation
criterion” in countries that do not already have sanctions regimes in place.148
Those who propose increased use of targeted sanctions to combat sexual
violence argue that the sanctions will serve a number of purposes, which are
strikingly similar to some of the stated aims of criminal law. According to a 2018
report by the Georgetown Institute for Women, Peace and Security that called
for greater use of targeted sanctions to respond to sexual violence, such sanctions are meant to “constrain individuals and entities from engaging in certain
conduct, to change behavior that is contrary to international law and norms,
to deter other actors, to signal support for international norms by naming and
shaming perpetrators, and to cut financial resources used to fuel conflict.”149 Yet
sanctions are often called upon to apply to individuals who are merely “credibly
suspected.” As Gina Heathcote put it in response to Resolution 1960’s indication
that the Security Council sanctions committees should consider using the lists of
credibly suspected individuals in the Secretary-General reports, “The idea that
those credibly suspected of sexual violence in armed conflict can be named and
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therefore shamed presents a curious development that appears to assume some
form of criminal process yet, at the same time, rejects existing legal structures
and human rights provisions on the rights of the accused.”150 Even though targeted sanctions, in general, have been subject to significant criticism for their
failure to provide adequate due process, such criticisms are largely absent from
the discussions of the use of sanctions for sexual violence.151 Neither the framework document for the informal Security Council meeting nor the report of the
Georgetown Institute, for example, includes any consideration of due process,
even though both focus on accountability.
Perhaps more controversially, others suggest that “all tools” include at least
the potential for use of force. Christine Chinkin points to Resolution 2242’s
call for the integration of WPS with the Security Council’s agenda on preventing and countering violent extremism. The latter programs, she notes, “often
involve military actions and are implemented in conjunction with the armed
forces.”152 Chinkin sees this introduction of militarization into the WPS agenda
as antithetical to the aims of Resolution 1325 and the agenda more broadly,
pointing to the UN Women’s 2015 global study, which insisted that “attempts to
‘securitize’ issues and to use women as instruments in military strategy must be
consistently discouraged.”153
Some argue that the invocation of the possible use of force in Resolution
2242 did not constitute a dramatic break from previous resolutions or Security
Council activity in relationship to rape and sexual violence.154 Indeed, anti-war
and anti-imperial feminists have long been wary of the attachment of women’s
peace advocates to the Security Council, arguing that the WPS agenda, far from
leading to a focus on peace, in fact opened the door to the use of force to combat
sexual violence. Gina Heathcote and Dianne Otto date this opening to Resolution
1820, with its language that, as Heathcote notes, is most commonly found in resolutions justifying the lawful use of force under Chapter VII of the UN Charter.
Heathcote points in particular to the resolution’s expression of the “readiness”
of the Security Council, “where necessary,” to take steps to address widespread
or systematic sexual violence in situations on its agenda.155
Vasuki Nesiah argues that the door to the use of force opened even earlier,
when the Security Council’s post–September 11 counterterrorism strategy began
to develop alongside the WPS agenda.156 Otto notes that the Security Council
resolution that arguably granted post hoc legitimacy to the 2003 military intervention in Iraq in fact referenced Resolution 1325.157 That linkage lends support
to Nesiah’s claim.
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The militarized counterterrorism response to sexual violence brings us
squarely back to Chapter Two and the resort to calling in the troops. While
women’s peace advocates might insist that recourse to use of force is incompatible with Resolution 1325, something has happened on their watch. Unlike their
acquiescence in dominant representations of sexual violence victims and their
support for calling in the judges, they express an allegiance to peace and an opposition to calling in the troops. Yet the Security Council, with the guidance of many
powerful feminists, has increased its attachment to the use of force to protect
women. For Otto, this outcome is partly the price of engaging with the Security
Council.158 For Nesiah, it comes with the territory of international conflict.159
Again, it would be too simple to say that women’s peace advocates or their
aims have simply been co-opted, especially by non-feminists. Feminists—including those originally behind Resolution 1325 and what they see as its progeny—
wanted to participate in the mainstream action, whatever that action might be.
Fionnuala Ní Aoláin, for example, while cautioning that counterterrorism measures will harm women, nevertheless promotes “making sex, sexuality, gender
and harm relevant in all wars, conflicts and substantive military engagements.”160
The only way to do that is to get involved with the Security Council’s anti-terrorism efforts, which explains why some women’s peace advocates worked toward
the adoption of Resolution 2242. As one of the civil society representatives of the
NGO Working Group, Iraqi Yanar Mohammed, explained during the debate on
that resolution, “Research demonstrates that women’s meaningful participation
improves peacebuilding and sustains efforts to counter extremism.”161
Women’s peace advocates have indeed succeeded in obtaining recognition
for the need to bring women to the table. But they have done little to change
what is being served at that table.
E P ILO GU E
Beyond Social Death
What does it mean—rape? When I said the word for the first time aloud
. . . it sent shivers down my spine. Now I can think and write it with an
untrembling hand, say it out loud to get used to hearing it said. It sounds
like the absolute worst, the end of everything—but it’s not.
A Woman in Berlin, 19451
Generally it bothers me when someone says raped women. . . . Raped
women—that hurts a person, to be marked as a raped woman, as if you had
no other characteristic, as if that were your sole identity.
Judge Nusreta Sivac, 19962
I want to talk about everything—the murder of my brothers, the disappearance of my mother, the brainwashing of the boys—not just the rape.
Nadia Murad, 20173
I N T H I S B O O K , I H AV E A R G U E D that the grip of sexual violence in conflict has
narrowed and distorted the lens through which feminists understand, represent, and address issues of gender, sex, ethnicity, and armed conflict. Through
power they often deny, many feminists—including women’s rights advocates and
women’s peace advocates—have facilitated, if not deployed, stereotyped images of
victims and their communities to support militarized or criminalized responses
to sexual violence in conflict. Those responses have had distributive effects. Not
only have they failed to make a significant dent in incidences of sexual violence
in conflict, but they have displaced attention to imperialism, economic distribution, and—relatedly—the causes of the very armed conflicts in which they aim
to intervene. Also, somewhat ironically, they have sidelined attention to a great
deal of gender inequality. Further, whether or not military interventions and
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counterterrorism measures have women at the helm or are done in the name
of protecting women, they have had devastating effects on uncountable lives,
mostly in the global South, and have perpetuated both political and economic
global inequality.
A recurring theme throughout the book has been that feminist successes
in bringing international institutional attention to sexual violence—whether
through military intervention, criminal law, or the Security Council’s Women,
Peace and Security agenda (WPS agenda)—have cemented and even amplified
some of the very imaginaries about rape and sexual violence that nearly all feminists originally hoped to dispel. Perhaps the most dominant theme throughout
has been that feminists, however unwittingly, have participated in the continuation of the common-sense view that rape is a fate worse than death. Relatedly,
their efforts have led to what Doris Buss identifies, in the context of Rwanda, as
the “hypervisibility” of wartime rape, which elides not only other issues but also
other aspects of victims’ lives.4 As Nusreta Sivac, a former Bosnian judge who
was detained and raped in the Omarska camp, puts it in the epigraph above,
being a “raped woman” becomes one’s “sole identity.”
I have intentionally concentrated my critique in the book on the prevailing emphasis on and common sense about rape and sexual violence found in
institutional and advocacy discourse. That is, I have avoided making claims
about the actual subjective experiences of victims, other than to suggest that
the experiences are almost certainly more diverse and complex than the prevailing narratives account for. In this Epilogue, I take a different approach. I
return to key elements of my critique, but in doing so I bring in some literary
accounts of women’s experiences in conflict to complicate the common-sense
narratives we have seen thus far about women’s political, military, and sexual
roles in war. Most importantly, I use the accounts to counter the assumptions
about the inevitability of shame and stigma, both individual and communal,
with the hope of offering possibilities for reimagining and maybe even lessening
the harm of rape. In this endeavor, I am partially guided by Lauren Berlant’s
question: “If one determines that an event or a relation is shameful, must it
produce shame in the subjects it impacts?”5
The narratives I most rely on here come from three different literary sources
that represent women in armed conflict. The first, Ernest Hemingway’s 1940
novel For Whom the Bell Tolls, follows a band of Republican fighters behind
enemy lines for three days during the Spanish Civil War. Two women involved
in the band, one who is sometimes the commander, play central roles in this
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153
fictional work. The second source, A Woman in Berlin: Eight Weeks in the Conquered City, is the diary of a German woman that was written in 1945 during
the fall of Berlin to Soviet forces. It was first published anonymously in the 1950s
and then republished in 2003 (in German, 2005 in English) after the death of
the person who many claim was its author.6 The third source is Nadia Murad’s
The Last Girl: My Story of Captivity and My Fight against the Islamic State, published in 2017. It is the memoir of the Yazidi 2018 Nobel Peace Prize recipient
about her childhood, the occupation of her village by ISIS, and her experiences
during and subsequent to her captivity by ISIS. I contend that each of these
narratives—novel, diary, and memoir—offers a more nuanced perspective on
women’s experiences in wartime, including their experiences of and responses
to sexual violence, than those we have seen elsewhere in the book.
Each work contributes a different set of experiences and reflections, as well
as historical, political, and geographical specificity. The accounts produced by
Hemingway in 1940 and the anonymous diarist in 1945 predate every institution and movement (save the interwar women’s peace movement) that I have
considered in the book. They are useful to explore in part for that reason. Murad’s memoir is on the other end of the spectrum. Not only is it contemporary,
but Murad is steeped in the discourse that I have covered in this book. She has
spoken to the UN Security Council, even playing a significant role in the UN
debates on Resolution 2331 on human trafficking and Resolution 2467 on sexual
violence (both discussed in Chapter Five); she serves as the first UN Goodwill
Ambassador for the Dignity of Survivors of Human Trafficking; and she has
been attempting—with the representation of Amal Clooney—to convince the
International Criminal Court (ICC) that it should investigate and prosecute ISIS
militants, including her captors. Although Murad’s post-ISIS life has largely been
shaped by engagement with and perpetuation of much of the common-sense
narrative, her autobiography pushes against it in some crucial ways.
Some readers might find my choice of Hemingway surprising, even disturbing, given that he was often accused of sexism—some would say misogyny—in
both his life and his writing. Some might also be concerned that, by contrast with
the other two books I consider here, For Whom the Bell Tolls was produced as a
piece of fiction, even if it was partially based on Hemingway’s own experiences
covering the Spanish Civil War as a journalist.7 As to the first concern, I am
convinced that Hemingway allows us to broaden the range of our imagination
about women’s roles in and perspectives on war, in ways that I describe below
and that I hope will at least partially sway those who are wary of the effort.8 As
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to the second issue, I read all three of the books as literary, in the sense that, as
Janet Halley puts it in the context of her own reading of A Woman in Berlin, each
book “structures our language for understanding the relationship between rape
and other kinds of violence in war.”9
At the same time, I do not presume that literary narratives (whether written
as fiction or as autobiography) are necessarily more (or less) powerful or accurate than legal, advocacy, policy, or journalistic narratives. As with the literary accounts, all of the authors and speakers we have encountered throughout
the book engage in the production of narrative. They all make choices, if often
unconsciously, about what to include and exclude in their stories, and their
imaginations are all guided by assumptions. My goal throughout the book has
been to identify and demonstrate the pervasiveness and power of many of those
assumptions and to show that in a number of instances what might have begun
as short-term legal or political strategy or compromise has hardened into a
dangerous common sense. The literary accounts provide a view into perspectives that were generally not part of the broader legal and political narrative, but
that I believe could be.
Through the analysis of these books, then, I hope to encourage those who
work on or interact with the issue of sexual violence in conflict to embrace more
nuanced accounts of women’s political and sexual lives in war as well as of the
wars themselves, and to discourage them from assuming that suppression of the
nuances is necessary to the achievement of their aims. I also want to encourage
them to reconsider some of those very aims, particularly the extent to which
they call for or rely upon an increase in military intervention, criminal prosecutions, and counterterrorism measures. Not only do I question those ends, but
I am concerned about the ways in which they have been pursued with the help
of reductive accounts of the experiences of women in conflict and of the harm
of sexual violence.
Thus far in this book, we have seen a wide array of female actors. We have
seen women’s human rights advocates, women’s peace activists, lawyers, judges,
diplomats, UN officials, and a variety of feminist theorists. Notwithstanding
their own powerful roles, these actors have largely focused on—and imagined—a
much narrower range of female subjects in the context of armed conflict: victims
of sexual violence and sometimes of a broader category of gender-based violence,
potential peacemakers, and members of families and communities. Less often, we
have seen references to women as combatants, perpetrators, or individuals who
are responsible for their own politics or sexual conduct. As I hope to demonstrate
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in these final pages, these facets of women’s experience and activity are not and
should not be read as necessarily distinct, and they should not be suppressed in
and by accounts of women’s sexual victimization.
I. Women at War
To the extent that the texts and discourses considered in this book thus far regard
women as militarily or politically engaged in war, they tend to imagine them engaged in work that is limited and instrumental. Some of the UN Security Council
resolutions, for example, call for more women in the areas of peacekeeping and
counterterrorism, but most often only with the purpose of responding to sexual
violence. Other resolutions emphasize that women and women’s organizations
should play an important part in peacebuilding, but they do not generally recognize that women might also play a role in disturbing the peace.
Much of this international institutional approach to women’s participation
in conflict can be attributed to feminist advocacy. That advocacy has tended to
see women either as pacifying agents or as victims, a dichotomy particularly
heightened in the Security Council’s WPS agenda. Even when women are part
of what is considered to be the aggressing group, their political agency is often
denied. Recall from Chapter Two, for example, Helke Sander’s fictional letter
to Lysistrata in which she described Serbian and Croatian women as having
good political instincts that gave way to the “propaganda machinery” and their
nationalist husbands’ ideology.
In Chapter Two, we also saw some reference to Bosnian Muslim women
serving as combatants, but their military participation was presented both as
exceptional and as a way to seek revenge for their sexual harm. In one effort
to expand the narrative about women’s motivations and roles in the Balkan
conflict, UK journalist Lesley Abdela published a story in 1994 in the women’s
magazine Cosmopolitan. Titled “Bosnia: Women Are Fighting Back,” the story
covered women who served in the Bosnian Army as combatants as well as in
more traditional roles such as nurses. Far from pathologizing the former, Abdela portrays their quotidian combat life. She describes one female soldier, for
example, who—shortly after returning Serb fire—says, “I love the dangerous
situation.” She also depicts women who were fighting in other ways, including
through activism with women on other sides of the conflict.
Telling these stories was meant to fill a gap in coverage, according to the
editorial introduction to the article: “As the war limps on in the former Yugoslavia, women, if they’re mentioned at all, are portrayed as pathetic victims of
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war. To redress the balance, Cosmo sent Political Editor, Lesley Abdela, to an
embattled Bosnian enclave and to the Croatian capital, Zagreb, to meet some of
the courageous women who are caught in the crossfire.”10 Although the article
demonstrated women’s agency in a variety of ways, the magazine’s own introduction to the piece shows the difficulty of escaping the notion that women are
“caught” in the conflict.
Notwithstanding the presumption of most international institutional discourse and social commentary that men are the primary actors in war, the stories
Abdela tells are not in fact that rare; most wars feature significant participation
by women, including as combatants. During the Spanish Civil War, thousands
of women served as fighters early on. According to historian Lisa Lines, “Due to
the advances in women’s rights introduced by the progressive Second Republic,
many women from all political backgrounds did not consider their gender to be
an issue when they volunteered for combat positions in the militias.”11 Further,
one of the leading Spanish communists of the time was Dolores Ibárruri Gómez,
known as La Pasionaria (“The Passion Flower”). She delivered what became a
well-known rallying cry for the Republic during a radio address in July 1936: “It
is better to die on your feet than to live on your knees: ¡No Pasarán!”12
Although women played various roles during the Spanish Civil War, they
were largely removed from front-line combat roles less than a year into the
conflict. Historians still disagree over when or how that decision was made, but
although the media had initially paid a great deal of attention to female combatants, “the fact that the decision had been made was never reported or discussed,”
according to Lines. Rather, “fewer and fewer references to the militiawomen were
made, until by July 1937 they had all but disappeared.”13
Given this disappearance, it is both remarkable and useful that when Hemingway wrote For Whom the Bell Tolls in 1940, he made Pilar a main character and
the commander of her small band of fighters during the time period covered by
the novel. The narrative offers an account of her daily life that, while it might
seem sexist, also seems consistent with the historical record.14 Pilar, for instance,
in addition to being the commander, has a broader range of jobs than most of the
men in the novel. She cooks, fans the fire, and tends the horses. Milicianas, Lines’s
2012 book, which she claims is the first comprehensive study on militiawomen,
provides a similar description: “The vast majority of milicianas . . . participated
in combat on equal terms with their male counterparts. This was the case despite
the fact that they also . . . were often expected to undertake tasks traditionally
considered ‘women’s work.’”15
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Of course, I do not claim—nor did Hemingway—that the novel is true, accurate, or real. But there were women during the war serving in the same positions as his female characters in the novel, and they were making good and bad
wartime decisions. The institutional and advocacy discourses rarely allow us to
imagine those decisions, particularly the bad ones. Yet, not only have women
served as combatants in many wars, like Pilar, they have often participated in
atrocities. In a scene in the novel that Hemingway went out of his way to report was fictional, Pilar tells a particularly graphic story of a Republican victory
earlier in the war and the shockingly brutal and cruel executions of the fascists
that followed.16 Pilar’s lover, Pablo, was commander at the time and directed
the executions, but most of the village participated. As Pilar tells the story, it
was important for all of the village to be involved so as to take responsibility for
the victory and for the violence that ensued: “Certainly if the fascists were to be
executed by the people, it was better for all the people to have a part in it, and I
wished to share the guilt as much as any, just as I hoped to share in the benefits
when the town would be ours.”17
Describing her response to one particularly humiliating murder, Pilar says,
“I felt a feeling of shame and distaste, and . . . I wished that I might disassociate
myself altogether from the lines, and I walked away, across the square, and sat
down on a bench under one of the big trees that gave shade there.”18 After speaking with two men from the village who had also walked away, Pilar volunteered
to go speak with Pablo. It would seem that her role was to tame her man and
that, at least in this scenario, she had the power to do so.
In the end, however, Pilar never even attempted to stop Pablo. Instead of
pleading with him to end the massacre, she fought with a drunken man for a
good position to witness it. When the drunkard pushed her aside, she hit him in
the groin. While he yelled, “This, woman, you have no right to do,” she watched
a mob—at the orchestration of Pablo—beat and chop a priest to death.19 Pilar
says she slept with Pablo that night but, at his request, they did not make love. He
believed it would have been in “bad taste after the killing of so many people.”20
He then slept “like a baby,”21 while she stayed awake all night “full of shame and
a sense of wrongdoing.”22 In her retelling of this story, Pilar never denies her
involvement, her politics, her loyalty, or her shame. She says “much” happened.
“And all of it ugly. Even that which was glorious.”23
Pilar’s story is not about sexual violence. But it is violent, and it involves
a woman who had the power, even if she was not yet the commander, to help
convince the villagers to participate in atrocities, and who thought she might
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have the power to stop the violence but did not try. It involves a woman who
wanted to witness the horrors as they occurred and used physical force when
necessary to get a good view.
Nadia Murad’s memoir discusses women who are even more directly involved
in atrocities, both inside and outside the ISIS military apparatus. And they direct
those atrocities at women, making it clear that they sense no solidarity with
women across enemy lines. During her captivity, Murad encountered the mother
of a man who was guarding her. She was the first non-Yazidi woman that Murad
had engaged with since being captured, and Murad hoped the woman would
sympathize with her. “She was a mother, after all, and I thought that might mean
more to her than being Sunni and me being Yazidi.”24 When the woman, rather
than showing sympathy, showed “only glee in finding out that because I had been
forced to convert to Islam, there was one fewer Yazidi in Iraq,” Murad claims, “I
hated her, not just because she had let Mosul be taken over by ISIS, but because
she had let it be taken over by men.” While Murad could understand that men
joined the jihadists to get “money, power, and sex,” she could not understand
why women would do it.25
Speaking from the other side of captivity, Murad writes, “I now know that
female terrorists are nothing new. Across the world and throughout history,
women have joined terrorist organizations, sometimes taking starring roles, and
yet their actions continue to astonish outsiders.” Part of the astonishment comes
because “people assume that women are too docile, particularly in the Middle
East, to be violent. But there are many women in ISIS,” Murad continues, some
“who are even crueler than men.”26 Murad’s attempt to portray these women as
unexceptional pushes against the common-sense view that only in rare, perhaps
pathological, circumstances do women engage in combat, and even much less
frequently do they commit atrocities, including against women.
If the common-sense narrative largely elides images of women as participants
in atrocities, it even more comprehensively omits the possibility of women as
perpetrators of sexual violence. Despite evidence that women participated on
all sides of the war in Bosnia and Herzegovina, that large numbers of women
were involved in the Rwandan genocide, and that women participated directly
and indirectly in perpetrating sexual violence in both conflicts, the International
Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) only rarely scrutinized the actions of women.
Indeed, each of the tribunals convicted one—and only one—woman. Both were
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charged with genocide and crimes against humanity, including acts of sexual
violence attributed to them.27
In the ICTY, the former president of the Republika Srpska, Biljana Plavšić,
pleaded guilty to one count of the crime against humanity of persecution, which
did not include acts of rape or sexual violence, as part of a plea agreement in
which the tribunal dropped the remaining charges.28 The ICTR tried Pauline
Nyiramasuhuko, Rwandan Minister for Family, Welfare and the Advancement
of Women, and convicted her of, among other things, inciting Hutu men to
rape Tutsi women. Nyiramasuhuko’s case garnered a great deal of attention, in
large part because her conduct was seen as exceptional. The fact that she was a
woman and the minister in charge of women’s affairs made her conduct especially
inexcusable to many. Whether or not she felt shame, others did so on her behalf.
One minister of Rwanda, Angelina Muganza, described her reaction to hearing
accusations against Nyiramasuhuko: “She makes me ashamed to be a woman.”29
In fact, Nyiramasuhuko was far from alone. Women’s participation in the
Rwandan genocide had been an open secret for some time. A 1998 African
Union report stated the importance of understanding that “women were not
only victims of violence during the genocide. Many became its perpetrators—
against men, but also against other women.”30 Even then this discovery was not
a new one. The report explained that the “phenomenon was sufficiently widespread that African Rights . . . published a study in 1995 . . . specifically on the
participation of women in the genocide.”31 Women imprisoned other women,
directed that women be raped in front of them, and used implements to rape
other women.32 They also exposed Tutsis in hiding, stole and looted, and killed
Tutsis, including children.33
Despite significant documentation, many—including many feminists—have
been slow to take seriously the claim that “ordinary” women engage in, and
are responsible for, atrocities. Thus, after photographs of female U.S. soldiers
as perpetrators in the Abu Ghraib prison in Iraq were broadly disseminated,
longtime feminist Barbara Ehrenreich wrote: “A certain kind of feminism, or
perhaps I should say a certain kind of feminist naivete, died in Abu Ghraib. It was
a feminism that saw men as the perpetual perpetrators, women as the perpetual
victims and male sexual violence against women as the root of all injustice.”34
She went on to connect the Abu Ghraib incidents to the growing international
attention among feminists to rape in war, adding her own self-critique: “Rape
has repeatedly been an instrument of war and, to some feminists, it was beginning to look as if war was an extension of rape. There seemed to be at least some
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evidence that male sexual sadism was connected to our species’ tragic propensity
for violence. That was before we had seen female sexual sadism in action.” Ehrenreich described her discovery succinctly: “What we have learned from Abu
Ghraib, once and for all, is that a uterus is not a substitute for a conscience.”35
Ehrenreich acknowledged that the view that women would somehow be
exempt from acting as perpetrators of war crimes was “naive,” but it is not clear
why it took Abu Ghraib to undermine her belief that every woman (or at least
any who have a uterus) would have a conscience. She seemed particularly affected
by what she considered to be the sexual nature of the crimes. By further labeling
them “sexual sadism,” she isolated and pathologized the perpetrators, contrasting them with feminist (if not female) innocence (naivete). Like men—whose
status as “perpetual perpetrators,” sexual sadists, or persons lacking in conscience
she did not question—women could now be monsters. And, if monsters, they
presumably could not experience the “shame and distaste” that Pilar described
as her response to part of the massacre in which she participated.
II. Women and Sex at War
By concentrating excessively on sexual violence, the institutional and advocacy
discourses covered in this book make little room for any non-violent sex, let
alone sexually positive experiences. Due to assumptions that are often embedded
in legal rules and judgments, they largely fail to attend to, and even function to
exclude, the possibility of desired sexual relations between individuals on opposing sides of a conflict.
Like all narratives, legal narratives produced through trials are necessarily
limited. Judges make decisions about the admissibility of evidence based on its
relevance and the extent to which it is likely to be prejudicial. Lawyers choose
what evidence to put forth and challenge with that in mind. Through rules of evidence and jurisprudence that allowed the fact of conflict to constitute inherently
coercive circumstances, thereby satisfying the prosecutor’s technical requirement
to prove lack of consent, the ICTY and the ICTR all but foreclosed the possibility of a consent defense to charges of rape and sexual violence. Although some
feminists would have preferred simply to remove non-consent as an element of
rape, they essentially achieved that result through the jurisprudence (and later,
arguably, through the ICC’s elements of crime).
In earlier chapters, I argued that the legal assumption of the improbability,
if not impossibility, of consensual relations between civilians and combatants
on opposing sides of a conflict matched a sense of social impossibility that
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presumed that, as a result of ethnic hatred, individuals on opposing sides would
never have any mutual desire to engage in sexual relations with one another.
In Chapter Three, I provided part of a socio-historical account of multi-ethnic
relationships in Bosnia that defied that impossibility. I also pointed to the one
ICTY case I could find that acknowledged a consensual relationship between a
Serb combatant and a Bosnian Muslim civilian who married each other.
In addition to imagining consensual sex between male combatants and female
civilians, once we acknowledge that women participate in military operations—as
combatants or civilians—it is not a leap to think that they too engage in sexual
conduct, even in wartime. It should also not be a leap to think that much of that
conduct would be desired, perhaps even pursued by the women themselves, even
after experiences of sexual violence. But again, even these stories are difficult to
find in the common-sense discourse.
In For Whom the Bell Tolls, both Pilar and Maria, the other main female
character in the story, play significant roles in the military operations around
which the book centers. And both lead lives in which sexuality and conflict
are intertwined. Pilar is intensely sexual, and she openly discusses sex and her
previous sexual relationships.
Maria, who is much younger, came to accompany the band of fighters after its
members blew up a fascist train on which she was being transported. Her father
had been a Republican mayor of a village, and he and her mother were killed by
the fascists. These same fascists captured Maria, shaved her head, ridiculed her,
drew letters on her forehead identifying her as a communist, and took turns raping
her. These acts, especially the rapes, haunt Maria and her relationships throughout
the novel. But the sexual violence is not the endpoint of either her life, including
her sexual life, or the novel. She participates in a mutual seduction with the novel’s
protagonist, Robert Jordan, an American professor who is volunteering in the war
and whose dangerous mission the band has joined. In part through her relationship
with him, she demonstrates that she is not destined to be forever marked solely or
even primarily by the rape. Indeed, at one point she tells Robert Jordan, “And now,
I am happy that I did not die. I am so happy that I did not die.”36
If some of the discourses I have considered in the book have occasionally
recognized aspects of female sexual agency, they have nevertheless reinforced
sexual hierarchies, as discussed in Chapter One.37 Take, for example, the unstated
monolithic and heteronormative vision of female sexuality that permeates the
discourse, precluding the possibility that women might love, partner with, and
have sex with one another. Here too, For Whom the Bell Tolls offers a corrective.
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Erotic attraction and sexual tension link Pilar and Maria, and Hemingway
portrays a complex relationship between the two women. Pilar both asserts and
denies her sexual feelings for Maria. At one point when they are together with
Robert Jordan, Pilar tells him, “You can have her in a little while, Inglés.”38 She
then turns to Maria: “‘He can have thee,’ Pilar said and ran her finger around
the lobe of the girl’s ear. ‘But I am very jealous.’”39 After claiming there is always
“something” between women “that there should not be,” she reasserts her heterosexual identity: “Listen, guapa [beautiful], I love thee and he can have thee,
I am no tortillera [lesbian] but a woman made for men.”40 Maria responds that
she loves Pilar too, and when Pilar insists that the “silliness [about their feelings for each other] is over,” Maria insists on the significance of the encounter,
responding: “It was not silly.”41
III. The Force of Shame Revisited
Every chapter of this book has confronted the assumptions about shame and
stigma that permeate the common-sense understanding of sexual violence as a
fate worse than death. Those assumptions have rarely been challenged—in part,
I have argued, because of the significant role they play in the judicial reasoning
that finds rape to be an act of genocide and sometimes a crime against humanity.
The reliance on stigma and shame, even to achieve these jurisprudential results,
has significant costs. It disincentivizes attempting to decrease stigma and shame,
other than by claiming that criminal law will displace shame onto perpetrators.
And, just as importantly, it fails to recognize and value the instances in which
rape does not trigger overwhelming shame or stigma in either individuals or
communities. Perhaps that failure partly stems, as Miriam Ticktin suggests,
from Northern feminist projections about what constitutes a proper response
to rape.42 All three of my sources provide important counterpoints to dominant
narratives about shame, by offering portraits of women who, though they have
experienced wartime sexual violence, have not been forever destroyed by it.
They, and sometimes their communities, have resisted the potential threat of
shame in a variety of ways.
Though often due to problematic assumptions about sexual purity or the need
to prove one’s innocence, fighting back can be one way in which rape victims
can not only exercise some form of resistance, but perhaps even fend off shame.
Ironically, the near absence of the consent defense to sexual violence charges
in international criminal law keeps the trials from providing a venue for those
who have been raped to argue, as Maria does to Robert Jordan in For Whom the
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Bell Tolls, that they have “fought” their attackers. When Maria first tells Robert
Jordan of the assault, she says: “Where things were done to me I fought until I
could not see.”43 After the two of them decide to marry, she insists that he know
for his “own pride” that “never did I submit to any one. Always I fought and
always it took two of them or more to do me the harm.”44
As just described, Maria’s response sounds fairly traditional, centered around
preserving her sexual integrity. Yet Maria construes the sexual and other violence
she experienced and her response to it in military terms—as part of the battle.
She makes it clear that her fighting was not only for her (or her future husband’s)
sexual honor but also for her political and military honor. She recounts that when
her father was shot, he said, “Viva la República.”45 When her mother was shot,
she said, “Viva my husband who was the Mayor of this village.”46 And Maria
says, “I hoped they would shoot me too and I was going to say ‘Viva la República
y vivan mis padres [my parents].’”47 Unlike her mother, Maria would make her
political loyalties known.
Many civilians play important roles in war. Particularly when they are on the
front lines, the military/civilian distinction is often blurred, as it was for Maria
when the fascists captured her village. Her fight was both personal and political,
and not only in the sense that the personal is political; her fight against those
who raped her was also for her a fight for the Republic. In this sense, even if she
was understood as a civilian, she fought in the civil war.
Sometimes civilians on the front lines have an even more intense experience
of the war than soldiers do, especially those soldiers with posts removed from
the conflict. A Woman in Berlin demonstrates how the very struggle for survival
in war can challenge two dichotomies that advocacy, legal, and institutional discourses have taken for granted: rape versus consensual sex, and civilian versus
combatant. It also shows that shame is not an inevitable result of rape. The diary
spans eight weeks during and immediately following the Battle of Berlin.48 It
records multiple rapes of the diarist and others by Russian soldiers during the
period, as well as many other challenges that German residents faced during
the city’s occupation.
The diary also demonstrates that the diarist exercised a surprising amount
of composure and agency during the ordeal. After she has been raped several
times, for example, she writes: “I have to find a single wolf to keep away the pack.
An officer, as high-ranking as possible, a commandant, a general, whatever I can
manage.” Referring to the fact that she speaks some Russian, she asks: “After all,
what are my brains for, my little knowledge of the enemy’s language.”49 In fact,
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she successfully acts on that instinct. She also makes a number of other calculated decisions to agree to and even seek out sexual acts for food and money. In
reflecting on a resulting experience at one point, she states, “By no means could
it be said that the major is raping me.”50 In surveying what she receives from the
exchange with him, she admits that she likes him but also wonders whether “I
should now call myself a whore, since I am essentially living off my body, trading
it for something to eat.”51
Perhaps it is the diarist’s very composure and sense of agency, including her
writing about the experiences as they happened, that led to the reception of the
book when it was published in Germany in 1959.52 According to Hans Magnus
Enzensberger, “The book was met with either hostility or silence. One of the few
critics who reviewed it complained about the author’s ‘shameless immorality.’”53
The diarist, it seems, would not have been surprised by that critic’s reaction, given
that she identifies a similar response in the diary itself. At the very end of the diary,
her boyfriend, Gerd, returns from the war. He listens to her and some of the other
women’s accounts of the occupation and, demonstrating the author’s “literary capacity,” according to Halley, even reads part of her diary.54 He responds harshly. After
hearing one of the women poke fun at a German who raped her, he calls the diarist
and the other women in the building “shameless bitches.”55 He sees them, according to Halley, as having been disloyal: “If her rapes had been ‘the absolute worst,’
her national solidarity with the defeated German soldiers would have remained
intact and Gerd would not have been repelled. If instead she and the other women
took some of the rapes lightly, even in jest, as one among many harms of war, they
became ‘shameless,’ ‘disgusting,’ and . . . nationally disloyal.”56
In her recounting of her experiences, however, the diarist makes clear her
sense of having fought on the front even if, unlike Maria, she did not fight back
when she was sexually assaulted and she did not participate in a military operation. Writing after Hitler’s defeat, when the male German soldiers are about
to start returning to Berlin, the diarist contrasts the experiences of many of
those troops “in cities like Paris or Oslo, which were farther from the front than
Berlin,” or even “in places where there was absolute peace,” with the “constant
bombardment” she and others have faced in Berlin. The bombardment to which
she refers is not only, or even necessarily, sexual violence, but the general violence that civilians experience in a war zone—the lack of secure housing, food,
and water supplies, and the reality of ongoing military attacks. Even those men
who had come from the front, she notes, had “always looked neat and well fed,
unlike most of us today.”57
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When I began to read The Last Girl, Nadia Murad’s account of the rapes, beatings, and forced conversion she faced during her approximately three months
in captivity in 2014, I assumed it would leave little room for imagining even a
remnant of the agency that the diarist claimed for herself.58 “Every second with
ISIS,” Murad states at one point, “was part of a slow, painful death—of the body
and the soul.”59 Much of her account supports that perspective. Throughout the
book, she recounts numerous incidents during her time with ISIS when she
wished she had died or been killed. Yet in a number of ways, the book shares
remarkable similarities with the diary, notwithstanding that more than seventy
years and nearly 2,500 miles separate them.
Murad recounts a moment early on after her capture when she and some
other young women made a pact to commit suicide: “Killing ourselves seemed
more honorable than submitting to the militants, our only way of fighting back.”60
But then, after considering how little a death would matter to the militants and
thinking about her mother’s view that nothing could justify suicide, she says:
“Quickly, we reversed our pact. We wouldn’t kill ourselves; we would help one
another as much as we could and take the first opportunity to escape.”61 Murad
concentrated on escape nearly constantly at the beginning of her captivity. After
one failed attempt with horrific consequences, she eventually succeeded.
Like the diarist in A Woman in Berlin, Murad often writes matter-of-factly
about her daily life in captivity. Unlike Maria in For Whom the Bell Tolls, Murad
makes a point of not having fought back within her daily existence as a sabiyya
(an ancient word for slavery used by ISIS). “I have never admitted this to anyone,”
she says halfway through the book, “but I did not fight back when . . . anyone . . .
came to rape me. I just closed my eyes and wished for it to be over.” She claims
she was not as brave as “other girls [who] punched and bit their attackers.”62 Note
Murad’s subtitle: “My Story of Captivity, and My Fight against the Islamic State.”
The comma seems carefully positioned to indicate that she sees her fight in her
UN and advocacy work, not in her response to captivity.
Notwithstanding her revelation about not resisting the rapes, Murad’s story in
captivity is very much one of resistance. When she and other unmarried women
from her village were loaded onto a bus to be taken to Mosul, one of the ISIS
guards groped a number of them, including Murad. It was her first experience
of assault, and she screamed and complained to another ISIS militant, believing that he would help. Her complaint backfired, though, as ISIS militants later
punished her by burning her with cigarettes for causing a scene. Soon thereafter,
she made the pact to escape.
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When the young women were taken to a slave market—where ISIS militants
would choose their sabaya (the plural form of sabiyya)—she made a decision,
not to find a wolf to protect her, as had the diarist, but to find the least threatening man to choose her. She had been selected by a particularly large and brutal
man, whom she describes as looking “like a monster,” and whom in fact she
had attempted to fight off.63 When she failed in her physical resistance, she took
a different tack. As the transaction was being finalized, she was looking at the
floor and she “saw a pair of men’s sandals and ankles that were skinny, almost
womanly, and before I could think about what I was doing, I flung myself toward those feet.”64 She convinced that man—who turned out to be a judge—to
take her instead. She expresses amazement that she thought it possible that the
decision would save her, but the episode nevertheless demonstrates a moment
of decision and action, rather than passivity and surrender.
Murad leaves no doubt about the extent of the damage that ISIS militants
caused her. But even though she sometimes wished she had been killed, her narrative is strikingly short on internalized shame. That said, she acknowledges that
she did sometimes worry about how her community might respond to her. At
one point, she recalls that “the rape was the worst part” because “it stripped us of
our humanity and made thinking about the future—returning to Yazidi society,
marrying, having children, being happy—impossible.”65 ISIS shared these beliefs
about the effects of the loss of virginity, as well as of the conversion to Islam (the
latter of which Murad notes was “the cruelest”66): “They used our worst fears—that
our community and religious leaders wouldn’t welcome us back—against us.”67
Later, the man who eventually helped her flee to Kurdistan expressed concern
about how her family members might treat her when they learned what had happened. She confesses that she was uncertain: “Yazidis are conservative, sex before
marriage is not allowed. . . . A situation like this would test any community, no
matter how loving and no matter how strong.”68
“We shouldn’t have underestimated our religious leaders,” Murad says after
her escape, upon learning that, far from ostracizing or stigmatizing her, Yazidi
religious leaders had announced that former sabaya “would be welcomed back
to society and not judged for what had happened to us.” She explains: “We were
not to be considered Muslim because the religion had been forced upon us, and
because we had been raped, we were victims, not ruined women.”69 Murad is
clear that the religious acceptance she received could not be sufficient to “make
us feel completely normal again,” but that, nevertheless, “I have never loved my
community more than in that moment of compassion.”70
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Murad does not question the concept of being a “ruined woman,” its contrast with being a victim, or how that dichotomy might situate someone like
the diarist, who was not so clearly held in conditions of what nearly all agree in
Murad’s instance are accurately identified as “sexual slavery.”71 But her story at
once confirms the fear of stigmatization and defies its inevitability. It presents
a different traditional religious response than she and many others had anticipated. One might attempt to distinguish the response of the Yazidis from those
of Muslims, but recall Chapter Two’s discussion of an imam who made a similar
pronouncement in Bosnia.72
From my description of Murad’s book thus far, it might seem as though she
centers her account around sexual abuse. In fact, like both Maria and the diarist,
Murad’s rapes and even her captivity are only one part of a complicated story,
of a type to which we are often not exposed in the laser-like focus on sexual
violence in conflict. After confessing that she did not fight the rapes, Murad
expresses exasperation that it sometimes feels that “all that anyone is interested
in when it comes to the genocide is the sexual abuse of Yazidi girls, and they
want a story of a fight. I want to talk about everything—the murder of my
brothers, the disappearance of my mother, the brainwashing of the boys—not
just the rape.”73 Throughout the discussion of her time in captivity, she tells of
constantly searching for news about whether any of the men from her village
had survived and about what happened to the women and children who were
not sent off to be sabaya. In one of the final chapters of the book, Murad returns
to the death metaphor: “Even the people whom ISIS hadn’t managed to kill had
lost their lives—an entire generation of lost Yazidis like my brothers and me,
walking around in the world with nothing in our hearts but the memory of our
family.”74 We come to see here that her “slow, painful death” is one she shares
with her surviving brothers, not because of loss of honor, but because of loss of
the lives of so many members of her family and community.
If Murad and the diarist push back against the common-sense narrative in
many ways, they also concur with a view, which we have seen throughout the
book, that many women who have been raped might well be reluctant to speak
of the rapes. During the Russian occupation of Berlin, the diarist speaks a great
deal with other women who have had similar experiences, noting how “this
mass rape is something we are overcoming collectively. . . . All the women help
each other by speaking about it, airing their pain, allowing others to air theirs
and spit out what they’ve suffered.”75 After the war, however, she presumes that
(civilian) women’s battles will be treated differently from those of (male) soldiers.
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Contrasting how she imagines the former will be censored, whether by others or
by the women themselves, with what she knows of German soldiers she has met
through the years on their leave, she discusses how the men had “loved to tell
their stories, which always involved exploits that showed them in a good light.
We, on the other hand, will have to keep politely mum; each one of us will have
to act as if she in particular was spared.”76 Like the diarist, Murad obviously tells
her own story, though she does so in a memoir clearly intended for publication.
She also understands and respects that other women will not respond in the
same way: “It was their tragedy and their right not to tell anyone.”77
If the diarist and Murad call attention to women who will not speak about
their experiences, they go beyond the common-sense narrative that offers shame
as the principal explanation. That is, they suggest that there are reasons to be
silent about many things that happen in war. The diarist suggests that women’s
stories will not be heard as stories of combat. But she also demonstrates, through
the example of her boyfriend’s return, how the stories could be used against
the women, including as evidence of disloyalty. Murad also expresses the dangers of speaking. When the Kurdish media publicly aired an interview that she
gave shortly after fleeing to Kurdistan about some of what had happened to her
(though denying the rape), Murad says she learned quickly that her story, which
she “still thought of as a personal tragedy, could be someone else’s political tool.”
Looking back on it, she says, “I would have to be careful what I said, because
words mean different things to different people, and your story can easily become
a weapon to be turned on you.”78
IV. The Context of War Foregrounded
The Last Girl is about more than oppression, at least by ISIS. In fact, it offers yet
another type of narrative that, if present at all, is generally backgrounded in much
international discourse on sexual violence in conflict. The type of narrative is
political context, including one that sheds light on what might motivate those
identified as the oppressors. It is missing from the Security Council’s resolutions on trafficking that discuss the Islamic State, even though Murad spoke at
the debate on the first such resolution and was often cited by proponents of the
resolutions.
The first four chapters of the memoir set the stage for the eventual ISIS occupation of Kocho, Murad’s village in the disputed region of Sinjar. Murad briefly
describes what it was like to grow up under a regime of sanctions that affected
“ordinary Iraqis, not the political elite and certainly not Saddam himself.”79 And
Beyond Social Death
169
she considers who in the region benefited (Kurds) and who lost (Sunni Muslims) from the U.S. invasion of Iraq. The Yazidis, she tells us, “welcomed the
Americans but were less certain than Kurds about what our lives would be like
after Saddam.” Although life had been incredibly hard in terms of education and
economic opportunities, she notes that “at the same time, with the Baathists in
power, we in Kocho had been able to practice our religion, farm our land, and
start our families . . . [and] had close ties with Sunni Arab families.”80 Of course,
those ties eventually disintegrated, and she calls out both the Iraqi Kurds and
the Americans for their strategic use of the Yazidis. She also points to the effect
of U.S. occupation on the daily lives of “ordinary Sunnis,” and in turn—she suggests—on the growth of ISIS.81 When she discusses the role of women in ISIS,
for example, she says that “like the men, they consider themselves victims of
sectarian oppression and the American invasion.”82
Here, Murad adds to her narrative the role of geopolitical forces, including
U.S. hegemony, in the emergence of the many harms she names. In her December 2016 speech to the Security Council at the debate on Resolution 2331, her
testimony matched her commitment in the memoir to talk about more than the
rapes. Thus, while she noted that “3,500 Yazidis” were then in captivity, she also
emphasized that “more than 350,000 Yazidis, along with more than 1.5 million
other refugees, continue to live under difficult conditions in the Kurdistan region
of Iraq.”83 Her speech did not, however, reveal any of the anti-imperial impulses
that appear in the book. The Security Council did not offer an appropriate forum
for her to suggest that the United States or its allies might have been part of the
problem.
One place where the memoir and the Security Council speech do not diverge
is in the proposed response to ISIS. In Chapter Five, we read Amal Clooney’s
statement to the Security Council about Murad’s strong desire to confront her
perpetrators in court. The final paragraphs of Murad’s book recount one of her
own addresses to the UN, in which she expressed the same sentiment: “I told
them that every Yazidi wants ISIS prosecuted for genocide, and that it was in
their power to help protect vulnerable people all over the world. I told them
that I wanted to look the men who raped me in the eye and see them brought
to justice. More than anything else, I said, I want to be the last girl in the world
with a story like mine.”84
While Murad also calls for a safe zone in Iraq for religious minorities, the
teaching of Yazidism in Iraqi schools, and support for women and girls who
have escaped ISIS to rejoin society, her quest for criminal accountability for
170
Epilogue
ISIS defines her fight against ISIS referenced in the book’s subtitle. When she
fantasizes about accountability in the book, the tone is usually retributive, though
the closing line here imparts a deterrent spin. Given Murad’s rich understanding of the history of the conflict, the reliance on criminal law seems somewhat
shortsighted. It demonstrates that international criminal law continues to have a
good hold on the field of emancipatory responses to rape, as well as to the other
harms she names. Her claim that every Yazidi shares her preferences fits with
the discourse perpetuated by the ICC itself. According to Sara Kendall and Sarah
Nouwen, the ICC speaks on behalf of an abstracted idea of “The Victims.”85 Because victims are treated as one abstracted figure thought to desire prosecution,
any Yazidis who might not share that aim are invisible to the system. As Kendall
and Nouwen put it, they “cannot impeach the representative.”86
V. The Redistribution of Shame Reconsidered
Murad is not alone in placing her faith in criminal law. Again, her narrative fits
with the common-sense idea that criminal law is the best way to respond to,
and possibly even deter, violations of the laws of war. Although advocates for
increased criminalization generally assume—rather than argue for—the efficacy
of the approach, we have seen it justified, particularly in the context of sexual
violence, as a means to shift the shame from victim to perpetrator.
When this justification has emerged in the book, I have responded by contending that such a response problematically feeds the assumption that being
raped is inherently shameful, precluding a closer examination of whether, under
what circumstances, and for whom sexual violence is shameful to begin with. I
have also been dubious about how shaming one person would take the shame
away from another. And I have questioned why, if shame is so problematic, we
would so readily impose it on others.
I do not want to argue, however, that shame can never serve a positive function. Both A Woman in Berlin and For Whom the Bell Tolls provide expressions
of shame that suggest its productive, even agency-generating, potential. They
call attention to how both men and women often engage in shameful military
acts, and how—even as civilians—they might make political alliances or take
political positions that they will later rue.
The diarist in A Woman in Berlin criticizes Hitler throughout, and suggests
that many German civilians almost welcomed the fall of Berlin. Yet the diarist attempts to make sense of her participation in and political agency during the war.
Many German soldiers and even leaders in the Third Reich began to understand
Beyond Social Death
171
in the aftermath of the war that, when one is on the losing side, it sometimes
pays to be a victim. The diarist is attuned to this dynamic, and does not hide her
own ambivalence about the role that civilians and soldiers alike played in the
rise and acts of the Third Reich: “Everyone is now turning their backs on Adolf,
no one was ever a supporter. What about me? Was I for . . . or against? What’s
clear is that I was there, that I breathed what was in the air, and it affected all of
us, even if we didn’t want it to.”87
This passage reflects a significant capacity for individual and collective responsibility, especially in the midst of a daily fight for survival. Like Pilar’s story
of her participation in the atrocities, it forces the reader to question the line
between perpetrator and victim, particularly in relationship to the larger aims
of any given side to a conflict. The diarist discusses her possible complicity in a
fascist regime, while not denying her own suffering. Pilar admits being plagued
by the atrocities she participated in—“full of shame and a sense of wrongdoing”—notwithstanding that she was battling fascism. These narratives also make
it clear that men are not the only possible purveyors of ideology or genuine political conviction. Such recognition is an essential part of any effective response
to conflict, including to its structural causes.
VI. Conclusion
In this epilogue, I have brought counter-narratives from literary sources to bear
on the common-sense understanding of sex and gender in war and its aftermath.
I have focused most closely on the common-sense view that rape constitutes
the worst harm in war due to the shame it brings to both individuals and communities. Shame might thrive on silence, but it also thrives on narratives that
make certain acts or experiences shameful. All three of the literary works I have
discussed push back on such narratives.
I have turned to these literary sources, in large part because of the dearth of
critiques of the shame narrative within the legal and political spaces studied in
the book. Chapter Five shows that even critiques of the hyper-attention to sexual
violence have generally stopped short of disrupting the “worst-harm,” shame,
and stigmatization narratives that have driven the machinery to respond to, or
act in the name of, sexual violence in conflict. As with other parts of the common sense, the concretization of this view was not inevitable. Indeed, one of the
major aims of nearly all feminists when they began to approach sexual violence
in conflict was to move consideration of it away from the honor discourse that
had driven the earlier prohibition of rape in wartime.
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Epilogue
I contend that feminists have facilitated the perpetuation of the fate-worsethan-death discourse, at least in part because of its efficacy. To mobilize troops,
judges, and counterterrorism measures, sexual violence has to be portrayed as
fully destructive. I have sought in this epilogue to challenge that portrayal, and
I have tried throughout the book to question these very mobilizations that rely
on it. To resist both the common-sense view and the deployments of force it
justifies, we need to extricate ourselves from the grip of sexual violence.
Notes
Introduction
1. See Douglas, The Memory of Judgment; Koskenniemi, “Between Impunity and
Show Trials”; Mamdani, “Beyond Nuremberg”; Meister, After Evil.
2. For a comparison of international law–based challenges to U.S. atrocities committed during the Vietnam War and those committed during the war on terror, the former based on jus ad bellum (contesting the legality of U.S. involvement in the war itself)
and the latter on jus in bello (contesting human rights violations committed during the
war), see Moyn, “From Antiwar Politics to Antitorture Politics.” Of course, at the same
time that human rights advocates were turning their attention to condemning human
rights and humanitarian law violations during war, as we see in Chapter Two, some were
using those violations to call for military intervention. For David Kennedy, both approaches are part of the modern law of force that “now permits humanitarians, military
professionals, and statesmen to speak about decisions to go to war and the conduct of
war in the same—humanitarian—terms.” Kennedy, The Dark Sides of Virtue, 267.
3. G8, “Declaration on Preventing Sexual Violence in Conflict,” Apr. 11, 2013, Foreign
and Commonwealth Office, https://www.gov.uk/government/uploads/system/uploads
/attachment_data/file/185008/G8_PSVI_Declaration_-_FINAL.pdf.
4. All quotations from the press conference can be found at Foreign and Commonwealth Office, “News Story: G8 Declaration on Preventing Sexual Violence in
Conflict,” Apr. 11, 2013, https://www.gov.uk/government/news/g8-declaration-on
-preventing-sexual-violence-in-conflict.
5. UN Security Council, Resolution 2106, preambular para. 3. For a summary of
the proceedings and of the roles that each of the trio played, see UN News Center, “Security Council Strengthens Efforts to End Impunity for Conflict-Related Sexual Violence,” June 24, 2013, https://news.un.org/en/story/2013/06/443072. This resolution is
discussed in detail in Chapter Five.
6. The declaration remained open for signature, and 156 states had signed it as of
July 2016. For the declaration, see UN General Assembly, Letter Dated 26 November
2013 from the Permanent Representative of the United Kingdom of Great Britain and
173
174
Notes to Introduction
Northern Ireland to the United Nations Addressed to the Secretary-General, Appendix:
Declaration of Commitment to End Sexual Violence in Conflict, UN Doc. A/68/633,
Dec. 3, 2013. For the number of signatories as of 2016, see UN Secretary-General, Status
of the Protocols Additional to the Geneva Conventions of 1949 and Relating to the Protection of Victims of Armed Conflicts: Report of the Secretary-General, UN Doc. A/71/183,
July 22, 2016, 43.
7. Foreign and Commonwealth Office, “Don’t believe the thumbnail, this video is
the stuff of nightmares,” June 2, 2014, https://youtu.be/1QFUD2Q6D8k.
8. The designer of the video, London-based marketing agency Don’t Panic, uses this
opening scene in its online magazine as the thumbnail of the video. Don’t Panic magazine,
“Don’t Believe the Thumbnail, This Video Is the Stuff of Nightmares,” June 3, 2014, http://
dontpaniconline.com/magazine/radar/dont-believe-the-thumbnail-this-video-is-the
-stuff-of-nightmares. The UK government announced the video with a different thumbnail, which shows a monster baring his teeth (taken from the 0:34 mark of the video).
Foreign and Commonwealth Office, “Animation Launched for Summit to End Sexual
Violence in Conflict,” June 4, 2014, https://www.gov.uk/government/news/animation
-launched-for-summit-to-end-sexual-violence-in-conflict.
9. For discussion of some of the history of this treatment of rape, see Kinsella, The
Image before the Weapon, 73–74, 216n99.
10. There are many debates as to when the first prosecution of rape as a war crime
occurred, ranging from 1385 (Richard II) and 1474 (Peter von Hagenbach) to 1863
(under the Lieber Code) and 1946 (in the Tokyo Tribunals). For all but the 1474 date,
see Meron, “Rape as a Crime under International Humanitarian Law,” 425–26. Crystal
Feimster tells of more than 450 prosecutions for sexual crimes, including against Black
women, under the Lieber Code. Feimster, “Rape and Justice in the Civil War.” For more
on the treatment of rape and other crimes against women under the Lieber Code, including, importantly, the code’s nonapplication to Native American women (and children) during the Sand Creek Massacre, see Kinsella, The Image before the Weapon, 84,
89–96, 98–101. A trove of documents from the UN War Crimes Commission, made
available by the Wiener Library for the Study of the Holocaust and Genocide in 2017, offers evidence of war crimes prosecutions of rape and forced prostitution in the 1940s, in
places ranging from Greece and Poland to the Philippines. Owen Bowcott, “Opening of
UN Files on Holocaust Will ‘Rewrite Chapters of History,’” The Guardian, Apr. 17, 2017,
https://www.theguardian.com/law/2017/apr/18/opening-un-holocaust-files-archive
-war-crimes-commission.
11. Geneva IV, art. 27.
12. Additional Protocol II, art. 4(2)(e). Further, Additional Protocol I includes an
article titled “The Protection of Women,” stating that they “shall be the object of special
respect,” adding that they “shall be protected in particular against rape, forced prostitution and any other form of indecent assault.” Additional Protocol I, art. 76(1).
13. Foreign and Commonwealth Office, “Foreign Secretary’s Remarks at the Opening of
the Global Summit Fringe,” June 10, 2014, https://www.gov.uk/government/news/foreign
-secretarys-remarks-at-the-opening-of-the-global-summit-fringe--2. (Hague delivered
Notes to Introduction
175
remarks at the opening of the Global Summit.) Rhonda Copelon, one of the feminists
involved in early international criminalization efforts, viewed the International Criminal Court as holding this potential. Copelon, “Rape and Gender Violence.” Claims about
the shame-shifting benefit for victims fit with a larger pattern of using victims—or an
abstracted figure of “The Victims,” as Sara Kendall and Sarah Nouwen put it—to justify the existence of international criminal law. Kendall and Nouwen, “Representational
Practices at the International Criminal Court.”
14. Secretary of State Hillary Clinton, “Remarks on the Adoption of a UN Security Council Resolution to Combat Sexual Violence in Armed Conflict,” Sept. 30, 2009,
https://2009–2017.state.gov/secretary/20092013clinton/rm/2009a/09/130041.htm.
15. Kinsella, The Image before the Weapon.
16. For critical discussions of these depictions of women perpetrators as aberrational, see Drumbl, “She Makes Me Ashamed to Be a Woman”; Sjoberg, Women as Wartime Rapists; Sjoberg and Gentry, Mothers, Monsters, Whores.
17. For one example, see Mohanty, “Under Western Eyes.” For detailed discussion
of Third World feminist critiques specifically in the context of human rights, some of
which make similar arguments, see Chapter One, Section II(C).
18. Catharine MacKinnon has made both assimilative and worse-harm arguments. As to the assimilative argument, she contends that “women’s experience is
the template” for understanding sexual violence against men so that when men are
sexually abused, they are “ignored as women are.” MacKinnon, “On Torture,” 21. Elsewhere, however, she argues that men lose their masculinity when sexually attacked,
thereby suffering a harm that women cannot experience. For further discussion of
MacKinnon’s and others’ positions on male victims of sexual violence, see Chapter
Three, p. 99.
19. Sandesh Sivakumaran, for example, notes that “male rape is often considered to
be ‘a slur on [the] virility or manhood’ of the victim” and discusses how homophobia both
exacerbates the stigma and contributes to the underreporting of sexual violence against
men. Sivakumaran, “Male/Male Rape,” 1289, 1279, respectively. He cites MacKinnon
favorably to this end. Ibid., 1282.
20. Hannah Arendt famously coined this term in the context of the trial of Adolf
Eichmann, a Nazi bureaucrat who, in Arendt’s (controversial) diagnosis, was remarkable in his ordinariness (evidenced in part by his facility, even dependence, on cliché).
See Arendt, Eichmann in Jerusalem.
21. Judith Gardam was one of the few feminists considering international humanitarian law during that period and, notably, her focus was not on rape and sexual
violence. See, for example, Gardam, “A Feminist Analysis.” See also Gardam, NonCombatant Immunity. Yougindra Khushalani published a book in 1982 that made a
doctrinal argument that rape had long violated international humanitarian law, though
relying in large part on the dignity and honor language that feminists would later attempt to move away from. See Khushalani, Dignity and Honour of Women.
22. For an early example, see Meron, “On the Inadequate Reach of Humanitarian
and Human Rights Law.” Writing in 1983 to encourage a new human rights instru-
176
Notes to Introduction
ment that could be applied to internal strife falling short of armed conflict, Meron
noted that “humanitarian law and human rights law have not been tightly woven into
each other.” Ibid., 602–3. At the same time, he also insisted that “there exists a very
large measure of convergence and parallelism” between their norms “in matters such
as the prohibition of torture and cruel, inhuman, or degrading treatment or punishment, arbitrary arrest, and detention, discrimination on grounds of race, sex, language, or religion, and the norm of due process.” Ibid., 593. A few years later, in 1987,
the Inter-American Commission on Human Rights declined to apply international
humanitarian law in a case before it. Only in 1998 did the commission and the InterAmerican Court of Human Rights begin to use international humanitarian law to interpret the American Convention on Human Rights. Lixinski, “Treaty Interpretation,”
591–94. Although human rights advocates and courts might have been relatively slow
to appreciate the utility of international humanitarian law to their work, the UN had
considered the application of human rights law to wartime in the late 1960s—even
before the onset of the contemporary human rights movement and only shortly after
the covenants on human rights opened for signature. In 1967, for example, the Security Council passed Resolution 237 in response to the Six-Day War, indicating to Israel
that “essential and inalienable human rights should be respected even during the vicissitudes of war.” UN Security Council, Resolution 237, preambular para. 2. For mention of this resolution in a larger examination of human rights during times of armed
conflict, see UN Secretary-General, Respect for Human Rights in Armed Conflicts, UN
Doc. A/7720, Nov. 20, 1969, para. 31.
23. See, for example, Bernstein, “The Sexual Politics of the ‘New Abolitionism.’”
24. See Engle, “Anti-Impunity and the Turn to Criminal Law.”
25. See Halley, Kotiswasan, Rebouché, and Shamir, Governance Feminism: An Introduction; and their edited volume, Governance Feminism: Notes from the Field.
26. This argument that rape is not an inevitable part of war has become a trope,
but its use here differs from the way it has been asserted by some academics in the field,
which is to contest the idea that rape in war is natural by pointing to armed groups that
have not used rape as a weapon of war. Elisabeth Wood’s work has been most influential in this regard. See especially Wood, “Rape during War Is Not Inevitable.” See also
Cohen, “Explaining Rape during Civil War”; Hoover Green, “Repertoires of Violence
against Non-Combatants.” For an example of work that they contest, see Brownmiller,
Against Our Will, 32, saying, “War provides men with the perfect psychologic backdrop
to give vent to their contempt for women.”
27. This lack of justification is not unique to sexual violence, and it is particularly
pronounced in the context of international criminal law. For an analysis of the lack of
justification offered by the promoters of the ICC, see Moyn, “Anti-Impunity as Deflection of Argument.” For an argument that international criminal law is “deeply retributive,” though generally defended on other grounds, see Woods, “Moral Judgments and
International Crimes.”
28. Scott, The Politics of the Veil, 10.
Notes to Chapter One
177
Chapter One
An earlier version of this chapter was published as “Feminist Governance and International Law: From Liberal to Carceral Feminism,” in Governance Feminism: Notes from
the Field, ed. Janet Halley, Prabha Kotiswaran, Rachel Rebouché, and Hila Shamir, 3–30
(Minneapolis: University of Minnesota Press, 2019).
1. UN World Conference on Human Rights, Vienna Declaration and Programme
of Action [hereinafter Vienna Declaration], para. 38.
2. UN World Conference on Human Rights, Report of the World Conference on
Human Rights, 47–49.
3. I borrow the phrase “carceral feminism” from Elizabeth Bernstein. See Bernstein,
“The Sexual Politics of the ‘New Abolitionism.’” See also Bernstein, “Militarized Humanitarianism Meets Carceral Feminism,” and Bernstein, “Carceral Politics as Gender
Justice?”
4. UN Security Council, Resolution 798, preambular para. 2.
5. Ibid., para. 2.
6. Ibid., preambular para. 3.
7. Amnesty International, Bosnia-Herzegovina, 6–7; UN Commission on Human
Rights, Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc.
E/CN.4/1993/50, Feb. 10, 1993, paras. 82–85; European Council Investigative Mission
into the Treatment of Muslim Women in the Former Yugoslavia, Report to European
Council Foreign Ministers, para. 13. The European Council’s report, often called the
Warburton Report, estimated the number of Muslim rape victims at 20,000, but noted
that other estimates ranged from 10,000 to 60,000. Ibid., para. 14. For discussion of
the discrepancies in estimates and a critique of the higher number, see von RagenfeldFelman, “The Victimization of Women.”
8. UN Commission on Human Rights, Situation of Human Rights in the Territory of
the Former Yugoslavia, para. 82.
9. UN Security Council, Resolution 827, preambular para. 3 and para. 2.
10. UN Charter, art. 27, para. 3. The stalemate with regard to Chapter VII did not,
however, mean that international law and international institutions were in a hiatus
during the Cold War. See Craven, Pahuja, and Simpson, “Reading and Unreading a Historiography of Hiatus.”
11. By dating the “takeoff ” of human rights to the 1970s, I essentially follow Samuel
Moyn’s history of the origins of the contemporary human rights movement. Moyn, The
Last Utopia.
12. For a perspective from the interwar years, see Woolf, The Three Guineas. For a
contemporary historical analysis of the period, see Knop, “Of the Male Persuasion.” See
also Fraser, “Becoming Human.”
13. See Fraser, “Becoming Human,” 857; Otto, “Disconcerting ‘Masculinities,’” 112–13.
14. See Rathgeber, “WID, WAD, GAD,” for an overview of the historical involvement of women in international development programs, as well as the three conceptual
paradigms that emerged over time: “WID” (Women in Development), “WAD” (Women
and Development), and “GAD” (Gender and Development).
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Notes to Chapter One
15. For detailed discussion of the work of liberal inclusionists—whom I labeled
doctrinalists and institutionalists—from the time period discussed here, see Engle, “International Human Rights and Feminism: When Discourses Meet,” 535–64.
16. The most systematic example of the structural-bias critique of international law
in general, not just of human rights, is Charlesworth, Chinkin, and Wright, “Feminist
Approaches to International Law.”
17. Bunch, “Women’s Rights as Human Rights,” 494.
18. Thomas, “Conclusion,” 358.
19. As Hilary Charlesworth has put it, “Patriarchy and the devaluing of women,
although manifestly different in different societies, are almost universal.” Charlesworth,
“Human Rights as Men’s Rights,” 103. On that same page, however, she is careful to state
that “certainly no monolithic ‘women’s point of view’ can be assumed.”
20. See, for example, Knop, “Re/Statements.”
21. See, for example, Bunch, “Women’s Rights as Human Rights,” 488; Stark,
“The ‘Other’ Half of the International Bill of Rights”; Sullivan, “The Public/Private
Distinction,” 126–27. Hilary Charlesworth offered an even more extensive list of
dichotomies: “objective/subjective, legal/political, logic/emotion, order/anarchy,
mind/body, culture/nature, action/passivity, public/private, protector/protected, independence/dependence.” Charlesworth, “Feminist Methods in International Law,”
382.
22. Bunch, “Women’s Rights as Human Rights,” 488.
23. This general approach to the public/private distinction was probably first articulated in the international context in 1986 by Noreen Burrows. See Burrows, “International Law and Human Rights.”
24. See, for example, Bunch, “Women’s Rights as Human Rights,” 491; Eisler,
“Human Rights,” 289–90.
25. For a detailed analysis of public/private discussions in the early 1990s, including the oscillation between these two positions by many, see Engle, “After the Collapse
of the Public/Private Distinction.” See also Sullivan, “The Public/Private Distinction.”
26. MacKinnon, “On Torture,” 21. She noted that intimate violence against men
would also not be seen as a human rights violation.
27. Ibid.
28. Ibid., 23.
29. Ibid.
30. For just a few examples, see Bunch, “Women’s Rights as Human Rights,” 489;
Cerna and Wallace, “Women and Culture,” 633; Eisler, “Human Rights”; Toubia, “Female Genital Mutilation.” For a critique of some of the assumptions about culture that
are embodied in some feminists’ fixation on practices such as dowry deaths and female
circumcision, as well as the implications of those assumptions for the treatment of entire
countries (India) or even continents (Africa), see Kapur, “The Tragedy of Victimization
Rhetoric,” 12–17.
31. Charlesworth, Chinkin, and Wright, “Feminist Approaches to International
Law,” 621.
Notes to Chapter One
179
32. For discussion of Third World feminist critics who did analyze international law
for its treatment of Third World women in ways that parallel the doctrinal and structural-bias approaches, see Engle, “International Human Rights and Feminisms: When
Discourses Keep Meeting,” 59–60.
33. For a contemporary reexamination of the NIEO and its lessons for global governance today, see the essays in Gilman, “Toward a History of the New International
Economic Order.”
34. For an elaboration of this literature, as well as a description of what I mean
by Third World feminism (as distinct from feminism in the Third World), see Engle,
“International Human Rights and Feminisms: When Discourses Keep Meeting,” 60–66.
35. Ong, “Strategic Sisterhood or Sisters in Solidarity?,” 113.
36. See, for example, Gunning, “Arrogant Perception, World-Travelling and Multicultural Feminism”; Lewis, “Between Irua and ‘Female Genital Mutilation,’” 32.
37. Johnson and Obiora, “Panel Discussion,” 207.
38. Nesiah, “Toward a Feminist Internationality,” 197.
39. Kapur, “The Tragedy of Victimization Rhetoric,” 6.
40. Spivak, “Can the Subaltern Speak?,” 296.
41. Obiora, “Feminism, Globalization, and Culture,” 385. See also ibid., 370–71,
agreeing with the “poignant objections raised against solipsistic researchers who zero in
on clitoridectomy as the sole point of reference and definition for women’s oppression
in Africa and the Middle East.”
42. Ibid., 363.
43. Ong, “Strategic Sisterhood or Sisters in Solidarity?,” 126.
44. UN Office of the High Commissioner for Human Rights, “World Conference on
Human Rights, 14–25 June 1993, Vienna, Austria,” https://www.ohchr.org/en/aboutus
/pages/viennawc.aspx. See also Boyle, “Stock-taking on Human Rights,” 79–80.
45. For some analyses of the positions taken by various sides in the debate in
the years shortly after the Vienna Conference, see Bell, “The East Asian Challenge to
Human Rights,” and Ghai, “Human Rights and Governance.” For a later discussion connecting that debate to other debates about culture in human rights, see Engle, “Culture
and Human Rights.”
46. Bunch, “How Women’s Rights Became Recognized as Human Rights,” 30.
47. Keck and Sikkink, Activists beyond Borders, 186.
48. Bunch, “How Women’s Rights Became Recognized as Human Rights,” 30.
49. Ibid., 33–34.
50. Ibid., 29.
51. The conference was held on April 15 and 16, 1988, and consisted of an introduction by Henry Steiner, who was faculty director of the Human Rights Program
and very supportive of the event, a keynote address by Arvonne Fraser, a panel titled
“The Struggle for Women’s Rights: Perspectives from around the World” (with Marjori
Agosín, Charlotte Bunch, Kekelwa Dall, Kumari Jayawardena, Annette Liu, and Alison
Weatherfield), and a panel titled “Putting Women’s Issues on the International Human
Rights Agenda: Can We? Should We?” (with Philip Alston, John Carey, Rebecca Cook,
180
Notes to Chapter One
Felice Gaer, Aída González, Fran Hosken, and Michael Posner). The conference also included film and poetry, as well as the following working groups: Developed and Developing Countries: Perspectives on Women’s Rights; Non-Governmental Organizations:
Thinking Globally, Acting Locally; Women’s Health: A Human Rights Issue; Lesbian
Rights: A Strategy for Recognition; Women in Popular and Revolutionary Struggles: A
Focus on Latin America; and Women and Violence: A Case Study of India’s Rape Laws.
The student organizing committee was composed largely of individuals who continue to
work on gender and human rights, including Stacy Brustin, Brenda Cossman, Suzanne
Goldberg, and Ratna Kapur.
52. Bunch, “How Women’s Rights Became Recognized as Human Rights,” 33.
53. Ibid., 34. Language in brackets in a UN document is language on which the
states have been unable to agree prior to the stage at which the document is being
considered.
54. Bunch and Reilly, Demanding Accountability, 2.
55. Ibid. See also ibid., 104–6.
56. Vienna Declaration, para. 38.
57. Bunch and Reilly, Demanding Accountability, 8.
58. For discussion of, critique of, and reaction to this compromise in the context of
the Vienna Declaration, see Engle, “Culture and Human Rights,” 320–24.
59. Vienna Declaration, para. 1.
60. Ibid., para. 5.
61. Ibid.
62. Secretary-General Boutros Boutros-Ghali later used the compromise to call in
a different context for the “same dialectic of the universal and the particular, of identity and difference” that he had supported in Vienna. Boutros-Ghali, “Address by the
Secretary-General of the United Nations at the Opening of the International Conference
on Population and Development,” 5.
63. UN World Conference on Women, Beijing Declaration and Platform for Action, Annex II, ch. II, para. 9.
64. Obiora, “Feminism, Globalization, and Culture,” 389.
65. See, for example, Cerna, “Universality of Human Rights and Cultural Diversity,”
741–42; Orford, “Contesting Globalization,” 192; Posner, “Reflections on the Vienna
Conference on Human Rights,” 317.
66. Otto, “Rethinking the ‘Universality’ of Human Rights Law,” 11.
67. See, for example, Brems, “Enemies or Allies?”; Cossman, “Turning the Gaze
Back on Itself ”; Desai, “Hearing Afghan Women’s Voices”; Garay, “Women, Cultural Relativism, and International Human Rights”; Higgins, “Anti-Essentialism,
Relativism, and Human Rights”; Hom, “Commentary: Re-Positioning Human Rights
Discourse on ‘Asian’ Perspectives”; Oloka-Onyango and Tamale, “‘The Personal Is Political,’”; Romany, “Black Women and Gender Equality in a New South Africa”; Stacey,
“Legal Discourse and the Feminist Political Economy”; Stark, “Bottom Line Feminist
Theory.” For an earlier such article, see Kim, “Toward a Feminist Theory of Human
Rights.”
Notes to Chapter One
181
68. For one discussion of anti-imperialist feminist work and some of the debates in
which it has and has not had particular traction, see Engle, Nesiah, and Otto, “Feminist
Approaches to International Law.”
69. Bunch and Reilly, Demanding Accountability, 4–5. The 16 Days campaign is still
in existence.
70. See ibid., 21–91.
71. See ibid., 63–73, 89–90.
72. See Bunch, “Women’s Rights as Human Rights,” 488, discussed on page 24.
73. For discussion of Nairobi as having been central to the emergence of VAW as
a theme, see Miller, “Sexuality, Violence against Women, and Human Rights”; Patton,
“Women and Power”; Pietilä and Vickers, Making Women Matter.
74. UN World Conference on Women, Report of the World Conference to Review
and Appraise the Achievements of the United Nations Decade for Women, para. 258.
75. Ibid. Jutta Joachim attributed its inclusion in the peace section to “linkage politics.” Joachim, “Shaping the Human Rights Agenda,” 147, citing Patton, “Women and
Power.”
76. Joachim, “Shaping the Human Rights Agenda,” 147.
77. Fraser, She’s No Lady, 225. See also Keck and Sikkink, Activists beyond Borders,
170, noting that in general at the conference, “convergence around the issue of violence
against women was the result of creating a category for discussion and action that linked
concerns of women around the world.”
78. A statement on the Peace Tent by the organizers of the event described it as “the
international feminist alternative to men’s conflict and war,” with the aim to “bring women’s peacemaking will and consciousness to the world, which so desperately needs it.”
Peace Tent Statement, ca. 1985, https://law.utexas.edu/farenthold/document/peace-tent
-statement/. See also Frances Tarlton Farenthold, “The Peace Tent: Its Origin, Its Impact, Its Future,” Oct. 10, 1985, https://law.utexas.edu/farenthold/document/the-peace
-tent-its-origin-its-impact-its-future/. The program from the Peace Tent also suggested
this emphasis. See Frances Tarlton Farenthold and Genevieve Vaughan, “Nairobi Notes,”
ca. 1985, https://law.utexas.edu/farenthold/document/nairobi-notes/. These documents
are physically located in the Frances Tarlton Farenthold Papers, 1913–2015, Dolph
Briscoe Center for American History, The University of Texas at Austin, boxes 3U132a
and 3U145a.
79. “Activist Origins of the 16 Days Campaign,” 16 Days Campaign,
http://16dayscwgl.rutgers.edu/about/activist-origins-of-the-campaign.
80. Ibid.
81. Keck and Sikkink, Activists beyond Borders, 170–71.
82. Ibid., 171, quoting interview with Charlotte Bunch, New York City, Feb. 21,
1996.
83. Ibid.
84. Suchland, Economies of Violence, 51.
85. Ibid.
86. Ibid.
182
Notes to Chapter One
87. UN Division for the Advancement of Women, “Sexual Violence and Armed
Conflict,” 8.
88. Ibid., 13.
89. Ibid., 13–14.
90. Vienna Declaration, para. 38.
91. Miller, “Sexuality, Violence against Women, and Human Rights,” 25.
92. Bunch and Reilly, Demanding Accountability, 34.
93. The full transcripts of the testimonies given can be found at Center for
Women’s Global Leadership, Testimonies of the Global Tribunal on Violations of
Women’s Human Rights, http://www.cwgl.rutgers.edu/docman/coalition-building
-publications/294-testimoniesglobaltribunal-pdf/file. A look at these on war crimes
demonstrates that testimony did cover other issues as well, such as the unique situation of women as peacemakers (from a Somalian woman, 29–30) and the importance
of women’s solidarity (from a member of the Serbian anti-militarist group Women in
Black, 39). Many of the testimonies and profiles of the speakers, of course, also demonstrate the active roles that women often play in politics.
94. Miller, “Sexuality, Violence against Women, and Human Rights,” 25, citing
Center for Women’s Global Leadership, Rutgers University, Women’s Rights Are Human
Rights: The Vienna Tribunal, video (1993).
95. Bunch and Reilly, Demanding Accountability, 47.
96. Miller, “Sexuality, Violence against Women, and Human Rights,” 19.
97. Indeed, some argued that the rapes received serious attention only “because the
Western world identified with the victims they were hearing about. It was not possible
to dismiss the stories as concerned with distant cultural traditions or genders unfamiliar to the Western world.” Skjelsbæk, “Sexual Violence in the Post-Yugoslav Wars,” 69.
Regardless of the motive for attention, I would contend that Bosnia was in fact often
treated as a site of the global South.
98. There was, however, occasional mention of such violence. See, for example,
Bunch, “Women’s Rights as Human Rights,” 497; Thomas and Beasley, “Domestic Violence as a Human Rights Issue,” 39–40.
99. Bunch, “Women’s Rights as Human Rights,” 490–91.
100. Ibid., 497. See also ibid., 489.
101. Barry, Female Sexual Slavery. On Barry’s coining the term, see Scoular, The
Subject of Prostitution, 58.
102. Barry, Bunch, and Castley, eds., International Feminism.
103. Pheterson, “Not Repeating History,” 17–21.
104. For an extended and very helpful genealogy of the shift in Barry’s position on
whether there exists a category of unforced prostitution (pointing to Barry’s publicly
changing her mind in 1995 to say that no such category exists) and the legacy of debates
over the issue in the drafting of the Rome Statute, see Halley, “Rape at Rome,” 91–92.
105. Barry, “The Opening Paper,” 22. In their introduction to the report on the Rotterdam workshop, Bunch and Castley quoted and followed Barry’s definition of female
sexual slavery from her earlier work, as that which “is present in all situations where
Notes to Chapter One
183
women or girls cannot change the immediate conditions of their existence; where, regardless of how they got into those conditions they cannot get out; and where they are
subject to sexual violence and exploitation.” Bunch and Castley, introduction to Barry,
Bunch, and Castley, International Feminism, 8–9, quoting Barry, Female Sexual Slavery.
106. Barry, “The Opening Paper,” 21. See also Bunch, “Network Strategies,” 49, offering a similar list.
107. International Committee for Prostitutes’ Rights, “World Charter for Prostitutes’ Rights, Amsterdam, February 1985,” in Pheterson, A Vindication of the Rights of
Whores, 40.
108. Ibid.
109. Bunch, “Network Strategies,” 49. That position was consistent with earlier
writing by Bunch, in which she called for an expansion of the term “feminism” to
“[respond] to the realities of all women, across race, sexuality, and national boundaries,” as a part of her manifesto for “non-aligned feminism.” Bunch, “Beyond Either/
Or,” 54.
110. Bunch and Castley, introduction to Barry, Bunch, and Castley, International
Feminism, 10.
111. Ibid., 9.
112. Suchland, Economics of Violence, 48 (paraphrasing from an interview with
Bunch; italics in the original).
113. Ibid.
114. This dynamic has manifested in other contexts as well. In particular, Miriam
Ticktin describes an almost parallel move in what she called the medicalization and politicization of sexual violence by humanitarian and aid organizations in the early 2000s.
She, too, points to how a politics of the body displaced one of redistribution. Ticktin,
“The Gendered Human of Humanitarianism,” 255.
115. Copelon, “International Human Rights Dimensions of Intimate Violence,” 867.
116. Vienna Declaration, para. 38.
117. Pillay, “Opening Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights at the 22nd Session of the Human Rights Council,”
Feb. 25, 2013, https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews
.aspx?NewsID=13031&LangID=e. The third achievement she listed was “its swiftly realized recommendation to create . . . the Office of the High Commissioner for Human
Rights.” Ibid.
118. Ibid.
119. Tamar Lewin, “The Balkans Rapes: A Legal Test for the Outraged,” New York
Times, Jan. 15, 1993, https://nyti.ms/2OpjEnH.
120. Other members of the coalition included Human Rights Watch’s Women’s
Rights Project, Equality Now, Amnesty International, the Fund for a Feminist Majority, Women’s Action Coalition, the Center for Reproductive Policy and Law, and Ms.
Foundation for Women. Ibid.
121. Mertus, “When Adding Women Matters,” 1300, quoting her telephone interview with Bunch, Feb. 2004.
184
Notes to Chapter One
122. Gruber, “The Feminist War on Crime,” 749–51.
123. See, for example, Bernstein, “Carceral Politics as Gender Justice?,” 239.
124. Gruber, “The Feminist War on Crime,” 794–96.
125. Martin, “Retribution Revisited,” 166. For consideration and critique of feminist criminal law reform strategies in the United States, see Gruber, “Rape, Feminism,
and the War on Crime.”
126. Martin, “Retribution Revisited,” 156–57, 157n9.
127. Ibid., 168.
128. Joachim, Agenda Setting, the UN, and NGOs, 116–22.
129. Ibid., 119.
130. See Engle, “Anti-Impunity and the Turn to Criminal Law in Human Rights,”
1074–79.
131. Velásquez Rodríguez v. Honduras, Merits, Inter-American Court of Human
Rights, Ser. C No. 4 (July 29, 1988).
132. Ibid., para. 174.
133. See, for example, Byrnes, “Women, Feminism, and International Human
Rights Law,” 229; Etienne, “Addressing Gender-Based Violence in an International
Context,” 157n97; Spahn, “Waiting for Credentials,” 1064n34. To this day, VelásquezRodríguez and its progeny are cited by those who argue for state responsibility for VAW.
See, for example, UN General Assembly Human Rights Council, Report of the Special
Rapporteur on Violence against Women, Its Causes and Consequences, Rashida Manjoo,
UN Doc. A/HRC/23/49, May 14, 2013, para. 15.
134. Vienna Declaration, paras. 23, 60, 90, 92. The Special Declaration on Bosnia
and Herzegovina also called for the speedy implementation of Security Council Resolution 808, establishing the ICTY. UN World Conference on Human Rights, Report of the
World Conference on Human Rights, 49, para. 9.
135. Halley, “Rape at Rome,” 101–20. The statute, for example, names rape alongside “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity” as a crime against humanity. Rome Statute, art. 7(1)(g). It includes similar language in two other places, under
the lists of war crimes in both international and non-international conflicts. Ibid., arts.
8(2)(b)(xii), 8(2)(e)(vi).
136. Halley elaborates: “The consensus that emerged as the feminists’ joint representation of their worldview, argument repertoire, and reform agenda was not, as one
might expect, a median liberal feminist view that split the difference between conservative and leftist feminist ideologies. Instead, the manifest consensus view was an updated radical feminism, strongly committed to a structuralist understanding of male
domination and female subordination. There was some tension on a few issues between
structuralist and liberal-individualist feminists . . . but it was muted by the coalitional
style adopted by feminists and compromised usually in the direction of structuralist
rule choices.” Halley, “Rape at Rome,” 2–3.
137. Ibid., 6.
138. See, for example, UN Security Council, Resolution 1820; Resolution 1888;
Resolution 1960; Resolution 2106.
Notes to Chapters One and Two
185
139. Miller, “Sexuality, Violence against Women, and Human Rights,” 36–37. She
uses Gayle Rubin’s notion of sexual hierarchies, which are “systems of legitimacy both
tacit (shaming) and explicit (legal) that arise in various contexts (country, culture, whatever the unit of imagination) and that prioritize certain forms of reproductive, marital,
and heterosexual activity above other sexual behaviors and identities.” Ibid., 36, citing
Gayle Rubin, “Thinking Sex: Notes for a Radical Theory of the Polities of Sexuality,” in
Pleasure and Danger: Exploring Female Sexuality, ed. C. S. Vance (Boston: Routledge,
1984), 267–319. One of the few other written expressions of this concern can be found
in the discussion of an international gathering on gender and transitional justice held
in the mid-2000s. Reflecting on some of the debates that emerged at the event, Vasuki
Nesiah notes: “There were questions about whether the focus on sexual violence feeds
into a regressive sex panic that is then used to regulate and further criminalize women’s
sexuality—with particular consequences for women who were involved in sex work in
conflict contexts. Did the preoccupation with sexual violence to the exclusion of other
issues accompany, and even engender, a preoccupation with ‘legitimate’ and ‘illegitimate’ sex, policing the borders of the ‘decent’ and the ‘deviant,’ only to then reinscribe
heteronormative models and approaches?” Nesiah, “Discussion Lines on Gender and
Transitional Justice,” 806.
140. Here is one of the few places I disagree with Dianne Otto, who states (largely
in disagreement with Janet Halley): “I argue that the institutional reception and management of feminist ideas works to divest them of their emancipatory content, and
therefore prefer to depict the result as ‘cooption’ rather than ‘governance feminism,’
which implies the result is intentional.” Otto, “The Exile of Inclusion,” 13. I disagree in
part because I do not believe that intentionality is required in governance feminism. But
I also think that Halley and Otto are talking past each other in a way because they are
discussing the impact of two very different forms of feminism—with Halley concentrating on the successes of structural-bias feminism and its role in international criminal
law and Otto largely considering the women’s peace movement in relationship to the
Women, Peace and Security agenda.
Chapter Two
1. For a detailed analysis of media coverage of the rapes, and of the very different
ways in which they were covered by the Croatian and Serbian press, see Žarkov, The
Body of War, 216.
2. For an early collection of articles about rape in Bosnia, see Stiglmayer, Mass Rape.
3. The first such resolution was UN Security Council, Resolution 713. For discussion of two of the other resolutions, see Chapter One, Section I.
4. UNPROFOR was meant to facilitate the delivery of humanitarian aid and “ensure
a peaceful political settlement.” UN Security Council, Resolution 743, preambular para. 8.
5. For sanctions, see UN Security Council, Resolution 757 and Resolution 787. For
safe areas, see UN Security Council, Resolution 819 and Resolution 824.
6. Operation Deliberate Force was approved in July 1995 and carried out between
August 30 and September 20, 1995. For a concise summary of the events leading up to
it, including limited NATO strikes, see Hansen, Security as Practice, 116–23.
186
Notes to Chapter Two
7. See, for example, UN Security Council, Resolution 771, para. 2.
8. UN General Assembly, Resolution 47/121, preambular para. 9.
9. Ibid., para. 7(a). Articles 41 and 42, found in Chapter VII of the UN Charter,
enumerate measures that the Security Council may take to “maintain or restore international peace and security.” Article 41 provides for economic sanctions, interruption of
communications, and severance of diplomatic relations. The language of necessity arises
in Article 42, which expressly provides for the use of military force that “may be necessary to maintain or restore international peace and security,” in the event that Article 41
measures are inadequate. Article 51 makes clear that, notwithstanding other provisions,
the Security Council is authorized “to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.”
10. The resolution passed with 102 votes in favor, 57 abstentions, and 20 member
states not voting. Of the ten non-permanent members that year, six voted yes: Austria,
Cabo Verde, Ecuador, Hungary, Morocco, and Venezuela. Belgium, India, Japan, and
Zimbabwe abstained. Voting Record for UN Doc. A/RES/47/121 (Dec. 18, 1992), available at https://digitallibrary.un.org/record/282898?ln=en.
11. UN Charter, arts. 42, 51. Humanitarian justifications also played a key role in
calls for individual state actors or collective actors other than the UN (like NATO) to
use military force. After NATO intervened in Kosovo without Security Council authorization, the Independent International Commission on Kosovo proposed to amend
the UN Charter to allow for action by the Security Council or other “collective actors
in international society” on humanitarian grounds. Independent International Commission on Kosovo, Kosovo Report, 187. Although the effort failed, the UN SecretaryGeneral later suggested that “genocide, ethnic cleansing and other such crimes against
humanity” be considered as threats to international peace and security under the UN
Charter. UN Secretary-General, Report of the Secretary-General: In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005, Mar. 21,
2005, para. 125.
12. Rieff, At the Point of a Gun.
13. Kenneth Roth, director of Human Rights Watch, and John Shattuck, former
U.S. Assistant Secretary of State for Democracy, Human Rights, and Labor, have both
used this term to describe themselves. See Roth, Tesón, and Arthur, “Ending Tyranny in
Iraq,” 2; Shattuck and Myers, “Freedom on Fire” (interview).
14. On this “‘g-word’ controversy,” see Power, “A Problem from Hell,” 290.
15. Ibid., 288.
16. Ibid., reflecting on the Bush administration’s decision to describe the situation
in Bosnia as “ethnic cleansing,” not as “genocide.”
17. Ibid., 289.
18. Ibid., 292, quoting Patricia Diaz Dennis, “Special State Department Briefing on
Report to Congress on Human Rights Practices for 1992,” Jan. 19, 1993.
19. Shattuck, Freedom on Fire, 131.
20. Ibid., 343n43, quoting Power, “A Problem from Hell,” 359. Shattuck believed the
memo mischaracterized the State Department’s objection as “based on ‘legal’ rather
Notes to Chapter Two
187
than ‘policy’ issues,” but acknowledged that “it certainly reflects the bureaucracy’s nervousness over the issue.” Ibid.
21. Ibid., 139–40. That said, he also sets forth criteria for limiting instances of intervention (ibid., 295–96) and discusses the important role of criminal justice (ibid.,
299–301).
22. Many of the arguments about intervention have taken place under the rubric of
R2P, which remains controversial in terms of both its legal status and its definition. At
its core, R2P specifies that states have a responsibility to protect their populations from
mass crimes. If a state fails to offer that protection, other states individually or collectively (positions differ on whether UN Security Council approval should be necessary
and whether, if not, the action nevertheless needs to be collective) have a responsibility
to intervene in the internal affairs of the state to prevent or end the atrocities. In the
early 2000s, many states and UN actors voiced widespread rhetorical support for R2P,
including then UN Secretary-General Kofi Annan. Some states even went so far as to
establish the International Commission on Intervention and State Sovereignty, led by
the Canadian government and tasked with supporting the recognition of R2P as law.
Despite these efforts, states remain hesitant to rely on it to prevent mass crimes and,
where it has been used—such as in Libya—its emphasis on coercive or military measures has been a subject of great controversy. See UN Secretary-General, A Vital and
Enduring Commitment: Implementing the Responsibility to Protect, UN Doc. A/69/981–
S/2015/500, July 13, 2015, paras. 3–5, 8–9. See also UN Office on Genocide Prevention
and the Responsibility to Protect, “About the Responsibility to Protect,” http://www
.un.org/en/genocideprevention/about-responsibility-to-protect.html.
23. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, para. 4.19.
24. Anna Quindlen, “Public & Private; Gynocide,” New York Times, Mar. 10, 1993, A19.
25. Ibid.
26. Recall from Chapter One, p. 25, that in 1990 she had also written a short piece
on torture, though most of the examples it discussed were from the United States and
Canada. MacKinnon, “On Torture.”
27. MacKinnon, “Remedies for War Crimes at the National Level.”
28. Nenadic, “Femicide,” 456n1, 460.
29. Ibid., 459.
30. See, for example, Kesic, “A Response to Catharine MacKinnon’s Article,” 269.
31. See, for example, MacKinnon, “Rape, Genocide, and Women’s Human
Rights,” 189–90. See also MacKinnon, “Crimes of War, Crimes of Peace,” 146. Andrea Dworkin, MacKinnon’s collaborator in her opposition to pornography in the
United States, also remarked upon the importance of pornography to the treatment
of women in the former Yugoslavia, describing pornography as “war propaganda that
trained an army of rapists who waited for permission to advance.” Andrea Dworkin, “The Real Pornography of a Brutal War against Women: Bosnia,” Los Angeles
Times, Sept. 5, 1993, M2, M6, http://articles.latimes.com/1993–09–05/opinion
/op-32107_1_serbian-military.
188
Notes to Chapter Two
32. Nenadic, “Femicide,” 462n16, also favorably citing Dworkin.
33. Early on, many who viewed rape as genocide, including MacKinnon, contended
that rapes by Serbian men of both Croatian and Bosnian Muslim women constituted
genocide, but later—as Croatia became an aggressor in the war—the focus shifted to the
Serbian rape of Bosnian Muslims. According to Žarkov, the Croatian media also concentrated most heavily on the rape of Muslim, as opposed to Croatian, women. Žarkov,
The Body of War, 129–42.
34. The civil lawsuit, Kadic v. Karadžić, was brought under two U.S. laws: the Alien
Tort Statute and the Torture Victim Protection Act. Ironically, it was joined with a similar suit brought by claimants represented by Rhonda Copelon, who, while a major advocate of bringing accountability to perpetrators of rape in the former Yugoslavia, was
opposed to treating the rapes as genocidal, at least on ethnic grounds. When the cases
were joined “by judicial fiat,” according to MacKinnon, Copelon “strongly pressured me
at counsel table to abandon [the genocide] claim in my argument. I refused.” MacKinnon, Butterfly Politics, 152. The case eventually ended with a default judgment against
Karadžić in 2000, upon his stated intent not to continue to participate in further proceedings. Doe v. Karadžić, 2001 WL 986545 (S.D.N.Y. 2001). MacKinnon drew a causal
connection between the decision and the eventual finding of rape as genocide in the
ICTR: “Kadic has been a butterfly.” MacKinnon, Butterfly Politics, 140.
35. MacKinnon, “Remedies for War Crimes at the National Level.”
36. MacKinnon, “Rape, Genocide, and Women’s Human Rights,” 186.
37. In MacKinnon, “Feminism, Marxism, Method, and the State,” 647, for example,
she argued: “Perhaps the wrong of rape has proven so difficult to articulate because
the unquestionable starting point has been that rape is definable as distinct from intercourse, when for women it is difficult to distinguish them under conditions of male
dominance.” Further, “If sex is normally something men do to women, the issue is less
whether there was force and more whether consent is a meaningful concept.” Ibid., 650.
Finally, “women are also violated every day by men who have no idea of the meaning of
their acts to women. To them, it is sex. Therefore, to the law, it is sex.” Ibid., 652–53. In
response, MacKinnon encouraged a legal definition of rape that would distinguish rape
from everyday sex by focusing on the “meaning of the act from women’s point of view.”
Ibid., 652. This task was of course made difficult by the fact that women themselves have
a hard time distinguishing the two in a state of dominance. MacKinnon insisted that
she did not equate all heterosexual sex with rape, and called the claims that she did so “a
political libel.” MacKinnon, “Pornography Left and Right,” 144.
38. MacKinnon, “Genocide’s Sexuality,” 225–26. She draws the comparison back to
genocide under the traditional definition, stating: “Thus men do to women (and some
men) through sexual abuse outside of genocides what some men do in genocides when
they sexually abuse women (and some men, especially sexually defined groups of men
such as gay men) on the basis of their ethnicity, religion, nationality, or race.” Ibid.
39. Copelon, “Surfacing Gender,” 198.
40. Ibid., 207.
41. Brownmiller, “Making Female Bodies the Battlefield,” 180.
Notes to Chapter Two
189
42. International Women’s Human Rights Clinic of CUNY Law School, “Gender
Justice and the Constitution of the War Crimes Tribunal Pursuant to Security Council
Resolution 808,” Appendix B in Green et al., “Affecting the Rules for the Prosecution
of Rape and Other Gender-Based Violence before the International Criminal Tribunal
for the Former Yugoslavia,” 236–37. Elsewhere, Copelon decried “the complete failure
of the United Nations and the international community in general to recognize that
persecution based on gender must be recognized as its own category of crimes against
humanity.” Copelon, “Surfacing Gender,” 206–8.
43. Batinić, “Feminism, Nationalism, and War,” 3–4. In the end, Batinić prefers the
label “patriotic” because even those who prioritized their national identity over women’s
solidarity across national lines “developed articulate critiques of nationalism in general,
and of nationalism of their state’s enemy in particular.” Ibid., 20n12. Even though her
article primarily focuses on debates within Croatia, she also discusses anti-nationalist groups in Bosnia and Serbia, and the solidarities they forged with non-nationalist
groups in Croatia. She notes that she does not discuss Serbian patriotic women’s groups
because, though they existed, they did not identify as feminist. Ibid., 10.
44. Kesić, “Women and Gender Imagery in Bosnia,” 187.
45. Ibid., 194–95.
46. Ibid., 195.
47. Hughes, Mladjenović, and Mršević, “Feminist Resistance in Serbia,” 517–18,
quoting a Women in Black announcement from June 1992.
48. Stojanović, Zajović, and Urošević, Women for Peace, 45.
49. Batinić, “Feminism, Nationalism, and War,” 8, quoting a Women in Black announcement from 1992.
50. Ibid., quoting Women in Black, “Women in Black against War: A Letter to the
Women’s Meeting in Amsterdam on the 8th of March 1993,” Women’s Magazine 40 (December 1993): 17–18. For an ethnographic account of Women in Black of Belgrade during the Yugoslav wars, see Athanasiou, Agonistic Mourning. For more on Women in
Black and its later opposition to NATO’s bombing of Kosovo, see Scott, The Fantasy of
Feminist History, 83–88, discussing in part the work of Jasmina Tešanović, Me and My
Multicultural Street (Belgrade: Feministicka 94, 2001).
51. Hughes, Mladjenović, and Mršević, “Feminist Resistance in Serbia,” 517, quoting a Women in Black announcement from June 1992.
52. Stojanović, Zajović, and Urošević, Women for Peace, 96, quoting a Women in
Black announcement from October 1991.
53. Sander, “Prologue,” xviii.
54. Ibid.
55. See Lilly and Irvine, “Negotiating Interests,” 139.
56. Batinić, “Feminism, Nationalism, and War,” 7, quoting a letter published in
“Serbia’s War against Bosnia and Croatia,” off our backs 23 (1993), pull-out page 10.
57. Stiglmayer, “The Rapes in Bosnia-Herzegovina,” 162. Elsewhere, she criticized
the “international community” for its lack of serious military response to Serbian aggression. Stiglmayer, “The War in the Former Yugoslavia,” 22–24.
190
Notes to Chapter Two
58. MacKinnon, “Rape, Genocide, and Women’s Human Rights,” 186.
59. Kesic, “A Response to Catharine MacKinnon’s Article,” 275, quoting an interview MacKinnon gave to a Berlin newspaper, in Andrea Bohm, “To Create a Precedent,”
Die Tageszeitung, Feb. 5, 1993, 23.
60. Batinić, “Feminism, Nationalism, and War,” 11, citing Jill Benderly, “Rape, Feminism, and Nationalism in the War in Yugoslav Successor States,” in Feminist Nationalism, ed. Lois West (New York: Routledge, 1997), 59–72.
61. MacKinnon, “Rape, Genocide, and Women’s Human Rights,” 183.
62. Allen, Rape Warfare, 106.
63. Ibid., 135.
64. Ibid., 106.
65. Quindlen, “Public & Private: Gynocide,” A19.
66. Ibid.
67. Dianne Marder, “Bosnian War Puts Focus on Use of Rape as a Weapon. The
Violence Has Precedent. The Attention Does Not,” Philadelphia Inquirer, Feb. 14, 1993.
68. Ibid.
69. See, for example, Askin, War Crimes against Women, 342–43.
70. Convention on the Prevention and Punishment of the Crime of Genocide, art. II.
71. Elsewhere, I provide a fuller account of the arguments made to connect rape
and genocide, which include that rape is genocidal when it is used for ethnic cleansing,
when it is deployed systematically, or when it is part of a genocidal war. Engle, “Feminism and Its (Dis)contents,” 788–94.
72. Carpenter, “Surfacing Children,” 434.
73. See, for example, Fisher, “Occupation of the Womb,” 93; Goldstein, Forced Impregnation as a War Crime under International Law, 24 (both quoted in Carpenter, “Surfacing Children,” 455).
74. Wing and Merchán, “Rape, Ethnicity, and Culture,” 19.
75. Carpenter, “Surfacing Children,” 455. Carpenter also points out an incoherence
in appealing to both Article II(d) and Article II(e): “But if the child is not a member
of the group, . . . how could the child also be ‘forcibly transferred from the group to
another’?” She argues that Wing and Merchán are inconsistent by “claiming first that
the ‘resulting child will never be considered an ethnic Muslim, thereby preventing the
birth of a Muslim child’ and then that ‘the event of the birth of such a non-Muslim child
resulting from rape transfers that child from the Muslim population to the non-Muslim
population.’” Ibid., 457, quoting Wing and Merchán, “Rape, Ethnicity, and Culture,” 19.
76. MacKinnon, “Crimes of War, Crimes of Peace,” 146.
77. Ibid.
78. See, for example, Kalosieh, “Consent to Genocide?,” 132; Wing and Merchán,
“Rape, Ethnicity, and Culture,” 18.
79. Carpenter notes that “it is impossible to determine” how many babies were
born as a result of wartime rapes in Bosnia during the conflict. On the basis of estimates
of the number of Bosnian Muslim women who were raped (which she notes is “widely
disputed”), the number of rapes likely to have led to pregnancies, and the percentage
Notes to Chapter Two
191
of pregnancies in Bosnia that led to births, she extrapolates that there were “as many as
1,800 pregnancies and 504 births.” Carpenter, Forgetting Children Born of War, 22–23,
204n63. She claims that “the number is consistent with conservative estimates of 400–
600 given by doctors and aid workers in the field at the time and much lower than the
wildly inflated estimates that prevailed during the war.” Ibid., 23.
80. For further discussion of ethnic formation and interethnic relations in Bosnia,
see Chapter Three, p. 97.
81. See, for example, International Women’s Human Rights Clinic of CUNY Law
School, “Gender Justice and the Constitution of the War Crimes Tribunal Pursuant to
Security Council Resolution 808,” 237; Niarchos, “Women, War, and Rape,” 658; Wing
and Merchán, “Rape, Ethnicity, and Culture,” 20.
82. Laura Pitter and Alexandra Stiglmayer, “Will the World Remember? Can the
Women Forget?,” Ms. 3, no. 5, Mar./Apr. 1993, 22, quoting from an interview with Imam
Omerbašić. For a summary of many ways in which Muslim religious leaders supported
Bosnian Muslim rape victims during the conflict, even if for nationalist reasons, and
contrasting it with the lack of Serbian Orthodox support for Bosnian Serb victims of
rape, see Simić, Silenced Victims of Wartime Sexual Violence, 66–68.
83. Wing and Merchán, “Rape, Ethnicity, and Culture,” 18. Note that they added
“and spiritual” to the definition, which was important to their additional argument that
the rapes constituted what they termed a “spirit injury.”
84. Kalosieh, “Consent to Genocide?,” 132, quoting Jocelyn Campanaro, “Women,
War, and International Law: The Historical Treatment of Gender-Based War Crimes,”
Georgetown Law Journal 89, no. 8 (2001): 2557–92.
85. Askin made this claim in a section of her book on ethnic cleansing, but much
of the discussion there is about genocidal rape. Askin, War Crimes against Women, 262–
87. Later in the book, she argued that “rape with the intent to destroy an ethnicity (by
ethnic cleansing . . . ) is genocidal rape.” Ibid., 372.
86. Ibid., 267–68, quoting Wing and Merchán, “Rape, Ethnicity, and Culture,” 5.
87. Askin, War Crimes against Women, 269. Additionally, for Wing and Merchán,
“this ostracism will affect the perception that these women and children [born from
rapes] have of themselves, most likely resulting in shame and lack of dignity.” Wing and
Merchán, “Rape, Ethnicity, and Culture,” 25.
88. Wing and Merchán, “Rape, Ethnicity, and Culture,” 23.
89. Askin, War Crimes against Women, 269n889.
90. Žarkov, The Body of War, 148.
91. Ibid., discussing and citing Cheryl Benard, “Rape as Terror: The Case of Bosnia,” Terrorism and Political Violence 6, no. 1 (1994): 29–43, 43n19.
92. UN Commission on Human Rights, Report on the Situation of Human Rights in
the Territory of the Former Yugoslavia Submitted by Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, UN Doc. E/CN.4/1993/50, Feb. 10, 1993, para.
85. For discussion of these and other developments at the time that “suggest a change in
the ways in which sexual violence in war came to be understood,” see Skjelsbæk, “Sexual
Violence in the Post-Yugoslav Wars,” 68–69.
192
Notes to Chapter Two
93. This term and idea are taken from Judge Nusreta Sivac. For further elaboration,
see the first epigraph in my Epilogue.
94. Žarkov, The Body of War, 129–30, quoting the Zagreb daily newspaper Vjesnik,
Nov. 4, 1992, 9, and Dec. 29, 1992, 8.
95. Ibid., 132.
96. Ibid., 131.
97. Mischkowski and Mlinarevic, “ . . . And That It Does Not Happen to Anyone
Anywhere in the World,” 6.
98. Ibid. Indeed, the report contended that representations of Bosnian Muslim
communities as exceptionally stigmatizing were used to send a “subliminal message”
that “Bosnian Muslim men and women cannot be a part of a civilised Europe, as they . . .
mistreat ‘their’ women.” Ibid.
99. Arcel, “Deliberate Sexual Torture of Women in War,” 182–83.
100. Drakulić, “Mass Rape in Bosnia,” 270.
101. Ibid.
102. Vranić, introduction to Breaking the Wall of Silence, 29.
103. For a classic treatment of shame and humiliation as “one and the same affect,”
see Tomkins, “Shame-Humiliation and Contempt-Disgust.”
104. See, for example, Drakulić, “Mass Rape in Bosnia,” 270, stating that the main
concerns of victims are their fears of jeopardizing family members’ lives and their desire
to forget the rapes and to avoid speaking “the ultimate humiliation and shame.”
105. Mischkowski and Mlinarevic, “ . . . And That It Does Not Happen to Anyone
Anywhere in the World,” 6.
106. Stiglmayer, “The Rapes in Bosnia-Herzegovina,” 99.
107. Ibid.
108. Ibid., 131–37.
109. Folnegović-Šmalc, “Psychiatric Aspects of Rapes in the War against the Republics of Croatia and Bosnia-Herzegovina,” 177.
110. Libby Tata Arcel does identify one seemingly healthy response, in the case
of Ajnusha, a twenty-five-year-old victim who, when asked if she felt shame or guilt
because of what happened to her, answered: “The shame is theirs, not mine.” Still, for
Arcel, Ajnusha was “one of the few women who had the ability to differentiate between
herself as an object of violence and herself as a subject without any complicity in what
happened.” Arcel, “Deliberate Sexual Torture of Women in War,” 181.
111. See p. 55 above, citing International Commission on Intervention and State
Sovereignty, The Responsibility to Protect, para. 4.19.
112. In September 2004, the UN Security Council invoked its Chapter VII powers
to establish an International Commission of Inquiry on Darfur, which would, among
other things, investigate whether genocide had taken place. UN Security Council, Resolution 1564. When the commission issued its report the following January, it stated that
it had failed to uncover the intent required for a finding of genocide. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Jan.
25, 2005, https://www.un.org/News/dh/sudan/com_inq_darfur.pdf, 4. Although it did
Notes to Chapter Two
193
not authorize the military intervention that many had called for, in August 2006, the
Security Council did expand the UN Mission in Sudan (UNMIS) to include deployment
to Darfur, a decision that, after initial resistance, the Sudanese government eventually
consented to. In July 2007, with sexual violence as one of its principal justifications, the
Security Council authorized the expansion of the mission through the establishment of
the African Union/UN Hybrid Peacekeeping Mission. UN Mission in Sudan, “UNMIS
Background,” http://www.un.org/en/peacekeeping/missions/past/unmis/background
.shtml.
113. For the referral, see UN Security Council, Resolution 1593. The ICC issued
warrants for al Bashir’s arrest in 2009 and 2010. While the first warrant included only
charges of crimes against humanity and war crimes, the second warrant charged him
with genocide. Acts of rape were included in both warrants, with the latter describing
acts of rape as constitutive of genocide. Warrant for Arrest for Omar Hassan Ahmad
Al Bashir, Case No. ICC-02/05-01/09 (ICC Pre-Trial Chamber, Mar. 4, 2009); Second
Decision on the Prosecution’s Application for a Warrant of Arrest, Case No. ICC-02/
05-01/09 (ICC Pre-Trial Chamber, July 12, 2010), paras. 29–30. Although al Bashir was
deposed by a military coup in April 2019 and arrested and put on trial by the new regime, as of October 2019, he had not been turned over to the ICC.
114. UN Security Council, Resolution 1970, preambular para. 9 and paras. 4–8.
115. UN Security Council, Resolution 1973, preambular para. 5.
116. Ibid., preambular para. 4.
117. Ibid., paras. 6, 8.
118. See, for example, David E. Sanger and Thom Shanker, “Gates Warns of Risks
of a No-Flight Zone,” New York Times, Mar. 2, 2011, https://archive.nytimes.com/www
.nytimes.com/2011/03/03/world/africa/03military.html.
119. When the Washington Post first commented on the decision by the United
States to support a no-fly zone, the reporters noted that “Obama’s decision to participate
in military operations marks a victory for a faction of liberal interventionists within
the administration, including [Susan] Rice, [Ben] Rhodes [deputy national security
advisor for strategic communications,] and National Security Council senior directors
Samantha Power and Gayle Smith. The announcement had been made by then Secretary of State Hillary Clinton.” Scott Wilson and Joby Warrick, “Obama’s Shift toward
Military Action in Libya,” Washington Post, Mar. 18, 2011, A1, A11, available at https://
www.washingtonpost.com/politics/obamas-shift-toward-military-action-in-libya
/2011/03/18/ABiClIs_story.html.
120. See, for example, Massimo Calabresi, “Susan Rice: A Voice for Intervention,”
Time, Mar. 24, 2011, http://content.time.com/time/magazine/article/0,9171,2061224,00
.html.
121. Helene Cooper and Steven Lee Myers, “Obama Takes Hard Line with Libya
after Shift by Clinton,” New York Times, Mar. 18, 2011, A1. For Clinton, the Arab
League’s call for UN enforcement of a no-fly zone “changed the diplomatic landscape.”
Elise Labott, “How Clinton Got behind the Military Coalition,” CNN, Mar. 20, 2011,
http://www.cnn.com/2011/US/03/19/us.libya.action/index.html.
194
Notes to Chapter Two
122. Barack Obama, “Address to the Nation on the Intervention in Libya,”
Washington, DC, Mar. 28, 2011, https://obamawhitehouse.archives.gov/the-press
-office/2011/03/28/remarks-president-address-nation-libya.
123. Barack Obama, “Letter from the President regarding the commencement of
operations in Libya,” Mar. 21, 2011, https://obamawhitehouse.archives.gov/the-press
-office/2011/03/21/letter-president-regarding-commencement-operations-libya. According to the Department of Justice’s Office of Legal Counsel and State Department
Legal Advisor Harold Koh, the president did not need congressional approval because
national security interests (the maintenance of UN credibility and the preservation of
regional stability) were at stake, and because the intervention did not rise to the threshold of a “war” for constitutional purposes. Vigeant, “Unforeseen Consequences,” 210.
124. Ryan Lizza, for example, wrote in the New Yorker of his interviews with current and former foreign policy advisors, who suggested that “the Administration’s policy
debates sometimes broke down along gender lines. The realists who view foreign policy
as a great chess game—and who want to focus on China and India—are usually men.
The idealists, who talk about democracy and human rights, are often women.” Ryan
Lizza, “The Consequentialist: How the Arab Spring Remade Obama’s Foreign Policy,”
New Yorker, May 2, 2011, 50. That women might be more focused on human rights and
democracy than on realpolitik, of course, is not inconsistent with their being hawks.
125. Maureen Dowd, “Fearful of Next Genocide, Women Lead U.S. to Libya,” Springfield News-Sun, Mar. 23, 2011, http://www.springfieldnewssun.com/news/lifestyles
/philosophy/maureen-dowd-fearful-of-next-genocide-women-lead-1/nMqF6/.
For some of the articles Dowd was likely referring to, see Jonathan Chait, “Obama’s
Female Hawks,” New Republic, Mar. 20, 2011, http://www.newrepublic.com/blog/
jonathan-chait/85503/obamas-female-hawks; Jacob Heilbrunn, “America’s Foreign
Policy Valkyries: Hillary Clinton, Samantha Power, and Susan Rice,” National Interest, Mar. 21, 2011, http://nationalinterest.org/blog/jacob-heilbrunn/americas-foreign
-policy-valkyries-hillary-clinton-samantha-p-5047.
126. Dowd, for example, stated in the same column discussed above: “As compelling as the gender split is, it’s even more interesting to look at the parallels between
Obama and W.,” noting that candidate Obama said about a possible strike on Iran, “The
president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to
the nation.” Dowd, “Fearful of Next Genocide.”
127. Initially, the security guards at the hotel encouraged al-Obeidi to claim that
rebel soldiers had raped her. For one account of al-Obeidi’s ongoing saga—from multiple arrests to life as a refugee, see Moni Basu, “A Symbol of Defiance in Ghadaffi’s Libya,
Eman Al-Obeidi Just Wants to Be Left Alone,” CNN, Apr. 9, 2012, http://www.cnn.com
/2012/04/08/us/colorado-libyan-rape-victim/.
128. Nicholas Kristof, “Is It Better to Save No One?,” New York Times, Apr. 2, 2011,
WK12, https://www.nytimes.com/2011/04/03/opinion/03kristof.html. For Kristof and
others, al-Obeidi provided a direct link by which to invoke fear of another Rwanda or
Darfur: “But just because we allowed Rwandans or Darfuris to be massacred, does it re-
Notes to Chapter Two
195
ally follow that to be consistent we should allow Libyans to be massacred as well? Isn’t it
better to inconsistently save some lives than to consistently save none?”
129. Ewen MacAskill, “Gaddafi ‘Supplies Troops with Viagra to Encourage Mass
Rape,’ Claims Diplomat,” The Guardian, Apr. 29, 2011.
130. “Rape Used ‘as a Weapon’ in Libya,” Al Jazeera, Mar. 28, 2011, http://www
.aljazeera.com/video/africa/2011/03/201132845516144204.html.
131. “Fuelled ‘by Viagra,’ Gaddafi Troops Use Rape as a Weapon of War with Children
as Young as Eight among the Victims,” Daily Mail, Apr. 25, 2011, http://www.dailymail
.co.uk/news/article-1380364/Libya-Gaddafis-troops-rape-children-young-eight.html.
132. “Gaddafi Forces Accused of Rape: Many Women in Libya Say They Have Been
Sexually Assaulted by Troops Loyal to the Libyan Leader,” Al Jazeera, May 3, 2011,
http://www.aljazeera.com/video/africa/2011/05/20115381016787271.html.
133. “ICC to Investigate Reports of Viagra-Fueled Gang-Rapes in Libya,” CNN,
May 17, 2011, http://edition.cnn.com/2011/WORLD/africa/05/17/libya.rapes.icc/index
.html.
134. The Obama administration maintained that no authorization was needed
because U.S. military involvement has remained below the level of “hostilities” since
NATO took over the operation in early April. See U.S. Senate, 112th Cong., 1st sess.,
Hearing 112–89, Libya and War Powers: Hearing before the Committee on Foreign Relations, 7–17 (statement of Harold H. Koh).
135. U.S. House of Representatives, 112th Cong., 1st sess., H. Res. 292, “Declaring
that the President Shall Not Deploy, Establish, or Maintain the Presence of Units and
Members of the United States Armed Forces on the Ground in Libya, and for Other
Purposes.” After approving Resolution 292, the House defeated (148–265) a second
resolution that insisted upon withdrawal of troops (H. Con. Res. 51).
136. U.S. Department of State and Department of Defense, United States Activities in Libya, June 15, 2011, http://www.nytimes.com/interactive/2011/06/16/us/politics
/20110616_POWERS_DOC.html.
137. The final report was published in January 2012. UN Human Rights Council,
Report of the International Commission of Inquiry to Investigate All Alleged Violations of
International Human Rights Law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44,
Jan. 12, 2012, para. 4.
138. Ibid., para. 205.
139. Ibid., paras. 202, 204–8.
140. Ibid., para. 202.
141. Moreno-Ocampo, quoted in Ed Pilkington, Xan Rice, Chris Stephen, and
Richard Norton-Taylor, “Gaddafi Faces New ICC Charges for Using Rape as Weapon
in Conflict,” The Guardian, June 8, 2011, http://www.theguardian.com/world/2011/
jun/08/gaddafi-forces-libya-britain-nato.
142. “Libya Rape Claims ‘Hysteria’ - Investigator,” Herald Sun, June 10, 2011, http://
www.heraldsun.com.au/news/news-story/d77dd324155a3a7361f8401a3506bb23.
143. Rovera, quoted in Karen Leigh, “Rape in Libya: The Crime That Dare Not Speak Its
Name,” Time, June 9, 2011, http://www.time.com/time/world/article/0,8599,2076775,00.html.
196
Notes to Chapter Two
Liesl Gerntholtz, executive director of the Women’s Rights Division of Human Rights
Watch, also stated in 2011 that the investigation conducted by Human Rights Watch
had “not been able to find evidence” of mass rape. Patrick Cockburn, “Amnesty Questions Claim That Gaddafi Ordered Rape as Weapon of War,” The Independent, June
23, 2011, http://www.independent.co.uk/news/world/africa/amnesty-questions
-claim-that-gaddafi-ordered-rape-as-weapon-of-war-2302037.html.
144. Wallström, quoted in Stephanie Nebehay, “Rape Used as Weapon of War in
Libya and Elsewhere: U.N.,” Reuters, June 10, 2011, http://www.reuters.com/article/us-un
-rape-idUSTRE75945020110610.
145. Ibid.
146. Secretary of State Hillary Clinton, “Sexual Violence in Libya, the Middle East
and North Africa,” press statement, Washington, DC, June 16, 2011, https://2009–2017
.state.gov/secretary/20092013clinton/rm/2011/06/166369.htm.
147. Ibid.
148. Jennifer Steinhauer, “House Spurns Obama on Libya, but Does Not Cut
Funds,” New York Times, June 24, 2011, A1. Steinhauer reports that the resolution authorizing the intervention was defeated 295–123; the resolution preventing the financing of U.S. military operations was defeated 238–180. Ibid.
149. Wueger, “Women under Siege.”
150. UN Human Rights Council, Report of the International Commission of Inquiry
on Libya (advance unedited version), Mar. 2, 2012, Annex I (full report), para. 518, available at https://reliefweb.int/sites/reliefweb.int/files/resources/A_HRC_19_68_en%20_1
_.pdf [hereinafter Full Report of Commission of Inquiry].
151. Ibid., paras. 70, 536. Human Rights Watch stated that although “the full extent
of sexual violence during the conflict remains unknown, due in part to the stigma surrounding rape in Libya and the dangers that survivors may face when they make crimes
public,” it “could not confirm claims of mass or systematic rape by Gaddafi forces.”
Human Rights Watch, “Libya: Transitional Government Should Support Victims,”
Sept. 19, 2011, https://www.hrw.org/news/2011/09/19/libya-transitional-government
-should-support-victims.
152. Full Report of Commission of Inquiry, para. 496.
153. Ibid., para. 535.
154. Leigh, “Rape in Libya,” quoting Sidney Kwiram.
155. Full Report of Commission of Inquiry, para. 522.
156. Wueger, “Women under Siege.”
157. Moreno-Ocampo, “Statement to the United Nations Security Council on the Situation in Libya, Pursuant to UNSCR 1970 (2011),” para. 14, available at http://www.iccnow
.org/documents/StatementICCProsecutorLibyaReporttoUNSC021113.pdf.
158. International Justice Desk, “ICC Wants to Tackle Taboo Topic of Rape in Libya,”
Apr. 23, 2012, http://www.rnw.nl/international-justice/article/icc-wants-tackle-taboo
-topic-rape-libya.
159. Ibid.
160. Ibid.
Notes to Chapters Two and Three
197
161. As of October 2019, the ICC has yet to secure custody of any individuals involved in the Libyan situation. ICC, “Situation in Libya,” https://www.icc-cpi.int/libya.
162. MacKinnon, “Women’s September 11th,” 273.
163. Ibid., 276.
164. Ibid.
165. Ibid. That said, she also noted that military intervention to protect women
would require that “protectionism, well understood by women around the world, would
have to be confronted” and that “resort to arms inflicts disproportionate casualties on
women and children.” In response to the latter, she countered that “so does the present
peace.” Ibid., 278.
166. See ibid., 273. If MacKinnon might have overstated then the extent to which
the “international community” accepted terrorism as a justification for use of force, she
might have understated the frequency with which humanitarian intervention has been
used, at least ostensibly, to “protect” women. Gayatri Spivak and others have shown how
colonialism was often defended as an attempt to save “brown women from brown men.”
Spivak, “Can the Subaltern Speak?” Deborah Weissman reminds us that the United
States has long justified military intervention—in Cuba, the Philippines, Hawaii—in
large part to “protect” women. Weissman, “The Human Rights Dilemma,” 268–70.
167. Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our
Families, 42, referencing a letter sent by seven Tutsi pastors to a Hutu pastor seeking
intervention on their behalf.
168. Cmiel, “The Emergence of Human Rights Politics in the United States,” 1250.
Chapter Three
1. Bassiouni, foreword to Hazan, Justice in a Time of War, xii. See also Hazan, Justice
in a Time of War, 16–19.
2. UN Security Council, Resolution 780, para. 2.
3. UN Secretary-General, Letter Dated 9 February 1993 from the Secretary-General Addressed to the President of the Security Council, Annex: Interim Report of
the Commission of Experts Established Pursuant to Security Council Resolution 780
(1992), UN Doc. S/25274, paras. 55–57 [hereinafter Interim Report]. The report also
noted, in the following section, that it would investigate allegations of “widespread and
systematic rape and other forms of sexual violence.” Ibid., para. 58. For discussion of
the significance of labeling the conflict “ethnic cleansing” as opposed to “genocide,” see
Chapter Two, pp. 52–54.
4. Ibid., para. 56. The final report arguably went further, saying that a court would
likely find that acts during one part of the conflict constituted genocide. UN SecretaryGeneral, Letter Dated 24 May 1994 from the Secretary-General to the President of the
Security Council, Annex: Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, para. 182.
5. Interim Report, para. 74. A subsequent resolution in February 1993 decided to
establish the tribunal and called on the UN Secretary-General to propose details for it
within sixty days. UN Security Council, Resolution 808.
198
Notes to Chapter Three
6. UN Security Council, Resolution 827. As I note in Chapter Two, Chapter VII of
the UN Charter provides for economic and other sanctions as well as the use of force
to “maintain or restore international peace and security.” It does not mention a court or
tribunal. This use of Chapter VII to establish the ICTY was unsuccessfully challenged
by the first accused to be tried by the tribunal. Prosecutor v. Tadić, Case No. IT-94-1,
Decision on the Defense Motion on Jurisdiction (ICTY Trial Chamber, Aug. 10, 1995).
7. UN Security Council, Resolution 827, para. 2.
8. Ibid., preambular para. 3.
9. Barkan, “As Old as War Itself,” 62.
10. See Chapter One, Section IV, for discussion of this trend, including growing
support for a permanent international criminal court. Some human rights groups had
already called for a criminal response. Helsinki Watch (by then a division of Human
Rights Watch), for example, had been urging the United States to push for a tribunal for
the former Yugoslavia since at least August 1992, while also advocating for a stronger
regime of sanctions. Though Helsinki Watch stopped short of making a recommendation on the use of military force—stating that the question “[is] not our province”—it
was unequivocal in its support for “a tribunal to investigate, prosecute, adjudicate and
punish war crimes.” Helsinki Watch, War Crimes in Bosnia-Hercegovina, 190.
11. Meron, “Rape as a Crime under International Humanitarian Law,” 425.
12. Ibid., 428.
13. As a part of the completion strategy for both tribunals, the International Residual Mechanism for Criminal Tribunals (MICT) has assumed the remaining duties of the
ICTY and the ICTR, including the last few trials and appeals. MICT, “About,” http://www
.irmct.org/en/about.
14. For but a few articulations of this rationale, see Kritz, “Coming to Terms with
Atrocities,” 128; Meron, “Answering for War Crimes,” 2–3, 6. See also Koskenniemi,
“Between Impunity and Show Trials,” 13, discussing an ICTY prosecutor’s claim that, as
Koskenniemi put it, “The (Serb) nation was not on trial, only an individual was.”
15. See Milanovic, “The Impact of the ICTY on the Former Yugoslavia,” using survey evidence to demonstrate that Serbs, Croats, and Bosnian Muslims all believe that
the ICTY is biased against their ethnicity.
16. See Chapter One, pp. 44–45, for discussion of this group and its composition.
17. Statute of the ICTY, art. 5(g). The statute does not mention “widespread or systematic,” but the tribunal read the requirement into it based on its interpretation of
customary international law. See, for example, Prosecutor v. Tadić, Case No. IT-94-1-A,
Judgement (ICTY Appeals Chamber, July 15, 1999), para. 248 [hereinafter Tadić (Appeals Chamber)].
18. Statute of the ICTY, arts. 5(a–f), 5(h–i).
19. The crimes against humanity definition can be found in Control Council Law
No. 10, which was adopted as a charter for these war crimes trials pursuant to the Moscow Declaration and the London Agreement, two sets of international documents organizing the governance of Germany after World War II and declaring a commitment
to prosecute members of the Nazi regime. Control Council Law No. 10: Punishment of
Notes to Chapter Three
199
Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 3 Official
Gazette Control Council for Germany 50–55, Dec. 20, 1945.
20. Meron specifically refers to Control Council Law No. 10 as the basis for the
treatment of rape as a crime against humanity in customary international law. Meron,
“Rape as a Crime under International Humanitarian Law,” 426–28. But Ní Aoláin contends that “the lesser status of the Council Laws left unresolved the status of rape as a
serious violation of the laws of war in its own right.” Ní Aoláin, “Radical Rules,” 891.
21. As a former president of the ICTY explained, “[The drafters] granted the Tribunal jurisdiction over a set of very broadly defined crimes, the specific content of which
was to be found in customary international law.” Fausto Pocar, “Introductory Note to the
Statute of the International Criminal Tribunal for the Former Yugoslavia,” http://legal
.un.org/avl/ha/icty/icty.html.
22. See, for example, Charlesworth and Chinkin, The Boundaries of International
Law, 334, expressing concern that the absence of rape in the list of war crimes might
create “the assumption that ‘lesser’ rapes may still be committed with impunity.” In
2016, two scholars referred to the same absence as a “deplorable gap.” Robinson and
MacNeil, “The Tribunals and the Renaissance of International Criminal Law,” 201.
23. Askin, “A Decade of the Development of Gender Crimes in International Courts
and Tribunals,” 16; Mertus, “When Adding Women Matters,” 1316; Robinson and
MacNeil, “The Tribunals and the Renaissance of International Criminal Law,” 201–2.
Recall from the Introduction that rape had long been treated by many as a war crime.
24. Copelon, “Gender Crimes as War Crimes,” 229.
25. Although “outrages upon personal dignity” and “humiliating and degrading
treatment” are absent from the statute, torture was listed as a grave breach. Especially
early on, charges of rape and sexual violence were in fact brought as grave breaches
under the statute—as “torture or inhuman treatment” or as “wilfully causing great suffering or serious injury to body or health.” Statute of the ICTY, arts. 2(b), 2(c). However,
because the statutory provision on grave breaches arguably applied only to international
conflicts, and because of disagreement about whether the conflict or certain aspects of it
were international, it did not clearly apply in all cases.
26. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (ICTY Appeals Chamber, Oct. 2, 1995),
para. 134, concluding that “customary international law imposes criminal liability for
serious violations of common Article 3.” Also see Prosecutor v. Mucić et al., Case No.
IT-96-21-T (ICTY Trial Chamber, Nov. 16, 1998), para. 452 [hereinafter Čelebići (Trial
Chamber)], stating that “there can be no doubt that torture is prohibited by both conventional and customary international law.” For one critique of Tadić, for “eroding the
distinction between international and internal armed conflict” without providing convincing evidence of the state practice required for customary international law, see Anghie and Chimni, “Third World Approaches to International Law,” 93.
27. Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T (ICTY Trial
Chamber, Feb. 22, 2001), paras. 406–8 [hereinafter Kunarac (Trial Chamber)].
28. Statute of the ICTY, art. 4, paras. 2(b), 2(c).
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Notes to Chapter Three
29. At least one decision did theorize the possibility, despite failing to convict
on those grounds. In a procedural ruling in Karadžić, the Appeals Chamber referred
to rape as a “quintessential” example of an underlying act of genocide. Prosecutor v.
Karadžić, Case No. IT-95-5/18-AR98bis.1, Judgement (ICTY Appeals Chamber, July
11, 2013), para. 33.
30. Franke, “Putting Sex to Work,” 1174. Franke observes that the OTP initially
charged sexual violence against women as rape, but sexual violence against men as
“other inhumane acts.”
31. Statute of the ICTY, arts. 5(f), (c), (i), and (h), respectively.
32. Goldstone, “The United Nations War Crimes Tribunals,” 231.
33. Briand and Swigart, “Interview with Richard J. Goldstone,” 17.
34. Goldstone, “Prosecuting Rape as a War Crime,” 280.
35. Ní Aoláin, “Radical Rules.”
36. Ibid., 892.
37. Briand and Swigart, “Interview with Gabrielle Kirk McDonald,” 8–9.
38. ICTY, Rules of Procedure and Evidence, Rule 96. For a history of the rule, see
Briand and Swigart, “Interview with Gabrielle Kirk McDonald,” 9–10.
39. ICTY, Rules of Procedure and Evidence, Rule 34(A)(ii).
40. Ibid., Rule 34(B). This provision, though viewed as a success, fell short of the
NGO call for staff who attend to sexual violence victims to be primarily women. Ní
Aoláin, “Radical Rules,” 894.
41. Of these 93 individuals, 6 were transferred to national courts. These percentages
are based on records of indictment and case outcomes found in Vigneswaran, “Annex B:
Charges and Outcomes in ICTY Cases Involving Sexual Violence.” The conviction numbers include any individual who received a sentence, whether through a conviction or
a guilty plea during trial or on appeal, unless the conviction was overturned on appeal.
Partly because the annex includes the cases that were transferred as well as all cases in
which there was evidence at trial of sexual violence, whether or not an accused was indicted for it, the numbers differ from the ICTY’s own numbers. See Jarvis, “Overview,” 4,
explaining that the annex includes those who “have faced charges relating to sexual violence crimes.” According to the ICTY, 78 individuals were charged, of whom 32 (or 41
percent) were convicted. ICTY, “Crimes of Sexual Violence: In Numbers,” http://www
.icty.org/en/features/crimes-sexual-violence/in-numbers.
42. The three cases with rape convictions were not the first to include charges
involving rape or sexual violence. In fact, Tadić, the first case tried by the tribunal,
and its first conviction not involving a guilty plea, initially included charges of rape.
Prosecutor v. Tadić, Case No. IT-94-1-T, Indictment (Amended) (ICTY Office of the
Prosecutor, Dec. 14, 1995), paras. 4–6. The rape charges were eventually dropped,
but Tadić was convicted of cruel treatment (a war crime), inhumane acts (crimes
against humanity), and inhuman treatment and wilfully causing great suffering (grave
breaches) for ordering one detainee to bite off the testicles of another. Prosecutor v.
Tadić, Case No. IT-94-1-T, Opinion and Judgment (ICTY Trial Chamber, May 7,
1997), paras. 722–30 [hereinafter Tadić (Trial Chamber)]. Over time, Tadić began to
Notes to Chapter Three
201
be referred to as a sexual violence case. The ICTY website, for example, lists it among
the “landmark” cases on sexual violence, under the heading “Duško Tadić: First-Ever
Trial for Sexual Violence against Men.” ICTY, “Landmark Cases,” http://www.icty.org
/en/features/crimes-sexual-violence/landmark-cases.
43. Three men—two Muslims (Hazim Delić and Zejnil Delalić) and one Croat
(Zdravko Mucić)—were tried for crimes of rape and other forms of sexual violence, but
one of the Muslims, Delalić, was acquitted.
44. Two other Bosnian Muslims were charged with war crimes based on acts of
sexual violence, but one died shortly after the charges were brought and the other was
acquitted of sexual violence charges. Prosecutor v. Hadžihasanović et al., Case No. IT01-47, Judgement (ICTY Trial Chamber, Mar. 15, 2006).
45. Prosecutor v. Furundžija, Case No. IT-95-17/1-T (ICTY Trial Chamber, Dec.
10, 1998), paras. 264–75 [hereinafter Furundžija (Trial Chamber)].
46. Kunarac (Trial Chamber), paras. 406–8.
47. Ibid., paras. 883–86.
48. Ibid., paras. 728–29, 742, 745, 749–51, 883–86. All three defendants were also
found guilty of a variety of war crimes, including rape (ibid., paras. 883–89). Kovač was
found guilty of the war crime of outrages upon personal dignity, for forcing a girl and a
young woman to dance naked on a table while he watched (ibid., paras. 9, 772–74, 782).
All convictions were upheld on appeal. Prosecutor v. Kunarac, Case No. IT-96-23 &
IT-96-23/1-A, Judgement (ICTY Appeals Chamber, Jun. 12, 2002), 125–27 [hereinafter
Kunarac (Appeals Chamber)].
49. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under
International Law,” 340.
50. Oosterveld, “Sexual Slavery and the International Criminal Court,” 647. For
more on the history of the Rome Statute’s treatment of sexual slavery, particularly in
light of early feminist debates over the term, see Chapter One, p. 47.
51. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under
International Law,” 340.
52. I have detailed the connection among a variety of the genocidal-rape arguments and the ICTY’s decision in Kunarac in Engle, “Feminism and Its (Dis)contents,”
798–803.
53. Rome Statute, arts. 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi). Although, as we see
throughout the book, feminists achieved many successes in terms of the ICC’s statute
and rules, particularly with regard to sexual violence, some feminists have criticized
the court’s operations for failing to follow through on those achievements. As Louise
Chappell puts it in her introduction to a book on the topic, “The ICC’s implementation
record in regard to gender justice has been partial and inconsistent.” Chappell, The Politics of Gender Justice at the International Criminal Court, 2.
54. Nearly 15.7 percent were brought against Croats, with 2.4 percent brought
against Bosnian Muslims and 7.2 percent against Kosovars. These numbers are calculated based on the record of indictments in Vigneswaran, “Annex B: Charges and Outcomes in ICTY Cases Involving Sexual Violence,” but exclude those cases for which
202
Notes to Chapter Three
Vigneswaran notes that “there was no explicit reference to sexual violence in the Indictment.” This pattern is roughly consistent with the distribution of indictments at the
tribunal more generally, where 67.7 percent of those indicted were Serb, 20.5 percent
Croat, 4.3 percent Bosnian Muslim, and 7.5 percent Kosovar. Ford, “Fairness and Politics at the ICTY,” 68–69.
55. Indeed, two of the earliest indictments of the tribunal, brought in 1995 against
Radovan Karadžić and Ratko Mladić, included such charges. Prosecutor v. Karadžić and
Mladić, Case No. IT-95-5-I, Initial Indictment, “Bosnia and Herzegovina” (ICTY Office
of the Prosecutor, July 24, 1995), para. 19. Bosnian Muslim plaintiffs also brought civil
claims in the United States against Karadžić for rape as genocide under the U.S. Alien Tort
Claims Act and won default judgments. Kadic v. Karadžić, 70 F.3d 232, 242 (2d Cir. 1995).
56. Prosecutor v. Prlić, Case No. IT-04-74-T, Second Amended Indictment (ICTY
Office of the Prosecutor, June 11, 2008).
57. Statute of the ICTY, art. 5(h).
58. The Tadić indictment, which had come much earlier, also included a charge of
persecution that included sexual assaults. Tadić was eventually convicted of persecution, but because the prosecutor presented insufficient evidence of sexual assault, the
conviction was not on the basis of the sexual assault. Tadić (Trial Chamber), paras. 38,
40, 427, 714–18.
59. Under the test set forth in Čelebići, it was permissible to enter cumulative convictions under different statutory provisions only if “each statutory provision involved
has a materially distinct element not contained in the other. An element is materially
distinct from another if it requires proof of a fact not required by the other.” Prosecutor v. Mucić et al., Case No. IT-96-21-A (ICTY Appeals Chamber, Feb. 20, 2001), para.
412. The tribunal also found, however, that convictions for acts charged as both crimes
against humanity and war crimes were permissible. Prosecutor v. Kvočka et al., Case
No. IT-98-30/1, Judgement (ICTY Trial Chamber, Nov. 2, 2001), para. 219 [hereinafter
Kvočka (Trial Chamber)].
60. Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgement (ICTY Trial Chamber, Jan. 14, 2000), para. 636. The chamber further explained that persecution and genocide are both “crimes perpetrated against persons that belong to a particular group and
who are targeted because of such belonging.”
61. Although findings of discriminatory intent were instrumental in convictions
of rape as a crime against humanity, the tribunal decided early on that while “crimes
against humanity as a matter of fact usually are committed on discriminatory grounds,”
the intent to discriminate on racial, religious, or political grounds is required only for
persecution. Tadić (Appeals Chamber), paras. 297, 305.
62. Prosecutor v. Brđanin, Case No. IT-99-36-T, Judgement (ICTY Trial Chamber,
Sept. 1, 2004), para. 523 [hereinafter Brđanin (Trial Chamber)]. The Trial Chamber
made this and a similar finding that rapes were “aimed at discriminating against the
women because they were Muslim” part of its consideration of torture charges, and then
referred back to them when deciding that the rapes constituted persecution. Ibid., paras.
518, 1010.
Notes to Chapter Three
203
63. Ibid., paras. 996–97.
64. Ibid., paras. 1011, 1013.
65. Ibid., para. 1011.
66. Ibid.
67. Baig et al., “Contextualizing Sexual Violence,” 200.
68. Ibid., 201.
69. International Women’s Human Rights Clinic of CUNY Law School, “Gender
Justice and the Constitution of the War Crimes Tribunal Pursuant to Security Council
Resolution 808,” Appendix B in Green et al., “Affecting the Rules for the Prosecution
of Rape and Other Gender-Based Violence,” 236–37. See also Green et al., “Affecting
the Rules for the Prosecution of Rape and Other Gender-Based Violence,” 189, citing
Copelon, “Surfacing Gender.”
70. Rome Statute, art. 7(1)(h) (emphasis added). That success was limited, however,
by one of the few battles feminists lost; the statute defines gender narrowly, as meaning
“the two sexes, male and female, within the context of society.” Rome Statute, art. 7(3).
On the importance of the addition of gender to this list, see Halley, “Rape at Rome,”
108–9. Halley notes that this definition of gender is “the only statutory fly in the ointment” for the feminists’ success in adding gender to the bases of persecution. Halley,
“Rape at Rome,” 109.
71. Kunarac (Appeals Chamber), para. 142.
72. Ibid., paras. 150–51. The Trial Chamber in Čelebići had arguably made a similar
finding, noting that “it is difficult to envisage circumstances in which rape, by, or at
the instigation of a public official, or with the consent or acquiescence of an official,
could be considered as occurring for a purpose that does not, in some way, involve
punishment, coercion, discrimination or intimidation. . . . This is inherent in situations
of armed conflict.” Čelebići (Trial Chamber), para. 495.
73. Brđanin (Trial Chamber), para. 485.
74. Kvočka (Trial Chamber), para. 561. See also Prosecutor v. Simić, Tadić, and
Zarić, Case No. IT-95-9/2-T, Judgement (ICTY Trial Chamber, Oct. 17, 2003), para
772.
75. Prosecutor v. Stakić, Case No. IT-97-24-T, Judgement (ICTY Trial Chamber,
Jul. 31, 2003), para. 803 [hereinafter Stakić (Trial Chamber)]. The Brđanin Trial Chamber agreed with this statement. Brđanin (Trial Chamber), para. 1009. In Stakić, the Trial
Chamber used the statement in part to explain why a victim could not have been expected to be a “calm and detached witness.” Stakić (Trial Chamber), para. 804.
76. UN Commission on Human Rights, Report on the Situation of Human Rights
in the Territory of the Former Yugoslavia Submitted by Tadeusz Mazowiecki: Special Rapporteur of the Commission on Human Rights, UN Doc. E/CN.4/1993/50, Feb. 10, 1993,
para. 85.
77. See Additional Protocol II, Part II, art. 4(e).
78. Furundžija (Trial Chamber), paras. 272, 279. The ICTY also handed down convictions for rape and sexual violence as outrages upon personal dignity as a war crime in
Kunarac. Kunarac (Trial Chamber), para. 773. For discussion of outrages upon personal
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Notes to Chapter Three
dignity, which were generally used to charge sexual violence other than rape, see de
Brouwer, Supranational Criminal Prosecution of Sexual Violence, 213–14. According to
Anne-Marie de Brouwer, these cases make “clear that such conduct as rape, including
forced fellatio, threats of sexual mutilation, forced public nudity and sexual exploitation,
in particular the sale of women for purposes of sex, are all examples of conduct that
amounts to ‘outrages upon personal dignity.’” Ibid., 214.
79. Prosecutor v. Češić, Case No. IT-95-10/1-S, Sentencing Judgement (ICTY Trial
Chamber, Mar. 11, 2004), paras. 14, 52.
80. Ibid., para. 53.
81. Ibid.
82. Ibid., paras. 35, 52, 53.
83. Čelebići (Trial Chamber), para. 486, citing Case 10.970, Inter-American Commission on Human Rights 186 (1996).
84. The tribunal later emphasized that psychological pain can constitute torture and
noted that this suffering may be “exacerbated by social and cultural conditions,” in a seeming reference back to the Inter-American Commission decision. See ibid., paras. 494–95.
85. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-S, Sentencing Judgment,
Annex: Summary (ICTY Trial Chamber, Dec. 18, 2003), pg. X, para. 54.
86. Prosecutor v. Dragan Nikolić, Case No. IT-94-2-S, Sentencing Judgment (ICTY
Trial Chamber, Dec. 18, 2003), para. 203.
87. Ginn, “Ensuring the Effective Prosecution of Sexually Violent Crimes in the
Bosnian War Crimes Chamber,” 580–81.
88. Henry, “Witness to Rape,” 121. Both Henry and Ginn (see previous note) rely
on a study by Wendy Lobwein showing that 18 percent of the witnesses who testified before the ICTY between 1996 and 2006 were women. Ginn, “Applying Lessons from the
ICTY,” 579; Henry, “Witness to Rape,” 120. The data in that study, however, do not distinguish women testifying about sexual violence charges from women testifying about
other crimes. Henry’s and Ginn’s analyses thus miss that some of these women testified
about other crimes or as expert witnesses. See Lobwein, “Experiences of the Victims and
Witnesses Section at the I.C.T.Y.,” 199.
89. Mezey, “Rape in War,” 585.
90. See generally ibid.
91. Ibid.
92. It is estimated that Serbian forces killed seven thousand men in the massacre.
David Rohde, “In Bosnia, World Leaders Apologize for Massacre,” New York Times, July
12, 2005, A6.
93. Ní Aoláin, “Sex-Based Violence and the Holocaust,” 45.
94. Viseur Sellers, “Individual(s’) Liability for Collective Sexual Violence,” 160. For
discussion of the original version and early amendment history of Rule 96, see Viseur
Sellers and Okuizumi, “Intentional Prosecution of Sexual Assaults,” 52–53.
95. The second version added a clause (retained in the final version) describing criteria for admission of evidence of consent. See ICTY, Rules of Procedure and Evidence,
Rule 96 (iii).
Notes to Chapter Three
205
96. Kunarac (Appeals Chamber), para. 132. At one point, the Appeals Chamber
analogized the situation of Bosnian Muslim women to that of prison inmates, favorably
referencing U.S. laws that criminalize all sexual relationships between prison guards
and inmates, making consent legally impossible. Ibid., para. 131. For a specific critique
of this analogy and for the inference of lack of consent in Kunarac more generally, see
Halley et al., “From the International to the Local in Feminist Legal Responses,” 380.
97. Kunarac (Appeals Chamber), paras. 129–33, upholding a similar ruling by the
Trial Chamber.
98. Ibid., para. 108 (Kovac’s claim).
99. Ibid., para. 255 (Kunarac’s claim).
100. Ibid., para. 263.
101. Ibid., para. 255.
102. Kunarac (Trial Chamber), paras. 270, 271, 293. The prosecution, defense, and
Trial Chamber all recognized that Witness 191, one of the Foča rape victims, married
a Serbian soldier during the war. Prosecutor v. Kunarac, Case Nos. IT-96-23-T and
IT-96-23/1-T, Transcript (ICTY Trial Chamber, Nov. 22, 2000), 6497 (defense closing
argument); ibid., 6277 (Nov. 20, 2000) (prosecution closing argument). Witness 191
explained that this Serbian soldier had rescued her from her rapists and “didn’t see [her]
just as a Muslim but as a human being.” Ibid., 6273–74 (Nov. 20, 2000) (prosecution
closing argument, quoting Witness 191’s testimony).
103. Kunarac (Appeals Chamber), para. 218.
104. Kvočka (Trial Chamber), para. 327.
105. Ibid.
106. Kunarac (Appeals Chamber), para. 130.
107. Ibid., para. 57.
108. Ibid.
109. Ibid., para. 59.
110. See, for example, Kvočka (Trial Chamber), para. 125; Stakić (Trial Chamber),
para. 569; Brđanin (Trial Chamber), para. 123.
111. Largely as a result of feminist advocacy, the ICC Rules of Procedure and Evidence reflect the approach to consent taken by the judgments of the ICTY as well as
similar ones by the ICTR. According to Halley, the ICC Elements of Crimes go even
further, arguably—and contradictorily—redefining the substantive crime of rape “to
include a positive duty to obtain meaningful consent.” Halley, “Rape at Rome,” 119. In
Bemba, the ICC continued with the contradiction, both by stating that “lack of consent
is not a legal element of the crime of rape” and by requiring the prosecution to prove
“force, threat of force, or coercive environment.” Prosecutor v. Bemba, Case No. ICC01/05-01/08-3343, Judgment pursuant to Article 74 of the Statute (ICC Trial Chamber,
Mar. 21, 2016), paras. 105–6. Although Bemba’s conviction was ultimately reversed, neither the appeals judgment nor any of the separate or dissenting opinions challenged the
treatment of consent in the case.
112. In describing a similar view by world leaders, to which she attributed their reluctance to intervene in the conflict, Seada Vranić explains, “They resorted to the fiction
206
Notes to Chapter Three
of a civil war, reviving the old myth of the atavistic need of the people of Bosnia to ritually engage, over time, in mutual bloodlettings. But if they ignored the historical facts,
it is strange indeed that they ignored a very recent fact—ethnically mixed marriages
constitute almost a third of all marriages in Bosnia. That this would be true in an ‘ambience of centuries of ethnic hatred’ did not tell them anything.” Vranić, introduction to
Breaking the Wall of Silence, 25. See also Sells, The Bridge Betrayed, 11.
113. Bringa, Being Muslim the Bosnian Way, 151, wrote shortly after the war that
although it was difficult to document, “it has been suggested that 27 percent of all marriages in Bosnia-Herzegovina before the war were between people of different nacije.”
For a nuanced and insightful ethnographic account of shared festivities in a Bosnian
pastoral community before and after the war, see HadžiMuhamedović, Waiting for
Elijah.
114. Although nacija and nacionalnost are loosely translatable as “nation” and “ethnicity,” in the Yugoslav socialist federal nomenclature, the former came to mean membership in a state “constitutive” group.
115. Thanks to Vanja Hamzić for helpful explanations of these terms and their
usage. For his discussion of the impact of law—including international law—on “postwar imaginings of Bosnianness,” see Hamzić, “Ethnicity and International Law,” 492–93.
For ethnographic accounts, see generally Burić, “Dwelling on the Ruins of Socialist Yugoslavia”; Jansen, Yearnings in the Meantime.
116. For Michael Sells, the prewar understanding of what it is to be Bosnian was to
be “any resident of Bosnia-Herzegovina who seeks a nation based not on exclusive religious affiliation but on constitutional rule and respect for differing religions.” Sells, The
Bridge Betrayed, 8. For discussion of the long history of Bosnian heterogeneous religious
movements and practices—from an autochthonous church deemed “heretical” by both
Rome and Constantinople to the cosmologically pluralist Bosnian Sufi circles—that
produced an array of complex narratives that predated and often transgressed the nineteenth- and twentieth-century religious delineations, see Fine, The Bosnian Church, 8.
117. In Čelebići, for example, the Trial Chamber noted that “accounts demonstrate
that, prior to the build-up to the conflict, these groups had generally friendly relations
and extensive interaction, including substantial inter-marriage.” Čelebići (Trial Chamber), para. 99. See also Stakić (Trial Chamber), para. 24; Kvočka (Trial Chamber), para.
9; Tadić (Trial Chamber), para. 64.
118. Tadić (Trial Chamber), para. 64.
119. Kvočka (Trial Chamber), para. 9.
120. Gutman, A Witness to Genocide, 65.
121. Briand and Swigart, “Interview with Patricia Viseur Sellers,” conducted when
she was the ICTY’s Legal Advisor for Gender Related Crimes.
122. Robinson, “The Identity Crisis of International Criminal Law,” 941, quoting Douglas Husak, Philosophy of Criminal Law (Totowa, NJ: Rowman and Littlefield,
1987), 138.
123. MacKinnon, “Rape, Genocide, and Women’s Human Rights,” 183.
124. Indeed, into the late 1990s, Plavšić received a great deal of support from
Notes to Chapters Three and Four
207
NATO countries, including the United States, partly because she was seen as the most
likely leader to enforce the terms of the Dayton peace agreement. See Elizabeth Rubin,
“The Enemy of Our Enemy,” New York Times, Sept. 14, 1997, https://www.nytimes
.com/1997/09/14/magazine/the-enemy-of-our-enemy.html.
125. Plavšić was initially charged with two counts of genocide, five counts of crimes
against humanity, and one count of violating the laws of war. Prosecutor v. Plavšić, Case
No. IT-00-39 & 40/1-S, Sentencing Judgement (ICTY Trial Chamber, Feb. 27, 2003),
para. 5.
126. Viseur Sellers and Nwoye, “Conflict-Related Male Sexual Violence and the International Criminal Jurisprudence,” 213–14, discussing ICTY, Rules of Procedure and
Evidence, Rule 96 (ii)(b). The change was made in Rev. 3 (May 3, 1995).
127. Ibid., 214.
128. Campbell, “The Gender of Transitional Justice,” 422, discussing cases as of
2007. For a 2018 discussion of 17 individuals convicted in 14 cases involving what Viseur Sellers and Nwoye label as “conflict-related male sexual violence,” see “ConflictRelated Male Sexual Violence and the International Criminal Jurisprudence.”
129. Oosterveld, “Sexual Violence Directed against Men and Boys in Armed Conflict or Mass Atrocity,” 110–12.
130. MacKinnon, “Oncale v. Sundowner Offshore Services, Inc.,” 19–20. For discussion of the brief, see Halley, Split Decisions, 54–57. In the early 2000s, MacKinnon
specifically mentioned men as potential targets of sexual abuse in genocide, if parenthetically, and as part of an argument that foregrounded sexual abuse against women as
a group. MacKinnon, “Genocide’s Sexuality,” 226, quoted in p. 188n38.
131. See Chapter Five, pp. 135–36.
132. Foreign and Commonwealth Office, “Don’t believe the thumbnail, this video
is the stuff of nightmares,” June 2, 2014, https://youtu.be/1QFUD2Q6D8k. See p. 11.
Chapter Four
Many thanks to Annelies Lottman for working with me to develop some of the ideas
in this chapter in Engle and Lottman, “The Force of Shame,” in Rethinking Rape Law:
International and Comparative Perspectives, ed. Clare McGlynn and Vanessa E. Munro,
76–91. London: Routledge-Cavendish, 2010.
1. UN Security Council, Resolution 955, para. 1.
2. Only one country, China, abstained. The Rwandan government also voted
against the resolution because of its temporal jurisdiction, its arrangement by which the
ICTY and ICTR would share the same Appeals Chamber and Office of the Prosecutor,
and its inclusion of violations of common Article 3 and Additional Protocol II of the
Geneva Conventions. Cisse, “The International Tribunals for the Former Yugoslavia and
Rwanda,” 108.
3. See UN Commission on Human Rights, Report on the Situation of Human Rights
in Rwanda, UN Doc. E/CN.4/1995/7, June 28, 1994; UN Commission on Human
Rights, Report on the Situation of Human Rights in Rwanda, UN Doc. E/CN.4/1995/70,
Nov. 11, 1994; UN Commission on Human Rights, Report on the Situation of Human
208
Notes to Chapter Four
Rights in Rwanda, UN Doc. E/CN.4/1995/71, Jan. 17, 1995; UN Security Council, Letter Dated 1 October 1994 from the Secretary-General Addressed to the President of
the Security Council Established in Accordance with Security Council Resolution 935
(1994), Annex: Preliminary Report of the Independent Commission of Experts, UN
Doc. S/1994/1125, Oct. 4, 1994. Though the preliminary report did recite Article 4 of
Additional Protocol II and therefore included the word “rape,” there was no sense that it
applied to the issue at hand. Ibid., para. 97.
4. Statute of the ICTR, art. 3(g).
5. This article served to provide an explicit basis for trying crimes committed in a
non-international conflict, avoiding some debates that arose in the ICTY about whether
the conflict was international and, if not, whether certain crimes were prohibited by the
statute.
6. Statute of the ICTR, art. 4(e) (emphasis added). Recall from Chapter Three, pp.
84 and 199n26, that while the drafters of the ICTY statute did not explicitly include
common Article 3, the tribunal found that serious violations of the provision constituted customary international law and therefore applied.
7. Although a number of accused were charged with the war crime of outrages
upon personal dignity, I do not analyze the treatment of those charges. Rather, my focus
in this chapter is the tribunal’s treatment of rape and sexual violence in its landmark
finding that such acts can constitute genocide.
8. Halley, “Rape at Rome,” 102–3. See Rome Statute, arts. 8(2)(b)(xxi), 8(2)(b)(xxii).
See also Copelon, “Gender Crimes as War Crimes,” 234. The same language as in the
ICTR statute appears again in the statute for the 2002 Special Court for Sierra Leone,
even though it was drafted after the Rome Statute. Statute of the Special Court for Sierra
Leone, art. 3(e).
9. For discussion of ICTY convictions under similar language that was read into the
ICTY statute, see Chapter Three, pp. 91–92.
10. As in other chapters, I follow Silvan Tomkins’s classic treatment of shame
and humiliation as “one and the same affect.” See Tomkins, “Shame-Humiliation and
Contempt-Disgust.”
11. ICTR prosecutors attempted to pursue indictments against commanders of
the Rwandan Patriotic Front, but their efforts were thwarted by the Rwandan government. Miller, “Anti-Impunity Politics in Post-Genocide Rwanda,” 166; Judi Rever,
“What Remains Hidden in Rwanda: The Role of Tutsi Civilians in Killing Hutus,” Foreign Policy Journal, June 3, 2016, http://www.foreignpolicyjournal.com/2016/06/03/
what-remains-hidden-in-rwanda-the-role-of-tutsi-civilians-in-killing-hutus/.
12. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement (ICTR Trial Chamber, Sept. 2, 1998), paras. 686–97, 731–34 [hereinafter Akayesu (Trial Chamber)].
13. As discussed in Chapter Three, however, the ICTY had, more than a year earlier, convicted Duško Tadić of war crimes, grave breaches, and a crime against humanity
for sexual violence committed against men. See Chapter Three, p. 200n42.
14. The Trial Chamber found that Akayesu had aided and abetted acts of rape and
sexual violence, and that his presence, attitude, and utterances constituted tacit encour-
Notes to Chapter Four
209
agement of the sexual violence carried out by those under his command. Akayesu (Trial
Chamber), paras. 706–7. The tribunal rejected the argument, however, that Akayesu was
liable under the theory of command responsibility, finding that it had not clearly been
charged in the indictment. Ibid., para. 691.
15. Viseur Sellers, “‘Tokyoisation’ of the ICTR’s Gender Jurisprudence,” 42.
16. While the ICTY indicted 78 individuals for crimes involving sexual violence
out of 161 total defendants, resulting in an indictment rate similar to that of the ICTR, it
convicted 32 individuals, or just over 40 percent. In contrast, the ICTR’s conviction rates
are around 23 percent. ICTR, “Crimes of Sexual Violence in Numbers,” http://www.icty
.org/en/features/crimes-sexual-violence/in-numbers.
17. The numbers in this paragraph can be confirmed by an annex in an ICTR manual on the prosecution of sexual violence. ICTR, Prosecution of Sexual Violence, Annex
B. Thanks to Maddy Dwertman and Kyle Shen for an earlier compilation upon which I
also relied.
18. UN Security Council, Letter Dated 9 December 1994 from the SecretaryGeneral Addressed to the President of the Security Council, Annex: Final Report of
the Commission of Experts Established Pursuant to Security Council Resolution 935
(1994), UN Doc. S/1994/1405, Dec. 9, 1994, para. 136 [hereinafter Final Report], citing
African Rights, Rwanda: Death, Despair and Defiance.
19. African Rights, Rwanda: Death, Despair and Defiance, 410–49. I refer here to
the September 1994 edition. A 1,201–page second edition was published in 1995, with
relevant discussion on pp. 748–97. While the Final Report of The Commission of Experts mentions African Rights as one of the NGOs it consulted, the group was not
mentioned in a similar list in the Preliminary Report. Contrast Final Report, para. 38,
with para. 34 of the Preliminary Report (UN Security Council, Letter Dated 1 October
1994 from the Secretary-General Addressed to the President of the Security Council,
Annex: Preliminary Report of the Independent Commission of Experts Established in
Accordance with Security Council Resolution 935 (1994), UN Doc. S/1994/1125, Oct.
4, 1994).
20. African Rights, Rwanda: Death, Despair and Defiance, 410.
21. Ibid. It went on to state, “Tutsi women who are pregnant on account of rape
will bear children who are the off-spring of the men who are responsible for terrible
crimes against their community.” It did not explicitly connect either basis to the Genocide Convention.
22. Final Report, paras. 144, 145, quoting UN Security Council, The Situation of
Human Rights in the Territory of the Former Yugoslavia, Annex: Report on the Situation of Human Rights in the Territory of the Former Yugoslavia Submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, UN Doc.
S/25341, Feb. 26, 1993, para. 85.
23. Ibid., para. 145.
24. Ibid.
25. Van Schaack, “Engendering Genocide,” 8–9, also recounts that in early August
1996, the coalition wrote a letter to the chief prosecutor at the time, Richard Goldstone,
210
Notes to Chapter Four
encouraging him to investigate and include sexual violence crimes in the Rwandan
prosecutions. Human Rights Watch also issued a report in 1996 after Akayesu’s indictment but before his trial that, among other things, documented the failure of prosecutorial staff to investigate rape seriously. Nowrojee, Shattered Lives, 54–56.
26. A number of scholars have told the story of how rape became a part of the
ICTR’s proceeding in Akayesu. For the most part I follow the account of Van Schaack,
“Engendering Genocide.”
27. Van Schaack, “Engendering Genocide,” 199n10.
28. Akayesu (Trial Chamber), para. 416.
29. Van Schaack, “Engendering Genocide,” 200. Van Schaack notes that although
many accounts of the trial credit Pillay with bringing the issue to the fore, the transcript
shows that while each judge engaged in questioning, the lawyers for the prosecution and
defense remained largely silent on the issue.
30. As I noted in Chapter Two, p. 188n34, both Copelon and MacKinnon represented plaintiffs in separate actions against Karadžić, which were eventually combined
on appeal.
31. Copelon, “Gender Crimes as War Crimes,” 225. Recently graduated law school
students in Canada organized the Working Group on Engendering the Rwanda Tribunal. For the full list of organizations that signed the brief, see Coalition on Women’s
Human Rights in Conflict Situations, Amicus Brief Respecting Amendment of the Indictment and Supplementation of the Evidence to Ensure the Prosecution of Rape and Other
Sexual Violence within the Competence of the Tribunal, 11–13 [hereinafter Amicus Brief].
32. Amicus Brief, para. 38, citing UN World Conference on Human Rights, Vienna
Declaration and Programme of Action, paras. 18, 38.
33. Ibid., paras. 22–40. The brief argued that in addition to rape, other forms of
sexual violence, such as genital mutilation and forced public nudity, constituted torture,
cruel treatment, and an “outrage to the personal dignity of women,” in violation of the
ICTR statute. Ibid., para. 39.
34. Prosecutor v. Akayesu, Case No. ICTR-96-4-I, Amended Indictment (ICTR Office of the Prosecutor, June 17, 1997), Count 15, cited in Van Schaack, “Engendering
Genocide,” 204–5.
35. Van Schaack references an e-mail message from Patricia Viseur Sellers indicating that amending the genocide counts was unnecessary because the definition of
genocide covered the new evidence of sexual violence. Van Schaack, “Engendering
Genocide,” 205n28.
36. See, for example, Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe,
Case No. ICTR-99-46-T, Judgement and Sentence (ICTR Trial Chamber, Feb. 25,
2004); Prosecutor v. Lukić, Case No. IT-93-32/1-PT, Prosecutor’s Motion Seeking
Leave to Amend Second Amended Complaint (ICTY Office of the Prosecutor, June
16, 2008); Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Sentence pursuant to Article 76 of the Statute (ICC Trial Chamber, July 10, 2012), paras.
64–75.
37. Akayesu (Trial Chamber), para. 417.
Notes to Chapter Four
211
38. Ibid., section 8 (Verdict).
39. Ibid., para. 691.
40. Ibid., paras. 692–93. The Trial Chamber found Akayesu not guilty of the violations of common Article 3 and Additional Protocol II because it found that the prosecution had failed to establish that Akayesu had the requisite military capacity to connect
his acts of sexual violence to armed conflict. Ibid., paras. 641–43. Although the ICTY
had required that same nexus for crimes against humanity, the ICTR did not. Compare
Statute of the ICTR, art. 3, with Statute of the ICTY, art. 5. Subsequent international
and hybrid criminal statutes, including the ICC statute, have followed the ICTR statute
on this point. See Rome Statute, art. 7; Law on the Establishment of the Extraordinary
Chambers in the Courts of Cambodia, art. 5; Statute of the Special Court for Sierra
Leone, art. 2; UN Transitional Administration in East Timor, Regulation No. 2000/15,
On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses, section 5.
41. Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement (ICTR Appeals
Chamber, June 1, 2001), Annex B.
42. Convention on the Prevention and Punishment of the Crime of Genocide, art.
II. The same language is included in the Statute of the ICTR, art. 2(2).
43. Amicus Brief, para. 19.
44. See Chapter Two, pp. 63–64.
45. Amicus Brief, para. 42.
46. Ibid., para. 43, quoting Final Report, para. 145. The brief ’s call for consideration
of genocide charges referenced only Article 2(2)(b), (c), and (d), leaving out 2(2)(a).
47. Ibid. The final report had endorsed the analysis of the parallel commission for
the former Yugoslavia, which used that language. Final Report, paras. 144–46.
48. Nowrojee, Shattered Lives, 2. The report was written on behalf of Human Rights
Watch/Africa, the Human Rights Watch Women’s Rights Project, and the Fédération
Internationale des ligues de Droit de l’Homme.
49. Ibid., 2–3.
50. Ibid., 3.
51. Akayesu (Trial Chamber), para. 731.
52. Ibid., para. 732.
53. Ibid.
54. See Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (ICTR
Trial Chamber, June 17, 2004), paras. 222, 228, finding that a Hutu woman was raped as
a means of targeting her husband, a Tutsi man, as part of a widespread and systematic
attack on Tutsi civilians; Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, Judgement
and Sentence (ICTR Trial Chamber, Apr. 28, 2005), paras. 284–92, finding that a Hutu
woman was raped because she had been mistaken as Tutsi. For further discussion of this
aspect of these cases, see Buss, “The Curious Visibility of Wartime Rape,” 14–15; Buss,
“Rethinking ‘Rape as a Weapon of War,’” 150.
55. Akayesu (Trial Chamber), para. 731.
56. Ibid.
212
Notes to Chapter Four
57. Ibid., para. 734.
58. Ibid., para. 731.
59. Ibid., paras. 731–32.
60. Copelon, “Gender Crimes as War Crimes,” 227.
61. Ibid.
62. Ibid., 228.
63. Akayesu (Trial Chamber), para. 507.
64. Copelon, “Gender Crimes as War Crimes,” 228.
65. Charlesworth, “Feminist Methods in International Law,” 387.
66. Ibid.
67. Ibid., 386–87. Charlesworth argued that international humanitarian law, at least
before the onset of modern international criminal tribunals, “treats rape and sexual assault as an attack on (the warrior’s) honor or on the sanctity of motherhood,” using as
examples Geneva IV (Article 27) and Additional Protocol I. For discussion of critiques
of honor-based conceptions of rape by Charlesworth and others, see Halley, “Rape at
Rome,” 57–58.
68. For Buss’s (re)reading, see “Learning Our Lessons?,” 68–72. See also Buss, “Rethinking ‘Rape as a Weapon of War,’” 152–55. Bianchi follows Buss’s analysis and extends it to additional cases.
69. While both Bianchi and Buss read the ICTR’s record as documenting rape as
widespread and genocidal, Buss also points to the limitations imposed by trial settings
and how a focus on individual criminal responsibility elides broader questions of why
certain individuals commit rape and why some women are at greater risk or more visible as victims than others. Buss, “Learning Our Lessons?,” 72.
70. See, for example, Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-951-T, Judgement (ICTR Trial Chamber, May 21, 1999), paras. 95, 108.
71. Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement and Sentence (ICTR
Trial Chamber, Jan. 27, 2000), paras. 931–36 [hereinafter Musema (Trial Chamber)].
72. Ibid., paras. 908, 933. Note that while the Statute of the ICTR, art. 2(2)(b) uses
the language of “serious bodily or mental harm” (emphasis added), the Trial Chamber in
Musema referred to “serious bodily and mental harm” (emphasis added), except when
expressly quoting the statute.
73. Musema (Trial Chamber), para. 933.
74. Ibid.
75. Ibid. Musema was convicted of rape both as a crime against humanity and as
genocide. His conviction for genocide was upheld on appeal, but, given new testimony,
was no longer based on rape. The Appeals Chamber did not, however, challenge the reasoning of the Trial Chamber on the issue of whether and how rape and sexual violence
might constitute genocide. Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement
(ICTR Appeals Chamber, Nov. 16, 2001), paras. 165–71.
76. Prosecutor v. Karemera et al., Case No. ICTR-98–44–T, Judgement and Sentence (ICTR Trial Chamber, Feb. 2, 2012), para. 1667.
77. Ibid.
Notes to Chapter Four
213
78. Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement and
Sentence, (ICTR Trial Chamber, June 24, 2011), paras. 5828–36.
79. Ibid., para. 5873. See also Prosecutor v. Niyitgeka, Case No. ICTR-96-14-T,
Judgement and Sentence (ICTR Trial Chamber, May 16, 2003), para. 416.
80. Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (ICTR Trial
Chamber, June 17, 2004), para. 258.
81. Ibid., para. 292.
82. Ibid., para. 222.
83. Buss, “Rethinking ‘Rape as a Weapon of War,’” 155, 159. For her extended discussion of Gacumbitsi, see Buss, “The Curious Visibility of Wartime Rape,” 13–17.
84. Oosterveld, “Atrocity Crimes Litigation Year-in-Review,” 352. See also EboeOsuji, International Law and Sexual Violence in Armed Conflicts.
85. Prosecutor v. Rukundo, Case No. ICTR-2001-70-T, Judgement (ICTR Trial
Chamber, Feb. 27, 2009), para. 373.
86. Ibid., para. 386, quoting Akayesu (Trial Chamber), para. 731.
87. Ibid., citing Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Judgement
(ICTR Trial Chamber, Jan. 22, 2004), para. 634.
88. Prosecutor v. Rukundo, Case No. ICTR-2001-70-T, Dissenting Opinion of
Judge Park (ICTR Trial Chamber, Feb. 27, 2009), para. 4.
89. Prosecutor v. Rukundo, Case No. 2001-70-A, Judgement (ICTR Appeals Chamber, Oct. 20, 2010), para. 236.
90. Ibid.
91. Davis, “The Politics of Prosecuting Rape as a War Crime,” 1225; Nowrojee,
“Your Justice Is Too Slow,” 9.
92. Askin, “Gender Crimes Jurisprudence in the ICTR,” 108; Bianchi, “The Prosecution of Rape and Sexual Violence,” 130–33; Buss, “Learning Our Lessons?,” 64.
93. Buss, “Learning Our Lessons?,” 65–68; Buss, “Rethinking ‘Rape as a Weapon of
War,’” 152; Oosterveld, “Gender-Sensitive Justice and the International Criminal Tribunal for Rwanda,” 127–28.
94. Nowrojee, “Your Justice Is Too Slow,” 7–8; Oosterveld, “Gender-Sensitive Justice
and the International Criminal Tribunal for Rwanda,” 125–28; Van Schaack, “Engendering Genocide,” 223.
95. Nowrojee, “Your Justice Is Too Slow,” 18–19.
96. See, for example, Bianchi, “The Investigation and Presentation of Evidence relating to Sexual Violence,” paras. 14–17; Bianchi, “The Prosecution of Rape and Sexual
Violence,” 131. As I note later, Bianchi was the chair of an internal committee to consider how best to investigate and prosecute sexual violence.
97. See Buss, “Learning Our Lessons?,” 64; “Rethinking ‘Rape as a Weapon of
War,’” 152; Nowrojee, Shattered Lives, 55–56; Nowrojee, “Your Justice Is Too Slow,” 9–12;
Oosterveld, “Gender-Sensitive Justice and the International Criminal Tribunal for
Rwanda,” 125–28.
98. See, for example, Bianchi, “The Investigation and Presentation of Evidence relating to Sexual Violence,” paras. 19–20; Bianchi, “The Prosecution of Rape and Sexual
214
Notes to Chapter Four
Violence,” 131–32; Buss, “Rethinking ‘Rape as a Weapon of War,’” 152. For some internal analyses from the ICTR, see “The Challenges of Conducting Investigations of International Crimes,” ICTR Newsletter, Nov. 25, 2004, http://wwww.unictr.org/sites/unictr
.org/files/news/newsletters/November2004.pdf, 7; Alex Obote-Odora, “Excerpt from
‘Rape and Sexual Violence in International Law: ICTR Contribution,’” ICTR Newsletter,
Apr. 2005, http://unictr.irmct.org/sites/unictr.org/files/news/newsletters/april05.pdf,
7–8; “Sexual Assaults One Day Workshop for Investigations Division Takes Place in
Kigali,” ICTR Newsletter, May 2005, http://unictr.irmct.org/sites/unictr.org/files/news
/newsletters/may05.pdf, 6–7.
99. Nowrojee, Shattered Lives, 3.
100. Akayesu (Trial Chamber), para. 417.
101. Obote-Odora, “Rape and Sexual Violence in International Law,” 140.
102. Goffman, Stigma, 91–104.
103. See, for example, Bianchi, “The Prosecution of Rape and Sexual Violence,”
132, noting in a discussion of investigation methodology that “in Rwandan society, sexual violence crimes carry strong stigmas and there is a powerful taboo against speaking
about these crimes.” For another example, see “The Challenges of Conducting Investigations of International Crimes,” ICTR Newsletter, Nov. 25, 2004, http://wwww.unictr
.org/sites/unictr.org/files/news/newsletters/November2004.pdf, 7, summarizing comments by Navanethem Pillay on the need for a “particular approach” to sexual violence
crimes “since they are surrounded by feelings of shame and stigma on the part of the
victims.”
104. Bianchi, “The Investigation and Presentation of Evidence relating to Sexual
Violence,” paras. 19–22; Nowrojee, Shattered Lives, 16.
105. Nowrojee, Shattered Lives, 55.
106. Ibid.
107. Ibid., 17. For another example of feminist reinforcement of the shame of rape,
see U.S. Senate, 110th Cong., 2nd sess., Hearing 110–581, Rape as a Weapon of War: Accountability for Sexual Violence in Conflict: Hearing before the Subcommittee on Human
Rights and the Law of the Committee on the Judiciary, Apr. 1, 2008, Testimony of Dr.
Kelly Dawn Askin, 43–56. Although Askin’s testimony was given in the context of intervention in Darfur, her claims were not limited to that country or region when she stated
that “shame and stigma attached to sex crimes causes harm-plus.” Ibid., 53.
108. ICTR, Prosecution of Sexual Violence, para. 132.
109. Ibid., para. 51. See also ibid., para. 52, paraphrasing and citing Nowrojee, Shattered Lives, 3.
110. ICTR, Prosecution of Sexual Violence, para. 51.
111. See, for example, ibid., paras. 133–38, 141–45.
112. Ibid., paras. 115, 166.
113. Ibid., paras. 47–48.
114. Ibid., para. 49.
115. See, for example, ibid., paras. 39, 113–15.
116. Ibid., para. 37. See also ibid., paras. 46, 126, 173.
Notes to Chapters Four and Five
215
117. Effange-Mbella, “On Support Measures to Victims and Witnesses Summoned
to Appear before the Tribunal,” 10.
118. ICTR, Prosecution of Sexual Violence, para. 180.
119. Bianchi, “The Investigation and Presentation of Evidence relating to Sexual
Violence,” para. 24.
120. ICTR, Prosecution of Sexual Violence, para. 183. In an earlier part, the manual
reminds investigators of the same. Ibid., para. 132.
121. Ibid., paras. 183, 189.
122. Ibid., paras. 187–88.
123. See Akayesu (Trial Chamber), para. 688, finding that “coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal.” For discussion of the
ICTY’s treatment of consent, see Chapter Three, pp. 85, 94–97.
124. ICTR, Prosecution of Sexual Violence, paras. 184–85.
125. Nowrojee, “Making the Invisible War Crime Visible,” 104.
126. ICTR, Prosecution of Sexual Violence, para. 229.
127. Obote-Odora, “Rape and Sexual Violence in International Law,” 157.
128. Roth, “Defending Economic, Social and Cultural Rights,” 67.
129. In Chapter Five, pp. 145, 148–49, we encounter yet another form of naming
and shaming with UN Security Council resolutions naming individuals suspected, but
not convicted, of sexual violence.
130. Braithwaite, Restorative Justice and Responsive Regulation, 79. In his self-proclaimed recantation of his call for alternative sentences based on shaming in the U.S.
penal system, Dan Kahan provides an excellent summary of the critiques of shaming
that have been articulated in a debate he provoked. See Kahan, “What’s Really Wrong
with Shaming Sanctions,” 2077–81.
Chapter Five
1. The other original NGO Working Group members were International Alert,
Amnesty International, Women’s Commission for Refugee Women and Children, and
The Hague Appeal for Peace. Cohn, Kinsella, and Gibbings, “Women, Peace and Security,” 140n1 (also listing the International Peace Research Association); Otto, “The Exile
of Inclusion,” 12n4. As of 2019, the working group had eighteen members. See “Members,” http://www.womenpeacesecurity.org/about/members/. The group had organized
informally in the late 1990s, with the aim of following up on the implementation of
provisions on women and armed conflict found in the 1995 Beijing Declaration and
Platform for Action, some of which had first been introduced at the 1993 Vienna Conference. Cohn, Kinsella, and Gibbings, “Women, Peace and Security” (interview with
Felicity Hill and Maha Muna), 131. For further detail on the background and initial
focus of the working group, see Shepherd, “Power and Authority in the Production of
United Nations Security Council Resolution 1325,” 387–89.
2. Hill and Muna, interviewed in Cohn, Kinsella, and Gibbings, “Women, Peace
and Security,” 132. See also Otto, “The Exile of Inclusion,” 16, citing Sheri Gibbings,
216
Notes to Chapter Five
“Governing Women, Governing Security: Governmentality, Gender-Mainstreaming
and Women’s Activism at the UN” (master’s thesis, York University, 2004), 52.
3. For one very thorough discussion of Resolution 1325 that situates it in the women’s peace movement and considers the representations of gender in the language of the
resolution as well as in its implementation, see Otto, “A Sign of ‘Weakness’?”
4. Dianne Otto discusses the invocation of the resolutions as binding and the inaccuracy and function of the invocation (as well as her resistance to it), in “The Exile of
Inclusion,” 11–12, 19, 25–26.
5. For arguments that many aspects of the WPS resolutions and the WPS agenda
more broadly either represent or lead to binding legal obligations, see Chinkin and
Rees, Commentary on Security Council Resolution 2467, 4–11.
6. UN Action, Strategic Framework, 2011–12, Jan. 2011, http://www.stoprapenow
.org/uploads/images/features/pdf/UNASF_2011-12_final.pdf, 3.
7. UN Security Council, Resolution 1888, para. 4.
8. For various accounts, see generally Alonso, Peace as a Women’s Issue; Amos and
Parmar, “Challenging Imperial Feminism”; Rupp, Worlds of Women; Wiltsher, Most
Dangerous Women.
9. The UN World Conferences on Women were one place where some of that work
happened. Recall the discussion in Chapter One, pp. 35, 181n78, of the Peace Tent at
the Nairobi Conference in 1985. The Peace Tent statement read in part: “The Peace Tent
is the international feminist alternative to men’s conflict and war. It is the place where
finding peaceful solutions to conflict, both in personal lives and in the public arena, is
the priority. . . . It is important that women whose countries are locked in conflict meet
and communicate to expose the patriarchal barriers to peace.” “Peace Tent Statement,”
ca. 1985, https://law.utexas.edu/farenthold/document/peace-tent-statement/. Some of
the work celebrated or initiated at Nairobi continued through Women for a Meaningful Summit, which began as an ad hoc group of women’s organizations that formed to
ensure the representation of women’s voices at the Reagan-Gorbachev Summit Meetings
in Reykjavik, Iceland in 1986. For more information, see Frances Tarlton Farenthold,
“Women’s Search for Peace,” ca. 1988, https://law.utexas.edu/farenthold/document
/speech-womens-search-for-peace/, 11–12.
10. For an account of the founding of the Human Security Network and the development of its agenda, see Small, “Case Study,” 231–35. For discussion of its later decline,
see Martin and Owen, “The Second Generation of Human Security,” 211.
11. In 1993, the UN Security Council began to allow non-members to present their
views in what are called “Arria Formula Briefings,” first adopted by human rights and
humanitarian NGOs in 1997. Paul, “NGOs and the Security Council.”
12. See Table 5.1. At least one of the resolutions was highly correlated with the
NGO input described above. See Paul, “NGOs and the Security Council,” discussing the
2000 briefing “Protection of Civilians in Armed Conflict” by Care, Oxfam, and Médecins sans Frontières and the passage of Resolution 1296 on the same topic.
13. UN Security Council, Resolution 1261, para. 10; Resolution 1265, preambular
para. 4; Resolution 1296, preambular para. 4 and paras. 9–10; Resolution 1314, para. 13.
Notes to Chapter Five
217
14. UN Security Council, Resolution 1261, para. 10; Resolution 1314, para. 13.
15. Scholars and advocates have disagreed, however, about the precise linkage between the Human Security Network and the NGO Working Group. See Cohn, Kinsella,
and Gibbings, “Women, Peace and Security,” 135–36. For two competing narratives on
the production and situation of 1325, one from the perspective of the NGO Working
Group and the other from that of the UN Security Council’s intergovernmental activity
on human security, see Shepherd, “Power and Authority in the Production of United
Nations Security Council Resolution 1325.”
16. UN Security Council, Resolution 1325, para. 10.
17. Ibid., paras. 4–5.
18. In negotiations around Resolution 1820, China, Russia, Indonesia, and Vietnam
suggested that rape might not be a matter for the Security Council, but the resolution
nevertheless passed 15–0. Ní Aoláin, Haynes, and Cahn, On the Frontlines, 16.
19. Table 5.1 lists the five resolutions that mentioned sexual violence during those
years. All but Resolution 1612 (on children) made explicit reference to women. Resolution 1612 made tacit reference to women and children as subjects of sexual violence by
referencing the Secretary-General’s zero-tolerance policy, which relies heavily on such
language. UN Security Council, Resolution 1612, para. 11.
20. The work of UN Action is acknowledged in UN Security Council, Resolution
1820, preambular para. 11.
21. Ibid., para. 1. This statement reflected the views articulated by several states
during the debate on the resolution. See, for example, those by the UK, stating, “The
trauma and injuries caused by sexual violence are designed to cripple communities,
trigger revenge attacks, and cause lasting bitterness,” thereby “feed[ing] the fires of conflicts,” and Costa Rica, remarking, “It is indisputable that sexual violence . . . exacerbates armed conflicts and becomes an enormous obstacle to their resolution and to the
consolidation of peace.” UN Security Council, 5916th Meeting, UN Doc. S/PV.5916,
June 19, 2008, 14, 23. States also expressed concern that sexual violence by peacekeepers would compromise peacekeeping missions and impede their mandates to assist in
the emergence of sustainable peace. See, for example, statements by Liechtenstein and
Australia. Ibid., 30 and 34.
22. UN Security Council, Resolution 1820, para. 1. Later resolutions repeated the
language of Resolution 1820 on this point as well as on the previous one (that sexual
violence exacerbates conflict and impedes peace). UN Security Council, Resolution
1888, para. 1; Resolution 1960, para. 1; Resolution 2106, para. 1; and Resolution 2242,
preambular para. 10. In Resolution 1325, in contrast, it is the protection of women and
girls and of their “full participation in the peace process” that could make such a contribution. UN Security Council, Resolution 1325, preambular para. 10.
23. UN Security Council, Resolution 1820, para. 15.
24. Achuthan and Black, “United Nations Security Council Resolution 1820,” 7.
25. Ibid. The provision can be found at UN Security Council, Resolution 1820,
para. 10.
26. See, for example, Cook, “Security Council Resolution 1820,” 127–28.
218
Notes to Chapter Five
27. UN Security Council, Resolution 1888, paras. 4, 27.
28. Ibid., para. 26(c).
29. UN Security Council, Resolution 1960, paras. 3, 18(c).
30. Resolution 2106 largely resulted from the advocacy of Hague, Jolie, and Bangura, as discussed in the Introduction.
31. Executive Board of the United Nations Entity for Gender Equality and the
Empowerment of Women, Strategic Plan, 2011–2013, UN Doc. UNW/2011/9, May 16,
2011, 1–2. UN Women was created in 2010 by the UN General Assembly in Resolution 64/289. The new agency absorbed and unified mandates and functions from four
preexisting agencies of the UN concerned with women, so as to enhance “system-wide
coherence.” Its first “Strategic Plan” enumerated six main goals, primarily about gender
equality and the need to increase women’s leadership, participation, and economic empowerment. Only one goal considers violence against women and girls, though it does
not refer to sexual violence, and its focus is on survivor services. Ibid.
32. Liz Ford, “UN Passes New Resolution on Women’s Role in Peace Processes,”
The Guardian, Oct. 21, 2013, http://www.theguardian.com/global-development/2013
/oct/21/un-resolution-2122–women-peace-processes.
33. UN Security Council, 7044th Meeting, UN Doc. S/PV.7044, Oct. 18, 2013, 4–5.
34. Ibid., 68.
35. Brazil, for example, said that while sexual violence had been a focus of the council, “it is warranted that we also focus on the importance of furthering the equal rights
of women and their right to equal participation in decision-making processes.” Ibid., 27.
For additional examples, see the statements of representatives of the Czech Republic,
Botswana, Bosnia and Herzegovina, Mexico, and Estonia. Ibid., 32, 35, 40, 48, 72. The
president of the council, speaking in his national capacity as representative for Azerbaijan, also suggested the need for the Security Council to attend to a broader range of
harms to women in conflict than sexual violence: “While genuine gains have been made
. . . to secure justice and deal with conflict-related sexual violence, little has been said of
the full range of violations and serious crimes experienced by women.” Ibid., 26.
36. UN Security Council, Resolution 2122, preambular para. 9 and paras. 2(a), 9.
37. UN Security Council, Resolution 2143, para. 9; Resolution 2175, para. 1; and
Resolution 2225, preambular paras. 12, 15, and paras. 1, 16.
38. UN Women, Preventing Conflict, Transforming Justice, Securing the Peace; UN
Security Council, Resolution 2122, para. 16.
39. UN Women, Preventing Conflict, Transforming Justice, Securing the Peace, 28.
Others had reached similar conclusions for some time. See, for example, Physicians for
Human Rights, “Nowhere to Turn,” 21, reporting that a majority of women interviewed
in Darfuri refugee camps reported health and safety concerns other than sexual violence, particularly their need for more and better-quality food and their profound desire
to return home to their farms in Darfur.
40. UN Women, “Statement on the Adoption of Security Council Resolution 2242
on Women, Peace and Security,” Oct. 14, 2015, http://www.unwomen.org/en/news/
stories/2015/10/ed-statement-unsc-resolution-1325.
Notes to Chapter Five
219
41. UN Women noted only that the resolution called for more regular briefings
by the Special Representative on SVIC. Ibid. For discussion of sexual violence in the
resolution, see UN Security Council, Resolution 2242, preambular paras. 10, 14, and
paras. 6, 9, 10, 14.
42. UN Security Council, Resolution 2242, preambular para. 14.
43. Ibid., paras. 11, 13.
44. UN Security Council, Resolution 2272, paras. 2, 3, 8. For many years, complaints
had been lodged at the UN regarding sexual abuse and exploitation committed by its
peacekeepers. Several Security Council resolutions condemned such abuses along the
way and expressed support for the UN’s zero-tolerance policy with regard to sexual relations between peacekeepers and civilians in the areas in which they work. For examples
of resolutions on children with such language—from 2005 and 2018, respectively—see
UN Security Council, Resolution 1612, para. 11; Resolution 2427, para. 35. For similar
language in a resolution on civilians, see UN Security Council, Resolution 1674, para. 20.
For criticisms of the zero-tolerance policy from feminist perspectives, see, for example,
Otto, “Making Sense of Zero Tolerance Policies,” and “The Sexual Tensions of UN Peace
Support Operations”; Simić, Regulation of Sexual Conduct in UN Peacekeeping Operations.
45. UN Security Council, Resolution 2331, paras. 8, 9, 11; Resolution 2388, preambular para. 17 and para. 10.
46. See Chapter One, pp. 40–43, 47, and Chapter Three, p. 87, for some of the history of this term’s use. “Sexual slavery” had been referenced one other time, in a 2015
resolution on children, but only in a preambular paragraph. UN Security Council, Resolution 2225, preambular para. 13.
47. UN Security Council, 7847th Meeting, UN Doc. S/PV.7847, Dec. 20, 2016.
48. UN Security Council, Resolution 2331, para. 11. The same paragraph also condemned Boko Haram, Al-Shabaab, and the Lord’s Resistance Army for “any such trafficking in persons and violations and other abuses committed,” without explicitly saying
that they had engaged in trafficking.
49. Niamh Reilly also points out that Resolutions 2331 and 2272, which she calls
“WPS-related resolutions” do not reference Resolution 1325 at all and that the only
WPS resolution they cite is Resolution 2242, and for limited purposes. Reilly, “How
Ending Impunity for Conflict-Related Sexual Violence Overwhelmed the UN Women,
Peace, and Security Agenda,” 645–46.
50. Anica Heinlein, Jeannette Böhme, and Dr. Ines Kappert, “German Government
Treading on Dangerous Ground in the UN Security Council: Planned New Resolution
Threatens to Weaken the ‘Women, Peace and Security’ Agenda,” Gunda Werner Institute for Feminism and Gender Democracy, Berlin, Mar. 7, 2019, https://www.gwi-boell
.de/sites/default/files/statement_1325_en.pdf, 1. The letter was co-signed by a group of
ten German NGOs, including medica mondiale and UN Women.
51. For a summary of the negotiations, see Julian Borger, “US Threatens to Veto
UN Resolution on Rape as Weapon of War, Officials Say,” The Guardian, Apr. 22, 2019,
https://www.theguardian.com/world/2019/apr/22/us-un-resolution-rape-weapon
-of-war-veto; “In Hindsight: Negotiations on Resolution 2467 on Sexual Violence in Con-
220
Notes to Chapter Five
flict,” What’s in Blue, May 2, 2019, https://www.whatsinblue.org/2019/05/in-hindsight
-negotiations-on-resolution-2467-on-sexual-violence-in-conflict.php. For a critique
of the removal of the language on “sexual and reproductive health,” see Fionnuala Ní
Aoláin, “Gutting the Substance of a Security Council Resolution on Sexual Violence,”
Just Security, Apr. 24, 2019, https://www.justsecurity.org/63750/gutting-the-substance
-of-a-security-council-resolution-on-sexual-violence/.
52. Heinlein, Böhme, and Kappert, “German Government Treading on Dangerous
Ground in the UN Security Council,” 2.
53. Chinkin and Rees, Commentary on Security Council Resolution 2467, 1.
54. For a discussion of the ways in which the category “women and children” has
long been a stand-in for the category “civilian,” see generally Kinsella, The Image before
the Weapon.
55. It used “women and girls” just once, in the preamble.
56. See UN Security Council, Resolution 1314, para. 13; Resolution 1379, para. 11;
Resolution 1460, para. 10; Resolution 1539, para. 10; and Resolution 1539, para. 1.
57. See, for example, Cook, “Security Council Resolution 1820,” 127–28; Heathcote, “Feminist Politics and the Use of Force,” 40–42; Otto, “The Exile of Inclusion,” 13;
Otto, “Power and Danger,” 108. Otto also observes that the resolution perpetuated several myths, including “that sexual violence is ‘the worst’ harm, even worse than death,
that can happen to women,” often placing them in a privileged position vis-à-vis other
women and men affected by war. Otto, “The Exile of Inclusion,” 24.
58. Scully, “Vulnerable Women,” 117. Sandesh Sivakumaran has expressed a similar
critique, though he acknowledges that the resolution description of the “problem of
sexual violence” was not limited to females. Still, the exclusionary language of “women
and girls” appeared when “specifying concrete, detailed measures of implementation or
enforcement.” Sivakumaran, “Lost in Translation,” 266–68.
59. See UN Security Council, Resolution 1888 (on sexual violence), which, with the
exception of a preambular paragraph, essentially replaced the “women and girls” language
found in Resolutions 1325 and 1820 with “women and children”; Resolution 1894 (on
civilians), preambular paras. 9, 17, and paras. 7(b), 21, and 32, all referencing “women and
children.” Resolutions 1998 in 2011 and 2068 in 2012, both on children, continued with
gender-neutral language, making no reference to boys, girls, or women. Resolution 1882
(on children) was gender neutral with regard to children, but it did not mention women.
60. Sivakumaran quotes one such report: “While women and girls are particular
targets and are the majority of the victims of sexual violence, the case-law of the [ICTY]
and the Special Court for Sierra Leone (SCSL) also bears testimony to the use of sexual
violence against men.” Sivakumaran, “Lost in Translation,” 271, quoting UN SecretaryGeneral, Report of the Secretary-General Pursuant to Security Council Resolution 1820
(2008), UN Doc. S/2009/362, July 15, 2009. For discussion of ICTY prosecutorial strategy on this issue, see Chapter Three, pp. 99–100.
61. UN Security Council, Resolution 1960, preambular paras. 2 and 3.
62. Such responses became part of a growing literature on sexual violence against
men in conflict. See, for example, Baaz and Stern, The Complexity of Violence, 43–47;
Notes to Chapter Five
221
Grey and Shepherd, “‘Stop Rape Now?’”; Sivakumaran, “Lost in Translation”; Sivakumaran, “Sexual Violence against Men in Armed Conflict”; Solangon and Patel, “Sexual
Violence against Men”; UN High Commissioner for Refugees, Working with Men and
Boy Survivors; Zalewski et al., Sexual Violence against Men in Global Politics.
63. For example, Secretary-General Ban Ki-moon said, “While women and girls
suffer disproportionately from these vicious crimes, men and boys are also targeted.”
UN Security Council, 6984th Meeting, UN Doc. S/PV.6984, June 24, 2013, 3 [hereinafter UN Security Council, 6984th Meeting]. Nonetheless, according to Chloé Lewis’s
analysis of the entire debate, only 19 (out of 60) statements referenced (and generally
only briefly) men and boys as victims or survivors of sexual violence. “In contrast, and
with varying degrees of substance, 325 references were made to female victims/survivors.” Lewis, “Systemic Silencing,” 216.
64. UN Security Council, Resolution 2331, preambular para. 12 and para. 10. The
representative for Liechtenstein, also speaking on behalf of Switzerland and Australia,
said, “We wish to highlight that men and boys should be guaranteed the same access to
reparations and services. Recent studies on sexual violence against men and boys suggest that they also suffer from a non-recognition of sexual violence committed against
them as sexual violence. That wrong needs to be corrected.” UN Security Council,
7847th Meeting, UN Doc. S/PV.7847, Dec. 20, 2016, 37. The speakers for several states
in the debate identified the victims of sexual violence and trafficking as “men, women
and children.”
65. UN Security Council, Resolution 2467, para. 32. For but two examples of such
activists praising the inclusion of this paragraph, see Z. Pinar Erdem, “Men Can Experience Sexual Violence in War Too,” Pass Blue, May 3, 2019, https://www.passblue
.com/2019/05/03/men-can-experience-sexual-violence-in-war-too/; Charu Hogg,
“OPINION: U.N. Resolution Recognising Wartime Sexual Violence against Men and
Boys Is Historic,” Thomson Reuters Foundation News, May 14, 2019, http://news.trust
.org/item/20190514104242-vjkpx/.
66. UN Security Council, Resolution 2467, preambular paras. 12, 19, and paras.
16(b), 32.
67. Resolutions 1265 and 1296 on civilians, for example, did not mention sexual violence, but they both addressed “women and children” as particularly vulnerable groups
that require special attention. UN Security Council, Resolution 1265, preambular para.
4; Resolution 1296, para. 9. Resolution 1261 on children addressed rape as a form of
“gender-based violence,” urging parties to armed conflict to “protect children, in particular girls, from rape and other forms of sexual abuse and gender-based violence.” UN
Security Council, Resolution 1261, para. 10.
68. UN Security Council, Resolution 1325, para. 10 (emphasis added).
69. UN Security Council, “Security Council Adopts Text Requesting Detailed Information on Suspected Perpetrators of Sexual Violence during Armed Conflict,” press
release, Dec. 16, 2010, https://www.un.org/press/en/2010/sc10122.doc.htm.
70. UN Secretary-General, Report of the Secretary-General on the Implementation
of Security Council Resolutions 1820 (2008) and 1888 (2009), UN Doc. S/2010/604, Nov.
222
Notes to Chapter Five
24, 2010, para. 7. The report went on to emphasize that “like other conflict-related violence, sexual violence may also be motivated by ethnic, religious and underlying economic factors.” Ibid.
71. UN Security Council, Resolution 1960, para. 8.
72. UN Action, “Analytical and Conceptual Framing,” summary, Nov. 8, 2011,
http://www.stoprapenow.org/uploads/advocacyresources/1321456915.pdf, 1. The complete document is not publicly available.
73. Ibid., 3. The summary further explained that “gender-based violence (GBV),
which includes acts that are not sexual in nature, such as physical assault or the denial
of economic resources, . . . is an overly-broad category for 1960 reporting purposes.” It
also distinguished sexual violence from “harmful traditional practices” (without “specific justification” for equating them), “sexual exploitation and abuse” (which it claimed
is dealt with elsewhere), and “survival sex” (“unless the circumstances are coercive and
vitiate consent”). Ibid. It appears that the document might have been responding to
criticisms from a number of different perspectives, including those regarding the zerotolerance policy on sexual exploitation and abuse.
74. Ibid. For discussion of these lobbying efforts, see Chapter One, pp. 47, 184n135.
75. All but one of the reports since Resolution 1960’s passage in 2010 are titled
“Conflict-Related Sexual Violence.” The sole exception, issued in 2013, is titled “Sexual
Violence in Conflict.” All reports include discussion of sexual violence against men
and boys. The Secretary-General reports can be found on the website of the Office of
the Special Representative of the Secretary-General on Sexual Violence in Conflict.
“Secretary-General Annual Reports,” https://www.un.org/sexualviolenceinconflict/
digital-library/reports/sg-reports/.
76. WILPF, From Impunity to Accountability, 4.
77. Indeed, the most recent resolution on sexual violence in conflict as of October
2019 contained the most references to the language. UN Security Council, Resolution
2467, paras. 15, 16(a), 16(d), 24, 28, 31. It also, for the first time, mentioned discrimination
and structural inequalities based on gender as “root causes of sexual violence” that must be
addressed. Ibid., preambular para. 12. For other uses of the term “sexual and gender-based
violence” in the resolutions, see UN Security Council, Resolution 2106, paras. 9, 14, 16(c);
Resolution 2122, preambular para. 9, and para. 9; and Resolution 2242, preambular para.
14 and paras. 6, 14. The term also appeared in human security resolutions outside the WPS
agenda; for example, see UN Security Council, Resolution 2427, para. 18.
78. A 2016 report, for example, stated: “In my previous reports, I have underlined
the need to address conflict-related sexual violence as part of a continuum of violence
that is closely intertwined with broader attacks on gender equality and women’s human
rights . . . Ending all forms of gender-based violence, including conflict-related sexual
violence, remains a priority.” UN Secretary-General, Report of the Secretary-General on
Women and Peace and Security, UN Doc. S/2016/822, Sept. 29, 2016, paras. 22–23.
79. UN Security Council, Resolution 1820, preambular para. 6.
80. Prosecutor v. Akayesu, Case No. ICTR 96-4, Judgement (ICTR Trial Chamber,
Sept. 2, 1998), para. 731. This case is discussed in detail in Chapter Four, Section I.
Notes to Chapter Five
223
81. See, for example, UN Security Council, Resolution 1888, para. 15; Resolution
2331, preambular para. 11; Resolution 2467, para. 16(c).
82. The video, “Stop Rape Now,” is also available at https://youtu.be/Pn7KFDhzyNU
(uploaded June 7, 2008).
83. The Special Representative for SVIC also has a website on the UN domain that
includes a page on UN Action. https://www.un.org/sexualviolenceinconflict/about-us/
un-action/.
84. This video is one of two on the website. Victims do not speak in either. Shame
is most explicit in the video that I discuss here. For an analysis of the other video, which
features Charlize Theron and Nicole Kidman, see Engle, “Celebrity Diplomacy and
Global Citizenship.”
85. UN Secretary-General, Report of the Secretary-General Pursuant to Security
Council Resolution 1820 (2008), UN Doc. S/2009/362, July 15, 2009, para. 19.
86. Ibid.
87. UN Security Council, 6453rd Meeting, UN Doc. S/PV.6453, Dec. 16, 2010, 3
(statement of Secretary-General Ban Ki-moon).
88. Ibid.
89. UN Secretary-General, Report of the Secretary-General on Conflict-Related Sexual Violence, UN Doc. S/2017/249, Apr. 15, 2017, para. 9.
90. Ibid., para. 10.
91. Global Network of Women Peacebuilders, “About GNWP,” https://gnwp.org
/about/.
92. Global Network of Women Peacebuilders, “UNSCR 1960 and the Need for
Focus on Full Implementation of UNSCR 1325: Open Letter to Member States of the Security Council Re: Res 1960,” Jan. 7, 2011, https://www.peacewomen.org/content/letter
-unscr-1960-and-need-focus-full-implementation-unscr-1325-open-letter-member-states.
93. Ibid.
94. UN Secretary-General, Report of the Secretary-General on Women and Peace
and Security, UN Doc. S/2015/716, Sept. 16, 2015, para. 54.
95. UN Security Council, Resolution 1325, para. 11. For the language in resolutions
preceding 1325, see UN Security Council, Resolution 1261, para. 3; Resolution 1265,
para. 6; Resolution 1314, para. 2.
96. UN Security Council, Resolution 1325, para. 11.
97. For the title of the debate along with the Secretary-General’s remarks, see UN,
“Understanding Extent of Sexual Violence in Conflict Essential for Effectively Protecting Women, Girls, Secretary-General Tells Security Council Debate,” press release, June
24, 2013, https://www.un.org/press/en/2013/sgsm15128.doc.htm. For the debate itself,
in which nearly every speaker discussed the need to end impunity, see UN Security
Council, 6984th Meeting.
98. UN Security Council, Resolution 2106, para. 3.
99. Ibid., para. 2.
100. UN Security Council, Resolution 2122, para. 12; Resolution 2242, para. 14,
Resolution 2467, paras. 14–15.
224
Notes to Chapter Five
101. WILPF Secretary General Madeleine Rees estimates that “nearly 90% of the statements at the debate referenced the need for accountability and justice,” which she treats as
a positive sign. “Madeleine Rees on UN Security Council Resolution 2467,” WILPF, Apr.
30, 2019, https://www.wilpf.org/madeleine-rees-on-un-security-council-resolution-2467/.
102. UN Security Council, Resolution 2467, para. 14. Other impediments the paragraph lists are statutes of limitations, requirements of victim corroboration, exclusion of
victim testimony, and failure to provide for closed hearings.
103. Chinkin and Rees, Commentary on Security Council Resolution 2467, 18. Elsewhere, Rees identified the criminal law language in the resolution as its “most potentially revolutionary element,” claiming that it “is more progressive than I have yet seen.”
“Madeleine Rees on UN Security Council Resolution 2467.”
104. UN Security Council, Resolution 2467, para. 16.
105. UN Security Council, 8514th Meeting, UN Doc. S/PV.8514, Apr. 23, 2019, 13
[hereinafter UN Security Council, 8514th Meeting].
106. Ibid., 10.
107. UN Security Council, Resolution 2467, preambular para. 14. See also similar
language in UN Security Council, Resolution 2106, preambular para. 4.
108. UN Security Council, 7938th Meeting, UN Doc. S/PV.7938, May 15, 2017, 4
[hereinafter UN Security Council, 7938th Meeting].
109. UN Security Council, 8234th Meeting, UN Doc. S/PV.8234, Apr. 16, 2018,
3. See also her similar statement at UN Security Council, 8514th meeting, 5. For the
identification and critique of the increased usage of the term “culture of impunity” as
a principal aim of human rights advocacy, see generally Engle, “Anti-Impunity and the
Turn to Criminal Law in Human Rights.” For a visual representation of the frequency of
the term’s usage since the early 1990s, see ibid., 1078.
110. For an examination of data from 1989 to 2015, see Nordås and Nagel, “Continued Failure to End Wartime Sexual Violence.” This report updates the 1989–2009 data
discussed in Cohen and Nordås, “Sexual Violence in Armed Conflict.”
111. UN Security Council, 8079th Meeting, UN Doc. S/PV.8079, Oct. 27, 2017, 13.
See also Chinkin and Rees, Commentary on Security Council Resolution 2467, 12, reiterating that “the activity around [conflict-affected sexual violence] has failed to eradicate
or even reduce its prevalence.”
112. See, for example, a statement by Special Representative on SVIC Pramila Patten during the debate on Resolution 2467: “Still, after a decade of concerted attention
and action, the reality that we must face is that the implementation of resolutions, policies, agreements and commitments remains slow and that criminal accountability for
these crimes remains elusive. We have not yet improved the situation on the ground
in a sustained or meaningful way. Wars are still being fought on and over the bodies of
women and girls.” UN Security Council, 8514th Meeting, 4.
113. Karen McVeigh, “Hague Hails ‘Tremendous Start’ to Sexual Violence Scheme
Set Up with Jolie,” The Guardian, Nov. 23, 2018, https://www.theguardian.com/global
-development/2018/nov/23/william-hague-hails-tremendous-start-sexual-violence
-scheme-angelina-jolie.
Notes to Chapter Five
225
114. UN Women, Preventing Conflict, Transforming Justice, Securing the Peace, 73.
115. See UN Security Council, Resolution 1325, para. 11. Identical language can be
found in the following children’s resolutions with regard to amnesty for crimes against
children more broadly: UN Security Council, Resolution 1314, para. 2; Resolution 1379,
para. 9(a).
116. UN Security Council, Resolution 1820, para. 4; Resolution 2106, para. 12;
Resolution 2467, para. 30. The feasibility qualifier was also removed in the amnesty provision of a subsequent resolution on children. UN Security Council, Resolution 2143,
para. 11.
117. UN Secretary-General, Report of the Secretary-General Pursuant to Security
Council Resolution 1820 (2008), UN Doc. S/2009/362, July 15, 2009, para. 22.
118. UN Secretary-General, Sexual Violence in Conflict: Report of the SecretaryGeneral, UN Doc. S/2013/149, Mar. 14, 2013, paras. 60, 128(f).
119. UN Secretary-General, Report of the Secretary-General on Women and Peace
and Security, UN Doc. S/2015/716, Sept. 16, 2015, para. 17.
120. UN Secretary-General, Report of the Secretary-General on the Implementation
of Security Council Resolutions 1820 (2008) and 1888 (2009), UN Doc. S/2010/604, Nov.
24, 2010, para. 4.
121. Ibid.
122. UN Secretary-General, Sexual Violence in Conflict: Report of the SecretaryGeneral, UN Doc. S/2013/149, Mar. 14, 2013, para. 31.
123. Amnesty International, “New Amnesty Report Exposes Impunity for Conflict-Related Sexual Violence in Colombia,” press release, Oct. 1, 2012, https://www
.amnestyusa.org/press-releases/new-amnesty-international-report-exposes-impunity
-for-conflict-related-sexual-violence-in-colombia/.
124. See Introduction, p. 33. Language about the relationship between ending
impunity and sustainable peace can be found as far back as Resolution 1820, which
stressed that “the importance of ending impunity” for acts of sexual violence is intrinsic
to the search for a “sustainable peace.” UN Security Council, Resolution 1820, para.
4. That perspective has been reiterated during Security Council debates on the WPS
agenda. In a 2017 debate, for example, states argued that fighting impunity through
prosecution “contributes to the healing processes necessary for sustainable peace” and
“helps us bring about reconciliation.” UN Security Council, 8079th Meeting, UN Doc.
S/PV.8079, Oct. 27, 2017, 16, 73. For discussion of ways in which the “lasting peace”
argument has been used in the discussion of amnesties more generally, see Engle, “AntiImpunity and the Turn to Criminal Law in Human Rights,” 1099–102. And for its use
outside the amnesty context, see Nouwen, “Justifying Justice,” 339–40.
125. UN Secretary-General, Report of the Secretary-General on Conflict-Related
Sexual Violence, UN Doc. S/2017/249, Apr. 15, 2017, para. 26. For discussion of some
of the debate surrounding impunity and the peace process, see Alviar García and Engle,
“The Distributive Politics of Impunity and Anti-Impunity,” 235–37.
126. UN Security Council, Resolution 1960, para. 3. For extensive discussion and
critique of this resolution, see Heathcote, “Naming and Shaming.”
226
Notes to Chapter Five
127. UN, “Security Council Reaffirms Commitment to Address Widespread Impact of Armed Conflict on Children, after Hearing over 60 Speakers in Day-Long
Debate,” press release, Apr. 29, 2009, https://www.un.org/press/en/2009/sc9646.doc
.htm.
128. UN, “Security Council Presidential Statement Condemns Sexual Violence in
Conflict, Post-Conflict Situations, Urges Complete, Immediate Cessation of Such Acts,”
press release, Feb. 23, 2012, http://www.un.org/press/en/2012/sc10555.doc.htm.
129. UN Security Council, 7938th Meeting, 5.
130. UN Security Council, 6984th Meeting, 4.
131. U.S. Institute of Peace, “Missing Peace Symposium: International Responses to
Sexual Violence,” Feb. 14, 2013, available at https://youtu.be/0SL4LpKz470 (panel from
1:45:00 to 3:21:46). Bangura makes the quoted statement from 2:36:25 to 2:36:55.
132. UN Secretary-General, Report of the Secretary-General on Conflict-Related
Sexual Violence, UN Doc. S/2016/361, Apr. 20, 2016, para. 22.
133. UN Secretary-General, Report of the Secretary-General on Conflict-Related
Sexual Violence, UN Doc. S/2018/250, Mar. 23, 2018, para. 19. See also para. 98(g),
which calls for support for local journalists and human rights defenders, in addition to
traditional and religious leaders, to do the same.
134. UN Security Council, Resolution 2467, para. 19.
135. Ibid., para. 16(c).
136. MacKinnon, “Women’s September 11th,” 269.
137. See Chapter Two, p. 78.
138. MacKinnon, “Women’s September 11th,” 260.
139. UN Security Council, Resolution 2242, para. 11.
140. UN Security Council, 7704th Meeting, UN Doc. S/PV.7704, June 2, 2016, 4.
Bangura went on to say that “we must focus on divesting them of resources and degrading their capacity to communicate, travel, trade and do harm.”
141. UN Security Council, 7938th Meeting, 11.
142. See, for example, ibid., 47 (Bangladesh) and 49 (Argentina).
143. See, for example, Margot Wallström, “Statement of Government Policy in
the Parliamentary Debate on Foreign Affairs,” Feb. 13, 2019, https://www.government
.se/49132e/globalassets/government/dokument/utrikesdepartementet/statement-of
-foreign-policy-2019. See also Aggestam and Bergman-Rosamond, “Swedish Feminist
Foreign Policy in the Making.”
144. UN News Centre, “Interview with Margot Wallström, Special Representative on Sexual Violence in Conflict,” June 4, 2012, https://web.archive.org
/web/20170621031825/http://www.un.org/apps/news/newsmakers.asp?NewsID=55.
145. UN Security Council, Resolution 2106, para. 5.
146. UN Security Council, Letter Dated 18 October 2018 from the Permanent Representative of the Netherlands to the United Nations Addressed to the President of the
Security Council, Annex: Concept Note for the Arria-Formula Meeting on the Theme
“Moving from a Culture of Impunity to a Culture of Deterrence: The Use of Sanctions
in Addressing Sexual Violence in Conflict” to Be Held on 22 October 2018, UN Doc.
Notes to Chapter Five
227
S/2018/932 [hereinafter Concept Note for the Arria-Formula Meeting]. For more on the
UN’s Arria-Formula Meetings, see note 11 above.
147. Over time, the resolutions have contained an increasing level of commitment
to and detail on sanctions. See UN Security Council, Resolution 1820, para. 5; Resolution 1888, para. 10; Resolution 2106, para. 13; Resolution 2242, para. 6; Resolution
2467, paras. 10–12. Resolution 2331, on trafficking, also includes four different paragraphs on sanctions. UN Security Council, Resolution 2331, paras. 4, 12–14.
148. Concept Note for the Arria-Formula Meeting, para. 8.
149. Huvé, The Use of UN Sanctions to Address Conflict-Related Sexual Violence, 1.
150. Heathcote, “Naming and Shaming,” 14. Advocates continue to call for the
annexes of credibly suspected parties in the Secretary-General reports to be used in
the determination of sanctions. See, for example, Concept Note for the Arria-Formula
Meeting, paras. 7, 8; Permanent Representative of the Netherlands to the UN, “Moving
from a Culture of Impunity to a Culture of Deterrence: The Use of Sanctions in Addressing Sexual Violence in Conflict,” informal summary, Dec. 19, 2018, https://www
.permanentrepresentations.nl/documents/publications/2018/12/19/informal-summary
-arria-sexual-violence-in-conflict, para. 9.
151. For discussion of and responses to some of these due process considerations,
including legal challenges that have been brought to the European Court of Human
Rights, the European Court of Justice, and some national courts, see Permanent Mission
of Greece to the UN, UN Sanctions: Humanitarian Aspects and Emerging Challenges,
Jan. 19, 2015, http://www.hlr-unsanctions.org/HLR_WG3_report_final.19.1.15.pdf, especially paras. 41–50.
152. Chinkin, “International Human Rights, Criminal Law and the Women, Peace
and Security Agenda.” See also London School of Economics Centre for Women, Peace
and Security, “Preventing/Countering Violent Extremism and WPS.”
153. Chinkin, “International Human Rights, Criminal Law and the Women, Peace
and Security Agenda,” quoting UN Women, Preventing Conflict, Transforming Justice,
Securing the Peace, 15.
154. I am grateful to Vasuki Nesiah and Dianne Otto for working with me to identify these continuities. See Engle, Nesiah, and Otto, “Feminist Approaches to International Law.”
155. Heathcote, “Feminist Politics and the Use of Force,” 40–41. She references UN
Security Council, Resolution 1820, para. 1; Resolution 1888, para. 1; and Resolution
1960, para. 1. See also Otto, “Contesting Feminism’s Institutional Doubles,” 206.
156. Nesiah, “Feminism as Counter-Terrorism.”
157. See Otto, “Women, Peace, and Security,” 8. Felicity Ruby (formerly Felicity
Hill) also points to the invasion of Iraq as an example of the “instrumentalisation” of
Resolution 1325 and women’s rights more generally to justify force. Ruby, “Security
Council Resolution 1325,” 179. Ruby invites fellow advocates of 1325 “to ask how the
Security Council has become the centre of our attention and why are we only talking
about women when pre-1325 we also spoke about disarmament and conflict prevention.” Ibid., 178.
228
Notes to Chapter Five and Epilogue
158. Otto, “Power and Danger.”
159. Nesiah, “Feminism as Counter-Terrorism.”
160. Ní Aoláin, “The ‘War on Terror’ and Extremism,” 291. In terms of harm, Ni
Aoláin convincingly argues: “The wider legitimacy conferred on the use of multilateral
force across a range of fragile states, insecure environments and zones of both highand low-intensity conflict, and the increased status and deference given to maintaining
and extending international security regimes by recourse to the rhetorical assertion of
expanded terrorist threats, all increase the risk that women will be exposed to greater
insecurity.” Ibid., 276.
161. UN Security Council, 7533rd Meeting, UN Doc. S/PV.7533, Oct. 13, 2015, 9.
Epilogue
1. A Woman in Berlin, 61 (diary entry from May 1, 1945).
2. Calling the Ghosts: A Story about Rape, War, and Women, directed by Mandy
Jacobson and Karmen Jelincic (New York, NY: Women Make Movies, 1996).
3. Murad, The Last Girl, 162.
4. Buss, “Rethinking ‘Rape as a Weapon of War,’” 154–55. Buss argues not only that
the hyper-attention makes invisible the larger context and causes of the Rwandan conflict, but that it makes invisible individual stories of rape, especially of Hutu women, that
do not fit the mold.
5. Berlant, “Thinking about Feeling Historical,” 4.
6. Thanks to Janet Halley for introducing me to this book. For her review essay
of the same, see Halley, “Rape in Berlin.” For her analysis of the history of the various
publications in English and German and controversies surrounding them, including
disagreements over authorship (many claim that the author was journalist Marta Hillers), see ibid., 91–99.
7. That said, A Woman in Berlin has long been embroiled in controversy over its
veracity. Ibid.
8. For some other attempts to reread Hemingway’s female characters against the
grain of many feminist critiques, see the essays in Broer and Holland, Hemingway and
Women.
9. Halley, “Rape in Berlin,” 99. Because I read the diary not for its “truth,” but for
the way it expands our imagination, I do not engage with the debate about the diary’s
veracity.
10. Lesley Abdela, “Bosnia: Women Are Fighting Back,” Cosmopolitan (U.K.), Sept.
1994, 16.
11. Lines, Milicianas, 61.
12. Ibárruri, They Shall Not Pass, 195. Ibárruri later became secretary-general and
then president of the Communist Party of Spain, holding the latter post until her death
in 1989. See Paul Hofman, “Dolores Ibarruri, ‘La Pasionaria’ of Spanish Civil War, Dies
at 93; An Indomitable Leftist,” New York Times, Obituaries, Nov. 13, 1989, B15; Lazitch
and Drachkovitch, Biographical Dictionary of the Comintern, 190–91. For more on her
life and career, see Sorel, Dolores Ibarruri.
Notes to Epilogue
229
13. Lines, Milicianas, 138. Gerda Taro, the first female photographer to die on the
front lines—crushed by a tank in 1937—captured a number of stunning images of militiawomen, many of which can be found in Schaber, Whelan, and Lubben, Gerda Taro.
14. In fact, many have speculated about who might have served as the model for
Pilar, with guesses ranging from Ibárruri to Hemingway’s friend Gertrude Stein. See,
for example, Comley and Scholes, Hemingway’s Genders, 46; and Waldmeir, “Chapter
Numbering and Meaning in For Whom the Bell Tolls.”
15. Lines, Milicianas, 74.
16. Hemingway, For Whom the Bell Tolls, 103–29. In a 1954 letter to art historian
Bernard Berenson, Hemingway, writing of “the obligation to invent truer than things
can be true,” referred to this scene as one of the “things which I invented completely”
and reported his own “complete astonishment that I could have invented as I did.”
Hemingway, Selected Letters, 837.
17. Hemingway, For Whom the Bell Tolls, 118–19.
18. Ibid., 119.
19. Ibid., 125.
20. Ibid., 128.
21. Ibid.
22. Ibid., 127, 129.
23. Ibid., 99.
24. Murad, The Last Girl, 152.
25. Ibid., 153.
26. Ibid., 154–55.
27. For background on the two, as well as a critical analysis of judicial and media
treatment of them, see Sjoberg and Gentry, Mothers, Monsters, Whores, 145–73.
28. Plavšić was initially charged with two counts of genocide, five counts of crimes
against humanity, and one count of violating the laws of war. Prosecutor v. Plavšić, Case
No. IT-00-39 & 40/1-S, Sentencing Judgement (ICTY Trial Chamber, Feb. 27, 2003),
para. 5.
29. For an insightful article about the case that is centered around this quotation,
see Drumbl, “She Makes Me Ashamed to Be a Woman.”
30. African Union, Rwanda: The Preventable Genocide, http://www.peaceau.org/
uploads/report-rowanda-genocide.pdf, para. 16.33.
31. Ibid., citing African Rights, Rwanda, Not So Innocent: When Women Become
Killers (London: African Rights, 1995).
32. Ibid., paras. 16.33, 16.34.
33. Brown, “Female Perpetrators of the Rwandan Genocide,” 458.
34. Barbara Ehrenreich, “Feminism’s Assumptions Upended,” Los Angeles Times, May
16, 2004, https://www.latimes.com/archives/la-xpm-2004-may-16-op-ehrenreich16
-story.html.
35. Ibid.
36. Hemingway, For Whom the Bell Tolls, 73.
37. See Chapter One, pp. 48, 184–85n139.
230
Notes to Epilogue
38. Hemingway, For Whom the Bell Tolls, 154.
39. Ibid.
40. Ibid., 155.
41. Ibid.
42. Miriam Ticktin describes the reaction of French nurses working for Médecins
Sans Frontières in the Congo Republic, “who found it strange” that “rape victims spoke
directly about what happened to them.” As one said, “I doubt women in France would
respond positively to those questions under such circumstances.” Ticktin, “The Gendered Human of Humanitarianism,” 260.
43. Hemingway, For Whom the Bell Tolls, 71.
44. Ibid., 350.
45. Ibid.
46. Ibid.
47. Ibid.
48. The diary covers the period from April 20 to June 2, 1945. For context on those
dates in terms of the war, see Antony Beevor, introduction to A Woman in Berlin, xiii–xv.
49. A Woman in Berlin, 64.
50. Ibid., 115.
51. Ibid., 116.
52. First published in English in the United States in 1954, the diary was not published in German until five years later—and then by a Swiss publisher. Enzensberger,
foreword to A Woman in Berlin, xi.
53. Ibid.
54. A Woman in Berlin, 257–61; Halley, “Rape in Berlin,” 108.
55. A Woman in Berlin, 259.
56. Halley, “Rape in Berlin,” 108.
57. A Woman in Berlin, 116.
58. Unlike the diarist, Murad gives few dates in her account, but other sources indicate that ISIS seized her village, Kocho, in mid-August 2014 and that she escaped
captivity in November 2014.
59. Murad, The Last Girl, 119.
60. Ibid., 131.
61. Ibid., 132.
62. Ibid., 162.
63. Ibid., 138–39.
64. Ibid., 140–41.
65. Ibid., 161.
66. Ibid., 151.
67. Ibid., 161.
68. Ibid., 262.
69. Ibid., 295.
70. Ibid.
Notes to Epilogue
231
71. For a reminder of debates over the use of the term, see Chapter One, pp. 40–42.
72. Chapter Two, pp. 65, 191n82.
73. Murad, The Last Girl, 162.
74. Ibid., 275.
75. A Woman in Berlin, 147.
76. Ibid., 149.
77. Murad, The Last Girl, 279.
78. Ibid., 265.
79. Ibid., 34.
80. Ibid., 39.
81. Ibid., 38–42, 148.
82. Ibid., 154.
83. UN Security Council, 7847th Meeting, UN Doc. S/PV.7847, Dec. 20, 2016, 9.
Her comments on Resolution 2467 on sexual violence in conflict were more limited. See
UN Security Council, 8514th Meeting, S/PV.8514, Apr. 23, 2019, 7–8.
84. Murad, The Last Girl, 306.
85. Kendall and Nouwen, “Representational Practices at the International Criminal
Court.” See also Mégret, “The Strange Case of the Victim Who Did Not Want Justice.”
86. Kendall and Nouwen, “Representational Practices at the International Criminal
Court,” 255.
87. A Woman in Berlin, 168.
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Index
Abdela, Lesley, 155–56
abortion, for rape victims, 63, 69–70, 132
Abu Ghraib prison, Iraq, female U.S. soldiers as perpetrators in, 159–60
Additional Protocol I, Geneva
Conventions, 174n12, 212n67
Additional Protocol II, Geneva
Conventions, 8, 102, 174n11, 203n70,
211n40
Ad Hoc Women’s Coalition against War
Crimes against Women, 44–45, 83,
183n120
African Rights (NGO), 104, 159, 209n19
agency, women’s, 152–55; military, 11, 60,
155–60, 171, 229nn13–14; political, 11,
60, 155, 170–71; sexual, 11, 82, 94–98,
161–64, 205nn96, 102
Akayesu, Jean-Paul, 103, 208–9n14
Akayesu, Prosecutor v. (ICTR): amicus
brief for, 106, 108–9, 210nn31, 33,
211n46; charges in, 105–7; on coercion
as inherent in armed conflict, 215n123;
feminist reasoning and, 110–12; ICTR
jurisprudence after, 112–16; on rape as
genocidal, 103–16, 137, 208–9n14, 210n35
Alien Tort Statute, U.S., 188n34
Allen, Beverly, 61
American Convention on Human Rights,
176n22
amnesties for sexual violence crimes, 15,
143–44, 145, 225nn115–116, 124
Amnesty International (NGO): Ad
Hoc Women’s Coalition against War
Crimes against Women and, 183n120;
claims of systematic rape in Libya and,
75, 76; on Colombian peace process
and amnesties for sexual violence
crimes, 144–45; NGO Working Group
and, 215n1; systematic rape claims in
Libya and, 75, 76; on systematic rape in
Bosnia, 20; women’s caucus of, 31
anti-colonial feminists, 26, 27, 28. See also
Third World feminist critics and their
critiques
anti-imperialist feminists, 2, 34, 149,
181n68. See also Third World feminist
critics and their critiques
anti-impunity. See impunity
anti-militarist feminists. See women’s
peace movement and activism
anti-nationalist and non-nationalist
feminist groups, in the Yugoslavian
conflict, 59, 189n43
anti-war feminists. See women’s peace
movement and activism
apartheid, 23, 26
Arab League, 193n121
Arendt, Hannah, 175n20
255
256
Index
Armanda, Asja, 56
Asian values debate, 29, 31, 33, 179n45
Askin, Kelly, 65–66, 87, 191n85, 214n107
banality of evil, 13, 175n20
Bangura, Zainab, 4, 14, 123, 145–46,
226nn131, 140
Ban Ki-moon, 139, 145, 221n63. See also
UN Secretary-General reports
Barry, Kathleen, 40, 41, 182n104
al Bashir, Omar Hassan Ahmad, 70,
193n113
Bassiouni, Cherif, 74, 75, 76
Batinić, Jelena, 59, 189n43
Beijing Conference (1995), 27, 32, 33
Beijing Declaration and Platform, 33,
215n1
Bemba, Prosecutor v. (ICC), 205n111
Benard, Cheryl, 66
Benghazi. See Libya
Berlant, Lauren, 152
Berlin, Battle of. See A Woman in Berlin
Bernstein, Elizabeth, 13, 177n3
best practices manuals on sexual violence
prosecution, 117–10, 120
Bianchi, Linda, 112, 117, 119, 212nn68–69,
213n96, 214n103
Bosnia and Herzegovina: claims of
femicide in, 56; claims of gynocide
in, 55, 61; ethnically mixed relationships before war in, 64, 65, 66, 95, 97,
205–6nn112–113; feeling Yugoslav in,
97, 206n116; mainstream responses to
wartime rape in, 20–21; UN Action
video (2007) on sexual violence in,
137–39, 138 (figure), 223nn83–4; UN
Protection Force in, 51–52; Vienna
Conference participation by women
from, 43; Vienna Declaration and
Programme of Action on violence
against women in, 19; women on both
sides of war in, 158. See also ICTY
Bosnian Muslims: cultural and religious
assumptions about, 56, 62, 64–65, 66,
192n98; on ICTY as biased against
their ethnicity, 198n15; post-Kunarac
indictments and convictions of,
201–2n54; rape charges and judgment against, 86–88; rapes by Serbs
or Croats compared with rapes by, 43;
response of religious leaders to rape,
65, 191n82
Bosnian Muslim women: as combatants, 69, 155; Croatian press on rape
effects on, 67–68; ethnicity of children
of rapes by Serbs of, 64–65, 108, 111,
190n75; feminist disagreements on
labelling rapes of, 55–56, 61; ICTY on
sexual consent by, 94–98, 205nn96,
102, 205–6nn111–114; media representations of rape of, 50, 185n1; medica
mondiale on rape effects on, 68; raped,
estimating number of children born
to, 190–91n79; as “raped women,”
67–69, 151, 152
Boutros-Ghali, Boutros, 180n62. See also
UN Secretary-General reports
boys: in Rome Statute, 135–36; as sexual
violence targets, 2, 48, 82; in UN
Security Council Resolutions, 124,
133–34, 221nn63–4, 75; video on sexual
violence in conflict treatment of, 5, 11,
100. See also children; gender-neutral
language; men
Brđanin, Prosecutor v. (ICTY), 89, 91
Broadbent, Ed, 39
Brownmiller, Susan, 58
Brustin, Stacy, 180n51
Bunch, Charlotte: Ad Hoc Women’s
Coalition against War Crimes against
Women and, 45; Center for Women’s
Global Leadership and, 29; on female
sexual slavery, 182–83n105; at Harvard
Human Rights Program conference
(1988), 179–80n51; on non-aligned
feminism, 183n109; sexual subordina-
Index
tion as focus for, 42; on socioeconomic
violations against women, 35; as structural-bias feminist, 24; on transformative approach to human rights, 40; on
VAW as clearer avenue for activism,
36; on war crimes against women at
Vienna Tribunal, 38–39; on women’s
caucuses within human rights organizations, 31; on “Women’s Rights Are
Human Rights,” 30
Bush, George H. W., administration of,
53, 186n16
Bush, George W., administration of,
194n125
Buss, Doris, 112, 114
capital punishment, ICTR and, 102
carceral feminism, 13, 14, 20, 44–45,
141–44, 177n3
Carpenter, Charli, 63–64
Castley, Shirley, 42, 182–83n105. See also
Bunch, Charlotte
Čelebići (Prosecutor v. Mucić et al.)
(ICTY), 86–87, 92, 202n59, 203n72,
206n117
Center for Constitutional Rights, 106
Center for Reproductive Policy and Law,
183n120
Center for Women’s Global Leadership,
Rutgers University, 29, 32, 34, 35–36,
45. See also Global Tribunal on
Violations of Women’s Human Rights
Češić, Prosecutor v. (ICTY), 92
Ćetković, Nadežda, 61
Chappell, Louise, 201n53
Chapter VII of the UN Charter: ICTR
establishment under, 101, 207n2; ICTY
establishment under, 62, 80; intervention power and, 21, 52, 62, 177n10,
186n9
Charlesworth, Hilary, 26, 111–12, 178nn19,
21, 212n67
children: amnesties for crimes against,
257
225nn115–116; in armed conflict,
Human Security Network on, 125;
criminal laws against labor by or sexual abuse of, 42; forcibly transferred
to another group, as genocidal, 63–64,
190n75; and women, as stand-in for
“civilian,” 220n54; WPS resolutions on
human security and, 126, 127 (table),
128, 132–33, 217n19, 221n67. See also
boys; gender-neutral language; girls
China, Security Council resolutions
(2019) and, 131–32
Chinkin, Christine, 26, 141, 149, 224n111
civilians: UN peacekeeping forces abuses
of, 130, 219n54; in war, roles of, 163–64;
“women and children” as stand-in for,
220n54; WPS resolutions on human
security and, 126, 127 (table), 128,
221n67. See also boys; children; girls;
women
Clinton, Bill, administration of, 54
Clinton, Hillary Rodham, 10, 71–72, 75,
193nn119, 121
Clooney, Amal, 142, 169
Cmiel, Kenneth, 78
Coalition on Women’s Human Rights in
Conflict Situations, 105, 106
coercion: prostitution and, 40; sexual
violence in conflict and, 94–96,
215n123; World Charter for Prostitutes’
Rights on, 41–42. See also consent, as a
defense to charges of rape and sexual
violence
Cold War, 21, 22, 52–53, 124
Colombia, Legal Framework for Peace
(2012), amnesties included in, 144
colonialism, 19, 23, 26–28, 42, 197n166.
See also Third World feminist critics
and their critiques
comfort women, during World War II,
38, 182n93
command responsibility, 208–9n14;
211n40
258
Index
Commission of Experts’ reports on former Yugoslavia, 80
Commission of Experts’ reports on
Rwanda, 102, 104–5, 108–9
Committee for Review of the Prosecution
of Sexual Violence, 117
common Article 3, Geneva Conventions:
on humiliating and degrading treatment, 91; ICTR and, 102; ICTY and,
84, 102, 199n26
conflict-related sexual violence. See
sexual violence in conflict
Congo, Democratic Republic of, 137
consent, as a defense to charges of rape
and sexual violence: best practices
manuals on, 119; feminist approaches
to, 65, 85, 188n37, 205n96; ICC on,
160, 205n111, 215n123; ICTR on, 119,
160, 215n123; ICTY on, 85, 94–96, 160,
204n95, 205n96
Control Council Law No. 10, 198–
99nn19–20
Cook, Rebecca, 31
Copelon, Rhonda: Ad Hoc Women’s
Coalition against War Crimes against
Women and, 45; on Akayesu, 106,
110–11; charges against Karadžić and,
106, 210n30; on gender violence as
Vienna Conference topic, 43; on genocide claims in rape cases, 188n34; on
including acts committed on the basis
of gender in persecution, 90; on omission of “rape” from ICTY statute, 83;
rape-on-all-sides position and, 44, 58,
107–8, 189n42; on shifting stigma from
survivors to perpetrators, 174–75n13
Copenhagen Conference (1980), 23
Cossman, Brenda, 180n51
Costa Rica, on sexual violence in conflict,
217n21
counterterrorism: MacKinnon on, 77–78,
147; mobilizing, 172; Security Council
trafficking resolutions and, 130–31; use
of sexual violence to call for, 151–52,
154, 172; women’s participation in, 130,
146; WPS agenda and, 149–50. See also
extremist groups and extremism; terrorists and terrorism
crimes against humanity: amicus brief for
Akayesu on, 108; al Bashir charged with,
193n113; definition of, 83, 198–99n19;
enslavement as, 84, 87; ethnic essentialism and, 9, 82, 88–90, 95–97; ICTR on
rape and sexual violence as, 103, 107, 113,
114, 211n40; ICTR statute on rape as,
102; ICTY on rape and sexual violence
as, 82, 84, 87–90, 200–201n42; ICTY
statute on rape as, 83; persecution as,
88–90, 202nn61–62, 203n70; relationship to genocide, 89, 105; torture as,
90. See also enslavement; international
humanitarian law; persecution; torture
criminal law. See impunity; international
criminal law
Croatia, 20, 51–52, 67–68
Croatian women, 55–56, 61
Croats, 43, 87, 88, 198n15, 201–2n54
cultural essentialism. See ethnic essentialism
culturally sensitive universalism, 20,
32–34, 43, 180n62
culture: Asian values debates about, 29, 33,
179n45; call for sensitivity to in investigating sexual violence, 118; combating
VAW as mediation of debates about,
35–36; of impunity, 46, 142–43, 148,
224n109; Muslim and Islamic, assumptions about, 65–67, 76; military intervention supported by representations
of, 78; structural bias feminist treatment
of, 25–26; Third World feminist critics
on structural-bias feminist assumptions
about, 27–28, 178n30; Western, critiques
of, 28, 30. See also culturally sensitive
universalism; ethnic essentialism; traditional and religious community leaders
Index
customary international law, 83, 84,
198n17, 199nn20, 21, 26
Da’esh. See ISIL
Darfur, 70, 137, 192–93n112
de Brouwer, Anne-Marie, 204n78
Declaration of Commitment to End
Sexual Violence in Conflict (UN), 4,
14, 173n6
Declaration on Preventing Sexual
Violence in Conflict, Group of Eight,
4, 14, 15
Delalić, Zejnil, 201n43
Delić, Hazim, 201n43
deterrence: criminal law and, 14–15,
142–43, 145, 147–48, 176n27
development. See economic development
Diaz Dennis, Patricia, 54
Dieng, Adama, 145
dignity, 8, 42, 92, 102, 153, 175n21, 191n87.
See also honor; outrages upon personal dignity; shame and stigma
discrimination and discriminatory
intent, crime of persecution and, 89
domestic violence, 13, 40, 42, 45–46. See
also sexual abuse
“Don’t believe the thumbnail, this video
is the stuff of nightmares”. See video
(UK Foreign and Commonwealth
Office, 2014)
Dowd, Maureen, 72
dowry deaths, 25–26, 40, 178n30
Drakulić, Slavenka, 68
due process: lack of testimony and, 77;
targeted sanctions against sexual violence and, 149, 227n151; victim shame
in testifying and, 93, 101, 107, 116
Dworkin, Andrea, 56
economic and social rights: Asian values
and, 29; feminist approaches to, 23, 24,
35, 38, 41, 42
economic development: economic
259
empowerment, women and, 129; right
to, 29; rise of human rights advocacy
and decreased attention to, 36–37, 37
(figure); sexual violence in conflict
and, 139; UN World Conferences on
Women and, 23, 29, 35; at Vienna
Conference, 29, 31; violence against
women and, 34–35, 36–37; WID, WAD,
and GAD, 177n14
economic maldistribution: feminist
approaches to, 2, 17, 26–28, 34, 39, 42;
Global Tribunal and, 38, 39; issue displaced by focus on sexual violence in
conflict, 2, 39, 151, 183n114; NIEO and,
26. See also Third World feminist critics and their critiques
Effange-Mbella, Elsie, 118
Ehrenreich, Barbara, 159–60
enslavement: rape or sexual violence as,
84, 87. See also crimes against humanity; sexual slavery
Enzensberger, Hans Magnus, 164
ethnically mixed relationships, in Bosnia,
64, 65, 66, 95, 97, 205–6nn112–113
ethnic cleansing: in Bosnia and Croatia
and, 20; first Security Council
resolution on, 186n7; in the former
Yugoslavia, 80, 81, 197n3; as form of
genocide, 52, 186n10; ICTY’s Kunarac
decision on, 87–88; R2P on military
intervention against, 55; U.S. on genocide in Bosnia vs., 53
ethnic essentialism: decline of critical
feminist theories on, 78; ICTY and, 82,
88–90, 94–97; shame and, 9, 48; structural bias feminism and, 28, 56, 62–67,
82; Third World feminist critiques of
cultural and, 27–28, 178n130. See also
culture; shame and stigma
ethnicity: centrality to crime of persecution (ICTY), 89–90; and consent
in crimes against humanity (ICTY),
95–98; to distinguish genocidal rape
260
Index
in former Yugoslavia, 51, 57–58; and
genocide definition, 63, 107; and
genocide in Rwanda (ICTR), 110–11;
of offspring of inter-ethnic rapes in
Yugoslavian conflict, 64–65, 108, 111,
190n75. See also Bosnian Muslims;
Croats; culture; Hutus; Serbs; Tutsis
European Council, 20, 177n7
evil. See banality of evil
ex post facto law, ICTY statute on crimes
against humanity and, 83
extremist groups and extremism:
research on women’s participation in
countering, 150; Resolution 2242 on
countering, 147, 149, 228n160; sexual
violence and, 79; traditional and religious leaders and shifting shame from
victims to, 146; UN Women on countering strategies for, 130. See also counterterrorism; terrorists and terrorism
Facio, Alda, 30
Feimster, Crystal, 174n10
female genital mutilation, 25–26, 40,
178n30, 179n41
female sexual slavery. See sexual slavery
female subordination, 24, 98, 100. See
also sexual subordination strand of
structural-bias feminism; structuralbias feminists
femicide, 56
feminists and feminisms: anti-war feminists, 18, 86, 149; carceral feminism,
13, 14, 20, 177n3; debates over meaning
of rape in Yugoslavian conflict, 55–70;
on genocidal rape in Akayesu, 110–12;
governance feminism, 14, 185n140;
liberal inclusion feminist approaches
to international human rights and,
22–23; nationalist, anti-nationalist, and
non-nationalist, in the Yugoslavian
conflict, 59, 189n43; on rape as genocidal, 63–64; sex-positive feminists, 2,
18, 19, 40–42, 86; Vienna Conference
organizing by, 29–32. See also structural-bias feminists; Third World feminist
critics and their critiques; women’s
human rights movement; women’s
peace movement and activism
Foča region, Bosnia. See Čelebići
Folnegović-Šmalc, Vera, 69–70
For Whom the Bell Tolls (Hemingway):
on fighting back against sexual assault
attackers, 162–63; positive function of
shame in, 170, 171; sexuality and conflict intertwined in, 161–62; sexual violence in conflict in, 16–17; on Spanish
Civil War, 152–53; A Woman in Berlin
compared with, 165; women as combatants in, 156, 157–58, 229nn13–14
Franke, Katherine M., 200n30
Fraser, Arvonne, 31, 35
Fund for a Feminist Majority, 183n120
Furundžija, Prosecutor v. (ICTY), 87, 92,
99
GABRIELA (anti-Marcos women’s coalition), 30
Gacumbitsi, Prosecutor v. (ICTR), 114
Gaddafi, Mohammar, 70–71, 72, 73,
74–75. See also Libya
Gardam, Judith, 175n21
gender: Genocide Convention and, 63;
male sexual dominance as central to
oppression on the basis of, 2, 24; not
as part of the definition of genocide,
63, 111; as part of the definition of persecution as a crime against humanity,
90, 203n70; as structuring category of
power for structural-bias feminists, 12,
19, 25, 28, 40, 51
gender-based violence: move to focus on
conflict-related sexual violence instead
of, 23, 82, 100, 124, 134–36, 221n67,
221–22n70, 222n73; sexual violence as
paradigm, feminists on, 12, 42. See also
Index
sexual violence in conflict; violence
against women
gender-neutral language, 11, 22–23, 99,
132–34, 220n59
Geneva Conventions: Additional
Protocol I, 174n12, 212n67; Additional
Protocol II, 8, 102, 174n11, 203n70,
211n40; common Article 3 and ICTR,
102, 207n2, 211n40; common Article 3
and ICTY, 84, 102, 199n26; common
Article 3 on humiliating and degrading treatment, 91; Fourth (1949), on
rape, 8; Hague on rape and sexual violence as violations of, 4
genocidal rape: amicus brief for
Akayesu finding of, 108–9, 210nn31,
33, 211n46; of Croats, 188n33; ethnic essentialism assumptions and,
62–67; feminist debates in former
Yugoslavia over, 55–70; feminist
debates in former Yugoslavia versus
Rwanda over, 103; ICTR on, 8–9, 101,
107, 112; ICTY on, 82, 87–88, 200n29,
201n52; multiple understandings
of, 62–67; in relationship to Darfur,
70, 137, 192–93n112; in Rwanda,
Commission of Experts on, 104–5.
See also military interventions
genocidal-rape position, rape-on-allsides position versus, 56–62, 86,
189n42
genocide: al Bashir charged with, 193n113;
as basis for military intervention,
53–55, 70; Commission of Experts on
Genocide Convention violations in
the former Yugoslavia, 80; Genocide
Convention, 54, 62–65, 80, 84, 105,
110; ICTR convictions for, 101; ICTY
charges of, 88; intent requirement,
8–9, 63; persecution as a crime against
humanity relationship to, 89; relationship of ethnic cleansing to, 52–54; statutory defnitions, 62–63, 84, 102, 107;
261
UN’s failure to prevent, in Rwanda, 55.
See also genocidal rape; international
humanitarian law
Georgetown Institute for Women, Peace
and Security, 148, 149
Germany: Security Council resolutions
and, 131–32, 134, 142; A Woman in
Berlin publication in, 164. See also A
Woman in Berlin
Gerntholtz, Liesl, 196n143
Ginn, Courtney, 204n88
girls: in armed conflict, Resolution 1325
protection measures for, 122; armed
conflict and, Human Security Network
and resolutions on, 125; human rights
organizations on abuses against, 31;
sexual violence in conflict against, 2,
48, 221n63; as sexual violence targets,
WPS agenda on, 124; UN Action video
(2007) on sexual violence and, 138;
UN Resolutions on protection of, 133;
video on sexual violence in conflict
treatment of, 5, 11–12, 100; vulnerability to sexual slavery of, 42. See also
children; gender-neutral language
Global Campaign for Women’s Human
Rights, 29
Global Network of Women
Peacebuilders, 140
global North, 22–23, 26–27, 34
global South, 17, 22–23, 28, 34. See also
Third World feminist critics and their
critiques
Global Summit on Sexual Violence in
Conflict (2014), 3–7, 6 (figure), 9, 123
Global Tribunal on Violations of
Women’s Human Rights (Vienna
1993), 32, 34–35, 38–39, 43, 182n93
Goffman, Erving, 117
Goldberg, Suzanne, 180n51
Goldstone, Richard, 84–85
governance feminism, 14, 185n140
grave breaches, 4, 86, 108, 199n25,
262
Index
200n42. See also international humanitarian law; war crimes
Group of Eight (G8), 4, 14, 15, 47
Gruber, Aya, 45
Gutman, Roy, 68, 192n98
Hadžihasanović et al., Prosecutor v.
(ICTY), 201n44
Hague, William, 4, 9, 14, 123, 143
Hague Appeal for Peace, 215n1
Halley, Janet: on delinking honor and
dignity from sexual offenses, 102; on
feminists and Rome Statute drafting,
47, 87–88, 91, 184nn135–136, 203n70;
on governance feminism, 14, 185n140;
on meaning of literary narratives, 154;
on structural-bias feminism and international criminal law, 185n140; on A
Woman in Berlin, 154, 164, 228n6
Hamzić, Vanja, 206n115
Harvard Human Rights Program,
“Women’s Human Rights: Possibilities
and Contradictions” (1988), 30–31,
179–80n51
Heathcote, Gina, 146, 148, 149
Helsinki Watch (NGO), 198n10
Hemingway, Ernest, 153–54, 228n8,
229n14. See also For Whom the Bell
Tolls
Henry, Nicola, 204n88
Herzegovina. See Bosnia and
Herzegovina
heterosexuality and heteronormativity.
See sexuality
Hill, Felicity, 122, 124–25, 227n157
Holocaust, 61–62, 94
homophobia, stigma of sexual violence
against a man and, 12, 175n19
homosexuality. See men; sexuality
Honduras, inaction on disappearance of
political activist in, 46, 184n133
honor: chastity and, 66, 92; of communities, 76, 77, 146; connection between
sexual offenses and, 91–92, 102; For
Whom the Bell Tolls on, 163; Murad on,
165, 167; rape as attack on, 8, 104, 109,
112, 175n21. See also shame and stigma
humanitarian law. See international
humanitarian law
human rights. See human rights law;
human rights NGOs; international
human rights law and discourse; NGO
Working Group; Vienna Conference;
women’s human rights movement
Human Rights Council, 53, 74, 75–76,
195n137
human rights hawks, 53, 54, 70, 72,
186n13, 194n124
human rights law. See international
human rights law and discourse
human rights NGOs, 29, 31, 37, 78. See
also specific NGOs
Human Rights Watch, 31, 109, 183n120,
196nn143, 151, 210n25. See also Helsinki
Watch
human security agenda, 126, 127 (table),
128, 132–33, 217n19, 221n67
Human Security Network, 125, 216n10,
217n15
humiliating and degrading treatment:
Akayesu charges citing, 106, 110;
ICTR’s Musema decision on, 113; ICTR
statute on rape as, 102–3; ICTY on
rape and sexual violence as, 84, 91–92,
199n25. See also outrages upon personal dignity; shame and stigma; war
crimes
humiliation. See shame and stigma
Husak, Douglas, 98
Hutu Interahamwe (paramilitary organization), 105, 110, 114
Hutus, 103, 108, 109–10, 114, 211n54,
228n4. See also ICTR; Rwanda
Ibárruri Gómez, Dolores, 156, 228n12
ICC (International Criminal Court):
Index
al Bashir warrant for arrest by, 70,
193n113; Bemba, Prosecutor v., 205n111;
Darfur genocide case referred to, 70;
establishment of, 44, 46–47, 81–82,
198n10; feminists on gender justice
failures by, 201n53; on lack of consent
and rape, 160, 205n11; Libyan human
rights violations referred to, 71, 75,
197n161; on victims, 170, 176n27. See
also Rome Statute
ICTR (International Criminal Tribunal
for Rwanda): best practices manuals
on sexual violence prosecution by,
117–10, 120; capital punishment and,
102; convictions for rape and sexual
violence by, 103, 209nn16, 17; doctrinal function of shame and, 104–16;
establishment of, 44, 81, 101–2, 207n2,
208nn5–6; mandate for, 101; on rape
or sexual violence as genocide, 84;
on redistribution of shame, 120–21;
remaining duties of, MICT and,
198n13; as response after genocide
occurred, 102; as response to rape
and sexual violence, 16; on shame and
stigma of rape, 8–9; shame as prosecutorial alibi and, 116–19; structural-bias
feminists and, 47; witness testimony
alternatives for, 76; women charged by,
158, 229n27
ICTR cases (International Criminal
Tribunal for Rwanda): Akayesu,
Prosecutor v., 103–16, 137, 208–9n14,
209n24, 210n26; Gacumbitsi,
Prosecutor v., 114; Musema, Prosecutor
v., 113, 212nn72, 75; Nyiramasuhuko
et al., Prosecutor v., 114, 229n29;
Rukundo, Prosecutor v., 114–15
ICTY (International Criminal Tribunal
for the former Yugoslavia): Ad Hoc
Women’s Coalition against War
Crimes against Women and, 45; convictions for rape and sexual violence
263
by, 103, 209n16; criminalizing sexual
agency and ethnic difference, 94–98,
205nn96, 102, 205–6nn111–114; establishment of, 20–21, 80–81, 184n135,
197–98nn5–6; feminist engagement in statute and rules of, 83–86,
200nn40–41; jurisdiction of, 199n21;
male victims sexual violence and,
98–100, 200n30; mediation of feminist
disagreements during, 86–90; pressure
for U.S. military intervention prior to
establishment of, 54; remaining duties
of, MICT and, 198n13; as response
to rape and sexual violence, 16, 44,
90–94, 199n25; on sexual injury, 124;
solidifying the common sense on rape
and sexual violence, 90–98; women
charged by, 158, 229nn27–28
ICTY cases: Brđanin, Prosecutor v.,
89, 91; Čelebići (Prosecutor v. Mucić
et al.), 86–87, 92, 202n59, 203n72,
206n117; Češić, Prosecutor v., 92;
Furundžija, Prosecutor v., 87, 92, 99;
Hadžihasanović et al., Prosecutor
v., 201n44; Karadžić, Prosecutor
v., 200n29; Karadžić and Mladić,
Prosecutor v., 202n55; Kunarac et al.,
Prosecutor v., 87–88, 90–91, 94–96,
201nn48, 52, 205n102; Kupreškić,
Prosecutor v., 202n60; Kvočka et al.,
Prosecutor v., 91, 97; Nikolić, Prosecutor
v., 93; Simić, Tadić and Zarić,
Prosecutor v., 91; Stakić, Prosecutor v.,
91; Tadić, Prosecutor v., 97, 198n17
imperialism. See anti-imperialist feminists; colonialism
impunity: “culture of,” 46, 142–43, 148,
224n109; as precluding peace, 15,
225nn124, 125; use of sanctions in
addressing sexual violence in conflict and, 148, 227nn147, 150; Vienna
Declaration on, 44, 47; WPS agenda
on, 141–43, 145–47, 223n97, 225n124
264
Index
indecent assaults, 8, 102, 106, 174n12
Interahamwe, Hutu, 105, 110, 114
Inter-American Commission on Human
Rights, 92, 176n22
Inter-American Court of Human Rights,
46
International Alert, 123, 215n1
International Commission of Inquiry,
alleged Libyan violations of international human rights law and, 74, 75–76
International Commission of Inquiry on
Darfur, 192–93n112
International Commission on
Intervention and State Sovereignty,
187n22
International Committee for Prostitutes’
Rights (ICPR), 41
international criminal law: Chapter VII
of the UN Charter and, 62, 80, 81,
83, 101, 207n2; common sense about
sexual violence in conflict and, 12–15,
82–83; feminists and emergence of,
13–14, 21–22, 39, 44–47, 140–47; Vienna
Tribunal and development of, 32. See
also ICTR; ICTY; impunity; international humanitarian law
International Criminal Tribunal for
Rwanda. See ICTR
International Criminal Tribunal for the
former Yugoslavia (ICTY). See ICTY
International Day of Violence against
Women (November 25), 34
international humanitarian law: customary international law and, 199n20;
early feminist consideration of,
175n21; early treatment of rape under,
8, 174n10; human security and WPS
resolutions related to, 126, 127 (table);
ICTR establishment and, 101; ICTY
establishment and, 20–21, 80–81; NGO
Working Group and, 125; relationship to human rights law, 13, 199n20;
Vienna Conference and, 37–38. See
also crimes against humanity; Geneva
Conventions; genocide; grave breaches; international criminal law; war
crimes
International Human Rights Day
(December 10), 34
international human rights law and
discourse: in decision by ICTY, 92;
in decision by Inter-American Court
of Human Rights, 46; feminist liberal
inclusion approaches to, 23; feminists
and emergence of, 13, 21–22, 177n11;
relationship to international humanitarian law, 13, 199n20; structural-bias
critiques of, 23–26; Third World feminist critiques and, 26; turn to criminal
law in, 13–14, 44–47, 140–47; Vienna
Conference and, 28–44; violence
against women and, 34–37. See also
women’s human rights movement
International Law Commission, 44
International Residual Mechanism for
Criminal Tribunals (MICT), 198n13
International Women’s Human Rights
Clinic, 106
Iraq invasions, 78, 227n157
ISIL (‘Islamic State of Iraq and the
Levant’): Murad on women in, 158;
Murad’s captivity by, 16; Murad’s narrative of, 167, 168–70; seizing Murad’s
village, 230n58; slavery and sexual
slavery by, 130, 165–66. See also Murad,
Nadia
Islamic law, 64–66
Joachim, Jutta, 46
Jolie, Angelina, 4, 10, 15, 123, 143, 145
journalists, 50, 68, 154, 185n1
Kadic v. Karadžić, 57, 106, 188n34
Kahan, Dan, 215n130
Kapur, Ratna, 27, 189n51
Karadžić, Prosecutor v. (ICTY), 200n29
Index
Karadžić, Radovan, 57, 106, 188n34,
202n55, 210n30
Karadžić and Mladić, Prosecutor v.
(ICTY), 202n55
Karemera et al., Prosecutor v. (ICTR), 113
Kareta (organization), 56, 59, 60
Keck, Margaret, 36
Kendall, Sara, 170, 175n13
Kennedy, David, 173n2
Kesić, Obrad, 59
Khushalani, Yougindra, 175n21
Kinsella, Helen, 10
Koh, Harold, 194n123
Kosovars, post-Kunarac indictments and
convictions of, 201–2n54
Kosovo, 55, 81, 186n11. See also
Yugoslavia, former
Kovač, Radomir, 87, 201n48
Kristof, Nicholas, 73, 194–95n128
Kunarac et al., Prosecutor v. (ICTY):
charges in, 87–88, 90–91, 201n52,
203–4n78; consent as element of rape
and, 94–96, 205n102; convictions in,
201n48; sexual agency and ethnic difference in, 94–96, 205nn96, 102
Kupreškić, Prosecutor v. (ICTY), 202n60
Kvočka et al., Prosecutor v. (ICTY), 91, 97
land mines, Human Security Network
on, 125
language. See gender-neutral language
The Last Girl (Murad): on Murad’s ISIS
captivity, 16–17, 153, 158, 165–66; time
covered in, 230n58; A Woman in Berlin
compared with, 165, 166. See also
Murad, Nadia
Legal Advisor for Gender Related
Crimes, ICTY’s, 85. See also Viseur
Sellers, Patricia
Lewis, Chloé, 221n63
liberal inclusion feminist approaches to
international human rights, 22–23
Libya, 70–77, 187n22, 194–95nn127–128;
265
Arab Jamahiriya, Security Council
response to human rights violations in, 70–71. See also Gaddafi,
Mohammar
Lieber Code, 174n10
Lines, Lisa, 156
literary narratives: context of war foregrounded in, 168–70; countering
common sense narratives with, 9–10,
171–72; legal, advocacy, policy, or journalistic narratives compared with, 154;
structuring language for understanding rape and other violence in war
with, 154
Lizza, Ryan, 194n124
Lowbwein, Wendy, 204n88
Lysistrata, fictional letter to, 60, 155
MacKinnon, Catharine: on distinguishing rape from everyday sex, 188n37; as
lawyer in lawsuit against Karadžić, 57,
106, 188n34, 210n30; on military intervention to address violence against
women, 77, 79, 147, 197nn165–166; as
Moreno-Ocampo’s special advisor on
gender, 73; on pornography, 187n31; on
sexual violence against men, 98–99,
175n18, 178n26, 207n130; “On Torture”
lecture (1990) by, 25, 187n26; on the
Yugoslavian conflict, 43–44, 56–57,
58, 61
male domination, 24, 26, 28, 98, 100. See
also men; patriarchal societies; patriarchy; structural-bias feminists
Martin, Dianne, 45–46
mass rape. See systematic rape
McDonald, Gabrielle Kirk, 85
media. See journalists
medica mondiale, 68, 69, 192n98, 219n50
men: opposing military intervention in
Libya, 72; sexual violence in conflict
against, 2, 14, 48, 99, 135–36, 175n19,
178n26, 221nn63–4; structural-bias
266
Index
feminists on sexual violence against,
24, 40, 99, 175n18, 178n26; victimization of women versus, 93–94; as
victims of sexual violence, ICTY on,
82–83, 98–100, 207n128, 208n13; video
on sexual violence in conflict treatment of, 5, 11, 100; Vienna Conference
and, 31; WPS agenda on sexual violence against, 124, 133–34. See also
male domination; perpetrators
Merchán, Sylke, 65, 66, 190n75, 191n83
Meron, Theodor, 81, 175–76n22, 199n20
Mexico City Conference (1975), 23
Mezey, Gillian, 93
military interventions: after end of the
Cold War, 22, 51–55; crisis governance
and, 77–79; Darfur and calls for, 70,
192n112; finding rape in Libya and,
70–77; genocidal rape position and
ethnic essentialism, 62–67; genocidal
rape versus rape-on-all sides in former Yugoslavia and, 56–70; in Kosovo
by NATO without Security Council
authorization, 55; R2P and, 55, 70, 71,
187n22; as response to rape and sexual
violence, 3, 16, 61, 152, 189n57. See also
genocidal rape; human rights hawks
Miller, Alice, 37, 39, 48
Mladić, Ratko, 202n55
Mlambo-Ngcuka, Phumzile, 129
Mohammed, Amina J., 142
Mohammed, Yanar, 150
Moreno-Ocampo, Luis, 73, 74–75, 76–77,
119
Moscow Declaration, 198–99n19
Moyn, Samuel, 177n11
Ms. Foundation for Women, 183n120
Mucić, Zdravko, 201n43
Muna, Maha, 122, 124–25
Murad, Nadia: on effect of U.S. sanctions
on Iraq, 169; Last Girl memoir on ISIS
captivity of, 16–17, 153, 158, 165–66;
on Resolution 2331, 130, 169; and
Resolution 2467 debate, 142, 231n83; on
talking about everything, 152, 167, 168;
time covered in memoir by, 230n58
Musema, Prosecutor v. (ICTR), 113,
212nn72, 75
Muslim communities. See Bosnian
Muslims; traditional and religious
community leaders
nacija concept, in Bosnia, 97, 206nn113–
114
nacionalnost concept, in Bosnia, 97,
206n114
Nairobi Conference (1985): inclusion of
women in development programs and,
23; NGO Forum and, 35; Peace Tent at,
35, 181n78, 216n9; VAW discourse and,
37, 181n73
Nairobi Forward-looking Strategies, 35, 37
naming and shaming, 13, 120–21, 145,
148–49, 215n129. See also shame and
stigma
nationalist feminist groups in the
Yugoslavian conflict, 59, 189n43
NATO, 52, 55
Nenadic, Natalie, 56
Nesiah, Vasuki, 27, 149, 150, 185n139
New International Economic Order
(NIEO), 26, 179n33
NGO Forum (1985), Nairobi Conference
and, 35
NGOs. See human rights NGOs
NGO Working Group (NGO Working
Group on Women, Peace and
Security), 122, 123, 125, 128, 215n1,
217n15
Ní Aoláin, Fionnuala, 85, 94, 150, 199n20,
228n160
Nikolić, Prosecutor v. (ICTY), 93
no-fly zone, for Libya, 71, 193nn119, 121
non-state actors, 25, 31, 46, 126, 148,
184n133. See also human rights NGOs;
private sphere; terrorists and terrorism
Index
Nouwen, Sarah, 170, 175n13
Nowrojee, Binaifer, 109, 112, 116, 120
Nuremberg, International Military
Tribunal at, 83
Nyiramasuhuko et al., Prosecutor v.
(ICTR), 114, 159, 229n29
Obama, Barack, administration of, 71–73,
74, 193nn19, 123–124, 195n34
al-Obeidi, Eman, 72–73, 74, 194–
95nn127–128
Obiora, Leslye, 27, 28, 33
Obote-Odora, Alex, 117, 120
Office of the Prosecutor (OTP), ICTR’s,
116, 117–18. See also ICTR cases
Office of the Prosecutor (OTP), ICTY’s,
84–85, 86–88, 99, 207n2. See also ICTY
cases
off our backs, 60–61
Omarska concentration camp, Bosnia,
93–94
Omerbašić, Ševko, 65, 191n82
Ong, Aihwa, 27, 28
Oosterveld, Valerie, 87, 99
Operation Deliberate Force, 52, 55, 185n6
ostracism. See shame and stigma
Otto, Dianne: on culturally sensitive
universalism, 33; on governance
feminism, 14, 185n140; on Resolution
1325 and WPS agenda, 150, 216n4; on
Resolution 1820, 149, 220n57
outrages upon personal dignity: Additional
Protocol II, on rape as, 8, 102; ICTR
statute and, 102–3, 106, 208n7; ICTY
and, 84, 87, 90, 91–92, 102–3, 199nn25,
26, 203n78; rape and sexual violence as,
8, 91–92, 102–3, 203–4n78; Rome Statue’s
delinking of rape and, 91, 102
Palestine, 38, 66
patriarchal societies, 66, 111
patriarchy, 23, 139, 178n19, 216n9. See also
male domination
267
Patten, Pramila, 143, 224n112
peace: lasting, criminal justice and, 15,
118, 144–45, 225n124; sexual violence
as preventing, 3–7, 15, 126–28, 174n8,
217n22; UN Resolutions on women
building, 11, 123–25, 127 (table), 128,
129, 130. See also women’s peace movement and activism
Peace Tent, at Nairobi Conference, 35,
181n78, 216n9
perpetrators: common sense about, 2,
82–83; emphasis on individual criminal accountability for, 4, 45, 82, 83,
120, 141, 198n14; men as, 2, 3, 10–12,
14, 98–99; naming and shaming of,
120–21, 123–24, 128, 145, 219n9; shifting
shame and stigma from victim to, 9,
92–93, 120–21, 145–47, 170–71, 192n110;
women as, 10, 98, 99, 158–60
persecution: based on gender, 90, 189n42,
203n70; discriminatory intent required
for, 89, 202nn61–62; ethnic essentialism and, 88–90, 95; ICTY on rape
and sexual violence as, 83–84, 88–90;
as mediating feminist debates over
genocidal rape, 89–90; Plavšić accused
of, 99, 159; Rome Statute on rape and
sexual violence as, 90, 203n70. See also
crimes against humanity
Pheterson, Gail, 41
Pillay, Navanethem (“Navi”), 44, 105–6,
210n29, 214n103
Plavšić, Biljana, 99, 156, 206–7nn124–125,
229n28
political agency: of Croatian and Serbian
women, 60; A Woman in Berlin on,
170–71; women in war and, 11, 155–60
pornography, 2, 25, 40, 42, 56, 187n31
Power, Samantha, 53, 54, 71–72, 193n119
pregnancy, forced, 19, 38, 43, 87–88,
209n21. See also genocidal rape; rape
Preventing Sexual Violence Initiative
(PSVI), 4, 143
268
Index
private sphere, 25, 28, 31, 77. See also public/private distinction
prosecutorial discretion, 98
prostitution. See sex work
public/private distinction, 24–25, 46,
178nn21, 25. See also private sphere
Quindlen, Anna, 55, 61–62
R2P (Responsibility to Protect), 55, 70, 71,
187n22. See also military interventions
racism, 26, 29, 42. See also colonialism
rape. See genocidal rape; ICC; ICTR;
ICTY; sexual violence in conflict;
shame and stigma; systematic rape
Reagan, Ronald, administration of, 45
Reagan-Gorbachev Summit Meetings in
Reykjavik (1986), women’s voices at,
216n9
Rees, Madeleine, 141, 223–24n100,
224nn103, 111
Reilly, Niamh, 31, 35, 37–38, 219n49
religious leaders. See traditional and religious community leaders
reproduction, 51, 108, 111. See also pregnancy, forced
Republika Srpska, 99, 159
Responsibility to Protect (R2P), 55, 70, 71,
187n22. See also military interventions
revenge: sexual violence attacks as trigger
for, 217n21; sought by raped Bosnian
Muslim women, 69–70
Rhodes, Ben, 193n119
Rice, Susan, 71–72, 73, 193n119
Robinson, Darryl, 98
Rome Statute: feminists and drafting of,
47, 87–88, 91, 102, 136, 184nn135–136,
203n70; ICTR statute and drafting of,
102–3; on persecution and gender, 90,
203n70; on sexual slavery, 47, 87–88,
201n50; on sexual violence crimes, 47,
87–88. See also ICC
Roth, Kenneth, 120, 186n13
Rovera, Donatella, 75
Ruby, Felicity (formerly Felicity Hill), 122,
124–25, 227n157
Rukundo, Prosecutor v. (ICTR), 114–15
Rule 34, ICTY’s, Victims and Witnesses
Unit established under, 85
Rule 96, ICTY’s, on sexual assault victim’s
testimony, 85, 94, 98, 204nn94–96
Russia: Germany on WPS resolutions
and, 131–32, 217n18; rapes by soldiers
in Berlin from, 163–64, 167. See also A
Woman in Berlin
Rwanda, 55, 71, 137–39, 158–59. See also
ICTR
Rwandan Patriotic Front, 115
sanctions, targeting sexual violence,
148–49, 150–51, 227n147
Sand Creek Massacre, 174n10
Sander, Helke, 60, 155
Scott, Joan, 17
Scowcroft, Brent, 53, 54
Sells, Michael, 206n116
September 11 attacks, counterterrorism
strategy after, WPS agenda and, 149
Serbian feminists, 59–60. See also
Women in Black
Serbs: claimed differences between
Bosnian Muslims and, 62; ICTY
and sexual activity between Bosnian
Muslim women and, 94–98; on
ICTY as biased against their ethnicity, 198n15; ICTY charges for sexual
violence against other groups versus
against, 88, 201n54; rape of, Serbian
Orthodox religious leaders and,
191n82; rapes by, calls for military
intervention and, 56, 188n33. See also
genocidal rape
sex: consent and, 65, 94–98, 119, 160–61,
163; hyper-attention to, 39, 48. See also
sexual agency; sexuality
sex-positive feminists, 2, 18, 19, 40–42, 86
Index
sex trafficking, 13, 40, 42; UN Resolutions
on, 130, 134, 147, 219n48. See also sexual slavery; sex work
sexual abuse, 25, 42, 125, 130, 188n38,
219n44. See also domestic violence
sexual agency: For Whom the Bell Tolls
on, 161–62; ICTY’s presumptions and,
94–98, 205nn96, 102, 205–6nn111–114;
A Woman in Berlin on, 163–64; women’s, denial of rape or sexual violence
and, 11
sexual hierarchies, 134, 185n139
sexual injury, 124, 199n25. See also gender-based violence; sexual violence in
conflict
sexual integrity, personal dignity and,
92, 163
sexuality, 40–41, 48, 49, 78, 150, 161,
185n139. See also sexual agency
sexual slavery: anti-sexual slavery feminists on, 40–42, 47, 182–83n105; ISIS
captives and, 165–66; Kunarac decision
and, 87; Rome Statute on, 47, 87–88,
201n50; sex-positive feminist positions
on, 19, 40–41; in UN Resolutions, 130;
Vienna Declaration on, 19, 38, 43. See
also sex trafficking; sex work
sexual subordination strand of structural-bias feminism: broadening of rape
into category of sexual violence and,
82–83; debate within, 43–44, 50, 86;
defined, 2, 24; effects of ascendance
of, 16, 39, 48, 82–83, 100; international
criminal law and, 44–47, 86; private
sphere and, 25; views of women’s economic status and, 42. See also structural-bias feminists
sexual violence in conflict: move from
gender-based violence to, 134–36,
221n67, 221–22n70, 222nn73, 77; rise in
use of term, 41 (figure); UN Security
Council Resolutions on, 127 (table),
128, 129, 130, 131 (table), 131–32, 217n19.
269
See also gender-based violence; ICC;
ICTR; ICTY; victims; violence against
women; worst crimes
sex work: Barry’s position on, 182n104;
debates on, 2, 19, 185n139; sex-positive
feminists and, 40–41; sex trafficking
workshop and, 102; World Charter for
Prostitutes’ Rights and, 42. See also sex
trafficking; sexual slavery
shame and stigma: alternative sentences
in U.S. penal system and, 215n30;
assumed to accompany sexual violence
in conflict, 48, 91–92, 139–40; common sense about, summary of, 2, 7–9;
communal shame, assumptions about,
8, 9, 105, 112, 139; doctrinally linking
rape and genocide, 101; facilitating
victim testimony and, 9, 10, 140, 154;
feminists’ assumptions about rape and,
67–70, 191–92nn92–93; humiliation
as same affect as, 192n103; ICTR case
law assumptions about, 104, 106–7, 110,
115–16, 209n21; ICTY case law assumptions about, 91–92; Imam Omerbašić
on, 65; individual shame, assumptions
about communal shame and, 66, 92,
93, 109, 116, 140, 191n86; literary narratives on force of, 162–68; naming and,
120–21, 145, 215n129; as prosecutorial
alibi, 116–19; shifting, from victim to
perpetrator, 9, 92–93, 120–21, 145–46,
170–71, 192n110; Tomkins on humiliation and, 192n103, 208n10; of witnesses, prosecution obstacles presumably
due to, 93, 101, 107, 116, 167–68,
204n88; WPS resolutions on assumptions about sexual violence in conflict
and, 123–24. See also honor; humiliating and degrading treatment
Shattered Lives (Nowrojee), 109, 116, 117,
118, 211n48
Shattuck, John, 54, 186n13, 186–87nn20–
21
270
Index
Shestack, Jerome, 56, 62
Sierra Leone: Special Court for, 81,
208n8, 220n60; UN Action video
(2007) on sexual violence in, 137–39,
138 (figure), 223nn83–4
Sikkink, Kathryn, 36
Simić, Tadić and Zarić, Prosecutor v.
(ICTY), 91
Sivac, Nusreta, 151, 152
Sivakumaran, Sandesh, 175n19, 220n60
16 Days of Activism against Gender
Violence (video, 1991), 34, 35
Smith, Gayle, 193n119
Spanish Civil War, 156, 229nn13–14. See
also For Whom the Bell Tolls
Special Court for Sierra Leone, 81, 208n8,
211n40
Special Representative on SVIC (Office
of the Special Representative to
the Secretary-General on Sexual
Violence in Conflict), 123, 128, 223n83.
See also Bangura, Zainab; Dieng,
Adama; Patten, Pramila; UN Action;
Wallström, Margot
Spivak, Gayatri, 28
Srebrenica, Bosnia, 94, 204n92
Stakić, Prosecutor v. (ICTY), 91
Steiner, Henry, 179n51
Steinhauer, Jennifer, 196n148
Stiglmayer, Alexandra, 61, 69, 189n57
stigma. See shame and stigma
St. James, Margo, 40, 41
“Stop Rape Now” (video), 137–39, 138
(figure), 223n82
structural-bias feminists: debate
within over genocidal rape in former
Yugoslavia, 43–44, 50, 86; defined,
2, 24; emergence of, 22; focus on
sexual harm, 48–49; ICC and, 47, 73,
91, 102–3, 135–36, 160, 205n11; influence on international criminal law,
summary and, 44–47; international
human rights law and, 23–26; on male
dominance and female subordination,
24, 98; on public/private distinction,
24–25; response to liberal inclusion
approaches, 23–24; on sexual acts of
violence against men, 98–99, 175n18,
178n26, 207n130; on Third World
cultural practices, 25–28; Third World
feminist critics and, 19–20, 26–28;
women’s rights at Vienna Conference
and, 19, 22. See also sexual subordination strand of structural-bias feminism; Third World feminist critics and
their critiques
Suchland, Jennifer, 36, 37, 42
Sudan: UN Mission in (UNMIS), 193n112.
See also Darfur
survival sex: as gender-based violence,
222n73; Murad on self-perception and,
164; A Woman in Berlin on, 163, 171
Sweden: on Security Council and feminist foreign policy, 148; on Security
Council combating sexual violence,
143. See also Wallström, Margot
systematic rape: in Berlin, 167; in Bosnia,
international responses to, 20, 54;
in Bosnia, Vienna Conference and,
43; as crime against humanity, 88; in
Darfur, 70; feminists lobbying ICTY
about, 83–84; in former Yugoslavia,
Commission of Experts on violence
and, 105; ICTY cases on, 87; ICTY
resolution on, 81; in Libya, allegations
of, 73–74, 76, 196n151; in Rwanda,
Commission of Experts on allegations
of, 109; UN Secretary-General report
on investigation of, 197n3; Vienna
Declaration on, 19, 31–32, 38. See also
crimes against humanity; genocidal
rape
Tadić, Prosecutor v. (ICTY), 97, 198n17,
199n26, 200–201n42, 202n58
terrorists and terrorism, 79, 130, 139, 142,
Index
146–47, 158. See also counterterrorism;
extremist groups and extremism; ISIL;
Murad, Nadia
Third World feminist critics and their
critiques: anti-sexual slavery feminists and, 42; Beijing debates and, 32;
culturally sensitive universalism and,
32–34; on economic distribution and
imperialism, 26–28, 34; emergence of,
22; on global North’s role in exploitation of women in global South, 11, 28,
34; international human rights law
and, 26–28, 179n32; on structural-bias
feminist approaches to culture, 26–28,
178n30; Vienna Conference debates
and, 19–20, 32. See also culture; economic maldistribution; structural-bias
feminists
Ticktin, Miriam, 162, 183n114, 230n42
Tito, Josip Broz, 97
Tomkins, Silvan, 192n103, 208n10
torture: Brđanin conviction for, 91;
Čelebići conviction for, 86–87; as
crime against humanity, 83; as a grave
breach, 86, 199n25; ICTY on, 83–84,
90–91, 92, 96, 203n72, 204n84; ICTY
statute on, 83; Libya and, 76; public/
private distinction on, 24–25; rape or
sexual violence as, 25, 76, 84, 86–87,
90–91, 210n33; shame or humiliation
and, 92; as violation of customary
international law, 83–84, 199n26; as a
war crime, 83–84, 86, 199n26
Torture Victim Protection Act, U.S.,
188n34
traditional and religious community
leaders, 65, 146–47, 166–67, 191n82
trafficking. See sex trafficking
transitional justice, 129, 185n139
Tutsis: Akayesu finding of genocidal
rape against, 107–10; assumptions
about shame and stigma among, 104,
109; Hutu genocide against, 103, 108;
271
participation of women in genocide
against, 159; post-conflict Rwandan
government led by, 102. See also ICTR;
Rwanda
UN Action (UN Action Against Sexual
Violence in Conflict): on “conflictrelated sexual violence,” 100, 135–36;
mission of, 123; on naming and shaming, 146; UN Resolution 1820 and, 126,
217n20; UN Resolution 2122 debate
and, 129; video on shame and stigma
of rape (2007), 137–39, 138 (figure),
223nn83–4; website, 223n83. See also
Special Representative on SVIC
UN Commission on Human Rights: on
systematic rape in Bosnia, 20, 177n7.
See also UN Special Rapporteur of the
Commission on Human Rights
UN Division for the Advancement of
Women, 37
UN expert group meeting “Violence in
the Family with Special Emphasis on
Women,” 46
UN General Assembly, 52, 218n31
United Kingdom: Hague, as Foreign
Secretary, 4, 9, 14, 123, 143; organizing of Preventing Sexual Violence in
Conflict, 4; presidency of G8, 4, 47
United Kingdom, Foreign and
Commonwealth Office: video (2014)
released by, 3–7, 6 (figure), 15, 174n8
United States: Alien Tort Claims Act
cases against Karadžić in, 57, 106,
188n34; considering military intervention in Bosnia, 52–54; failure to
intervene in Rwandan genocide, 71;
justifying military intervention to
protect women, 197n166; military
intervention in Libya and, 52–54,
72–74, 195n135, 196n148; Murad on
Yazidis in Iraq and, 169–70; Security
Council resolutions (2019) and, 131–32;
272
Index
State Department, 54; War Powers
Resolution, 72, 74. See also Libya
Universal Declaration of Human Rights,
22–23
UN Mission in Sudan (UNMIS), 193n112
UN Office of the High Commissioner for
Human Rights, 29
UN peacekeeping forces, 130, 217n21,
219n44
UN Protection Force (UNPROFOR),
51–52, 55, 185nn4–5
UN Secretary General. See Ban Ki-moon;
Boutros-Ghali, Boutros; Special
Representative on SVIC
UN Secretary-General reports: on boys
as victims of sexual violence, 221n75;
on conflict-related sexual violence,
135, 136, 222nn75, 77–78; on excluding
sexual violence crimes from amnesty,
144, 145; at fifteenth year of Resolution
1325 and, 129, 218n39; gender-neutral
terms in, 133; on humanitarian
grounds for military force, 186n11; on
individual justice and impunity, 141;
Resolution 1820 of requirements for,
128; on sexual violence and shaming,
139, 148–49
UN Security Council: Arria Formula
Briefings by non-members of, 216n11,
226–27n146, 227n50; Chapter VII
intervention powers of, 21, 62, 177n10,
186n9, 207n2; debates on conflict in
former Yugoslavia in, 80; differences
in resolutions setting up ICTY and
ICTR, 102; on genocide in Darfur, 70,
192–93n112; human rights violations
in Libya, 70–71; intervention power
after Cold War end, 21, 52; peacekeeping in the former Yugoslavia and,
51–52; on sexual violence by terrorists,
146–47; on wartime rape in Bosnia
and Herzegovina, 20. See also human
security agenda; WPS agenda
UN Security Council Resolution 1325:
global study report at fifteenth year
of, 129; human security agenda and,
126; to increase women’s participation
in peacebuilding, 122; on individual
prosecutions, 141; instrumentalism
of, Iraq invasion and, 227n157; as not
legally binding, 123, 216n4; post hoc
legitimacy for 2003 military intervention in Iraq and, 149; production of,
217n15; on vulnerability of women and
girls in conflict, 125–26; women’s peace
activism and, 124–25, 216n3
UN Security Council resolutions: on
armed conflict and civilians, children,
or women, 126, 127 (table); on carceral
response to sexual violence, 141–43,
224n102; condemning Libyan human
rights violations, 71; establishing the
ICTR, 44, 81, 101–2, 207n2, 208nn5–6;
establishing the ICTY, 20–21, 80–81,
184n135, 197n5, 197–98nn5–6; on
the former Yugoslavia, 51–52, 185n3;
on gender-based violence, 222n73;
gender-neutral language in, 132–34,
220n59; in human security context
(1999–2019), 127 (table); ICTY and
ICTR establishment, differences in,
102; to investigate genocide in Darfur,
192–93n112; on listing suspects of
sexual violence, 145; military intervention in Libya under, 71–72; Murad’s
testimony on prosecuting ISIS for
genocide and, 130, 169–70; on the
need for Israel to respect human rights
during war, 176n22; NGO Working
Group and, 122, 125, 128, 216n12; on
preventing and countering violent
extremism, 149, 150; primarily on
women as peacebuilders, 11, 123–25,
127 (table), 128, 129, 130; primarily on women as victims of sexual
violence, 4, 128, 131 (table), 147; refer-
Index
ring Libyan case to the ICC, 74; on
removing procedural impediments,
141–42, 224n102; on Secretary General
reporting requirements, 128; on sexual
violence (2016–2017), 131 (table); on
sexual violence as terrorist tactic,
146–47; on sexual violence in conflict,
4, 123, 126, 128–30, 131–33, 137, 149,
217nn18–19, 21–22; on shame shifting,
146–47; on UN Action’s work, 217n20;
UNPROFOR establishment in the
former Yugoslavia, 185n4; UN Women
and, 129; on violence against children,
125; Wallström on reporting sexual
violence under, 135
UN Special Rapporteur of the
Commission on Human Rights, 67, 91,
104–5
UN War Crimes Commission, 174n10
UN Women (UN Entity for Gender
Equality and the Empowerment of
Women), 129, 130, 218n31, 219n50
UN World Conference on Human Rights
(1993). See Vienna Conference
UN World Conferences on Women, 26,
216n9. See also Beijing Conference;
Copenhagen Conference; Mexico City
Conference; Nairobi Conference
Van Schaack, Beth, 210nn29, 35
VAW. See violence against women
Velásquez-Rodríguez v. Honduras (1988),
46, 184n133
Viagra for Gaddafi’s troops, claims and
debates about, 71, 73, 74–76
victims: attempts to find alternatives to
testimony by, 118–19; boys as, 2, 48, 82;
ICC and, 170; imagined shame and
testimony of, 9, 10, 140, 154; men as,
2, 14, 48, 135–36, 175n19, 221nn63–4;
prosecution obstacles due to shame
of, 93, 101, 107, 116, 167–68, 204n88; as
witnesses, ICTY on, 203n75; women
273
in war assumed as, 10, 155. See also
specific groups e.g. Bosnian Muslim
women, men, or individuals
Victims and Witnesses Unit, ICTY’s, 85,
200n40
video (UK Foreign and Commonwealth
Office, 2014), 7–8; as common sense
about sexual conflict, 3–7, 6 (figure),
174n8; on perpetrators as male monsters against innocent (female) victims, 10–12; that criminal law will end
in sexual violence in conflict, 12–15;
that sexual violence prevents peace, 15
video (UN Action, 2007), on shame and
stigma of rape, 137–39, 138 (figure),
223nn83–4
Vienna Conference (1993): Asian values
debate, 29, 31, 33, 179n45; connecting
sexual violence and sex trafficking,
42; consensus anticipated at, 28–29;
culturally sensitive universalism at,
32–34, 43; ICTY establishment and
discussions at, 21; petition to include
women’s rights at, 29, 34; sex-positive
feminist positions and discourse at,
41–42; sexual violence in conflict as
topic of, 16, 37; Special Declaration
on Bosnia and Herzegovina, 184n135;
women’s human rights advocates
attending, 22; women’s human rights
and sexual violence in conflict as
themes of, 18, 43; women’s human
rights movement and, 18–19; Women’s
Rights Are Human Rights at, 18–19,
29–30, 31, 44
Vienna Declaration and Programme
of Action: amicus brief for Akayesu
and, 106; Bunch on, 40; condemning
impunity, 47; Pillay on achievements
of, 44; on sexual slavery, 19, 38, 43, 44,
130; on sexual violence in conflict, 37;
on women’s rights and elimination of
violence against women, 19, 31
274
Index
Vienna Tribunal on Violations of
Women’s Human Rights, 32, 34–35,
38–39, 43, 182n93
Vietnam War, 173n1
Vigneswaran, Kate, 200n41, 201–2n54
violence against women (VAW): centrality of issue to women’s human rights
movement, 19, 22, 34, 38, 39–40; displacement of issues of economic distribution, 34; as mediation of debates
about culture, 35–36; and Nairobi
Conference, 35, 181nn73, 77; narrowing
to sexual violence in conflict, 43, 135–36;
sexual violence as focus of, 40, 42; turn
to criminal law responses to, 13, 45–46.
See also sexual violence in conflict
Violence Against Women Act, U.S.
(1994), 45
Viseur Sellers, Patricia: on ICTR’s
Akayesu decision, 103, 210n35; on
ICTY’s Rule 96 on consent, 94,
204n94; as Legal Advisor for Gender
Related Crimes, 85, 103; on OTP
charges for sexual violence committed against men, 99; on prosecutorial
discretion, 98
Vranić, Seada, 69, 205–6n112
Wallström, Margot: as Special
Representative on SVIC, 75, 135, 145; as
Sweden’s Minister of Foreign Affairs,
143, 148
war, women’s roles in: as combatants, 69,
155–60, 229nn13–14; as peacebuilders,
WPS resolutions on, 11, 123–25, 127
(table), 128, 129, 130; as perpetrators,
10, 99, 158–60; as political actors, 11,
60, 155, 170–71; as victims of sexual
violence, WPS resolutions on, 4, 128,
131 (table), 147. See also A Woman in
Berlin; For Whom the Bell Tolls; Murad,
Nadia; sexual violence in conflict;
women’s peace movement and activism
Warburton Report, 177n3
war crimes: Ad Hoc Women’s Coalition
against War Crimes against Women,
44–45, 83; early prosecutions of rape
for, 8, 174n10; Global Tribunal and,
34, 38, 39, 182n93; Helsinki Watch on
tribunal on, 198n10; ICTR prosecutions for, 103, 208n7; ICTR statute on,
102–3; ICTY prosecutions for, 84–85,
86–87, 92, 96, 200n42, 201nn44, 48,
202n59, 203n78, 208n13; ICTY statute
on, 83–84, 199nn22, 25; Libya and, 73,
74–77; Rome Statute on, 87, 184n135.
See also Geneva Conventions; grave
breaches; international humanitarian
law, torture
War Powers Resolution, U.S., 72, 74
Weissman, Deborah, 197n166
Wing, Adrien, 65–66, 190n75, 191n83
witnesses. See victims
A Woman in Berlin: Eight Weeks in the
Conquered City: controversies regarding, 228nn6–7, 9; as German diary
during Berlin’s fall to Soviet forces
(1945), 153; Halley on structures of
language for rape and other violence
in, 154; positive function of shame
in, 170–71; publication of, 230n52; on
rapes by Russian soldiers during Battle
of Berlin, 163–64; on speaking of mass
rape to other victims, 167–68; time
covered by, 230n48
women: and children, coupling of, 10,
132, 133, 200n54; as combatants, 69,
155–60, 229nn13–14; in peacebuilding, WPS resolutions on, 11, 123–25,
127 (table), 128, 129, 130; as perpetrators, 10, 99, 158–60; political roles in
war of, 11, 60, 155, 170–71; as sexual
violence targets, WPS agenda on, 124;
victimization of men versus, 93–94; as
victims of sexual violence, WPS resolutions on, 4, 128, 131 (table), 147. See
Index
also gender-neutral language; sexual
agency; victims
Women for a Meaningful Summit, 216n9
Women in Black, 59–60, 189n50
Women’s Action Coalition, 183n120
women’s agency, 11, 60, 69–70, 78; A
Woman in Berlin on, 170–71. See also
sexual agency
Women’s Commission for Refugee
Women and Children, 215n1
Women’s Decade, 35, 181n75
women’s human rights movement:
Cold War’s end and, 36; feminists
approaches to human rights and,
23–28; international criminalization
of sexual violence in conflict and,
45; rise in use of terms “women’s
rights” and “human rights of women,”
18–19, 29–30, 30 (figure); VelásquezRodríguez case as paradigm shift for,
46–47, 184n133; Vienna Conference
agenda and, 18–19. See also feminists
and feminisms; Global Tribunal on
Violations of Women’s Human Rights;
international human rights law and
discourse; Vienna Conference; Vienna
Declaration and Programme of Action
“Women’s Human Rights: Possibilities
and Contradictions” (Harvard
Human Rights Program, 1988), 30–31,
179–80n51
Women’s International League for Peace
and Freedom (WILPF), 122, 123, 136
Women’s Media Center, 75
women’s peace movement and activism:
Cold War and, 124; Peace Tent, at
Nairobi Conference and, 35, 181n78,
216n9; in relation to other feminist
positions, 2, 18, 86; UN Security
Council WPS agenda and, 16, 125, 133,
149–50, 185n140, 216n3, 227n157; views
on women’s victimization and, 124–25,
140; WILPF and, 122, 124, 136; Women
275
in Black, 59–60, 189n50. See also antiwar feminists; peace
Women’s Rights Are Human Rights:
rise in use of terms “women’s rights”
and “human rights of women,” 18–19,
29–30, 30 (figure); Vienna Conference
and, 18–19, 29–30, 31, 44
Women under Siege: Libya (Women’s
Media Center), 75
Wood, Elisabeth, 176n26
Working Group on Engendering the
Rwanda Tribunal, 106, 210n31
World Charter for Prostitutes’ Rights,
41–42
World War II, 38, 83, 182n93. See also A
Woman in Berlin
World Whores Congress (1985), 41
worst crimes: Akayesu charges on rape
and sexual violence as, 110; case law
produced under ICTY and ICTR and,
82; common sense about sexual conflict
as, 7–10, 58; Global Network of Women
Peacebuilders’ letter on rape as, 140;
ICTR’s decisions on rape or sexual violence as, 113, 115; ICTY jurisprudence
and solidifying common sense on,
90–94, 203n75; rape as, military intervention and, 51; WPS resolutions on
sexual violence in conflict as, 123–24.
See also sexual violence in conflict
WPS agenda (Women’s Peace and
Security Agenda): common sense
about sexual conflict and, summary
of, 123–24; on gender-based violence
and conflict-related sexual violence,
12; human security agenda compared
with, 126; militarization of, 149–50;
sex trafficking resolutions and, 130–31;
sexual violence treatment research
and, 143; UN resolutions on sexual
violence and, 122, 131 (table), 141;
videos produced by, 137–39; women’s
peacebuilding role versus women’s
276
Index
passive victim role and, 140; women’s
peace movement and origins of, 124–
25. See also counterterrorism; sexual
violence in conflict; UN Action; UN
Security Council Resolution 1325
WPS resolutions: binding legal obligations
and, 215n5; in human security context,
125–26, 127 (table), 128–32, 219nn49–50;
primarily on women as peacebuilders,
11, 123–25, 127 (table), 128, 129, 130; primarily on women as victims of sexual
violence, 4, 128, 131 (table), 147; relationship to Chapter VII, 122–25; turn to
criminal law and, 140–47, 148
Wright, Shelly, 26
Yazidis. See Murad, Nadia
Yugoslavia, former: feminist debates
over meaning of rape in conflict in,
55–70; military interventions in,
arguments for, 53–54, 55–58; war in,
women’s human rights advocates on
sexual violence in conflict in, 19, 31–32,
37–38, 83–85. See also Bosnia and
Herzegovina; Croatia; ICTY; Kosovo;
Serbian feminists; Serbs
Žarkov, Dubravka, 50, 66, 67–68
Stanford Studies in Human Rights
Mark Goodale, editor
Editorial Board
Abdullahi A. An-Na’im
Upendra Baxi
Alison Brysk
Rosemary Coombe
Sally Engle Merry
James Nickel
Ronald Niezen
Fernando Tesón
Richard A. Wilson
When Misfortune Becomes Injustice: Evolving Human Rights Struggles for
Health and Social Equality
Alicia Ely Yamin
2020
The Politics of Love in Myanmar: LGBT Mobilization
and Human Rights as a Way of Life
Lynette J. Chua
2018
Branding Humanity: Competing Narratives of Rights,
Violence, and Global Citizenship
Amal Hassan Fadlalla
2018
Remote Freedoms: Politics, Personhood and Human Rights
in Aboriginal Central Australia
Sarah E. Holcombe
2018
Letters to the Contrary: A Curated History of the
UNESCO Human Rights Survey
Mark Goodale
2018
Just Violence: Torture and Human Rights in the Eyes of the Police
Rachel Wahl
2017
Bodies of Truth: Law, Memory, and Emancipation
in Post-Apartheid South Africa
Rita Kesselring
2016
Rights After Wrongs: Local Knowledge and Human Rights in Zimbabwe
Shannon Morreira
2016
If God Were a Human Rights Activist
Boaventura de Sousa Santos
2015
Digging for the Disappeared: Forensic Science after Atrocity
Adam Rosenblatt
2015
The Rise and Fall of Human Rights:
Cynicism and Politics in Occupied Palestine
Lori Allen
2013
Campaigning for Justice: Human Rights Advocacy in Practice
Jo Becker
2012
In the Wake of Neoliberalism: Citizenship and Human Rights in Argentina
Karen Ann Faulk
2012
Values in Translation: Human Rights and the Culture of the World Bank
Galit A. Sarfaty
2012
Disquieting Gifts: Humanitarianism in New Delhi
Erica Bornstein
2012
Stones of Hope: How African Activists Reclaim Human Rights
to Challenge Global Poverty
Edited by Lucie E. White and Jeremy Perelman
2011
Judging War, Judging History: Behind Truth and Reconciliation
Pierre Hazan
2010
Localizing Transitional Justice: Interventions
and Priorities after Mass Violence
Edited by Rosalind Shaw and Lars Waldorf, with Pierre Hazan
2010
Surrendering to Utopia: An Anthropology of Human Rights
Mark Goodale
2009
Human Rights for the 21st Century: Sovereignty, Civil Society, Culture
Helen M. Stacy
2009
Human Rights Matters: Local Politics and National Human Rights
Institutions
Julie A. Mertus
2009