1
UNIVERSITY OF UTRECHT
DEPARTMENT OF GENDER AND ETHNICITY
Implementing Radical Feminism into International Law:
Feminist Genocidalism and the Yugoslav War
(MASTER’S THESIS)
Date: August 14, 2010
Supervisor: Dr. Sandra Ponzanesi
Student: Milja Spoljar
Student Number: 3249255
GEMMA 2008/2010
2
Abstract
During the 1990s, the Western legal feminists got highly involved in prosecuting the sexual crimes
committed during the War in the former Yugoslavia, demanding justice for the female victims of rape
and other violent assaults. In their structural feminist worldview, they found that rape was not merely
a tool of belligerent forces, but part of a global war against women. Wishing to implement these
structural views into the International Criminal Tribunal for the former Yugoslavia, they constructed
the “rape-as-genocide” model that could be prosecuted under the definition of genocide found in the
1948 Genocide Convention, and what is more, would satisfy the criteria of persuasiveness relevant for
today’s international law. Nevertheless, since international law has states as its basic constituent
entities, the “rape-as-genocide” model required from legal feminists to choose a side in the war and
name the opposing ethnicities of both the perpetrators and victims. Therefore, in the new feminist
structural and universalist view, the rape was directed toward women because they were Muslim or
Croatian and perpetrated against them exclusively by Serbian men. This thesis attempts to uncover
the surface-level meaning of this and several similar constructions made by legal feminists, working
on cases of mass rape perpetrated on the territory of the former Yugoslavia at the beginning of the
1990s. The thesis seeks to explore epistemological (or discursive) conditions that made it possible for
these structural feminist ideas to become incorporated into international law, something that prior to
the 1990s would not have been epistemically intelligible, let alone supported by the Western liberal
system as it was during the 1990s. Finally, the thesis examines the discursive legacy of this feminist
legal phenomenon dating from the 1990s.
3
Content
CHAPTER 1. - How to become internal to the structure: the secret of feminist legal performance in
the Yugoslav War................................................................................................................................... 10
1.1
International law and the wish for transgressing sovereignty .............................................. 11
1.2
International law, human rights and feminism ..................................................................... 21
1.3
Cynthia Ward on MacKinnon and radical feminism .............................................................. 28
1.4
Intersecting international law, radical feminism and war .................................................... 32
CHAPTER 2. - Entering the logic of law: searching for reasons behind the feminist attachment to
genocide ................................................................................................................................................ 45
2.1
Validity and persuasiveness of law........................................................................................ 46
2.2
Validity and persuasiveness of two feminist camps.............................................................. 52
2.3
Culturalizing through the law ................................................................................................ 67
CHAPTER 3. - Dedicated to the International Criminal Tribunal for the former Yugoslavia in the Hague
............................................................................................................................................................... 74
3.1
Ethnicizing, culturalizing, “dehumanizing” ............................................................................ 77
3.2
Post scriptum: on the value of feminist legal progress ......................................................... 85
CHAPTER 4. - „Gendercide“ as a legacy of the feminist legal genocidalism: discussing a minoritarian
framing of male experience .................................................................................................................. 90
4.1
Gendercide studies and inversion of radical feminism ......................................................... 91
4.2
Staying within technicality of gendercide ............................................................................. 97
4.3
On why gender matters....................................................................................................... 102
Conclusion ........................................................................................................................................... 106
Bibliography and works cited: ............................................................................................................. 110
4
5
Introduction
There was something dangerously paradoxical about the title of the 1994 book Mass Rape:
the War against Women in Bosnia-Herzegovina, a solid first approach to the topic of
genocidal rapes in Bosnia-Herzegovina. Something that seemed suspicious from the very
moment I came across this book almost eight years ago. Why are we waging war against
“women” (this universalizing category that presupposes the category of “men” as its
consolidating and foundational antidote) in Bosnia-Herzegovina (a nation-state entity that is
supposed to be defined by its concrete territory and its concrete nationality), when maybe
the only institution that could be responsible for the universal “war against women” is the
institution of patriarchy? Talking about the war against women in Bosnia-Herzegovina
seemed to be made of redundancy, as the totalizing determinism of such a war forecloses
the need for any concrete nation-state variables. Moreover, the first part of this peculiar title
indubitably reminds us of Mackinnon’s ongoing full-fledged world war between men and
women of the world (MacKinnon 2006, 142). Together with the second part, the title is
caught in a tautology: it claims that the war is happening somewhere where it has already
been happening by the very logic of the totalizing effects of such a war. Accordingly, it finds
itself gluing two things that do not need to be glued: in radical feminist theory and its
ongoing war of the sexes, gender is a social system that divides power and therefore equals
the political system and the state. In such a theory, the power of state and the power of men
are one thing, indivisible and impenetrable (MacKinnon 2006, 170). Why, then, BosniaHerzegovina? Why suddenly this universal ongoing battle of the sexes, spurred by misogyny
and compounded by the rapes, genital mutilations and assaults of today, in one particular
state?
6
My thesis attempts to answer that question and to uncover the surface-level
meaning - something I name “discursive actuality” – of similar constructions, theoretical
assumptions and ideological propositions made by legal feminists who have been working on
the cases of mass rape perpetrated on the territory of the former Yugoslavia during the
1990s. What I am interested in are epistemological (or discursive) conditions that made it
possible for these structural feminist ideas to become incorporated into international law.
This is even more intriguing given that it is something that prior to the 1990s would not have
been epistemically intelligible, let alone supported by the Western liberal system as it was
during the 1990s. Therefore, I use the Foucauldian “method” of genealogy in order to
provide insights into the mechanisms by which those epistemological factors interacted so
that the very idea of “the war against women in Bosnia-Herzegovina” moved beyond
epistemic possibility and into discursive actuality. As Foucault would say, the conditions of
possibility under investigation are no longer a set of purely epistemic rules, but a power-andknowledge network consisting of all kinds of practices, including the juridical ones that I am
discussing in my thesis. Such a network of juridical practices that sustains (and is sustained
by) the very possibility of certain feminist constructions, theoretical assumptions and
ideological propositions is thus of high importance for my discussion and has pushed me into
exploring the jurisdiction of international law. Nevertheless, not being a legal scholar, my
intention is not to discuss the law itself, but simply to understand it in order to grasp the
logic of legal feminism and its radical feminist aspirations. My main research problem
therefore focuses on the following:
On the basis of the discursive actuality created around the sexual violence perpetrated during
the War in the former Yugoslavia, what can we say about the conditions for implementing a
feminist structural worldview into international law over the course of the 1990s?
7
In answering this question, I start by analyzing international law as well as exploring the
epistemic alterations that brought about the intersection of law and structural (radical)
feminism. I argue that the only way to implement a feminist structural standpoint into
international law is to self-consolidate at the expense of other, in this case victims and
perpetrators in the Yugoslav War. On the other hand, the second chapter enters the law and
explores a peculiar dynamics of contemporary juridical practices and legal definitions in
order to better comprehend the alarming feminist legal demands. The third chapter is
dedicated solely to the International Criminal Tribunal for the former Yugoslavia and the
Kunarac case, the first one intended to focus exclusively on sexual crimes against women,
with the ultimate hope of extending the jurisprudence on rape and sexual violence. Finally,
the forth chapter discusses the discursive legacy of this feminist legal phenomenon dating
from the 1990s.
Throughout the thesis, the reader will notice that all my chapters revolve around the
notion of West and Western feminism. Instead of claiming that the West is hard to define in
all its heterogeneity, I am defining it on the basis of the well protected and blessedly safe
Western soil. In terms of its dichotomic relation with the non-Western spaces, this feature of
the Western safety is guaranteed through the totalizing presence of the North-Atlantic
Treaty Organization (NATO), a political and military alliance that has the military capacity
needed to undertake “crises management” operations, alone or in cooperation with other
countries and international organizations, and whose goal is to “make sure that we can walk
around freely in a safe and secure environment.”1 In this sense, the War in the former
Yugoslavia has been a major challenge and a testing area for NATO’s post-Cold War
1
<http://www.nato.int/cps/en/natolive/what_is_nato.htm>
8
expansionist projects. Fifteen years after the war, the former Yugoslav countries, at least
Slovenia and partly Croatia, can finally enjoy the privilege and blessing of Western safety;
Bosnia-Herzegovina, Macedonia and Serbia (together with Kosovo) are yet to prove how
worthy they are to be fully “safe and protected”.
This post-Cold War NATO ideology that propagates peace, security and democratic
rule of law is a highly complex and multifold one, but in its long-term aspirations it does not
differ very much from the totalizing principles of the original East-West divide that had
supposedly ended with the fall of the Berlin Wall in 1989. On the contrary, its performance
under camouflage of political correctness and human rights makes it hard for the
Westerners to acknowledge that the whole picture, something that is called a “global
world”, is somewhat different and that this difference is being sustained by our steady belief
in the Western superiority: superior technology, higher safety, bigger salaries, respect for
human rights, advanced law, top universities and the like. All this, however, is nothing else
but a solid infrastructure that can provide for its various experts and condition them to
further sustain such an ideology. Sometimes they question, sometimes they criticize, but
they never take the system more seriously than it takes itself.2 After all, this is the very
condition of both the West and its Western subjects.
Legal feminism from the 1990s represents one of those expert “teams” that have
been consolidating their status by using others - victims of rapes and perpetrators of sexual
violence, plaintiffs and defendants at the ICTY trials – aiming to categorize according to
available legal definitions. My interest in their work started few years ago and has been
influenced by their mighty feminist propaganda that sought to arouse empathy, but
2
See Zizek's discussion on the Slovenian group Laibach: <http://www.youtube.com/watch?v=1BZl8ScVYvA>
9
condone any questioning of their assumptions. I believed in their expertise, but at the same
time felt the possibility of a strong judgment in the case of thinking differently. Being from
Croatia did not facilitate my understanding of how powerful of an ideology the feminism can
be. I did more or less understand how the system worked, but had immunized feminism
from any criticism for the sake of feminist solidarity, this deceptive feeling that works on the
principle of exclusion. It was not until I gave myself a chance to go through the inverse
process of partial self-immunization from feminism that I finally managed to grasp this legal
phenomenon in all its self-righteousness. Subsequently, this led me to the new texts and
new authors and brought me to where I am at the moment: a gender studies scholar that
thoroughly questions the story about the feminist legal success in the War in the former
Yugoslavia. What follows is a very personal narrative “packed up” in a theoretical language.
10
CHAPTER 1. - How to become internal to the
structure: the secret of feminist legal
performance in the Yugoslav War
My first chapter examines the Western feminist legal involvement in the War in the former
Yugoslavia over the course of the 1990s. It focuses specifically on the ways of implementing
the radical feminist worldviews into the international law through the use of raped Bosnian
Muslim (and to a certain extent Croatian3) female bodies, but it does that by offering much
broader picture of both international community and law. The first chapter could thus be
seen as a somewhat too ambitious project that deals with many different and, at first glance,
not directly interconnected issues. However, what this chapter is advising to the reader is to
pay close attention to the layers of its structure, inasmuch as they function as an
“explicatory” element for understanding the sheer possibility of radical feminist
performance within the realm of international law.
That is why the chapter starts with the “surface” layer that revolves around the dual
paradigm of international law proposed by Gerry Simpson in his text Two Liberalisms
(Simpson 2001). This dual paradigm, as we shall see, could be considered an allencompassing theoretical framework that will steadily guide me through my thesis. The
chapter then goes beneath this surface by offering Karen Engle’s account of feminist legal
performance prior to the 1990s as well as her division on “internal” and “external” feminist
internationalism that must be seen in close connection to the Simpson’s model (Engle 1992).
The third part, on the other hand, wants to explain the theoretical differences and
3
My main concern will be the „use“ of Bosnian Muslim women, as they have been given incomparably more
attention than the Croatian women as far as the feminist legal performance is concerned. One of the reasons
for such an attention was a higer number of female victims among this particular ethnicity.
11
similarities between radical and liberal feminism in order to acknowledge both their
common tradition and their crucial point of divergence. This is also the preparation for the
fourth part where blurring of the boundaries between internal and external - liberal and
radical - feminist performance is discussed in details and with the help of various theoretical
layers that are truly tangled with each other.
Even though the Simpson’s model is still functioning as a somewhat “explicatory”
element that is the most external to the overall structure, this does not mean that the
feminist legal performance should be understood as a practice thoroughly dependent on the
Simpson’s model; on the contrary, feminist legal performance is to be understood as a highly
autonomous practice that has very consciously chosen the conformist path of complying
with the politics of international law and becoming internal to it. However, being internal to
the structure4 is not inherently problematic; it is the fashion of becoming internal that is
truly problematic here. What was the fashion of implementing the feminist radical
standpoint into the international law is something that I want to discuss in my first chapter.
The reader should note that Catherine MacKinnon’s theoretical assumptions are scattered
all over the chapter. As a true feminist theologian, as Judith Butler has labeled her (Butler
1991), MacKinnon has influenced the law as nobody had managed before her. She may be
continually dismissed as a fundamentalist feminist thinker, but her words and ideas resonate
in every legal feminist text that has been written over the course of the 1990s.
1.1
International law and the wish for transgressing sovereignty
The international law is the normative expression of the international polity which has states
as its basic constituent entities. Other entities, such as individuals, groups and international
4
The terms „structure“ and „system“ will be used as synonyms throughout my thesis.
12
intergovernmental and NGOs, can assert some degree of international personhood for
particular purposes, but the state is considered the most complete expression of
international legal personality (Charlesworth and Chinkin 2000, 124). The state is, of course,
an abstraction, a conception. In relations with other states, a state is represented by another
abstraction which is a government. Governments are represented by humans who, as
officials, act in a representative capacity, whereas representation is also an abstraction, a
conception. International law regards states as independent and autonomous members of
the international community. It tends to obliterate the differences between states by
considering all states as formally equal, whatever their size, population, geography or
wealth. The apparently neutral and value-free definition of a state in international law set
out by the Montevideo Convention on Rights and Duties of States in 1933 provides that the
state as a person of international law should possess a permanent population, a defined
territory, a government and a capacity to enter into relations with other states (Henkin 1995,
13). Such a classical vision of international doctrine of state sovereignty bears an obvious
resemblance to the domestic-liberal doctrine of individual liberty. Both characterize the
social world in descriptive and normative terms: in terms of the activities of individual agents
(“legal subjects”, i.e. citizens and states) that set down the basic conditions within which the
relations between these agents should be conducted. Accordingly, both emphasize the
liberal qualities of rule of law, autonomy, rights and equality.
In his text Two Liberalisms, Gerry Simpson characterizes this traditional view of
international law that suggests a dual paradigm for the ordering of individuals - one
domestic, the other international - as “Charter liberalism”, insofar as the principles
underlying this approach find their highest expression in the text of the UN Charter. The
point of this approach is to treat all states equally, to allow them each the same rights
13
afforded to individuals in a liberal society (i.e. domestic jurisdiction, equality, nonintervention) and to, if not celebrate, at least tolerate the diversity produced by these
norms. This Charter liberalism, as Simpson argues, is based on a norm of inclusion entwined
with a policy of strategic engagement. Undemocratic or illiberal states are admitted into
international society so that society might be universalized and those states domesticated.
In such a classical vision of liberalism, it is thus the state that has been given ontological
priority: state is immune and autonomous, whereas individual human rights are
unrecognized. As opposed to this classical view of liberalism (though not in the binary sense,
since the two of them share many characteristics), there is another image of what it means
to be a liberal. As Simpson explains, “[t]his is liberalism (sometimes characterized as neoliberalism) endowed with a sort of moralistic fervor, a conviction, and at times, an
intolerance of the illiberal . . . In various writings about international affairs, Francis
Fukuyama’s liberal triumphalism is the starkest example of this liberalism” (Simpson 2001,
539). This is the liberalism of certainty, of what Simpson calls “liberal anti-pluralism”: a
liberalism that is more than often exclusive and illiberal in its effects. In international law,
this liberal anti-pluralism differs from the Charter liberalism identified above most obviously
in its lack of tolerance for non-liberal regimes.
The nineteenth century was an era of liberal governance within Western Europe and,
at the same time, the one that clearly expressed its civilizational task with reference to the
rest of the world. New regimes in Europe became less authoritarian in relation with their
own citizens and revolutionary Europe cast aside the old guard of absolutist monarchies.
However, at the same time, these liberal states demoted non-liberal societies such as China,
Korea, and Japan to the second class status because of a perceived lack of civilization; as
Simpson argues, their treatment of non-European civilizations compared rather poorly to
14
those of their illiberal predecessors. In this new international legal community, the emphasis
was on law as a reflection of will - particularly individual will - in opposition to the natural
law emphasis on the triumph of reason over will.5 The idea of international law as a product
of state will was reflected in the willingness of state to “manage” international order,
reaching a high point in the counter-revolutionary 1815 “Concert of Europe”6 and its
subsequent conferences. However, this should not be perceived as a centralized
international legal order; between alliance participants, it was a matter of treaty, and in its
impact on other states, it was based on the simple exercise of power - or the dominance of
one state will over another - and not on any sense of legal right or obligation. In other words,
once the legitimate objectives of statecraft were unleashed from the shared objectives of
the ancient régime, they might or might not be revolutionary – but they were now all
political, a term that increasingly came to mean whatever is determined by the leaders of a
nation to be their objective.7 This can help us to understand how it was possible for the
Victorian anti-pluralists to simply divide states into those entities that are entitled to full
5
The idea of a law of nature innate to humanity as a whole was, according to some scholars, synonymous with
divine, religious law - the direct divine connection of religious authorities - whereas for others it constituted
rules developed from deduction and right reason. In his thirteenth century Summa Theologiae, Thomas Aquinas
characterized natural law as the “participation in the eternal law by rational creatures applying right reason”
(cited in Mills 2006, 8), in an attempt to reconcile the fact of human law (or at least rational human law) with a
concept of universal law. Under this conception, the rules of natural law could be derived through the
application of deductive reasoning to accepted principles or axioms. By following the logic of such deductive
reasoning, an integral part of the medieval concept of the office of Emperor was that it was his prerogative,
based on the power of the sword which was bestowed upon him, to wage war against the internal and external
enemies of Christendom. This unified moral/legal order was, with no doubt, a license for military power during
the colonization era in 16th and 17th century. Peace of Westphalia of 1648, on the other hand, marked the
separation of the law of nations from natural law and is often referred to as the birth of modern international
law (Grewe 2000).
6
The Concert of Europe, as developed by the Austrian chancellor Prince von Metternich, drew upon the ideas
and the notion of a balance of power in international relations. Its founding members were the United
Kingdom, Austrian Empire, Russian Empire and Kingdom of Prussia, the members of the Quadruple Alliance
responsible for the downfall of the First French Empire; in time France became established as a fifth member of
the concert.
7
For the discussion on the 19th century international law, see Kennedy, Of Law and War (2006): 56-67.
15
sovereign equality (European states), and those possessing some lesser form of sovereignty
(unequal sovereigns) (Simpson 2001, 545). By stressing the civilizational task in similar
divisions, this Victorian practice can be viewed as a precursor to the homogenous approach
of the post-Cold War international world.
As Simpson argues, at the same time, some international lawyers, writing in the lateVictorian era, were by now rejecting the idea of international law as a closed system. Many
late nineteenth-century writers were keen to present themselves as open-minded and
cosmopolitan in comparison with more backward contemporaries. These dual and
competing positions of Charter and anti-pluralist liberalists were substantial for the debates
at the Versailles Conference in 1919 whose result was, hence, very much unclear. 8 The
League of Nations Covenant at Article 1 (2) implied that the League was to be a closed
system of like-minded states where a central qualification of membership was to be “selfgovernment”, meaning democratic government. The practice of the League was,
nevertheless, a different tale: in the two decades of its existence the organization embraced
a more pluralistic and heterogeneous approach to membership with the admission of
authoritarian Italy and Bolshevik Russia. It was inevitable, then, that these two conceptions
of international organizations would result in a measure of equivocation in the lead-up to
the San Francisco Conference in 1945 that entailed drafting of the Charter and a subsequent
establishment of the United Nations (UN). As Simpson is reminding us, “Article 1 of the Draft
Constitution stated that the new organization would ‘reflect the universal character of the
international community’, but Article 1 (2) went on to say that ‘all qualified states . . . shall
be members of the International Organization” (Simpson 2001, 551). The Drafting
8
In his Of Law and War, Kennedy is quoting the first Secretary-General of the League of Nations, Harold
Nicholson: “We came to Paris confident that the new order was about to be established; we left it convinced
that the new order had merely fouled the old” (Kennedy 2006, 74).
16
Subcommittee dealing with the issue of membership rejected the anti-pluralist approach on
two potentially contradictory grounds: on the one hand, it was “against referring to a
requirement that states have ‘democratic institutions’ on the grounds that ‘this would imply
an undue interference with internal arrangements’” (Simpson 2001, 553); on the other hand,
the absence of any specific provision to this effect also retained an element of flexibility and
elasticity in the main adjective of the Conference, that of the “peace-loving” states. And
even though its flexibility was thought to be a positive feature at the time of drafting of the
Charter - the adjective itself had not been taken seriously except as a way of reasserting that
the UN began as association of the victor states – it later on permitted victor states to
incorporate highly intrusive and ideological criteria into their assessment of prospective
members (Simpson 2001, 553). Nevertheless, it was universalist, pluralist position that
prevailed in the end.
As many have argued so far (Allison 1988; Kennedy 2006; Simpson 2001), it is
possible to see the Cold War period from 1945 to 1989 as one marked by rejection of
standards of civilization, culture and democracy as criteria for membership of the
international community: entities meeting certain neutral criteria based on effectiveness
and a purely formal promise to comply with international norms were admitted to the
system. International community was liberal, then, in the same way that some democracies
are said to be liberal; it tolerated highly illiberal elements within its membership.9 The new
law became flexible, functional, practical. Even the word “war” was eliminated from the
phrase “law of war”, and instead a “law of force” has been put into function. In such a
9
As stated in Simpson’s text, perhaps the most egregious example of this was the continued membership of
the Khmer Rouge in the General Assembly long after it had been shown that the organization was implicated in
a human rights holocaust and after it had been deposed by the Hun Sen Government with the aid of
Vietnamese intervention (Simpson 2001, 557).
17
community, the political institutions were replaced by a comprehensive constitutional order
that fused political and ethical considerations in a common legal vocabulary. Human rights
system which existed since the General Assembly of the United Nations proclaimed its
Universal Declaration of Human Rights (UDHR) on 10 December 1948 did little to change the
practice of universal international organizations in their admission policies. So while human
rights insisted on adherence to certain values, the practice of international organizations
remained pluralistic and there was no serious attempt made to fix human rights obligations
to entry requirements into the international community during this Charter liberalist era.
These provisions were qualified by Article 2 (7), which says that nothing in the Charter shall
authorize the UN to intervene in matters which are essentially within the domestic
jurisdiction of any state.10 All of this began to change in the late 1980s with development of
norms and practices designed to promote democratic governance. On the normative front,
various human rights organs within and outside the UN system articulated new democratic
standards. In practice, the UN entered the business of election monitoring through its
Electoral Assistance division and started to restore democratic governance through the use
of force. In the lead-up to the fall of the Berlin Wall, the era of liberal anti-pluralism was
gradually approaching and Western commentaries began to adopt celebratory air in
discussing the spread of democracy.
During the course of 1990s, a broad trend has been developed towards strengthening
the normative status of individual in international law. In his influential book A Philosophy of
10
For a discussion on the post-1945 human rights era, see Michael Freeman, Human Rights Human Rights. An
Interdisciplinary Approach (Cambridge: Polity Press, 2002): 32-51. Also, one exception to this Charter liberalist
era should be taken into account: it was the UN's response to apartheid in South Africa and white rule in
Rhodesia (now Zimbabwe) beginning in 1966 that fist saw a link made between internal state practices and
status in the international community. As Simpson argues, here are found the portents of the anti-pluralism
that was to flourish in the post-Cold War era (Simpson 2001, 557).
18
International Law, Fernando R. Tesón proposed reexamination of the traditional foundations
of international law that is suggesting a dichotomic paradigm for the ordering of individuals:
one domestic, the other one international, one private, the other public. As Tesón argues,
these “traditional foundations are illiberal and authoritarian because they unduly exalt state
power” (Tesón 1998, 1-2). International order thus conceived is incapable of serving as the
normative framework for present international relations. “Although it is understandably
hard for lawyers to forsake the statist assumptions of classic international legal discourse”,
Tesón argues, “new times call for a fresh conceptual and ethical language. A more liberal
world needs a more liberal theory of international law” (Tesón 1998, 1). Simpson calls
Tesón’s work “the most robust defense of strong liberal anti-pluralism” (Simpson 2001, 563);
his “Kantian Theory of International Law” is an explicit rejection of the statism inherent in
Charter liberalism and is based on “normative individualism” as opposed to “sovereign
equality”. In such a neo-liberalist vision, individual’s democratic and human rights prevail
over the state’s claims to territorial integrity or political sovereignty. In juristic terms, one
could say that the individual has been transformed into a significant legal player and this in
turn transforms the network of legal relations comprising the international legal order.
Indeed, as Christopher Harding is reminding us in his Statist Assumptions, Normative
Individualism and New Forms of Personality: Evolving a Philosophy of International Law for
the Twenty First Century, “it has already been accepted within UN practice that some
‘internal’ human rights violations could be of such nature as to threaten regional peace and
stability and thereby justify international (UN authorized) intervention . . . The Security
Council has indeed already characterized the internal situation in Kosovo as a threat to the
peace in UN Charter terms” (Harding 2001, 117). However, in terms of conventional, UN
Charter-based international law, the military action taken by the NATO members against
19
Serbia in 1999 appeared to violate basic norms of non-intervention, having no clear legal
justification (for instance, Security Council authorization, or acting in self-defense) under the
UN Charter. As Antonio Cassese has argued: “There is no gainsaying that the Charter system
has been transgressed, in that a group of states has deliberately resorted to armed action
against a sovereign state without authorization to do so by the Security Council” (cited in
Simpson 2001, 117).
Indeed, there is no gainsaying that the Charter system has been transgressed, but are
we heading in a good direction by presupposing that the reason for that lies in illegality of
such military action? If the Security Council had authorized such action, would it have turned
transgression of the Charter system into something subversive or just?11 In other words,
would legality of such transgression necessarily imply justice, and/or is legal system
inherently just? In my paper I claim the following: there is nothing either subversive or just
about transgressing the Charter system, insofar as such transgression is founded upon the
Western neo-liberal and democratic standards that are, themselves, inherently
undemocratic and illiberal. As this chapter will try to show, what makes these standards
being inherently illiberal and undemocratic is precisely the production and an utter
dependence on the “self-consolidating other”.12 Accordingly, both such production and
dependence cannot create any possibility for subversion and justice; on the contrary, they
are inherently and incessantly violent. Embracing the liberal anti-pluralism through the act of
transgression is thus in itself the act of violence: the violence that is invisible and concealed
within the language of international law, the violence that is objective or structural, as Zizek
would call it, the violence that is, in most of the cases, a non-violent form of perfectly legal
11
12
Instead of using the word “just”, Tesón uses the Kantian „supreme principle of morality“ (Tesón 1998, 4).
The problem of the “self-consolidating other” will be discussed in further detail in Part 1.4 of this Chapter.
20
violence.13 What Cassese is arguing above makes sense only in connection with this objective
or structural violence. His discourse revolving around legality/illegality of the transgression
will always be highly welcomed by the liberal anti-pluralist Western model inasmuch as it
presupposes that the problem lies in illegality of certain armed actions, and not in such
actions themselves.14 By keeping these actions illegal, the liberal anti-pluralism makes sure
that the actual15 violence - a violent form of violence16 - is never an issue for this perfectly
legal system; by keeping these actions illegal, the system makes sure that it has nothing to
lose, except the illegality of these actions; by keeping these actions illegal, this structurally
violent system reproduces itself and at the same time creates its army of quasi-critical
conformists whose only goal is to define whether the 1999 bombarding of Belgrade was
legal or illegal, whereas, on the other hand, it was the case of actual, if not subjective,
violence that managed to kill 200 civilians in only two months.17
13
As Zizek is claiming in an interview named “Divine Violence and Liberated Territories”, first of all, “we have to
emphasize that violence is always a structural problem, an ‘objective’ feature of contemporary capitalist
societies . . . And we should also remember that violence is not necessarily activity, action. It is not always the
case that social functions run by themselves and that it takes a lot of energy, a lot of violence to transform
them. To the contrary, it often takes a lot of violence to make sure things stay the way they are. Sometimes,
then, the truly violent act is doing nothing, a refusal to act”, interview by Soft Targets (March 14, 2007).
<http://www.softtargetsjournal.com/web/zizek.php>
14
A similar problem has been discussed in Brendan O'Neill's article „A 'Legal War' Would Have Been Even
Worse“ (March 11, 2008). <http://www.spiked-online.com/index.php/site/article/4860/>
15
An allusion to Gilles Deleuze's concepts of “actual” and “virtual”. According to Deleuze, virtual and actual are
both real, but not everything that is virtually contained (immanent) in this world is or becomes actual.
16
Alain Badiou calls it “subjective” violence or the violence with an easily identifiable agent (i.e. NATO military
action against Serbia). On the other hand, we get easily fascinated by the “subjective” violence coming from
the non-Western world (i.e. identifiable agents such as Karadzic, Osama bin Laden, etc.)
17
But how could we possibly identify the violence coming from the NATO as “subjective”? Who exactly are its
agents and aren't they dispersed into thousand little virtual agents? Multilateral organizations such as NATO
could never appear as easily identifiable agents of violence, inasmuch as they tend to be classified as the
necessary constitutive elements of one legally governed structure or system; accordingly, the violence these
agents exercise becomes structural, objective and, therefore, very easily justifiable. This very condition of the
Western existence stands in sharp contradiction to the processes of “individuation” of certain personae such as
Karadzic, Milosevic, and others.
21
But where is the feminist jurisprudence within this story and what effects the liberal
anti-pluralism has had on the feminist legal performance? Since “women have no state, are
no state, seek no state” (MacKinnon 2006, 267), as MacKinnon argued, one could assume
that legal feminists working within international legal arena have been much more inclined
toward the model of liberal anti-pluralism. Indeed, even though feminist jurisprudence has
not embraced the normative individualism proposed by Téson - on the contrary, it has been
extremely critical about both the “normative” and “individual” aspects in it – it has been
sharing with it a strong wish for transgressing sovereignty in the international system.
Moreover, both Tesón and feminist jurisprudence have been implicitly claiming that in such
transgression, there is something inherently subversive and just. But before I continue
further with the implications of these arguments, let me first start with answering on the
following questions: which area of international law has been the most accessible and
hospitable area for feminist advocates prior to the 1990s? In other words, how did the
feminist jurisprudence “look like” under the rule of the Charter system specific to the Cold
War?
1.2
International law, human rights and feminism
With the conclusion of the Second World War, the UN Charter and the 1948 UDHR began to
rework the de jure relationship between state and individual. As stated in Xavier Fellmeth’s
text Feminism and International Law: Theory, Methodology, and Substantive Reform,
international law no longer solely served whatever elite group is in power to exploit its
subjects unhindered by other states (Xavier Fellmeth 2000, 703). It began to recognize and
protect individual human rights, the rights of those legal subjects whose access to the
international legal system had been previously restricted by the very logic of statist
22
paradigm. By shifting the responsibility for observance of human rights from individual
states, the human rights law has penetrated the sovereign system and thus provided the
feminist jurisprudence with potential platform for legal action. Hence it is not surprising, as
Charlesworth and Chinkin argue, that feminist critiques of rights themselves have been
remarkably rare in the literature on international women’s rights (Charlesworth and Chinkin
2000, 210). Human rights offer a framework for a good society and their substantial
discourse on justice and rightness can seem very promising for anyone devoted to “peaceloving” discourse. As Wendy Brown has pointed out in addressing the question of the value
of rights language for women, “rights are to be suffered as ‘paradoxes’. They are ‘that which
we cannot not want’” (cited in Conaghan and Millns 2005, 2). Moreover, when gender is a
social and political system that divides power, as MacKinnon has argued together with the
liberal feminists (albeit in much more radical fashion), than the acquisition and assertion of
rights is by no means the only solution for the domination of women by men and an
important feminist tactic. But does this mean that feminist legal scholarship embraces the
concept of normative individualism proposed by Tesón in his influential Philosophy of
International Law?
The international law theory proposed by Téson is founded on the idea of the
individual as rational and autonomous. Kantian liberals regard individuals as capable of
rational choices, possessed of inherent dignity, and worthy of respect. The liberal states and
the members of the liberal alliance are those nation-states with democratically elected
officials, where human rights are generally respected. Liberal internationalism assumes a
right to democratic governance and holds that a state may not discriminate against
individuals, including women. This principle is, of course, a centerpiece of the international
law of human rights. Feminist jurisprudence provides very substantial challenges to human
23
rights law as it is institutionally understood. Although it might seem that, since women are
human, international law would naturally incorporate women’s rights, women’s rights
advocates have suggested that such incorporation cannot be assumed. While some claim
that women’s rights are already included in international human rights law, others argue
that the international human rights regime will have to change before it can take women
into account. In either case, women’s rights discourse is generally positioned at the
periphery of human rights discourse, both challenging and defending the dominant human
rights model as it attempts to fit its causes into that model. In the arena which is filled with
rights enumeration and rights talk, possibilities for conflicts between competing rights
ensue.18 Examining how different women’s rights advocates deal with those potential
conflicts sheds lights both on international law discourse and on feminist approaches to law.
As Engle argues in her text International Human Rights and Feminism: When
Discourses Meet, even though the critique of rights has not been launched at human rights
law itself, it has not escaped challenge. There are two attacks aimed at law that can be
generally detected: first, it is often seen as a Western-conceived and -dominated project
that fails to address adequately the concerns of the East and the Third World. While some
critics raise a possibility that a Western system of rights cannot accommodate non-Western
needs, most believe that the system can rearrange its priorities. Second, and more often,
human rights system is attacked for not being expansive enough and is encouraged to take
more seriously economic or social rights, or the rights of women or cultural and ethnic
minorities (Engle 1992, 519). As Charlesworth et al. argued in their influential text Feminist
18
As Costas Douzinas argues in his Human Rights and Empire, “[t]he more rights we introduce, the greater the
pressure to legislate for more, to enforce them better, to turn the person into an infinitive collector of rights,
and humanity into an endlessly proliferating mosaic of law“ (Douzinas 2007, 50).
24
Approaches to International Law, international law accords priority to civil and political
rights, rights that may have very little to offer women generally, insofar as the major forms
of oppression of women operate within the economic, social and cultural realms of human
rights. Accordingly, economic, social and cultural rights are traditionally regarded as a lesser
form of international right and as much more difficult to implement (Charlesworth et al.
1991, 635). These two sets of critics, of course, are not unrelated. For both sets of critics,
whatever deficiencies the law might have can be addressed through expansion, either
through new sets of rights or through reordering of the rights that exist. None of the critics
believes that taking into account her or his concern will radically disrupt the system (Engle
1992, 519).
Since the inception of human rights law, different groups and cause have situated
themselves at its margins and challenged it to respond better to more and different types of
oppression. Feminists form one of those groups. Through their work, they have not only
identified those international legal instruments that include provisions prohibiting sex
discrimination, but have also helped establish international legal instruments that pertain
specifically to women’s rights. Today there exists multitude of international instruments that
affirm women’s rights - in 1986, Natalie Hevener identified twenty-two international
documents relating to the status of women19 - but the 1979 Convention on the Elimination
19
For example, the 1929 and 1949 Geneva Conventions, which require combatants to treat women prisoners
of war “with all regard due to their sex” and equally to male prisoners in all other respects; the UN Charter,
which was the first international instrument to establish women’s full equality and equal right to participate in
the United Nations; the 1948 UDHR; the 1949 Convention for the Suppression of the Traffic in Persons and of
the Exploitation of the Prostitution of Others; the Fourth Geneva Convention, which forbids the assault, rape,
or forced prostitution on women; the 1951 Convention Concerning Equal Remuneration for Men and Women
Workers for Work of Equal Value; the 1953 Convention on the Political Rights of Women; the 1957 Convention
on the Nationality of Married Women; the 1962 Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriages, etc (cited in Xavier Fellmeth 2000, 708-709).
25
of All Forms of Discrimination Against Women (hereinafter “Women’s Convention” or
“Convention”) is perhaps the most prominent of all. As of 1999, Women’s Convention has
been ratified by over 160 states. Signatories to that convention undertake to eliminate and
penalize all practices that have as their purpose or effect discrimination against women in
political, social, economic, cultural, and other spheres, including such pernicious practices as
trafficking in women and exploitation of prostitution. This commitment applies to preventing
discrimination by public officials, private individuals, businesses and organizations. Despite
its apparently strong protections,20 Charlesworth et al. dismiss Women’s Convention as an
“ambiguous offering”. Moreover, Women’s Convention generally obliges states only to take
all appropriate measures to ensure the observance of human rights, but does not set specific
mandatory measures or predictable penalties for states that fail to take positive action to
implement the Convention. And even though many commentators and activists assume that
the quest for rights of women is an important and useful strategy internationally, we should,
nevertheless, ask ourselves “whether this task is worth the energy that must be expanded
on it. Can the human rights canon usefully respond to women’s concerns across the globe?
Are we simply creating new sites for the subtle oppression of women?” (Charlesworth and
Chinkin 2000, 210).
In her 1992 article that examined in detail much of the literature that has emerged
on women’s human rights since 1979, Engle identified three broad approaches taken by
women’s human rights advocates: “doctrinalist”, “institutionalist”, and “external critique”.
20
Women's Convention imposes positive obligations on signatories to promote: the full development and
advancement of women; cultural and social change to eliminate prejudices and stereotypes; an understanding
of maternity and the common responsibility of men and women to raise children; and equal opportunity to
participate in the national and international political life of the state. Article 14, for instance, deals with the
particular needs of rural women, who often suffer from an oppressive combination of discrimination and
disempowerment (cited in Xavier Fellmeth 2000, 710).
26
Each of these three approaches represented a particular feminist approach to law as well as
specific approach to human rights discourse. Two approaches, doctrinal and institutional,
worked within the field of international human rights and uses language internal to that
discourse. Their proponents were, for the most part, liberal feminists who generally believe
in the effectiveness of human rights legal doctrine and institutions (Engle 1992, 521). They
were advocating women’s rights by interpreting and sometimes criticizing the existing
doctrinal and institutional framework. Doctrinalists generally described a specific problem
facing women in some or all parts of the world and then showed doctrinally how the
problem constituted an international human rights violation. Institutionalists, on the other
hand, were critically examining international legal institutions that were created to enforce
human rights. They were studying both mainstream human rights institutions and
specialized women’s rights institutions to determine whether and how they protected
women’s human rights. Engle considers both of these approaches “positivist”, not in the way
it is often used in the international law - as mere products of sovereign consent - but to the
extent that positivists believe that international law is authoritative and that states are
bound by it, particularly those states that have signed or ratified specific documents.
Moreover, the positivist nature of both groups evinces a general approach to human rights
that sees women’s rights as a normal part of human rights law and discourse, readily
assimilable to the human rights model (Engle 1992).
Advocates who took a third approach posed what Engle considers external critiques.
They approached human rights discourse as feminists, generally radical feminists, who were
troubled by the existence of a system that claims to protect the rights of all human being
while, systematically and systemically, as MacKinnon would say, excluding one half of the
human race. Rather than working within human rights discourse in its current form, external
27
approach critiqued the human rights framework either for being male-defined or –deployed,
or for being based on inherently male concepts. These external critics aimed to have what
they saw as women’s human rights achieved, regardless of whether those rights existed in
positive law. In doing so, they raised difficult questions about whether women’s needs and
rights could fit into the existing definition and conception of human rights. Hence they were
less likely than internal critics to see women’s rights as assimilable to the human rights
model. The views of external critics ranged from those who thought human rights theory
would only be fully consistent after it incorporates women’s rights to those who thought
human rights theory must change and be reconceptualized in order to address successfully
women’s concerns. Thus the primary distinction between the two approaches is that the
internal one assumes and acts upon the belief that women’s rights have and can be
assimilated to the human rights structure, whereas the external one questions whether
assimilation to the structure as it exists is possible. In other words, while internal approach
actively operates within the system of international law, the external one develops a metaposition whose main focus is analyzing the flaws that are to be found both in the internal
approach and the human rights structure itself. But are there any similarities among these
two approaches? And what aspect of radical theory makes this theory truly radical, so that it
is doomed to acquire external approach? What follows here is a small digression whose
intention is to remind the reader about the unique approach that radical theory has toward
women. I use Cynthia Ward’s article Radical Feminist Defense of Individualism, as it both
challenges the radical/liberal dichotomy and takes into account the common roots of these
different feminist standpoints.
28
1.3
Cynthia Ward on MacKinnon and radical feminism
In her text Radical Feminist Defense of Individualism, Ward challenges the assumed link
between the gender hierarchy and the rejection of liberalism (Ward 1994-1995).
Acknowledging the power of the domination theory as critique, Ward locates radical theory
within the liberal tradition and argues that nothing in radical theory blocks the use of liberal
strategies to address the problems of male domination. On the contrary, Ward argues, the
radical critiques of male domination calls for liberal individualist solutions. In evaluation of
radical feminist theory, Ward focuses mainly on MacKinnon’s ideas, as they represent the
most fully developed version of the radical feminist approach. For MacKinnon, then, what is
“feminine” in the social world is what turns a man on, and what turns a man on is female
passivity and subordination – whatever allows him to aggress against her, to invade her,
without resistance or even resentment. Thus, MacKinnon reduces society’s conception of
“woman” to the female role in sex, and further reduces the role to one of submission and
passivity. For radical feminists, these social stereotypes take on political significance because
they operate to deprive women of equality in all spheres of life – social, economic, political,
and legal. Social rules dictate that women be made sexually available to men, and legal rules
help ensure that women’s identities are constructed to fill that desire. But what exactly is
the connection between the social idea of the “feminine” and male domination in other
spheres?
MacKinnon spends very little time defining the concept of male domination; in fact,
she proceeds from announcing the gender hierarchy to laying out its results, attempting to
demonstrate women’s systematic subordination via descriptions of women’s disadvantaged
economic situation, the widespread sexual abuse of them, and the popularity of
29
pornography depicting women being abused or sexually passive and subordinate to men.
Nevertheless, Ward argues, feminists of all stripes know of and deplore this abuse, whether
or not they agree with MacKinnon’s theoretical approach; its facts are clearly consistent with
varying explanations of women’s inequality, from liberal to radical, and cannot alone prove
the existence or extent of male domination. Hence it might be helpful to stress out what
does not define domination in radical theory. For example, one interpretation of the concept
would equate dominance with predominance, but this would be again fully consistent with
liberal solutions to women’s inequality. All feminists acknowledge that men have historically
filled the vast majority of powerful positions in society, and that statistics in many areas
continue to show male predominance. MacKinnon clearly rejects the meaning of domination
based on statistics and shows that men dominate women in a second sense of that word: so
as to achieve mastery and control over women as a group. This immediately appears to
match with radical feminist description of the effects of male dominance on women.
Dominating is something men do to women; it is systematized male coercion which
constricts women’s development and relegates them to the bottom. In what sense, then, are
women coerced to victimhood?
While one theme of MacKinnon’s radical theory seems premised on the idea that
women’s sexuality is the constant target of men’s control, she ultimately concludes that
women lack the power to resist male sexual advances; indeed, MacKinnon states that
women are purposely kept in a powerless condition for this purpose. In radical feminist
theory, male domination goes beyond the use of power to violate women’s individual
autonomy; male power actually destroys the possibility of autonomy and individual selfhood
for all women. Here, domination reaches into the very construction of women’s character
and personality, creating something analogous to a “false consciousness” under which many
30
women actually voluntarily accept, defend, and even choose roles that help perpetuate the
gender hierarchy: women are socially engineered to believe in the naturalness and
inevitability of male supremacy. Male dominance thus becomes self-enforcing. This third
understanding of male supremacy from externally imposed force to internal compliance by
women themselves is central to MacKinnon’s theory. If women are denied independent
selves capable of both evaluating and rejecting their situation, this argument loses no
persuasiveness when women comply, are successful and even happy members of
permanent underclass.
Thus, the core of the domination idea is that under a system of male supremacy
women are denied opportunity to develop independent selves. Nevertheless, that goal is
also central to liberal feminism, which takes the recognition of selfhood and the importance
of self-development to be core ideals: liberal reforms are not only consistent with a view of
inequality as caused by male domination, Ward argues, but are founded upon such ideas.
The classic liberal argument against the gender hierarchy was made by John Stuart Mill in his
The Subjection of Women, first published in 1869. Mill’s protest against male dominance
contains all the major tenets of radical feminist theory. So what explains this apparently
dramatic difference in politics between two visions that share the same central goal - the
achievement of selfhood for women? As Ward points out, if there is a difference, it must lie
in the concept of selfhood itself. But how can creatures who have been socially constructed
to support the system of male supremacy recognize that it does them injustice, or design a
new legal regime – a separate feminist view of law and society – that will bring equality to
women?
31
Although at times MacKinnon seems simply to acknowledge these problems without
attempting to resolve them, she is ultimately driven to give some substantive content to its
notion of women’s selfhood. She does this in two ways. First, MacKinnon condemns as
necessarily male the vision of individual selfhood adopted by liberalism. Whatever women’s
selfhood will look like after male domination ends, it won’t be liberal. Second, she attempts
to construct a female self out of conscious-raising. In radical feminist view, consciousnessraising is the process through which the contemporary radical feminist analysis of the
situation of women has been shaped and shared. As Ward argues, radical feminism gives this
method a credit for defining “woman’s self-concept” through an exploration of women’s
consciousness, not as individual or subjective ideas, but as collective social being. Two ideas
are critical to this theory of consciousness-raising: first, it claims to derive a feminist
epistemology from women’s actual experience, from practice, and not from abstract,
objective principles of justice. Radical feminists contrast this grassroots, bottom-up approach
to the top-down Enlightenment idea which they characterize as beginning from abstract
principles about human reality which are then applied to the world in a purportedly gender
neutral, but really male-biased, way. Second, they unite grassroots consciousness-raising
with group-based reform proposals, insisting that since a woman’s problems are not hers
individually but those of women as a whole, they cannot be addressed except as a whole.
But this statement deserves exploration, since it seems both obviously true and obviously
untrue.
Unquestionably, law that treats women unequally as a group – which denies them, as
a group, legal rights equal to those of men – should not proceed toward equality by granting
rights separately to individual women; such a person-by-person approach would itself
violate the equality ideal. To the extent law creates disadvantaged groups by denying them
32
equal rights it must remedy the problem by granting them equal rights, as a group. Once this
is done, under liberal theory, women’s group identity dissolves, leaving individuals free to
pursue their own goals uninhibited by imposed gendered identities. In this sense, all political
and legal reform is group-based, Ward argues. Notions of “collective empowerment” and
collective point of view are completely understandable under this interpretation. However,
what makes some versions of “groupness” in feminist theory illiberal is not the mere
association of, or recognition by groups of women that they have suffered common
experiences, but the claim that women are by nature more group-oriented in the sense of
being more altruistic and/or relational than men. This view, which explicitly or implicitly
subordinates the liberal focus on individual autonomy and rational self-interest, is of course
a central tenet of cultural feminism. MacKinnon attacks this vision of the feminine as
imposed by male supremacy, but offers no replacement for it. In MacKinnon’s account,
consciousness-raising uses a group-based approach to discovery of the truth about women’s
situations and reaches collective conclusions about the nature of women under male
supremacy. As Ward explains, woman’s collective perspective resulted in the delineation of
woman’s self-concept; under male supremacy, that concept is woman as victim. This is, at
the same time, the break-up point of radical and liberal theory.
1.4
Intersecting international law, radical feminism and war
From late 1991 and throughout 1992 extensive media coverage created widespread
pressure for an international legal response to the atrocities committed against women and
men in the conflicts accompanying the disintegration of the former Yugoslavia. In particular,
sufficient outrage was expressed about the extensive rapes and other violent assaults
against women to ensure that they could not be ignored, or discounted as a normal
33
phenomenon of armed conflict. The Security Council’s response to the demands for action
was incremental. To collect information on the allegations of war crimes, it established a
Commission of Experts to undertake an independent investigation. Following the report of
the Commission, the Security Council requested the UN Secretary-General to submit
proposals for the establishment of an ad hoc tribunal for the prosecution of war crimes in
the former Yugoslavia. The Secretary-General’s Report was adopted in May 1993, and the
International Criminal Tribunal for the Former Yugoslavia (ICTY) established. In 1994 events
in Rwanda led the Security Council to take similar steps to establish a second ad hoc tribunal
to prosecute persons for genocide and other serious violations of international humanitarian
law in that country, the International Criminal Tribunal for Rwanda (ICTR). In July 1998, a
further step was taken by the adoption of a Rome Statute for a permanent International
Criminal Court (ICC) by a Diplomatic Conference in Rome. The Rome Statute was the
culmination of five years’ work after the completion of a draft text by the International
Criminal Law (ICL) in 1994. So where is the 1990s legal feminism in this story?
In her text on the work of organized feminism in the formation of new international
criminal tribunals over the course of the 1990s, Janet Halley describes their organizational
style as overwhelmingly coalitional and resulting in a literary “trace” that is almost devoid of
manifest internal conflict. “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” (Halley 2009, 2). There was some tension on a few
issues between structuralists and liberalists, Halley argues, but was muted by the coalitional
34
style adopted by feminists and compromised usually in the direction of structuralist rule
choices.21 Furthermore, Halley argues, the substance of this structuralist feminism vision
evolved over the course of the 1990s and changed without producing a literature of internal
dissent. The legal agenda started out as a fairly simple commitment to assure that
international criminal tribunals expressly and explicitly prohibit rape in war and prosecute it
vigorously. “Not to do so was thought to trivialize or even condone rape. But over the course
of the decade, the feminists doing this work discovered ways of implementing their
structuralist view that rape was not merely a tool of belligerent forces . . . but part of a
global war against women” (Halley 2009, 6). As those reforms took shape, a new feminist
idea was clarified, one that Halley calls “feminist universalism”. “In this view women are not
a particular group of humanity but a universe of their own. In the new feminist universalist
worldview, humanitarian law and international criminal law norms relating to armed conflict
could be about women” (Halley 2009, 6).
In her Are Women Human? And Other International Dialogues, MacKinnon says that
to call violence against women a “war", especially in a legal context, is usually dismissed as
metaphorical, hyperbolic, and/or rhetorical. Violence against women has not looked like a
war in this system in part because states are not seen to wage it, nor does it present armies
contending within or across or against or for control or for definition of states. It is not about
21
Halley calls this coalitional style the “Governance Feminism”. The term was developed because it captures
the strong resemblance of the new, muscular non-governmental organization (NGO) formations adopted by
feminists to the prescription for political engagement with law produced by the “new governance” (NG) school.
Amy Cohen describes the project of the NG literature as follows: „[N]ew governance proponents aim to design
a wide-scale problem-solving praxis that is both maximally efficient and normatively (democratically)
legitimate. They envisage myriad individual stakeholders grouped into 'problem-solving publics' . . . that
negotiate about issues of social concern and that openly compare their learning with and against other
problem-solving publics. By coordinating and monitoring (but not defining or driving) these horizontal
processes from above, moreover, new governance proponents aim to ensure that these local deliberations are
inclusive, transparent, justified by a record of demonstrable reason, and progressively evolve towards
maximally informed, collaborative, and efficient solutions“ (cited in Halley 2009, 3-4).
35
state power in the usual way. Nor do the sexes look like combatant groups are thought to
look. Neither sex is considered to be in uniform. The regularities of their social behavior are
not seen as organized, so their conflict looks more chaotic than ordered. The battle of the
sexes, MacKinnon argues, simply does not look the way a war is supposed to look
(MacKinnon 2006, 261). Nevertheless, talking about the war against women did not seem as
a metaphor during the 1990s, as Halley’s text clearly demonstrates. Nor was it a pure
rhetorical stance coming from the external critique that Engle was discussing in her text
from 1992. On the contrary, Engle’s division on doctrinalist, institutionalist and external
critique was a yesteryear story; those with external approach became part of the
mainstream, whereas positivists - those who believed that international law was
authoritative and that states were bound by it - were pushed on the margins of legal
decision-making. In another words, those who considered that the victims of international
crimes should be granted some amount of autonomy have been muted by the ones for
whom the war-time sexual crime was part of a generic violence against women. But how
was it possible that this feminist universalism took over the territory of international
feminist jurisprudence? There are several reasons that are crucial here, but before I engage
myself into a broader picture, I will start with Puren and Young’s theory of “signifying
justice” (Puren and Young 1999) and try to see how it could be applied to the radical and
liberal feminist jurisprudence as well as the 1990s feminist legal universalism.
As Puren and Young argue in their text Signifying Justice: Law, Culture and the
Questions of Feminism, the questions asked by feminism have been associated socially and
historically with the question of justice. A fundamental concern in these questions has been
the oppression of women: the injury that is suffered under a hierarchical economy of sexual
difference. When addressed to law, the questions of feminism have run along two lines,
36
Puren and Young argue. Feminism’s demand for justice is well-known, a justice that would
address gender oppression, that might issue from the institutions of law, through legislative
change, through the creation of new legal procedures, through the law’s redress of
substantive harms and inequalities. But feminism also makes a demand of justice, and this
demand is one which precedes the law. The question of the justice which is prior to law –
which some might call an ethical question – erupts within law, always returning in the form
of injury or trauma. Since the hierarchical economy of sexual difference is predicated upon
the oppression of women, gender is always already marked by injury, Puren and Young
argue. Law is continually harried by this question of justice; it might not (want to) respond,
but the question does not go away. It is continually repeated, ensuring that the repertoire of
images in law expands, re-forms, circles, and relocates.
According to Puren and Young, feminism has been marked by the tension of keeping
in play both its demand for justice and its demand of justice. The substantive exigencies of
the demand for justice easily lead to an overlooking of the demand that precedes the law.
Reformism, activism and mobilization for change are immediate responses which can
address the problem of gender oppression. On the other hand, the demand of justice is a
strategy that continually exceeds and yet erupts in law. As a strategy, Puren and Young
argue, it addresses a central importance of culture in relating feminism to law. That is, in the
relationship between the feminism, law and justice, culture links each to the other. As both
of them argue, culture here is to be understood, not as an empirical collection of images, but
as a process, or regime of imagination, through which events come to have meaning as
texts. Thus the force of law is understood as signifying or textual force (Puren and Young
1999, 3).
37
Prior to the 1990s, the radical feminist demand for justice simply had to be external:
in the world consisting of contained systems that cultivated the ideology of Charter
liberalism, as Simpson argued, the real field of contestation for radical feminism was to be
found within the borders of the West, namely in relation to the liberal feminists whose
internal approach to the structure was seen as truly problematic from the point of view of
radicals.22 Nevertheless, it was precisely their internal approach that was keeping the
radicals from entering the structure and giving the meaning to their externality: if the
radicals were to enter the structure, how could they possibly continue arguing for the theory
of totalizing oppression of women? Or even better, if liberals were to embrace such theory,
how could they argue for the opportunity to develop independent selves? If one is internal
to the structure, can one deny women every possibility of self-agency and at the same time
actively practice the law? Prior to the 1990s, the boundaries between internal and external liberal and radical - feminist jurisprudence within the Western hemisphere were as sharp as
the boundaries between East and West within the Cold War paradigmatic constellation. This
can probably explain the radical feminist inclination toward the communist East as well as
the fact that they often times wrote the pieces which celebrated the benefits women were
seen to receive under communism; indeed, from the perspective of many Western radical
feminists during the 1970s and 1980s, access to universal free education, abortion, health
and welfare as well as guaranteed employment and maternity leave throughout the region
22
As Engle argues in her text International Human Rights and Feminism: When Discourses Meet, in contrast to
other advocates, external critics were concerned less with showing that some right exists in positive law or that
some institution has the responsibility to protect women's rights, and more with challenging the entire human
rights system – law makers, law enforcers, and advocates – to „wake up“ and accommodate the reality of
women's lives (Engle 1992, 576).
38
certainly seemed impressive to a certain extent (Nixon 2001, 211).23 Accordingly, radicals
used to believe that the problems with patriarchy were to be partially blamed on those who,
by the reasons of their false consciousness, perpetuated the male domination by complying
with the stories about autonomy and self-agency. As MacKinnon has implicitly pointed out,
“[w]hatever women’s selfhood will look like after male domination ends, it won’t be liberal”
(cited in Ward 1994-1995, 886). Hence, such external approach to the structure has not
been marked by the tension of keeping in play both its demand for justice and its demand of
justice: by acquiring a very explicit meta-position, it was constantly pre-existing the law and
it treated the law as a utopian momentum not-yet-ready to be grasped at. Radicals may have
been external to the structure, but they were certainly labeled with a signature of justice.
They were slowly becoming-justice themselves.24
With the conflicts accompanying the disintegration of the former Yugoslavia at the
beginning of the 1990s, this ethical machinery was about to erupt in law. To understand such
a profound change, one has to search for the answers within a broader trend that has been
developed towards transgressing sovereignty in the post-Cold War international law. As
Tesón has argued, new times call for a fresh conceptual and ethical language. A more liberal
world needs a more liberal theory of international law. This robust defense of a strong liberal
anti-pluralism, as Simpson characterized Tesón’s standpoint, meant an explicit rejection of
the statism inherent in Charter liberalism and specific for the Cold War. Hence, the post-Cold
War period and its anti-statist paradigm opened up the space for various interventions
coming from the human rights movements, particularly the women’s human rights
23
As Shibles argues in her Radical Feminism, Humanism and Women's Studies, anti-capitalism and pro-marxism
or socialism were among the basic themes of radicals feminists throughout the 1970s and 80s (Shibles 1989,
35).
24
An allusion to Deleuze and Guattari's concept of Becoming-Animal (Deleuze and Guattari 2009).
39
movement(s) whose roots can be traced back to the 1979 Women’s Convention, but were
facilitated in this new period by a broader agenda for “gender mainstreaming” and its
transnational aims.25 Adopted as official UN policy within a year of the Beijing conference
mandate in 1995, gender mainstreaming has gone global, often bypassing its feminist
origins. As Radcliffe et al. argue, mainstreaming gender has become established
institutionally through national bodies that, in neo-liberal terms, attempted to provide
guidelines on women’s incorporation into the market and new forms of citizenship, thus
establishing a basis for “adjustment with a human face” (Radcliffe et al. 2003, 398). For the
UN Development Program, a gender mainstreaming policy meant taking account of gender
concerns in policy, programs, administrative and financial activities and organizational
procedures. Although gender mainstreaming attempted to ensure that gender issues were
considered across all sectors of the state and NGOs, “men” tended to remain “unmarked”,
so gender was reduced to “women” and in turn unmarked by ethnicity, race and nation
(Radcliffe et al. 2003, 398). But if “women” remains unproblematized, as Butler argues in her
Disorderly Woman, “it functions no differently than the epistemologically imperialist
‘subject’; the category legislates under the sign of ‘the universal’ its various parochialisms,
thereby effecting an exclusion of cultural difference in the very articulation of an ostensibly
transcultural commonality” (Butler 1991, 88).
The feminist legal universalism organized over the course of 1990s used the category
of women as the one that was already marked by injury: in their reactions to the sexual
violence perpetrated against women on the territory of former Yugoslavia, women were
25
In their text The Transnationalization of Gender and Reimagining Andean Indigenous Development, Radcliffe
et al. argue that their definition of transnationalism owes much to feminist work on globalization, which
stresses the complex topographies of political-economic-social and cultural transformations at interconnected
scales (the body, the national, and international) that comprise „globalization“ (Radcliffe et al. 2003, 389).
40
seen as already victims, as already rapable, as already raped. The demand of justice that has
been continually addressed by radical feminism since the 1970s and 1980s - men as
perpetrators, men as capable of raping, men as rapers – erupted in law with no intention of
overlooking its crucial structuralist worldview. As Puren and Young argue, law has been
continually harried by this demand, but prior to the 1990s, it simply did not want to respond;
after all, why responding to such demand, if Charter liberalism was the only possible solution
to the Cold War period? Who cares about women if women’s human rights do not serve as a
catalyst for Western civilizational solidarity? When during the 1990s standards of civilization,
culture and democracy became criteria for membership of the international community, the
question of structural oppression of women became important part of international law
agenda,26 whereas the extensive rapes perpetrated against women in the War in the former
Yugoslavia became a particular “real world” case whose facts revealing the structural
oppression of women could be gathered by the international feminist lawyers. As stated at
American Association of Law Schools Annual Meeting in 2010, the case of extensive rapes in
the Yugoslav War served as an opportunity to test the theory of human rights in the crucible
of real world cases.27 Nevertheless, keeping in play both their demand for justice and their
demand of justice announced some difficulties for the feminists: since women are not states,
as MacKinnon has argued, and international law has states as its basic constituent entities,
on behalf of whom will they be intervening? As already mentioned, if the radicals were to
enter such structure, how could they possibly argue for the theory of totalizing oppression of
26
Similar phenomenon can be traced in the case of gay movement. As Haritaworn et al. argue in their text Gay
Imperialism: Gender and Sexuality Discourse in the ‘War on Terror’, the amnesia at the basis of the sudden
assertion of a European tradition of anti-homophobic and anti-sexist core values is less a reflection of
progressive gender relations than of regressive race relations and growing Islamophobia (Haritaworn et al.
2008, 72).
27
Liza Velazquez to speak on Kadic v. Karadzic Pro Bono Victory, January 7, 2010.
<http://www.paulweiss.com/resources/news/detail.aspx?news=2070>
41
women? Nevertheless, they did manage to enter and subsequently argue for their theory;
what would have been unintelligible prior to the 1990s, it has been made into strategic
move in the early 1990s and eventually erupted in law in the form of “choosing a side in the
war” or “naming the aggressor’s and the victim’s ethnicity”, namely as something that would
become known as rape-as-genocide. In the new feminist structural and universalist view, the
rape was directed toward women because they were Muslim or Croatian and perpetrated
against them exclusively by Serbian men. What exactly are we dealing here with?
In her text Feminism, Imperialism and the Mission of International Law, Anne Orford
explores the extent to which feminist legal universalism is haunted by the shades of those
nineteenth-century European feminists whose role in facilitating the empire was similar to
the nowadays feminist sustainment of the liberal anti-pluralism the purpose of which is the
promotion of international law and women’s human rights.28 This feminist humanitarian
mission presupposes that women from “highly industrialized countries” can gain access to
female “native informants” and produce knowledge about victimized women of the Third
World. The feminist international legal theory that departs from this role is criticized as
unrelated to the real world, insufficiently related to particular cases or unable to deal with
the facts on the ground. In this version of the appropriate disciplinary role of feminist theory,
as Orford is arguing, the suffering of the Third World Woman becomes the object of
knowledge of First World International Lawyers. Feminists, in other words, can take their
place as part of a set of human sciences busy establishing the “native” as a self-consolidating
other (Orford 2002, 279). This is a direction that may at first glance appear a helpful
28
In her text Liberal Internationalism, Feminism, and the Suppression of Critique: Contemporary Approaches to
Global Order in the United States, Engle discusses the Bush administration and the way liberal internationalist
discourse and even liberal and radical feminist discourse have been effectively captured by the right. With
regard to the Afghanistan War, feminist inclination toward transgression of sovereignty has been, therefore,
explicit and continual (Engle 2005a).
42
response to the discovery that the silence of women is one of the foundations of
international law. Nevertheless, responding to the silencing of women by simply
representing how suffering of the Third World Women is supposed to look like is never a
useful respond. Even when initiated with “good intentions”, such a reconstruction work
undertaken on the bodies of a specific group of women that are made into the subject of a
reconfigured, decolonized Law simply cannot succeed. As Spivak says, “[n]o perspective
critical of imperialism can turn the other into a self, because the project of imperialism has
always already historically refracted what might have been an incommensurable,
discontinuous other into a domesticated other that consolidated the imperialist self” (cited
in Orford 2002, 279). What is worse, as Puren and Young argue, in the relationship between
the feminism, law and justice, it is the culture that links each to the other; thus the
domestication of an incommensurable and discontinuous other happens through the
process of (mono)culturalization.29
That in this new feminist structural and universalist view the rape has been directed
toward women because they were Muslim (or Croatian) and perpetrated against them
exclusively by Serbian men, was the direct effect of a signifying force of law that was
consolidating the feminist subjects and their theoretical aspirations by “speaking for” or
“representing” the suffering other. In this sense, the former Yugoslavia became a metonymy
of the structuralist understanding of women’s oppression under male supremacy. As
29
The term has been used in the text Culturalization of Citizenship in the Netherlands by Tonkens, Hurenkamp,
and Duyvendak. In the article, the authors argue that culture has to be taken seriously since - as the example of
the Netherlands shows - it has become a hindrance to integration of minorities, not because of its multicultural
but due to its monocultural character. In particular, authors argue, some forms of the (mono)culturalization of
citizenship risk to reinforce social polarization. The problem of (mono)culturalization will be discussed in
further detail in Chapter 2 and Chapter 3 (Tonkens et al. 2008).
<http://www.assr.nl/conferences/documents/StaffsempaperTonkens41108.pdf>
43
MacKinnon has argued in one of the most influential feminist texts written after the
dissolution of the Cold War, “[i]n this war, the fact of Serbian aggression is beyond question,
just as the fact of male aggression against women is beyond question, both here and in
everyday life” (MacKinnon 1994, 186). If anybody wished to experience the way radical
theory works in practice, the territory of former Yugoslavia was the place to look toward: a
place where patriarchy rules, men rape, and women suffer; a big raping stage inhabited by
male monsters that made a groundbraking plan to exterminate women with their genitals; a
playground for animals with brains, a residence for human animals who think with their
penises. A place where the penises literally have brains. As a condensed universum of radical
theory turned into practice, Yugoslavia became example of the universal, but hyperintensified male supremacy: this is how the male supremacy looks like when placed outside
the Western civilization, as if feminists were telling us. It is generic, it does happen
everywhere, but Yugoslavia offers us a chance to see it in the fast-motion. In this sense,
“Serbia(ns)” equals “men” and “Bosnia(ns)” equals “women”, but when stepping outside the
West, one can actually see - it is visible, it is factual, it is real - how this fascinating
phenomenon of becoming-rape-machine30 is played upon women. Rape-as-genocide was a
movie spectacle that no international law agenda should have missed. Presented in the fastmotion, this movie about the generic war against women gave something to everybody and
finally acknowledged the reappearance of genocide on the European soil. This “feminist legal
genocidalism”,31 as I will re-name something that so far in the thesis has been known as
30
See supra note 24.
I will use the term proposed by Aleksandar Jokic in his text Genocidalism where he talks about the genocidal
use of “genocide”, defined stipulatively as the energetic attributions of genocide in less than clear cases
without considering available and convincing opposing evidence and argumentation. Genocidalism is a
widespread phenomenon regarding the discourse on international affairs in the advanced, liberal societies of
the West, embedding a “normative divide” between the ways of attending to domestic (national) concerns and
ways of attending to international issues (Jokic 2003).
31
44
feminist legal universalism, was about to launch its discourse into the world of international
law.
45
CHAPTER 2. - Entering the logic of law:
searching for reasons behind the feminist
attachment to genocide
In my previous chapter, I have shown that implementing the feminist structural and
universalist worldview into (or making it internal to) the international law can be
accomplished only through the use of metonymical and self-consolidating other. In this way,
the feminist demand of justice is very much sustaining the Western imperative for
transgression of sovereignty that is founded upon the idea of subversion and justice, but is
itself inherently violent. As something that precedes the law both in its temporal and nonrelational immanent sense, the feminist demand of justice has been troubling the law, but
never succeeded to actually interact with it prior to the 1990s. Then suddenly and smoothly,
the international law opened itself up to the feminist demands; it did not really embrace
their worldview, but it was certainly ready to listen. The feminists, on the other hand, were
ready to cooperate, no matter what the circumstances. In reacting legally to the sexual
violence perpetrated against women on the territory of former Yugoslavia, they invented the
rape-as-genocide model according to which the rape has been directed toward women
because they were Muslim or Croatian and perpetrated against them exclusively by Serbian
men. This model has been the product of keeping in play both the feminist demand for and
of justice; as such, it has been the product of one dialogue - the feminist dialogue with
international law. In this chapter, I would like to “cut to the chase” of the rape-as-genocide
model and discuss its compliance with the nowadays international law. In other words, I
want to explore the ways in which the rape-as-genocide model is not a reflection of reality,
as feminist legal genocidalism was claiming, but a mere reflection of the self-consolidating
46
feminist legal conformism that is serving a thousand little goals of one big and structurally
violent system. In this chapter, therefore, I am entering the law and exploring the ways in
which various feminist regimes of imagination have been implemented in the law for the
sake of keeping in play both the feminist demand of and feminist demand for justice. The
initial discussion will be around the concepts of “validity” and “persuasiveness” proposed by
David Kennedy, as they offer a somewhat broader and indispensable theoretical framework
for understanding the feminist usage of international law.
2.1
Validity and persuasiveness of law
In his book Of Law and War, Kennedy discusses the increasing continuity between war and
peace, on the one hand, and the continued rhetorical assertion of their distinctiveness, on
the other – to understand what makes the wars of our time and place unique (Kennedy
2006). As Kennedy argues, it has become routine to observe the omnipresence of law in
both our peacetime culture and in the war. The result has knit war and peace themselves
ever close together and made out of warfare a modern legal institution. At the same time, as
law has increasingly become the vocabulary for international politics and diplomacy, it has
become the rhetoric through which we debate – and assert – the boundaries of warfare, and
insist upon the distinction between war and peace or civilian and combatant. Law has built
practical as well as the rhetorical bridges between war and peace, and is the stuff of their
connection and differentiation. As my previous chapter tried to show in a somewhat
different register, a legal institutional process and doctrinal vocabulary for this broad
legitimacy of warfare and military tactics had begun to be developed by the start of the
47
twentieth century ,32 but it would only catch on after 1945 with the establishment of the UN
when more anti-formal and flexible ideas about law joined hands with a more professional
and bureaucratic idea about warfare to make the interrelationship between law and war
more pronounced.
As Kennedy points out, by the end of the Cold War the international order has been
dramatically transformed. The emergence of a global economic and commercial order has
amplified the role of background legal regulations and became the strategic terrain for
transnational activities of all sorts, such as gender mainstreaming and warfare.33 Sharp
boundaries between the political and institutional cultures of the First, Second and Third
worlds have dissolved, heightening the significance of the shared legal language of the
world’s professional and expert elite, namely lawyers, economists, businessmen, academics,
journalists, and the like. In the years after the fall of the Berlin Wall, the humanitarian
institutions and professions that call themselves “civil society” quickly became prominent
players on the world stage, strengthening the importance of their humanitarian and human
rights vocabulary for global political and legal debate. The legacy of successful – and
decidedly unsuccessful – partnerships between global humanitarian, diplomatic, and military
actors over the last two decades has complicated all of their relationships to an increasingly
shared legal vocabulary. As Kennedy argues, although the world’s surface remains organized
in territorial nation-states, each, at least in name, absolutely sovereign, the international
political system today is a far more complex multilevel game than the rows of equivalent
national flags arrayed at UN headquarters would suggest. States and their governments
differ dramatically in powers, resources, and independence. There is something audacious
32
See the League of Nations and the debates revolving around the Simpson's model of two liberalisms, Chapter
1, Part 1.1.
33
See supra note 28 on the connection between the gender mainstreaming and warfare.
48
and terribly misleading, Kennedy argues, about calling them all states and respecting their
nominal leaders as “sovereigns”. Even in the most powerful and well-integrated state, power
today lies in the capillaries of social and economic life. Governments are no longer – if they
ever were – the only or the predominant political actors. Vast networks of citizens,
commercial interests, civil organizations, and public officials determine much of what any
government, or any president, is able to say or do (Kennedy 2006, 10-14).
At the same time, the modern law in war represents a transformation in our sense
for what it means to say that something is or is not legal. The classical period - or the period
between 1815 and 1919 - favored a professional tendency to think of the legal system as a
neutral and external framework for policing the boundaries between legitimate and
illegitimate uses of force.34 As Kennedy emphasizes, when legal elites think in this classical
register – as they often certainly do – they place the emphasis on the validity of norms. That
means that something is legal if it complies with a valid norm. A norm is valid if it was
promulgated by the appropriate authority using the authorized legal procedure or if it can be
deduced from first principles by recognized professional canons of deduction and
interpretation. If the norm is valid, it should simply be followed. As Kennedy argues, in the
world of validity, the law is the law and you should follow it because it is valid. However, this
idea makes a lot of intuitive sense in a vertical national legal order where there is a court and
a police force in the background determining which norms are valid and whether these
34
What is characteristic for this classical period is a sharp legal distinction between war and peace. Each was
now a legal status, separated by a declaration, and as a result, the classical jurist paid a great deal of attention
to the boundaries between the spheres. Combatants and noncombatants, neutrals and belligerents had
different bundles of legal rights and privileges. The battlefield, the territory of belligerency, was legally
demarcated. The legal treatises of the period began to place the law of peace and the law of wars in separate
volumes. In part, these distinctions aimed to limit the carnage of war by expanding the privileges of civilians
and limiting the military privilege to kill. These humanitarian limitations on war were thus part of a broader
reorganization of legal thought, sharpening the distinction between the public and the private sphere,
hardening private rights and limiting public powers to their respective spheres (Kennedy 2006, 63-66).
49
norms can be enforced. Similarly, it also makes sense in the traditional view of international
order that suggests a dual paradigm for the ordering of individuals - one domestic, the other
international - that corresponds to the Simpson’s concept of Charter liberalism. However, in
the post-Cold War horizontal international legal order where the international norms are
being enforced through the decentralized process, the idea of validity makes less sense. In
such a “court of public opinion” (Kennedy 2006, 91) or “fantasy government”, 35 as Kennedy
calls it, there is no authoritative determiner of the norms and interpretations that are, in
fact, valid. That may not be so much of a problem if the rules are clear or where elites agree
about what they mean, but once we start foregrounding broad standards like “proportional”
or “necessary”36 about which diverse participants in the global political process will disagree,
that will be much more complicated.
As a result, an alternative way of thinking about the status and enforceability of
norms has been developed, and this one emphasizes the persuasiveness, rather than the
validity of norms. In this way of thinking, one should follow the norms because one is
35
In his text The International Human Rights Movement: Part of the Problem?, Kennedy discusses how the
human rights movement strengthens bad international governance: “[i]nternational governance is often asked
to do globally what we fantasize or expect national governments to do locally - allocate stakes, constitute a
community, articulate differences and similarities, provide for the common good. The human rights movement,
by strengthening the habit of understanding international governance in legal rather than political terms,
weakens its ability to perform what we understand domestically to be these political functions. The conflation
of the law with the good encourages an understanding of international governance - by those within and
without its institutions – which is systematically blind to the bad consequences of its own action” (Kennedy
2002, 122-123).
36
“But it is extremely difficult to see how one might, in fact, weigh and balance civilian deaths against military
objectives. The idea of proportionality – or necessity – encourages a kind of strategy, and ethic, by metaphor:
the metaphor of weighting and balancing. I have learned that if you ask a military professional precisely how
many civilians you can kill to offset how much risk to one of your own men, you won't receive a straight
answer. When the Senegalese asked us, we'd say, 'It's a judgment call'. Indeed, at least so far I have been able
to ascertain, there is no background exchange rate for civilian life. What you find instead are rules kicking the
decision up the chain of command as the number of civilians increases, until the decision moves offstage from
military professionals to politicians. Rules transforming weighing and balancing effects into attribution of
responsibility“ (Kennedy 2006, 143-144).
50
persuaded one should. As Kennedy argues, ”[y]ou might be persuaded because you believe
the norm is valid and think you should follow the valid rules. But you might also be
persuaded because you think the rule is wise or ethically compelling. Or because you think it
encapsulates best practice. Or because you fear the consequences of not following it. Or for
some other reason” (Kennedy 2006, 92). Be that as it may, once elites started thinking about
international norms in this way, it was a short step to the idea that a norm was valid law only
if it turned out to have been persuasive to relevant political constituencies. Moreover,
whether a norm is or is not legal is a function not of its origin or pedigree, but of its effects.
Law has an effect when it persuades an audience with political clout that something
someone else did, or plans to do, is or is not legitimate. Nevertheless, Kennedy argues, an
effort to persuade can be either enhanced, or undermined, by the presentation of the
restatement in the rhetoric of validity. If the rules can be shown to be invalid, their
persuasiveness may crumble. If presented as ethical standards or as pragmatic methods to
achieve a common objective, they may well be more persuasive – though never to an
audience that is fully fixated on whether or not the rules are actually valid. The fact that the
modern law in war is expressed in the keys of both validity and persuasiveness makes the
professional use of its vocabulary by both humanitarian and military professionals a complex
challenge.
During the early 1990s, the issue how to approach the rapes in the former Yugoslavia
agitated feminists throughout the world. Many turned to the international arena and sought
diplomatic, if not military, intervention to bring an end to the large-scale rapes in the region
and to promptly inform the general public on what was going on in this war. However, once
the decision was made to establish the ICTY, the space for feminist legal interventions - or
what is called here “demanding for justice” - suddenly opened up in all its vastness and
51
appealing uncertainty. As discussed in the previous chapter, keeping in play both their
demand for justice and their demand of justice announced some difficulties for the
feminists: since women are not states, as MacKinnon has argued, and international law has
states as its basic constituent entities, on behalf of whom will they be intervening? If women
were raped on all sides of the war and the feminist goal was to stop all rapes, then how
could one choose sides in the conflict? Some feminists did choose a side, seeing the rape by
Serbian men as genocidal and therefore attaching some sort of exclusive feature to it.
Others disagreed, arguing that such a position would deny the extent to which women were
always harmed in war, and were specifically harmed on all sides of the conflict in the former
Yugoslavia. As Engle argues in her excellent Feminism and Its Dis(contents): Criminalizing
Wartime Rape in Bosnia and Herzegovina, such a position did not deny that rapes were
hideous; far from it, those who expressed this view often argued that rapes on all sides
might be considered genocidal as well, but because of their effect on women as a group, and
not on Bosnian Muslim (and to a certain extent Croatian) women in particular. The divide
then seemed to be over whether large-scale rape in any circumstances is genocidal or
whether, at least in the former Yugoslavia, genocide could be properly considered to have
taken place only on one side (Engle 2005, 785-787). Whereas the later position has already
been labeled as feminist legal genocidalism, the later one has been specific to the former
Yugoslavian feminists regardless of their Serbian, Croatian or Bosnian Muslim origins. In my
paper I name it the “ex-Yugoslavian strategic radicalism”.37 But how valid and persuasive
both of these standpoints were and how well the feminists kept in play both their demands
for and of justice? Let us first start with the validity feature in order to see what exactly the
37
The meaning of strategic will be explained later on in the text. For the moment, it is important to keep in
mind that the ex-Yugoslavian strategic radicalism placed priority on gender, instead of ethnicity component.
52
international law offered to feminists and what each of these feminist camps, as Engle calls
them, could offer to the law.
2.2
Validity and persuasiveness of two feminist camps
The jurisdiction of the ad hoc Tribunals includes “grave breaches” of the Geneva
Conventions,38 crimes against humanity and genocide. The 1993 Report of the SecretaryGeneral recommending the establishment of the ICTY emphasized that the Tribunal should
apply those rules of international humanitarian law (IHL) 39 which are beyond doubt part of
customary law so that the problem of adherence of some, but not all states to specific
conventions does not arise. He concluded that the Geneva Conventions of 1949, the Hague
Convention (IV), the Genocide Convention and the Nuremberg Charter were without doubt
customary international law.40 To what extent then the IHL covers rape and other violent
acts against women? As Charlesworth and Chinkin argue, despite the long history of rape
and sexual assault against women during armed conflicts, and evidence offered to tribunals
of such offences, they had not figured prominently in either the legal restraints on warfare
or directly in judgments of war crime trials. There has long been an understanding of the
illegality of violent attacks on non-combatant women; indeed, rape was included in the first
recorded war crimes trial in 1474 (Charlesworth and Chinkin 2000). Nevertheless, the first
Geneva Convention in 1864 was benefiting those who became hors de combat through the
38
The Geneva Conventions and their Additional Protocols are the principle instruments of IHL and they are
often called “the core of international humanitarian law”.
39
Known also as the “law of war” or the “law of armed conflict”. Since grave breaches of the Geneva
Conventions are regarded as the most serious violations of IHL, these two concepts – grave breaches of the
Geneva Conventions and the IHL - are referring to the same head of jurisdiction applicable to the sexual
violence in armed conflict. In this sense, the IHL should be considered an “umbrella term”.
40
A rule is customary if it reflects state practice and when there exists a conviction in the international
community that such practice is required as a matter of law. While treaties only bind those States which have
ratified them, customary law norms are binding on all States.
53
injury or capture, namely the members of the fighting forces who were invariably men. It
was not until 1949 that explicit reference was made to rape and sexual assault in the Fourth
Geneva Convention – the first Convention directed at the protection of civilians. However,
the obligations were limited: states parties are under an obligation to protect women in
international armed conflict “against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault”.41 This provision does not explicitly
prohibit the listed offences, but instead presents women as needing protection. It also
creates dichotomy between warrior as protector and the woman as the protected, making
the use of force seems justified. By designating rape as crime against honor rather than one
of violence, as Charlesworth and Chinkin argue, the provision presents women as both male
and family property.42
Grave breaches of the Geneva Conventions are made subject to universal jurisdiction
exercisable in national courts and thus are regarded as the most serious violations of IHL.
However, rape and sexual assault are not explicitly designated grave breaches, but since the
category of grave breaches is defined to include acts “willfully causing great suffering or
serious injury to body or health”,43 it has been argued that sexual violence falls within this
definition (of course, specific inclusion would have foreclosed contrary argument).
41
Fourth Geneva Convention, article 27. <www.icrc.org> For a discussion on these and other articles relevant
to the protection of women see Y. Khushalani, Dignity and Honor of Women as Basic and Fundamental Human
Rights (The Hague: Martinus Nijhoff, 1982): Chapter 5; F. Krill, “The protection of women in international
humanitarian law,” in International Review of the Red Cross 249 (November-December 1985): 337.
42
In 1977 two Protocols were adopted to update the Geneva Conventions. Protocol I does not refer to the
notion of women's honor, but women continue to be portrayed as the objects of special respect and protection
(Protocol I, article 76 states that: “Women shall be the object of special respect and shall be protected in
particular against rape, forced prostitution, and any other form of indecent assault.”). Protocol II, article
4(2)(e), applicable in non-international armed conflicts, omits the language of protection and simply prohibits
outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution
and any form of indecent assault” (cited in Charlesworth and Chinkin 2000, 315).
43
Fourth
Geneva
Convention,
article
147;
Statute
of
the
ICTY,
article
2(c).
<www.icty.org/sections/LegalLibrary/StatuteoftheTribunal>
54
Furthermore, although non-grave breaches may nevertheless constitute war crimes, the
legal distinction between grave and other breaches may lead to the latter being perceived as
less significant and as not meriting enforcement. The ICC Statute provides that the category
of war crimes means grave breaches of the Geneva Conventions and “other serious
violations of the laws and customs applicable in international armed conflict”. 44 The
definition of “other serious violations” includes the commission of rape, sexual slavery,
enforced prostitution, forced pregnancy and enforced sterilization, but adds that “any other
form of sexual violence [may also constitute] a grave breach of the Geneva Conventions”.45
As Charlesworth and Chinkin argue, this supports an interpretation of specified grave
breaches such as torture or inhuman treatment, willfully causing great suffering, serious
injury and unlawful confinement, as including sexual violence.
On the other hand, under the Fourth Geneva Convention, the only persons against
whom a grave breach can be committed are those who are “in the hands of a Party to the
conflict or Occupying Power of which they are not nationals”.46 In the first trial before the
ICTY, the Tadic case, the limitations of this defining category were made apparent. In the
conflict in Bosnia-Herzegovina, there was no Party to the conflict or Occupying Power of a
different nationality to the Bosnian Muslim civilian victims, unless the Bosnian Serbs could
be considered as agents of the government of the Federal Republic of Yugoslavia or the
Republic of Srpska could be considered a state. Although Tadic was initially acquitted of
grave breaches of the Geneva Conventions, the Appeals Chamber reversed this ruling in July
1999 and made a final step toward officially recognizing the Republic of Srpska as a
44
Rome Statute for the ICC, article 8(2)(a) and (b) (cited in Charlesworth and Chinkin 2000, 316).
Ibid., article 8(2)(b) and (s).
46
Fourth Geneva Convention, article 4. <www.icrc.org>
45
55
sovereign state.47 From the very beginning of the war, the feminist legal genocidalism was
sustaining this official recognition that would eventually facilitate the feminist legal
performance: feminists needed one paramilitary fraction of Bosnia and Herzegovina to be a
sovereign state inasmuch as they needed international war to be able to facilitate their legal
action. Accordingly, they also needed the recognition of distinct nationalities, insofar as
without distinct nationalities there is no validity.48 And if the rules of evidence are shown to
be invalid, all their persuasiveness would most probably crumble. Nevertheless, relying only
on grave breaches of IHL and its focus on civilian population does not place much
importance on feminism itself. Since there is no emphasis on gender within the term
“civilian” - except as an implicit reference to the female civilian victims - feminists from both
clans needed something else to make their standpoint both visible and persuasive. Another
possible head of jurisdiction applicable to sexual violence in armed conflict is that of crimes
against humanity.
Crimes against humanity were defined in the Nuremberg Charter as:
47
In a motion filed with the Tribunal's Trial Chamber in June 1999, Tadic challenged the authority of the
Tribunal. One of the grounds on which Tadic challenged the authority was his claim that the Tribunal may only
adjudicate war crimes committed in the context of interstate conflicts and that it lacks authority to adjudicate
offences committed in the course of civil wars. Claiming that the conflict in Bosnia-Herzegovina, where his
alleged crimes occurred, is a civil war, Tadic maintained that the Tribunal could not proceed against him.
However, the Appeals Chamber rejected this assertion. Noting that the conflict raging in the former Yugoslavia
since 1991 has had both internal and international aspects, the Chamber declined to determine the nature of
the conflict at the time and place of Tadic's alleged crimes. Rather, the Chamber concluded that regardless of
the type of conflict in which they were committed, it has the authority to adjudicate Tadic's alleged offences
which included murder, rape, and torture <http://www.icty.org/sid/7227>. Once again, the international law
proved how flexible it is, although by finally recognizing the Republic of Srpska as a sovereign state, it
acknowledged the value of “playing it safe”.
48
In her text Rape, Genocide, and Women's Human Rights, MacKinnon says the following thing: „The war
against Croatia and Bosnia-Herzegovina, and their partial occupation, is being carried out by Serbian forces in
collaboration with the Serbian regime in Belgrade, governing what remains of Yugoslavia. This is an
international war. All the state parties have adopted relevant laws of nations that prohibit these acts; they are
covered in any case by customary international law and jus cogens“ (MacKinnon 1994, 186). Also, for a
discussion on similar matter, see Theodore Meron, “Rape as a Crime under International Humanitarian Law,” in
American Journal of International Law 87 (1993): 424-428.
56
Murder, extermination, enslavement, deportation, and other inhuman acts committed
against any civilian population before or during the war, or persecutions on political, racial,
or religious grounds in execution of or in connection with any crime within the jurisdiction of
the Tribunal whether or not in violation of the domestic law of the country where
perpetrated.49
The four occupying powers in Germany included rape as a crime against humanity in Control
Council Law No. 10,50 but only as constituting part of “other inhuman acts”, thus not
deserving its own name as a crime against humanity. The ICTY Statute under Article 5(g),
however,
specifically
includes
„rape“
(along
with
„murder“,
„extermination“,
„enslavement“, „deportation“, „imprisonment“, „torture“, „persecution on political, racial
and religious grounds“ and „other inhumane acts“) as such crimes.51 Vertically,52 as Halley
argues in her text Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related
Violence in Positive International Criminal Law, the effect of this new legislation is to classify
rape as a crime which is a crime against humanity when committed in armed conflict,
meaning on the systematic or widespread level. Horizontally, these new rules relieve rape of
its retro dignity and honor baggage, and repackage it, in abstracto at least, as a freestanding
crime of the same gravity as murder, extermination, enslavement, etc. Rape as rape has
entered the pantheon of international humanitarian crimes, but with the proviso that it is
punishable only when it is the predicate crime of a crime against humanity (Halley 2009, 6768). Nevertheless, in its consideration of persecution as a crime against humanity, the
International Criminal Law (ICL) noted that gender-based persecution could be so designated
49
Charter Annexed to the Agreement for the Establishment of an International Military Tribunal, article 6(c)
(cited in Charlesworth and Chinkin 2000, 319).
50
Control Council for Germany, Official Gazette, 31 January 1946 at 50 (cited in T. Meron, see supra note 48).
51
Statute of the ICTY, article 5(g) <www.icty.org/sections/LegalLibrary/StatuteoftheTribunal>
52
The sources of law have both vertical and horizontal dimensions. If rape as a crime against humanity is
included only as a constituting part of other inhuman acts, than we can say that, vertically, the crime of rape is
not recognized as such, as it does not deserve its own name within the list of crimes against humanity.
57
under article 18(e) - persecution on political, racial, religious or ethnic grounds - but decided
instead “to limit the possible grounds for persecution to those contained in existing legal
instruments”.53 Similarly, while sex and gender-based54 discrimination might also fall within
article 18(f),55 the ICL noted that it might not necessarily amount to a “crime against the
peace and security of mankind”56 and again declined to extend the prohibited grounds of
institutionalized discrimination to include sex or gender.57 On the other hand, even though
the historic association between crimes against humanity and armed conflict was continued
in the ICTY Statute, the Appeal Chamber of the ICTY has affirmed that no nexus between
crimes against humanity and armed conflict is required by customary international law. In
Tadic, the Trial Chamber clarified the concept of crimes against humanity in a number of
ways significant for trials of sexual attacks. It held that “a single act by a perpetrator taken
53
Article 18(e) (cited in Charlesworth and Chinkin 2000, 319).
More than often, the legal scholars use something that should be called „biological gender“ - gender
meaning sex – and has been criticized by Carpenter in her Beyond ‘Gendercide’: Incorporating Gender into
Comparative Genocide Studies that will be discussed in Chapter 4. Since in my thesis I am referring to the
discursive actuality, my usage of gender in the rest of the text will carry exactly the same meaning. See Chapter
4, Part 4.2 for a discussion on this problematic use of term.
55
Ibid., article 18(f): institutionalized discrimination on racial, ethnic or religious grounds involving the violation
of fundamental human rights and freedoms and resulting in seriously disadvantiging a part of the population
(cited in Charlesworth and Chinkin 2000, 319).
56
On the complexities of defining crimes against the peace and security of mankind separately from jurisdiction
of an international criminal court, see Allain and Jones, „A patchwork of norms: a commentary on the 1996
Draft Code of Crimes against the Peace and Security of Mankind,“ in European Journal of International Law 8
(1997): 100.
57
The ICC Statute does include as a distinct crime against humanity persecution against “any identifiable group
or collectivity” on a number of specified grounds including gender. However, the ICC came into being on 1 July
2002 - the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force and it can only prosecute crimes committed on or after that date. Unlike the International Court of Justice (ICJ),
the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants
certain powers to the United Nations Security Council. Article 13 allows the Security Council to refer to the
court situations that would not otherwise fall under the court's jurisdiction (as it did in relation to the situation
in Darfur, which the court could not otherwise have prosecuted as Sudan is not a state party). Also, the court
cooperates with the UN in many different areas, including the exchange of information and logistical support.
The court reports to the UN each year on its activities, and some meetings of the Assembly of States Parties are
held at UN facilities. The relationship between the court and the UN is governed by a “Relationship Agreement
between the International Criminal Court and the United Nations”.
54
58
within the context of a widespread or systematic attack against a civilian population entails
individual responsibility and an individual perpetrator need not commit numerous offences
to be held liable”.58 This meant that each perpetrator of rape in the context of a mass attack
can be held guilty of a crime against humanity. What about the crimes themselves?
As already stated above, crimes against humanity under Article 5 of the ICTY Statute
require systematic or widespread conduct and can be satisfied by either a state policy or
that of non-state forces, including terrorist groups or organizations. Thus it is only where
rape reaches the systematic or widespread level required for crimes against humanity that it
becomes punishable as an international crime. Whereas rapes on the systematic or
widespread level were well-suited for early feminist legal genocidalism, the ex-Yugoslavian
strategic radicalism has been strongly supporting the thesis that the rapes in war are
frequently sporadic.59 However, as Charlesworth and Chinking argue, the ICC prosecutors
should avoid charging rape as a crime against humanity, as it implies that rape is harming
humanity and not particularly women as a group (Halley 2009, 72). Indeed, lobbying for this
particular head of jurisdiction would certainly miss the point of bringing attention to the
feminist demand of justice. Hence, something else was needed; something that would
accentuate the intention of destroying women as a particular group and a universe of their
own, as Halley calls it. Apart from the grave breaches of the Geneva Conventions as well as
crimes against humanity, genocide was the third and final possible head of jurisdiction
58
Prosecutor v. Dusko Tadic, IT-94-IT (May 7, 1997), reprinted in International Legal Martials 36 (1997): 908
(cited in Charlesworth and Chinkin 2000, 320).
59
Nikolic-Ristanovic's Women, Violence and War: Wartime Victimization of Refugees in the Balkans published
in 2000 can be considered a good reference point for understanding the ex-Yugoslavian strategic radicalism.
Among other things, Nikolic-Ristanovic argues that “[a]lthough the point has frequently been made that the
Statute of the Hague Tribunal represents progress in the field of female rights, a more detailed analysis reveals
that rape is explicitly treated as a crime against humanity (Article 5) only when it is systematic and widespread,
or, in other words, when it occurs as a part of ethnic cleansing” (Nikolic-Ristanovic 2000, 79).
59
applicable to the sexual violence in armed conflict. Besides the possible validity feature of
persecuting sexual crimes as genocidal crimes, such a choice would certainly persuade the
audience that the war against women led on the territory of former Yugoslavia is something
exceptional in our history. As Kennedy argues, “[o]ften, the trouble begins when
humanitarians speaking the language of external virtue hit the problem of exceptions – what
if it were Hitler, what if there were genocide, what if they were raping your mother?”
(Kennedy 2006, 108). But what was the generally accepted legal definition of genocide?
The generally accepted legal definition of genocide comes from the Genocide Convention:
Genocide means any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group. 60
As Engle argues, this definition was ultimately relied upon and accepted as governing the
jurisprudence of both the ICTY and the ICTR, and most arguments for treating rape of
Bosnian Muslims as genocide conform with this definition. Although this definition covers
sterilization and forced termination of pregnancy, sexual violence does not appear to fall
within the legal notion of genocide. Nevertheless, it has been argued that where rape has
60
Convention on the Prevention and Punishment of the Crime of Genocide, article 2.
<http://www.preventgenocide.org/law/convention/text.htm>
60
been carried out on a massive and systematic basis with the intent of destroying the victims’
family and community life, of cleansing an area of all other ethnicities by causing mass flight
and the birth of children with the rapists’ blood, it becomes genocidal. In reviewing the
indictments against the Bosnian Serbs, Radovan Karadzic and Ratko Mladic, a Trial Chamber
of the ICTY invited the prosecution to broaden the scope of its characterization of genocide,
suggesting that: “The systematic rape of women . . . is in some cases intended to transmit a
new ethnic identity to the child. In other case humiliation and terror serve to dismember the
group”.61 This characterization is further supported by the phenomenon of forced detention
of women, first for impregnation and subsequently to prevent abortion.
Nevertheless, this legal characterization of genocide was a decisive moment for
splitting of two feminist camps: whereas the ex-Yugoslavian radical feminism realized that
what was at stake under this particular head of jurisdiction was exactly “choosing a side in
the war” or “naming the perpetrator”, the feminist legal genocidalism pursued with the legal
persecution and decided to focus mainly on one enemy and one victim: the Bosnian Serb
men and Bosnian Muslim women. After all, it was the only possible way for keeping in play
both their radical feminist and legal demands. Mass Rape: the War against Women in
Bosnia-Herzegovina (1994) was a solid first approach to the topic of genocidal rapes in
Bosnia-Herzegovina that made its political stance very clear in Roy Gutman’s introductory
text: “Rape occurs in nearly every war, but in this one it has played a unique role” (Gutman
1994, X).62 Roy Gutman, the former European correspondent for the American Newsday was
covering the War in the former Yugoslavia and was the first one to expose an alleged
61
See Preliminary Statement, Kadic v. Karadzic, Civil Action No. 43, CN 1163, United States District Court,
Southern District of New York; Kadic v. Karadzic 70 F. 2d 232 (1995).
62
The very title of this book - The War against Women in Bosnia-Hezegovina – is by far the best example of
Yugoslavia becoming a metonymy of the structuralist understanding of women’s oppression under male
supremacy.
61
network of rape camps where mostly Bosnian Muslim women have been held for days,
weeks, or months and systematically raped by Bosnian Serbs. Gutman's coverage won him
much international acclaim, as well as a slew of journalistic awards, including the Pulitzer
Prize for International Reporting in 1993.63 What is more astonishing here, Gutman was
named one of the "50 visionaries who are changing your world" by the Utne Reader in
November-December 2008.64 In his introductory text to Mass Rape, Gutman makes a
parallel with “a pattern of criminality that easily recalls the Third Reich: . . . [h]ow is one to
explain the sudden reappearance of genocide on European soil less than half a century after
the Nazi Holocaust and after three generations of Europeans and Americans have come of
age accepting the motto ‘never again’?” (Gutman 1994, XII). Gutman’s use of Holocaust
analogy was extremely well accepted by legal academic feminist elite. Although the book
63
Castigating the press for "journalistic crimes" committed during its reporting on the Balkans wars of the
1990s, retired New York Times reporter David Binder claims the 1993 Pulitzer Prize for International Reporting
awarded to Roy Gutman "should, in all fairness and honesty, be revoked". Binder was speaking at a press
conference for the release of a new book criticizing the war reporting and wrote the foreword to the book by
Peter Brock, titled Media Cleansing: Dirty Reporting, Journalism and Tragedy in Yugoslavia. In his book, Brock
faults Newsday's Roy Gutman for being unduly influenced by government propagandists including one source
who operated under four different aliases. Gutman was criticized for not exercising enough scrutiny before
repeating allegations of atrocities and statistics of the dead and tortured. Gutman won his Pulitzer partly for
"electrifying stories about 'concentration camps'", notes Brock, who criticizes the reporter for the prominence
of "hearsay" and "double hearsay" in his stories, as well as gratuitous use of the language of the Nazi
Holocaust. Furthermore, Gutman's first five stories about the alleged Omarska concentration camp in Bosnia
were actually filed from Zagreb, in Croatia, Brock complains. It was Gutman's sixth story on the subject that
finally carried an Omarska dateline, Brock wrote, and that was after the prison had been shut down. Both
Binder and Brock accuse the press of falling into "pack journalism" and playing the role of "co-belligerent." The
reliance on Croat and Bosnian Muslim propaganda resulted in distorted reporting that exaggerated the Serb
role in the three-sided conflict and ignored ethnic cleansing of Serbs, according to Binder and Brock. Brock
went so far as to say the $3,000 Pulitzer Prize money awarded to Burns and Gutman was "blood money". To
read more of this article, see: Sherrie Gossett, “Former NY Times Reporter: 93 Pulitzer Should Be Revoked”
(March 22, 2006) <http://www.spinwatch.org/-news-by-category-mainmenu-9/157-us-politics/2734-formerny-times-reporter-93-pulitzer-should-be-revoked>.
For a similar discussion, see Herman and Peterson, „The Dismantling of Yugoslavia. A Study in Humanitarian
Intervention (and a Western Liberal-Left Intellectual and Moral Collapse),” in Monthly Review 59(5) (2007).
64
This is what Utne Reader says about this heroic figure: „Atrocities easily pass unseen. If people notice, it’s
because someone made a ruckus loud enough to pierce media static and social malaise . . . While such work
tempts despair, the men’s commitment to truth-telling remains unshaken”.
<http://www.utne.com/2008-11-13/50-Visionaries-Who-Are-Changing-Your-World.aspx>
62
itself is an utter conceptual chaos – its editor Alexandra Stiglmayer gathered in it certain
texts that do not comply with the theory of genocidal rapes,65 but has proudly put Gutman’s
text as an introductory and thus the only one worth mentioning on the book cover - it (once
again) launched into academic space possibly the two most important and influential
MacKinnon’s texts over the course of the 1990s: her Turning Rape into Pornography:
Postmodern Genocide66 and Rape, Genocide, and Women’s Human Rights.
In her first text, one of her major arguments was that pornography, which “saturated
the former Yugoslavia” (MacKinnon 1994, 77), was one of the by-products of, but more
importantly, one of the causes of sexual violence in the Yugoslav War. There she had also
announced her thesis upon which she elaborated more thoroughly in her second text: “[y]et
the world has never seen sex used this consciously, this cynically, this elaborately, this
openly, this systematically, with this degree of technological and psychological
sophistication, as a means of destroying a whole people” (MacKinnon 1994, 75); according
to MacKinnon, the Serbs make the Nazis efforts look comparatively primitive (MacKinnon
65
In her Mass Rape, Stiglmayer also published the texts by Susan Brownmiller who claimed that "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.“
(Brownmiller 1994, 180) and by Rhonda Copelon who argued that "to emphasize as unparalleled the horror of
genocidal rape is factually dubious and risks rendering rape invisible once again . . . 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“ (Copelon 1994, 198-207). For MacKinnnon, on the
other hand, feminists who refused to see the rapes as genocide were involved in a cover-up. Indeed, she
claimed that her view was in direct response to a feminist version of the cover-up, which she saw as "useful to
the perpetrators because it seems to acknowledge the atrocities - which are hard to deny (although they do
that too) - and appears to occupy the ground on which women have effectively aroused outrage against them.
But its function is to exonerate the rapists and to deflect intervention“ (MacKinnon 1994, 189). However,
„when rape-as-genocide advocates began to make their case with regard to the former Yugoslavia, what was
meant by genocide received surprisingly little explicit attention“ (Engle 2005, 788). In the beginning of the
1990s, the term was used in numerous ways and the most important thing was to publish and to be heard.
Stiglmayer's Mass Rape is the best example of this initial confusion over the concept of genocidal rapes and it
proves that the editor herself did not really understand what kind of ideas she is propagating in her book.
66
Turning Rape into Pornography: Postmodern Genocide was originally published in Ms. 24 (July-August, 1993).
63
1994, 80).67 MacKinnon’s second text focused completely on her rape-as-genocide concept
and expressed her indignation over the fact that the rapes in the War in the former
Yugoslavia are “grasped in either their ethnic or religious particularity, as attacks on culture,
meaning men, or in their sex specificity, meaning as attacks on women” (MacKinnon 1994,
188). Rape-as-genocide was supposed to cover both its gender and ethnic components, but
more importantly, it was expressed in the keys of both validity and persuasiveness. If these
rapes were to everyday rape what the Holocaust was to everyday anti-Semitism, as
MacKinnon was arguing, then something alarmingly dangerous was happening on the
territory of the former Yugoslavia, something that deserved the following consideration:
What if Karadžić was Hitler? What if the Republic of Srpska was new Nazi Germany?68 As
Butler argues in her Precarious Life: the Power of Violence and Mourning, “[w]hen analogies
are offered, they presuppose the separability of the terms that are compared. But any
analogy also assumes a common ground for comparability, and in this case the analogy
functions to a certain degree by functioning metonymically” (Butler 2006, 72). Accordingly,
Bosnian Muslim women stood as a symbol of universal female victim just as the Jews in the
67
A sophisticated Serbian rape-machine on the territory of Yugoslavia at the beginning of the 1990s? Not very
likely, as the Croatian feminist Vesna Kesic argued in her response to MacKinnon’s text published in Ms.; see
Vesna Kesic, “A Response to Catherine MacKinnon’s Article”, in Hastings Women’s Law Journal 267, no. 5
(1994); see also from the same author: “Muslim Women, Croatian Women, Serbian Women, Albanian
Women,” in Balkan as Metaphor. Between Globalization and Fragmentation, edited by Dusan I. Bjelic and
Obrad Savic (MIT Press, 2002).
68
In the interview conducted by the Bosnian organization Women of Srebrenica, the 1992-1993 president of
the UN Security Council Diego E. Arria says that back then, the other members of the Security Council
considered the Serbian army as the one that had defeated Hitler in the Second World War. They also
considered Serbs to be some sort of “supermen”, Arria claims, whose power was incomparably bigger than the
power of UN; interview by Meliha Pihura, Esad Krcic and Belma Pekmezovic, in Bilten Srebrenice, Year 7, no. 36
(February 2006) <http://www.srebrenica.ba/?link=bilteni&b=7#br36>. Of course, throughout the whole
interview, Arria blames everybody else for the failures of international community with regards to Srebrenica
and the Yugoslav War in general: other Security Council members, the European Union, the UN SecretaryGeneral, etc., but this well-known tactic of shifting the blame on others is a common phenomenon in the postYugoslav War international politics. With the nowadays blurring of legal categories of perpetrators and victims,
war and peace, combatants and noncombatants, international and internal, nothing is easier than to relativize
certain actions taken by the UN.
64
Second World War stand as a symbol of universal and timeless experience of Jewish
suffering. Not surprisingly, such a politicized vision of sexual atrocities committed on the
territory of former Yugoslavia was very much opposed by the ex-Yugoslavian strategic
radicalism. But why do I insist to call them strategic?
In her paper on a dynamic that took place in the interplay between local women’s
organizations in post-war Bosnia-Herzegovina and the Western-dominated international
community of donors and officials, Elissa Helms has shown to what extent the gender
discourses coming from the Western donors were frequently “nation-ed” (Helms, 2003: 1).
Even when women’s organizations strived to focus only on women’s issues, donor pressures
oblige them to integrate ethnic concerns - towards ethnic reconciliation and communication
- into their rhetoric and activities. This can be seen readily in the case of the Bosnian Medica
Zenica, a self-proclaimed antinationalist, feminist women’s NGO funded by Western and UN
donors. Medica began during the war by providing medical and psychological therapy to
women survivors of wartime rape and other traumas and has continued in the post-war
period by aiding women survivors of domestic violence. Its public outreach section Infoteka
maintained close contacts with other women’s organizations that worked on sexual violence
issues, including several women’s NGOs in the Republic of Srpska, the Croatian Zagreb
Women’s Lobby and Serbian's Women in Black. During and after the War in the former
Yugoslavia, these important feminist organizations consciously worked at ethnic cooperation
through what one activist called “strategic avoidance” (stratesko zaobilazenje) of sensitive
“ethnic” topics (Helms 2003). In other words, they attempted to address ethnic divisions by
playing down their importance and playing up gender in its place. This enabled the feminist
organizations to build trusting, cross-ethnic working relationships of the kind that Western
donors seemed to be promoting. Moreover, in the early 1990s, the ex-Yugoslavian strategic
65
radicalism developed an analysis that relied on the framework proposed by Nira Yuval-Davis
and Floya Anthias,69 according to which women tend to participate in nationalist and state
practices as the biological regenerators of the nation, as reproducers of the boundaries of
ethnic groups, as central participants in the ideological reproduction of the collectivity and
as transmitters of its culture; namely, as passive receivers of various nation-state appellative
functions. In this sense, the ex-Yugoslavian feminists were strategically relying upon one
theory that permitted them to refrain themselves from the nation-state principles and
actively create a universe of their own. Naming such standpoint “strategic” is thus meant to
accentuate exactly such feminist efforts to keep alive something that in the midst of the
politics of instrumentalization of victims suddenly disappeared: a feminist ethics of care
“grounded in the principles of women’s solidarity, independence and self-help“ (Batinic
2001, 8-9).70
Accordingly, the genocidal aspect of the rapes proposed by the ex-Yugoslavian
strategic radicalism was such in a truly radical feminist sense: it was the patriarchal and
sexist essence of the nation-state ideology that was responsible for the War in the former
Yugoslavia, and its victims were primarily women.71 As such, this genocidal aspect could not
and did not aim at complying with the legal definition of genocide. Its emphasis on gender
(and not ethnicity) and on sporadic (and not necessarily systematic or widespread) rapes
was not well suited for the ICTY whose jurisdiction includes grave breaches of the Geneva
69
Nira Yuval-Davis and Floya Anthias, Woman-Nation-State (Palgrave Macmillan: London, 1989).
As Batinic argues in her text Feminism, Nationalism, and War: The ‘Yugoslav Case’ in Feminist Texts, “[i]n
December 1992, several women activists from various feminist and pacifist organizations in Croatia (including
the Antiwar Campaign - Croatia and Zagreb Women’s Lobby), founded the Center for Women War Victims,
‘grounded in the principles of women’s solidarity, independence and self-help’, and offered support for rape
victims and refugee women regardless of their nationality“ (Batinic 2001, 8-9).
71
I certainly do not wish to imply that such a standpoint is not problematic in itself, but as it is not my primary
concern in the thesis, I will leave this discussion for later in the future.
70
66
Conventions, crimes against humanity and genocide. Furthermore, this particular genocidal
aspect was far from “historical opportunity” that MacKinnon saw in these rapes;72 on the
contrary, it became an obstacle for those who wished to perform juridically. At the June
1993 UN Human Rights Conference in Vienna, MacKinnon going public with her hostility to
Serbian feminists made the following comment in response to a question posed by Belgrade
feminist Nadezda Cvetkovic : “If you are in opposition to the regime in Serbia, why aren’t you
already dead?” (Batinic 2001, 11). By that time, MacKinnon had already started to cooperate
closely with the second branch of Croatian feminists, the one that Batinic in her Feminism,
Nationalism, and War: The ‘Yugoslav Case’ in Feminist Texts calls “patriotic”. “Patriotic”
groups in Croatia and Bosnia and Herzegovina argued that “mass rapes under orders of the
Serbian-occupied territories of Bosnia-Herzegovina and Croatia are part of a Serbian policy of
genocide against non-Serbs. That means that non-Serbian women - most prominently
Muslims and Croatians – are not only tortured by rape as are all other women, but are being
raped as a part of a Serbian policy of ‘ethnic cleansing’ on the basis of their sex and ethnicity
both; most of these rapes end in murder. And this is not happening to all women“ (cited in
Batinic 2001, 7). Furthermore, according to Croatian patriotic feminists, all Serbian women,
including feminists, are “women of the group committing genocide” and therefore, Croatian
and Muslim women’s groups could not participate in the same projects with them. What is
more, at the time of writing this manifesto, these patriotic branches from both Croatia and
Bosnia-Herzegovina were already in the midst of preparations for their lawsuit brought by
72
MacKinnon says at the end of her manifesto Rape, Genocide, and Women's Human Rights: „The genocidal
rapes of this war present the world with a historic opportunity: that this becomes the time and place, and
these the women, when the world recognizes that violence against women violates human rights. That when a
woman is raped, the humanity of a human being is recognized to be violated. When the world says never again
– not in war, not in peace . and this time means it“ (MacKinnon 1994, 195).
67
MacKinnon and the NOW Legal Defense and Education Fund from New York.73 But let us
now explore the regimes of imagination that resulted from the substantive exigencies of the
feminist demand for justice, as these tend to be most intimately connected with both
validity and persuasiveness of a law.
2.3
Culturalizing through the law
While discussing the genocidal aspect of the rapes proposed by the feminist legal
genocidalism, the following question should be answered: in which possible ways did the
injuries of rape-as-genocide model erupt in the law and eventually managed to comply with
various definitions of genocide coming from the Genocide Conventions. As Engle has pointed
out, one particularly strong and largely unchallenged belief was “rape as social ostracism” 74
that, according to the Genocide Convention, destroys “in whole or in part”. The other strong
and unchallenged belief seemed to be that, if Muslim egg were inseminated with a Serbian
sperm, a Serbian child would ensue; this particular belief was known as the “rape as forced
73
The March 1993 lawsuit brought by MacKinnon and the NOW Legal Defense and Education Fund focused
specifically on crimes against women and sought to redress for the alleged human rights violations pursuant to
the Alien Tort Claims Act (ATCA), the chief means by which a foreigner may recover in United States federal
courts for torture or other violations of international human rights norms. In addition to compensatory and
punitive damages, the complaint sought injunctive relief for personal injury due to genocidal acts of rape,
forced pregnancy, enforced prostitution, torture, extrajudicial killing and other violations of international and
domestic law. On the other hand, since in this New York trial the Republic of Srpska was for the first time
recognized internationally as a sovereign state - a conditio sine qua non for acting internationally – the trial had
set up the basis for intervening within international arena in general and the ICTY in particular. For a discussion
on MacKinnon’s trial, see Michele Brandt, “Doe v. Karadzic: Redressing Non-State Acts of Gender-Specific
Abuse under the Alien Tort Statute,” in Minnesota Law Review 79(6) (June 1995): 1413-1447. See supra notes
47 and 61.
74
For the discussion on rape as social ostracism, see Adrienne Kalosieh, „Consent to Genocide?: the ICTY's
Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca,“ in Women's Rights Law Reporter
24 (2003): 121-135.
68
impregnation” (Engle 2005).75 Here we should go back to what Puren and Young stated in
their text, namely that the question of justice addresses a central importance of culture in
relating feminism to law; that is, the question of justice continually asked by feminism shows
how injury is constituted by a process of representation or regime of imagination.76 Pointing
to the first regime of imagination, that of “social ostracism” as the effect of the rapes,
discerned something unique in the rapes of Bosnian Muslim women that would distinguish
them from rapes of women on other sides of the war. As Engle explains, the sense of
uniqueness relied on problematic beliefs about the special trauma caused by the rape of a
Muslim woman because of the likely response of her Muslim family and community. This
particular regime of imagination, as Puren and Young call it, can be traced back to
Stiglmayer’s Mass Rape where it was already initiated in Gutman’s introductory text:
Women of childbearing age were the primary targets. In the conservative society in which
the Muslims of rural Bosnia grew up, women traditionally remain chaste until marriage. Rape
is a trauma with far-reaching consequences for these victims, who have well-founded fears of
rejection and ostracism and of lives without marriage or children. In this regard the pattern
of the rapes of unmarried women of childbearing age fulfils another definition of genocide –
the attempt to block procreation of the group. Yet so many cases have come to light of
women of sixty and girls under twelve being raped, gang-raped, often in front of their
relatives, that genocide seems too dry a description of unrefined savagery (Gutman 1994, X).
Under this interpretation, the rapes become genocidal because they are aimed at destroying
the group by splitting it – by turning Muslim communities against the women who are raped.
Pinning the effects on Muslim culture and religion, the argument relies on the assumption
both that such effects are intended by the Serbian rapists and that they have occurred and
75
For the discussion on rape as forced impregnation, see Charli Carpenter, “Surfacing Children: Limitations of
Genocidal Rape Discourse,” Human Rights Quarterly 22 (2000): 428-477; Siobhan K. Fisher, “Occupation of the
Womb: Forced Impregnation as Genocide,” Duke Law Journal 46(1) (October 1996): 91-133.
76
See the Chapter 1, Part 1.4.
69
will continue to occur. Of course, genocide requires intent only, but the argument often uses
presumed effects to impute intent. That the Muslim communities might respond differently
from the ways suggested by this stereotype, even with acceptance, is not considered at all.
After all, Muslim rural society is supposed to be conservative and patriarchal, as Roy
Gutman, the big Bosnian Muslim expert77 has straightforwardly pointed out in his text.
The second regime of imagination already implied within the above quotation from
Gutman’s text was “rape as forced impregnation”. This particular representational sequence
was aiming at complying with the definition of genocide and was simultaneously reproducing brutal stereotypes about the Bosnian Muslims. As I argued in my previous
chapter, the domestication of an incommensurable and discontinuous other happens
through the process of (mono)culturalization where culture of the other is a coherent and
more or less fixed whole to be uncovered by, in this case, feminist legal experts. As Engle
points out, those who argued that forced impregnation constituted genocide not only
insisted that the purpose of the rapes was to produce children, but they also pointed to the
ways that women were detained to ensure that they in fact brought the children produced
by the rapes to terms (Engle 2005). At first, however, the forced impregnation argument
seems counterintuitive: if children resulted from rapes, there would be more, not fewer,
offspring of Bosnian Muslims. But Western imagination assumed that any children born as a
result of such a union would be Serbian, not Muslim (of course, given that women might
have additional children, this alone would not ensure the destruction of a people; even were
the intended effect to produce more Serbian children, it would not necessarily be to destroy
all Muslim children). Others, on the other hand, relied heavily on the Islamic and Muslim law
77
As Halley argues in her text Rape at Rome, whereas the outside forces exert political pressure, the inside
players have expertise (Halley 2009, 34).
70
where a child's ethnicity is determined by that of the father. In this narrative, forced
impregnation thus functioned to create Serbian babies who, by populating otherwise Muslim
territory, would effectively take it over. Rather than forcibly moving the population, Serbs
would change the Muslim population by ensuring that the next generation was composed of
Serbs.
Another way that forced impregnation was seen to comply with the definition of
genocide was by evidencing intent to prevent births within a group. In this sense, the
pregnancies themselves served directly in a genocidal capacity because they interfered with
the reproduction of the victimized group: „When reproduction is used to proliferate
members of one group and simultaneously to prevent the reproduction of members of
another, it is a form of destruction” (cited in Engle 2005, 794). Advocates using this
definition of genocide argued that, when a Muslim woman was forced to carry a child (or
fetus) that resulted from a Serbian rape, her womb was occupied by the enemy, making her
incapable of conceiving and bearing a child of her own ethnicity. Such a position goes
beyond the claim that a child born of such a rape is Serbian. It suggests that the child is
explicitly not Muslim and that the child is not her mother’s own child. What is more, as Engle
points out, there is nothing about the coercive nature of rape that leads these advocates to
their conclusion. “If a Serbian sperm implanted in a Muslim egg creates a Serbian child, lack
of consent is not necessary to this outcome. Thus, all children born of such a union,
consensual or not, would not be Muslim” (Engle 2005, 794). These views were extremely
problematic insofar as they largely exaggerated the extent to which women were denied
abortions and forced to give birth, and because they took for granted that children or wouldbe children born of rapes are or would be Serbian. As Engle argues, in the overdetermination
of the children as Serbian, feminist legal genocidalism refused to see any possibilities for
71
women impregnated by Serbian men or for Islamic communities to refuse the genetic and
religious assumptions about the children that were expressed by at least some of the
Serbian rapists. In fact, feminist legal genocidalism often reinforced and perpetuated such
assumptions, turning a blind eye to the history of the region, which itself demonstrates that
such a result is more than evitable. Not only were children of mixed marriages abundant
before the war – in fact, it would be hard for me to name anybody among my personal exYugoslavian acquaintances not having some sort of “mixed” background – but during and
after the war it was more common for the religious leaders to encourage women to raise the
children as Muslim. As Engle points out, some religious Muslim leaders apparently felt less
constrained by Islamic law than some of the feminists.
Prior to the war, Bosnia and Herzegovina was a place where interpersonal
relationships between people of various groups were common. Although numbers are
difficult to come by, it is estimated that up to one-third of the marriages were “mixed”,
primarily among members of what would nowadays be considered different ethnic groups.
Religious identity in the Bosnian context has always had an ethnic aspect, since a person
usually inherits her or his religious identity from his parents and, above all, from the father
who passes on his surname to his children and thus establishes a child’s ethnic identity, a
phenomenon that, after all, carries a universal geo-cultural attributes. For all religions in
Bosnia-Herzegovina, the lines were passed down through the fathers, but in a very few cases
for the reasons of religious doctrine. Rather, the last name is how one tended to be
identified as Muslim, Catholic, or Orthodox – or Muslim, Croatian, or Serbian. That identity
category was traditionally organized on the basis of religion does not mean that individuals
actively practiced the religions with which they were identified. However, even though the
majority of Bosnians were not religious, it was often the religious aspect of being Muslim or
72
Croatian that returned to the forefront during and after the war. Feminist legal genocidalism
often reinforced this equation of religion and ethnicity, as they treated all Bosnian Muslim as
religious and as leading lives guided by Islamic law – a serious prejudice that the Western
hemisphere does not seem to be tackling, inasmuch as it helps sustaining the Western
solidarity. As Engle argues, claiming that the rape of Muslim women in Bosnia-Herzegovina
was genocidal because it caused social ostracism - by perpetuating statements about Muslim
women such as “being soiled and unmarriageable” - can in fact be traced back to an
influential article written in 1993 by Adrien Wing and Sylke Merchán, Rape, Ethnicity, and
Culture: Spirit Injury from Bosnia to Black America. While this article deals with rapes of
Bosnian Muslim women, most of its discussion about the concept of honor and its effect on
family cohesion for Muslim is not specific to Bosnia-Herzegovina. Moreover, the account it
offers of Islam is relatively fundamentalist, and not applicable to much of that territory.78
Nevertheless, the academics, they know and they are the experts. And apparently they can
publish whatever they want.
Although, as we shall see, the ICTY jurisprudence has not taken the road of focusing
on forced impregnation, both feminist legal genocidalism and the ICTY further entrenched
understandings of essentialized ethnic identity, and conflated religious and ethnic identity in
ways that defy the history of the treatment of both in Bosnia-Herzegovina. The concepts of
validity and persuasiveness that Kennedy is discussing in his book Of War and Law have
78
As Wing and Merchán argue, „though brief, the foregoing delineation of Islamic religion and culture
illustrates the differential treatment of men women that can exist in Muslim society. It should come as no
surprise that under these deeply held Islamic and cultural precepts, the Serb-instigated, systematic rape of
Muslim women constitutes not merely a physical injury but a spiritual injury on the very culture of the Bosnian
Muslims. The removal of purity, chastity, and virginity from the unmarried rape victims literally makes them
unmarriageable, and brings shame and disgrace to the entire family group. The violation perpetrated upon
married women makes it impossible for many of them to stay in their marriages“ (Wing and Merchán 1993, 2324).
73
been, therefore, taken utterly professionally by the feminists who were preparing
themselves for the legal performance at the ICTY. What is striking while reading the texts
similar to those published in Stiglmayer’s Mass Rape is exactly this level of legal
consciousness expressed by the authors such as Gutman and MacKinnon. These texts are
always the products of a very strictly defined adjustment to the rules of law and their
assertiveness is reinforced by the legal vocabulary shared among various world’s
professional and expert elite, namely lawyers, economists, businessmen, academics,
journalists, and the like. In this case, Gutman has played a function of the Balkan connoisseur
and his successful journalist expedition to the territory of the former Yugoslavia has made
him the authority within the Western utopian field of the “Balkan studies”. That he forged
close relations with the Croatian war crime criminals, such as Ante Gotovina,79 and
maintained direct correspondence with the U.S. State Department while paying his visits to
the former Yugoslavia is something that the feminists impatient to devour the legal territory
were not interested in tackling upon. On the contrary, they also began their quest for the
female victims that would help them bring this long-awaited justice to the patriarchal world.
79
“Roy Gutman: Granatiranje Knina nije bilo prekomjerno, a HV nije odgovoran za protjerivanje Srba”,
interview with Roy Gutman by Nacional, no. 3 (June 17, 2003).
<http://www.nacional.hr/clanak/10622/roy-gutman-granatiranje-knina-nije-bilo-prekomjerno-a-hv-nijeodgovoran-za-protjerivanje-srba>
74
CHAPTER 3. - Dedicated to the International
Criminal Tribunal for the former Yugoslavia in
the Hague
In my second chapter I tried to show that the only way to perform in a legally legitimate way
is to satisfy the criteria of both validity and persuasiveness and that an effort to persuade an
“audience” can sometimes be enhanced and other times undermined by the rhetoric of
validity. The reason that the feminist legal genocidalism chose to concentrate its efforts on
genocide instead of other two applicable jurisdictions – grave breaches and crimes against
humanity - was the very possibility of meeting both of these criteria when it comes to rapeas-genocide model. Besides possible validity feature of persecuting sexual crimes as
genocidal crimes, such a choice would certainly persuade an audience that the war against
women led on the territory of the former Yugoslavia is something exceptional in our history.
On the other hand, the ex-Yugoslavian radical feminism led politics different from the one
which sought to name the perpetrator and choose a side in the war for the sake of
jurisdictional validity and persuasiveness: whereas the feminist legal genocidalism decided
to focus mainly on one enemy and one victim – the Bosnian Serb men and Bosnian Muslim
women - the ex-Yugoslavian radical feminism considered the “patriarchal essence” of
nation-state ideology to be responsible for the War in the former Yugoslavia and named
women the primary victims of patriarchy. This was, at the same time, a decisive moment for
splitting of two feminist camps - the ex-Yugoslavian radical feminism could not and did not
aim at complying with legal definition of genocide nor any other legal definition whatsoever;
the feminist legal genocidalism, on the other hand, pursued with legal persecution and
75
started to adjust the case of sexual violence perpetuated in the Yugoslav War to what the
international law was offering.
My third chapter is dedicated solely to the ICTY, this huge UN machinery that during
the 1990s have been producing very dualist reactions among the former Yugoslav
population. In the Yugoslav countries that had just recently gone through a war (in one way
or the other), one could be either pro or against the Tribunal. And while the right-wingers
were very much opposed to it, the left-wingers were very much opposed to such an
opposition. This, in turn, resulted in numerous “crimes” committed against the complexity of
ICTY-related topics: since the question of dealing with consequences of war has been
oversaturated with various political aspirations, there was nobody who could afford herself
to develop truly critical thinking about the Tribunal. During the 1990s in Croatia, the Tribunal
stood as a sort of savior from the post-war nationalist projects. Fifteen years later, this
dichotomy has been very much deconstructed and new approaches to the ICTY have been
built. In my third chapter, I intend to offer one of these approaches. My initial intention is to
discuss the first significant ICTY case concerning the sexual crimes against women in the War
in the former Yugoslavia – the Kunarac case – and then to proceed with a text written by
Kirsten Campbell that discusses the gendered pattern of legal proceedings at the ICTY and
reveals the way in which the ICTY has finally responded to the feminist legal demands.
Among other things, this text is meant to depict a peculiar dynamics that both the ICTY and
feminist legal genocidalism have been creating together, a dynamics that reminds me of the
1990s in Croatia: if one is to participate in the legal system, can one afford herself
developing truly critical thinking about the Tribunal? But before I proceed with the Hague
case, let me first say a few words about the ICTY official webpage as a primary source for
discussing the Kunarac case.
76
Even though there is an open access to the ICTY legal documents, many researchers
tend to rely mostly on a secondary source - the feminist interpretations of a primary source in their analyses of rapes committed on the territory of former Yugoslavia. One of the
reasons for that is an immense amount of various legal documents (Indictments; Transcripts;
Trial Chamber Decisions, Orders, Judgments; Appeal Chamber Decisions, Orders, Judgments;
President’s Decisions, Orders, etc.80) that the ICTY is offering to a researcher; thus browsing
through the documents of only one particular ICTY case would simply be time-consuming.
Another thing is the fact that most of the cases dealing with sexual violence have already
been analyzed numerous times by feminist researchers and that more than often those who
embark on such research would consider a secondary source to be more “functional” than a
primary one: it simply offers reliable (technical) information about a particular case and,
what is more, it offers the safe haven of ready-made opinions. As a result, a primary source
is somewhat neglected and the opinions on various ICTY issues are very much uniformed.
Although instead of analyzing the ICTY cases themselves, I have been discussing the
epistemic mechanisms which brought about such a particular discursive actuality, I believe
that making a direct link with something that is supposed to be the final “destination” of
every single feminist publication from the early 1990s - the trial itself – is indispensable for
“getting the whole picture”. Hence in my next part I intend to work with transcripts and
various legal documents in the Kunarac trial and hopefully disclose the case of systematic
ethnicization and culturalization of both the defendants and plaintiffs on the part of the
ICTY.
80
See http://www.icty.org/case/kunarac/4 for an example of the Kunarac case.
77
3.1
Ethnicizing, culturalizing, “dehumanizing”
One of the most apparent manifestations of feminist aspirations can be found in the pattern
of prosecutions by the ICTY's Office of the Prosecutor. The Office successfully prosecuted
rapes alleged to have been committed on all sides but, at the same time, concentrated its
efforts on a case that viewed the rapes as systematically aimed at Bosnian Muslims. The ICTY
has handed down three judgments that make up its jurisprudence on rape. In the first,
Celebici, the ICTY found rape to constitute torture and thus a grave breach; the case was
brought against Bosnian Muslim defendants for raping Serbian women. That the defendants
were Muslim is rarely mentioned but seems significant in the context of the debate between
the two feminist camps. Through this prosecution, the ICTY signaled that all rapes
committed on all sides violated international law. This view was reinforced by the second
successful rape prosecution, Furundzija, in which the defendants were Croats, not Serbs.
However, it was not until Kunarac - the case involving the municipality of Foca - that Serbian
men were convicted for raping Bosnian Muslim women. The Kunarac case was designed to
do two things. First, it was intended to focus exclusively on sexual crimes against women,
with the ultimate hope of extending the jurisprudence on rape and sexual violence. When
the indictment was issued, the front page of the New York Times quoted a court spokesman,
who called it a „landmark indictment because it focuses exclusively on sexual assaults,
without including any other charges . . . There is no precedent for this. It is of major legal
significance because it illustrates the court's strategy to focus on gender-related crimes and
give them their proper place in the prosecution of war crime“ (cited in Engle 2005, 798).
Second, the case was meant to bring attention to the systematic detention and rape of
Bosnian Muslim women. In the end, the ICTY handed down convictions for rape and
enslavement as crimes against humanity. Thus, even without a finding of genocide, the ICTY
78
indicated that the rapes of Bosnian Muslim women were different from the rapes of Serbian
and Croatian women: only the former were found to be systematic. Before I start with the
analysis, it is necessary to give some brief outline of the Kunarac case as presented by the
Trial Chamber.
In April 1992, the city and municipality of Foca were overtaken by Serb forces.
Muslims living in Foca and the surrounding area were attacked, expelled from the region,
and/or detained, with women, children and some older men taken to detention centers at
the local high school and sports hall. Prior to the war in Bosnia-Herzegovina, fifty-two per
cent of the 40 513 inhabitants of the Foca Municipality were Muslim. After the conflict,
approximately ten Muslims remained. For the Muslims detained in Foca, conditions were
extreme. The facilities were unhygienic, little food was available, and the prisoners were
subject to beatings and, in the case of women and girls, repeated rapes. It is this latter
development that concerns the judgment in Kunarac. Serb soldiers routinely raped the
women and girls kept at the local school and sports hall. The three defendants were
involved, in different capacities, with those rapes as well as with the removal of a group of
women and girls, most of them ranging in age from twelve to twenty, from these centers to
local houses/apartments, where they were raped by the defendants and other soldiers.
Some of these women were detained for several months and were subject to constant
rapes, taken as the “property” of the individual defendants, and made to do housework,
cleaning and cooking. After a period of time, some of these women/girls, including a twelveyear-old, were then sold to other soldiers. The twelve-year-old girl was never seen again.
The three defendants - Kunarac, Kovac and Vukovic - were charged under the Statute
of the Yugoslav Tribunal with various criminal offences. As already stated in the second
79
chapter, the Yugoslav Tribunal has authority, from the UN Security Council, to prosecute
violations of the laws of war, grave breaches of the Geneva Conventions, crimes against
humanity, and genocide committed within the territory of the former Yugoslavia. The
Tribunal’s Statute – its constituting document – outlines the types of acts considered
“criminal” for the purposes of the Tribunal. It was drafted to reflect only the most settled
areas of IHL, and to include, to the extent that this allowed, provisions that would cover
crimes committed under a policy of “ethnic cleansing”.81 According to Doris Buss in her text
Prosecuting Mass Rapes, the Statute is a curious balancing act between a conservative and
reactive reading of international humanitarian law, and an innovative document, seeking to
open up a new era of international adjudication of war crimes. The result is a complex set of
rules that aims to elaborate and condemn systematic persecution of groups within a juridical
system focused on the individual acts of individual defendants against specific members of
the civilian population. Another result is that indictments, such as those in Kunarac, are
lengthy and perplex, referring to individual acts and patterns of activity, and laying charges
under multiple headings (Buss 2002, 93). In the context of Kunarac, the defendants were
charged with rape as a crime against humanity (Article 5 (g) of the ICTY Statute) and as a
violation of the laws of war (Article 3), and rape as torture, constituting both a crime against
humanity (Article 5 (h)) and a violation of the laws of war (Article 3). In addition, the
defendants were charged with enslavement as a crime against humanity (Article 5 (c)) and
with outrages upon personal dignity (Article 3). In most cases, the multiple charges of rape
(as a crime against humanity and as a violation of the laws of war) and torture (also as a
crime against humanity and as a violation of the laws of war) are made in respect of the
81
The term ethnic cleansing is not to be confused with genocide. Simply put, ethnic cleansing is similar to
forced deportation or “population transfer” whereas genocide is the intentional murder of part or all of a
particular ethnic, religious, or national group.
80
same incident. The multiple charges are significant here, insofar as they constitute the
recognition that wartime rape occurs in different contexts, for different reasons, with
various impacts.
Nevertheless, many aspects of the Kunarac case remain truly problematic here and
the overall outcome does not seem as promising as it has been advertised by the feminist
legal genocidalism. First and foremost, when it comes to genocidal aspect of wartime rape,
the ICTY has never specifically drawn a connection between rape and genocide or ethnic
cleansing. Although in Kunarac the judgments themselves contain some references to ethnic
cleansing, the Appeals Chamber included in its findings that “the campaign was successful in
its aim of ‘cleansing’ the Foca area of non-Serbs”.82 Therefore, the aim of cleansing is
primarily connected with ethnicity, whereas the gender aspect emerges as soon as the
discussion starts to revolve around various tools of destroying a certain ethnic group. As
stated by the Trial Chamber, “the rapes against the Muslim women were one of the many
ways in which the Serbs could assert their superiority and victory over the Muslims”.83
Moreover, the Trial Chamber described the attacks on the population as follows:
After months of captivity, many women were expelled or exchanged. Some men spent as
much as two years and a half in detention for no reason other than their being Muslims . . .
Almost all the remaining Muslim men and women from all three municipalities were
82
Prosecutor v. Kunarac, Appeals Chamber, No. IT-96-23 & IT-96-23/1-T, para. 3 (June 12,2002) [hereinafter
Kunarac].
83
Kunarac, Trial Chamber, para. 583 (February 22, 2001). The prosecutor describes the rape in the following
way: „Rape is only one of the constituent ingredients in the widespread or systematic attack“, Trial Transcript
(May 30, 2000): 4179. However, this opinion was expressed only after Judge Hunt had warned the prosecution
that “[a]rticle 5 does not require you to prove that the rapes were widespread; it only requires you to prove
that the armed conflict against the civilian population was widespread. The evidence that you or Mr. Kuo
suggested was going to be available from this witness’ evidence seemed to be an attempt to establish that the
rapes were widespread”, Trial Transcript (May 30, 2000): 4178. Thus at the very beginning of the Kunarac trial,
Judge Hunt made a clear statement that any attempt to give priority to gender - and not ethnicity - of the
victim would immediately be interrupted by the Trial Chamber.
81
arrested, rounded up, separated and imprisoned or detained at several detention centers . . .
in accordance with a recurring pattern. Some of them were killed, raped or severely beaten.
The sole reason for this treatment of the civilians was their Muslim ethnicity.84
After this, one can easily conclude that we are far away from the rape-as-genocide model
where rape is a highly planned and coordinated strategy aimed against women as both
gender and ethnic group. Moreover, the Trial Chamber in its judgment in the proceedings
against the accused explicitly rejects the presupposition that systematic rape could have
been employed as a weapon of war in itself. As Judge Mumba claims:
[t]he trial against the three accused has sometimes been called the “rape camp case”, an
example of the systematic rape of women of another ethnicity being used as a weapon of the
war. It is to some extent misleading to say that systematic rape was employed against as a
weapon of war. This could be understood to mean a kind of concerted approach or an order
given to the Bosnian Serb armed forces to rape Muslim women as part of their combat
activities in the wider meaning. There is no sufficient evidence for such a finding before the
Trial Chamber.85
Furthermore, since the ICTY has not found rape to constitute genocide, it would seemingly
never have considered the issue of forced impregnation, as a means either to produce
Serbian babies or to prevent births of Muslim children. As Engle points out in her text
Feminism and its (Dis)Contents, by continuing to pay some credence to the arguments
embedded in the rape-as-genocide claims, the ICTY has, nevertheless, alluded the possibility
that forced impregnation might have been part of an anti-Muslim campaign. In the Kunarac
indictment, for instance, there were references to a victim being told that she would bear
84
Kunarac, Trial Chamber, para. 577 (February 22, 2001). It is also worth noticing what the prosecution argued
in its opening statement:”It will become clear that what happened to the Muslim women of Foca and
surrounding area occurred purely because of their ethnicity or religion and because they were women”, Trial
Transcript (March 20, 2000): 303. In this sentence, one can sense a strong influence of the feminist legal
genocidalism that has been thoroughly mitigated in the course of a trial (see supra note 83).
85
Kunarac, Trial Transcript (February 22, 2001): 6558-6559 [judgment delivered by the Trial Chamber].
82
Serbian children: “At Hotel Zelengora, FWS-48 was placed in a separate room and Dragoljub
Kunarac and Zoran Vukovic, a local military commander, raped her . . . Both perpetrators
told her that she would now give birth to Serb babies”.86 What is “interesting” here is that
the Trial Chamber interpreted comments by the accused suggesting such an intent as
evidence that the women were raped because they were Muslim rather than, as the accused
had argued, out of a sexual urge or some other similar motivations: “The treatment reserved
by Dragoljub Kunarac for his victims was motivated by their being Muslims, as is evidenced
by the occasion when the accused told women, that they would give birth to Serb babies, or
that they should ‘enjoy being fucked by a Serb’”.87
I agree with Engle when she claims that it is strength, rather than a weakness, of the
ICTY’s jurisprudence that it has not taken the road of focusing on rape-as-genocide model,
even though it has still done everything what was in its power to emphasize the ethnic
component of both the victims and perpetrators. In the end, gender had little to do with
determining the outcome of the ICTY judgments and basically served a purpose of fixating
the general image of ethnic bigotry in the former Yugoslavia. However, I would like to
proceed with something that concerns me even more when reconsidering the possible
jurisdictions of the ad hoc Tribunals: the prosecution of rapes as a crime against humanity
and, in addition, outrages upon personal dignity. If we take into account that the rape-asgenocide model has been about rape directed toward women because they were Muslim or
Croatian - thus equally encompassing gender and ethnic aspect – then the ICTY decision in
Kunarac to prosecute rapes (primarily) as a crime against humanity is almost painfully
missing the point. On the other hand, prosecuting rapes as a crime against humanity has
86
87
Kunarac, Third Ameneded Indictment (Kunarac and Kovac), para. 6.1 (November 8, 1999).
Kunarac, Trial Chamber, para. 654 (February 22, 2001).
83
definitely drawn attention to the systematic side of attacks on Muslim population and has
led the rape-as-genocide camp to more or less embrace these prosecution rules. In this
sense, the lack of emphasis on gendered crimes has been “compensated” by a constant
recurrence to a widespread and systematic nature of sexual violence. What concerns me
here, though, is a very strong suggestion that the victim was made un-human by the very act
of a crime:
This is the case about the women and girls, some as young as 12 or 15 years old, who
endured unimaginable horrors as their worlds collapsed around them. Before their very eyes,
their family members were killed and their homes were destroyed. They were then brutalized,
sexually assaulted, and dehumanized by their captors, including the three accused who sit
before you today. This is a case about justice and international laws that seek to proscribe
the atrocities committed during armed conflict. In this trial, you will see the human face of
the atrocities, both of the perpetrator and the victims.88
This opening statement of the Prosecution case against Kunarac, Kovac and Vukovic revolves
around the problem that Jenny Edkins has analyzed in her text Humanitarianism, Humanity,
Human (Edkins 2003): do we want to repeat the totalitarian impulse and deny the humanity
of those who find themselves enduring unimaginable horrors of concentration camps and/or
enslavement? In her text, Edkins starts with Primo Levi’s memoir of his experiences in
Auschwitz-Monowitz that “takes us to a world where simple distinctions between human
and non-human no longer make sense; a world where people die for no reason except that a
guard has decided to kill them; a world where there are no comrades in adversity but an
endless ‘grey zone’ where many are implicated in the evil that is taking place and all are
contaminated by it” (Edkins 2003, 253). As Levi is pointing out in his book, in the universe of
88
Kunarac, Trial Transcript (March 20, 2000): 293-294 [prosecution opening statement].
84
the concentration camp, most prisoners are stripped of all dignity and lose even their will to
survive. In one sense, they become non-human; they no longer care whether they live or die
and their only interest is in food and shelter. However, not everyone in the camp is brought
to this state. Some manage to retain their human dignity through various strategies or
through luck: they become camp officials, or they steal from fellow inmates, or they obtain
privileges that mean they have more to eat or less strenuous work to perform. It is the
“survivors” who are drawn mainly from this group and they are the ones that bear witness
to the camps.89 A question that Agamben has named “Levi’s paradox” is the following one:
“In this context, is it more human to retain one’s dignity, one’s ‘humanity’, or to lose it?”
(cited in Edkins 2003, 257).90
Even though I am not trying to search for direct analogies - is the concentration camp
really similar to the alleged rape camps in and around the town of Foca?; were the power
relations really brought to their paradoxical auto-abolition as in the case of Nazi
concentration camps where the subject/object relations strived toward a complete
dichotomization and subsequently ceased to exist?; how similar are the perpetrator/victim
constellations in both of these cases?; etc. – it is true that ever since the General Assembly
of the UN proclaimed its UDHR on 10 December 1948, the international law has been
vehemently promoting the idea of “human dignity” allegedly lost in the midst of everyday
life in the Nazi concentration camps. To claim that the victims in Kunarac trial have gone
89
90
Levi Primo, If This is A Man and The Truce (London: Abacus, 1979) (cited in Edkins 2003, 253).
Consider a deplorable account of human dignity in the text Gendercide and Humiliation in Honor and Human
Rights Societies published in Journal of Genocide Research 4(1) (2002): 137-155. The author of this text, Evelin
Gerda Linder, is the founding president of an emerging interdisciplinary field of „Human Dignity and
Humiliation Studies“ that aim to “increase our understanding of the negative consequences of humiliation and
generate support of alternative approaches that promote human dignity”.
<http://www.humiliationstudies.org/education/education.php>
85
through the process of dehumanization, as the Prosecution claimed in their opening
statement, is to position the raped body within the non-human sphere of zoe and to make
this body have its final destination amongst those who are stripped of their political voice. 91
However, such a paranoid approach towards “human”, where one is defined through the
negation of one’s bare life, suffers from the highly normative assumptions that are placing
this very same (meta)human ideal at the center of our cosmos. If to be raped is to be nonhuman, as the prosecution claimed in their opening statement, then we should ask ourselves
how much effort the humanity must be putting into continual re-establishment of negation
in order to be able to define itself through such negativity. In this context, isn’t the act of
rape a matter of human indispensability and the act of suicide the only chance to retain
humanity of those who are raped?92
3.2
Post scriptum: on the value of feminist legal progress
In her text The Gender of Transitional Justice: Law, Sexual Violence and the International
Criminal Tribunal for the Former Yugoslavia, Kirsten Campbell analyses how legal norms and
practices instantiate and reiterate, rather than transform, existing hierarchical gender
91
In his Homo Sacer: Sovereign Power and Bare Life, Agamben confirms the kinds of arguments initiated by
Foucault when he claims that „the entry of zoe into the sphere of the polis – the politization of bare life as such
– constitutes the decisive event of modernity and signals a radical transformation of the political-philosophical
categories of classical thought“ (Agamben 1998, 4). He continues by claiming that the Western politics has not
succeeded in constructing the link between zoe and bios, between voice and language, that would have healed
the fracture. Bare life remains included in politics in the form of exception, that is as something that is included
solely through an exclusion.
92
Those who are raped are often said to be living on the threshold of life and death which, in turn, makes them
incapable of “owning” themselves and their own lives: how to own a life that is excluded from bios and, as
such, cannot constitute any kind of human sacrifice as, for instance, in the case of a soldier dying for his
country? On the other hand, claiming that being raped is a fate worse than death makes these victims
incapable of dying as well: how to die if you are not really alive and if you are somewhere in between – on the
threshold of life and death? This topic will be discussed in further detail in Chapter 4, Part 4.1.
86
relations (Campbell 2007). Her text is extremely valuable insofar as her case study provides a
much needed statistical analysis of the ICTY gendered pattern. As Campbell has analyzed,
there have been 17 cases of sexual violence out of a total 35 completed cases heard by the
ICTY and the indictments specify the gender of the victim in all but three cases. Out of a total
of 17 cases, seven cases include counts of sexual violence solely against female victims, three
against male victims and four involving both male and female victims. This basically means
that over 40 percent (7 out of 17) of the total number of these cases include charges in
which men are the victims of sexual violence. A similar pattern emerges if we consider
counts93 rather than cases. Of a total of 476 counts, 108 involve sexual violence, that is,
approximately 20 percent of all counts. Of these sexual violence counts, 64 involve offences
against women; 31 against men; 5 against both men and women; with 8 unspecified. What is
important to add here, the majority of the counts involving sexual violence against women
were brought in the case of Kunarac; if the Kunarac is excluded, then there is an equal
distribution of male and female sexual violence offences in other cases. As Campbell
continues, the same is with the cases involving explicit rape charges, in which 19 (83
percent) involve offences against women, and four (17 percent) offences against men.
However, with Kunarac excluded, again there is a roughly equal distribution, with four rape
charges involving male and three charges female victims (Campbell 2007, 422-423).
As Campbell argues, the high number of cases and counts involving sexual violence
against male victims is unexpected for two reasons. First, prosecutions of these cases are in
clear contrast to the general lack of visibility of male sexual assault in the Yugoslavian
93
In Criminal Procedure, count is one of several parts or charges of an indictment, each accusing the defendant
of a different offense.
87
conflict; both in terms of media coverage and in comparison to the institutional and legal
focus upon sexual violence against women. Second, a high proportion of counts of male
sexual assault are surprising given the generally agreed predominance of sexual violence
against female victims in the conflict. Estimated number of female victims of sexual violence
in Yugoslavia range from 12 000 to 50 000.94 Nevertheless, the gendered pattern of legal
practices in these legal proceedings reveals the overrepresentation of prosecuted incidences
of sexual violence against men, where that overrepresentation is defined in terms of
comparable incidences of female sexual assault in the conflict. If it is agreed that incidences
of male sexual assault form a comparably small proportion of total sexual assaults, then it is
reasonable to expect that the proportion of male and female victims before the ICTY would
reflect this. However, approximately 40 percent of the cases, and 30 percent of the counts
involve sexual violence in which men are victims. If the Kunarac case is excluded, then there
is an equal distribution of male and female sexual violence offences in other cases. These
proportions, as Campbell concludes, do not reflect the generally agreed differential scale of
gendered assaults (Campbell 2007, 424).
Even though the ICTY has been constantly propagating a feminist-friendly approach,
its gendered pattern of legal proceedings tells us that there is nothing decisively feminist
about it. Such an obvious discrepancy between institutional/media focus upon sexual
violence against women and gendered pattern of legal proceedings that reflects no
exceptionality of female suffering in the Yugoslavian conflict is quite characteristic for liberal
94
Exact numbers of female victims were difficult to establish for two reasons, as Campbell notes. First, the
investigations faced not only the general challenges encountered when researching sexual violence, but the
additional difficulty of doing so in the midst of an armed conflict. Second, as claims and counter-claims of
sexual violence became part of the Yugoslavian conflict, these estimates themselves became the subject of
“wars of interpretation” that I have been discussing (though quite indirectly) in my previous chapters (Campbell
2007).
88
anti-pluralist system and its totalitarian tiptoeing, as some would call it. Though having
allowed for the rape-as-genocide model to be brought into focus and to move forward,95 the
system is not showing any real interest in prosecuting the crimes. On the other hand, having
been offered a nutritive substance that has been feeding it and moving it forward, the legal
feminism seems to be ignorant about the long-term effects that such a substance is
producing in the feminist body. The body does move forward, but is at the same time
sabotaged from within by the very same substance that has been feeding it; eventually, with
no doubt, this body will implode. What needs to be pointed out, though, is a particular
feminist stance that such a perplexing behavior of the system is systematically producing
within the feminist legal circles, a stance that can tell us a story about the domestication of
legal feminists from around the globe, though specifically those coming from the West.
This domestication is manifested in the following way: whenever there is an attempt
to criticize the ICTY jurisdiction, this attempt is immediately weakened by a simple reminder
that it was no other institution but the ICTY itself that has pioneered accountability for
sexual violence against women in armed conflict. In other words, in almost every feminist
text that discusses this topic, first there is a bow to legal and, consequently, feminist legal
progress, and then a bow is usually followed by a critique that is overwhelmingly saturated
with excuses for having decided to do such a critique in the first place. Hence, feminists who
write these texts often express their guilt for being insufficiently grateful to the system; after
all, as legal progressives, they tend to regard the many successes of the feminist legal work
as perfectly benign, if not as precious examples of humanitarian progress. On the other
hand, that there is hardly any feminist legal text that fails to accentuate that famous
95
The system simply has to allow for similar concepts, as it is dependent on the feminism that functions as a
“witness” to the system’s will to assist and encourage the similar liberal aspirations.
89
progress can certainly tell us a great deal about both our steady belief in it and our
incapability to grasp the system in all its paradoxical complexity. For if the ICTY – this huge
machinery that is representing the system – is deliberately using the inexact numbers of
female victims and/or failing to actually prosecute the crimes, how valuable this manifest
progress can actually be?96
96
At the very end of this chapter, consider the following paragraph from Buss’ paper: “In Kunarac, for example,
the decision runs to over 300 pages and contains masses of evidence and testimony on the experience of
women raped and abused while in detention. In evaluating this evidence, the Tribunal details individual acts of
abuse, noting times, places, supporting evidence. On a number of indictments, the Tribunal rules that there is
insufficient evidence, or the indictment has not been properly drawn, to sustain a conviction. The result is
bizarre. After reading pages and pages of witness evidence about the existence of what are, in effect, ‘rape
camps’, the Tribunal then dismisses individual charges of rape for lack of evidence. Arguably, within a strict
reading of criminal evidence and international law, the Tribunal is ‘right’ in its conclusion, but the very process
of analysis feels particularly ill suited to the task of accounting for, and reconciling the experiences of these
women. What lesson do we take away from a Tribunal that can, on the one hand, find evidence of rape camps,
and yet find that individual women are not to be believed in their accounts of rape and violence at those same
camps? In this respect, the Yugoslav Tribunal reproduces many of the same problematic aspects of ‘the rape
trial’ found in Western domestic legal systems. Does this mean that feminists and others should not seek to use
this system to prosecute rape and sexual violence? Certainly not. But it does raise additional questions about
the war crimes tribunal as a mechanism of reconciliation and resolution in a post-conflict situation“ (Buss 2002,
98-99 [italics mine]).
90
CHAPTER 4. - „Gendercide“ as a legacy of the
feminist legal genocidalism: discussing a
minoritarian framing of male experience 97
My third chapter was an attempt to bring out just a “few words" from the Kunarac case and,
as such, it functioned as a sort of digression from my main attempt to situate the feminist
legal genocidalism within the discursive production of knowledge about the War in exYugoslavia. Nevertheless, I have discussed one case that has done a lot in terms of fastening
the ethnic relations in the former Yugoslavia as well as creating a clear picture about who is
the perpetrator and who the victim. Moreover, with this case, I tried to reanimate an
important issue I had already raised in my previous chapters, the issue of ethnicitzation
and/or culturalization. In the post scriptum part of my chapter, I wanted to depict a peculiar
dynamics that both the ICTY and feminist legal genocidalism have been creating together, a
dynamics of “mutual symbiosis” in which the legal feminism has been feeding itself on the
illusion of legal progress. In this chapter, I am returning to my original plot, although this
time I will be discussing the post-1990s discursive legacy of feminist legal genocidalism:
where can we find the traces of it and what possible shapes does the genocidalist discourse
carry nowadays? As Aleksandar Jokic argues in his text Genocidalism, such genocidalist
activity abounds among journalists, activists, politicians, but its saddest and perhaps most
dangerous form resides in (what poses as) academic scholarship; for academics are, by way
of their training, uniquely positioned to provide credence to this malignant intellectual
attitude and the pursuits that genocidalism represents. Moreover, they have the skills and
prestige, as Jokic continues, needed to successfully package propaganda to appear as
97
The second part of the title is taken from the title of the text written by Adam Jones (see Jones 2000a).
91
scholarship, emotions as good reasons, dogmatic belief as well supported claims, and
prejudice, bigotry, and even racism as respectable viewpoints. They can turn lies into truth
(or “truth”), fiction into fact, sick imagination into historical events, total ideological
blindness into insights of a visionary, and, last but not least, they can turn apologia into
veritable art form (Jokic 2003, 256-257). Feminist legal genocidalism is one of those
“scholarships” whose epistemic arrogance resulted in accusatory texts in which asking for
evidence itself may have been a sign of vile character deserving the strongest condemnation.
In fact, this has been the essence of genocidalism, Jokic argues; much is in the mode of
presentation, the pose of expertise, and the appearance of revealing gruesome discoveries
are much more important than the content and how one could support it (Jokic 2003, 269).
In this chapter, I want to draw attention to the remnants of this feminist self-righteousness
of the 1990s within academia and talk about the cases where the rape-as-genocide model
has found a cozy sanctuary and fertile ground for its entirely irresponsible reproduction.
4.1
Gendercide studies and inversion of radical feminism
While reading the academic texts on the War in the former Yugoslavia I found that the term
“gendercide”, first coined by Mary Ann Warren in her 1985 book Gendercide: the
Implications of Sex Selection, has been gaining more and more attention in academic circles.
In his article Gendercide and Genocide published in 2000, Adam Jones sought to revitalize
the term and to place such acts of gendercide in comparative and global-historical
perspective. He argues that gendercide, inclusively defined as gender-selective mass killing,
is a frequent and often defining feature of human conflict, and perhaps of human social
organization, extending back to antiquity. Besides, gendercide is a regular, even ubiquitous
feature of contemporary politico-military conflicts worldwide, Jones observes. In his article,
92
Jones argues that gendercide – particularly when targeting males – has attracted virtually no
attention at the level of scholarship or public policy. As such, it can be classified as one of the
great “taboo” subjects of the contemporary age. Nonetheless, it is remarkable how regularly
one comes across references in literature on modern mass killing, to staggering demographic
disproportions of adult males vs. adult females – that is, a wildly skewed
underrepresentation of adult men (Jones 2000, 187). As Jones argues, non-combatant men
have been and continue to be the most frequent targets of mass killing and genocidal
slaughter, as well as a host of lesser atrocities and abuses. Unlike their armed brethren,
these men have no means of defending themselves, and can be detained and exterminated
by the thousands or millions. The gender of mass killing, moreover, likely extends beyond
the age range specified. Elderly males are probably more prone than elderly women to be
caught up in the “maelstrom” of war; and modern warfare, with its relentless press-ganging
and criminality, extends ever further down the age ladder in the hunt for child soldiers and
street thugs - overwhelmingly boys (Jones 2000, 192).
Jones' article has swiftly generated a body of genocide research that specifically
focuses on gender-selectivity98 in patterns of mass killings, with an emphasis on genocide:
the March 2002 issue of the Journal of Genocide Research is devoted entirely to the topic.
The articles in this special issue cut at the problem of gender-selective killing from a variety
of directions, but all share two interrelated commonalities. First, they focus on the practice
of targeting members of one or another sex as a crucial site around which gender dynamics
manifests in the practice of genocidal atrocity. Second, they seek to balance the feminist
emphasis on women’s human rights with analysis of the extent to which males are targeted
98
As in the case of legal feminists, these authors use something that should be called „biological gender“. This
problem will be discussed in further detail in Part 4.2.
93
on the basis of gender. Nevertheless, these two things are highly interrelated: that this time
it is the males who are victimized through some sort of de-neutralization99 of the male
gender is a direct, but non-acknowledged consequence of the feminist legal genocidalism
that used to excessively emphasize women’s suffering and systematically disregard the
multiplicity100 of roles that men played in the Yugoslavian War. Quite naturally, though,
there is no explicit remark of the fact that “gendercide studies” should primarily be
understood as a competitive response to the 1990s feminist legal performance. Instead,
what we are offered is a constant recurrence to the political correctness toward feminist
scholarship behind which one is able to sense a high level of irritation with everything that
has been done within academic circles regarding the rape-as-genocide model on the
territory of the former Yugoslavia.101 The most striking feature of this project is that the
authors of this special issue (indirectly) dismiss as non-genocidal anything that does not
include death as the final outcome of genocidal activities. This is why their concern over the
rapes committed on the territory of Yugoslavia is nothing compared to the one displayed
with regards to Rwandan context where the death of the victim was a common outcome.
99
This idea is discussed in further detail in Holter's A Theory of Gendercide: „When Russian leaders left 118
men aboard a sunken submarine to die in the Barents Sea in August, 2000, by not calling for international help
until it was too late, there was no reference to gender. Yet the event concerned men, and not only as incidental
male individuals . . . The gender system appeared as something neutral, peripheral, as it often does in male
contexts (Holter 2002, 14-15).
100
In these war, men were not only the perpetrators, but also the victims; they were not only the soldiers, but
also the civilians.
101
Consider, for instance, the following paragraph written by Jones in his text on the Rwandan genocide: “[i]n
recent years, the phenomenon of the mass rape of women in ethnic and other conflicts has attracted a flood of
attention from feminist scholars. The inquiry, which arguably began with Susan Brownmiller’s discussion of
mass rapes in East Pakistan/Bangladesh during the genocide of 1971 was substantially deepened with the
onset of the wars in the former Yugoslavia and the rape of tens of thousands of women, mostly Bosnian
Muslims assaulted by Serbian regular and irregular forces. The rapes of Rwandan Tutsi women were on a vastly
greater scale than in the former Yugoslavia. Both in their murderous dimension—with rape frequently followed
by killing, either immediately or after a period of forced sexual servitude—and in the element of savage
mutilation, they bear comparison only with the genocidal rampage of the Japanese army in Nanjing in 1937–
1938“ (Jones 2002, 80-81 [italics mine]).
94
Once again, as in the case of MacKinnon and her clash with Serbian feminists, the other has
to die in order to fit into somebody’s theoretical frame (the living dead appears as a
somewhat too complicated conception):
The manner in which women are targeted in genocidal slaughters may also amount
to gendercide. There is no doubt that the term should be applied to all cases of mass rape
followed by murder. In certain historical circumstances—including relatively recent ones
(Bangladesh, Nanking, Berlin)—women have been targeted en masse for combined rape and
killing, or raping to death. This must surely rank among the most excruciating deaths known
to humankind, and much the same “culling” process may be evident as in the case of genderselective mass killings of men. In the contemporary era, a further deadly element has been
added to the mix: AIDS (Jones 2000, 192).
What such an approach could possibly challenge is the common feminist presumption that
rape is the worst possible fate for a woman and, thus, living your life at the threshold of life
and death can be much worse than simply being dead.102 Nevertheless, this is not what
these authors are trying to say. In their account, the death has the value of something which
is concrete, which is numbered and which is more traceable than the rapes themselves, very
often leaving no visible scars on the female bodies. On the other hand, drawing attention to
the suffering of civilian men during the armed conflict is not worth criticizing per se, but
when presented as part of this comparative measurement - which gender actually suffers
more? – it starts to reveal a competitive (male) strategy that uses the (female) other in order
to prove that women are capable of being political and/or genocidal human beings who can
102
This is exactly what Janet Halley is challenging in her text Rape in Berlin where she claims that “[t]he superior
badness of rape can background other bad things: to import the idea that ‘rape is a fate worse than death’ into
the setting of armed conflict - for example, to declare that the panoramic violence of the Yugoslav conflict was
a ‘war against women’- is to background the death that armed conflict brings to people generally, and
specifically to the death it brings to men” (Halley 2008, 80).
95
perform as active agents of rapes and slaughter. This inversed, Bizarro103 version of radical
feminism where listing the names of female architects of the Rwandan genocide104 should
serve a positive purpose of the de-victimization of female gender goes as far as to claim that
the large-scale human rights violations are not directed only against women qua women, but
in the similar vein against men qua men, with “the variables of minority ethnicity, social
class, and age [being] separated from gender for analytical purposes“ (Jones 2000a): in the
conflict in Kosovo, for instance, the entire Serbian state juggernaut, the armed forces, the
police, the paramilitaries, the militias, all aligned in their efforts to root out and punish
ethnic Albanian men, simply because they were men, writes David Buchanan, one of the
authors of the March 2002 special issue, in his text Gendercide and Human Rights (Buchanan
2002, 98). But why repeat something as lame as universal gender dichotomy? And why
appropriate the same theoretical skeleton that is the main target of this critique? What is
actually hiding behind this unfortunate account of gendercide presented by Jones et al. that
wants to distinguish between the oppression of men and the oppression of other
marginalized groups?
103
The Bizarro World (also known as Htrae) is a fictional planet in the American comics universe. Introduced in
the early 1960s, Htrae is a cube-shaped planet, home to Bizarro and his companions, all of whom were initially
Bizarro versions of Superman, Lois Lane and their children. In the Bizarro world of "Htrae" ("Earth" spelled
backwards), society is ruled by the Bizarro Code which states "Us do opposite of all Earthly things! Us hate
beauty! Us love ugliness! Is big crime to make anything perfect on Bizarro World!". Later, the mayor appoints
Bizarro No. 1 to investigate a crime, "Because you are stupider than the entire Bizarro police force put
together"; this is, however, intended and taken as a great compliment. If we apply this concept to the
gendercide studies, it is obvious that in their universe everything is functioning exactly in the opposite way:
men are victims, women are perpetrators, but what is more, this reversed situation is intended to be taken as a
great compliment by the feminist scholars. While the concept of Bizarro World may have a certain charm
within pop culture - it uses the famous technique of defamiliarization (ostranenie) - when applied within
genocide studies, it is an oversimplified, not to mention a dangerous, concept.
104
In his text Gender and Genocide in Rwanda, Jones goes as far as to actually name the most notorious cases
of female génocidaires: Pauline Nyiramasuhuko, Rose Karushara, Odette Nyirabagenzi, Athanasie Mukabatana
and sister Julienne Kizito (Jones 2002, 83-84). For a discussion on the “subjective” violence or the violence with
an easily identifiable agent, see supra note 16 and 17.
96
What seems to be the case here is a theoretically unsophisticated and almost childish
reaction to both the feminist legal genocidalism and (radical) feminist theory in general,
although this time disguised under the banner of political correctness that cowardly sustains
something which it considers as theoretically inferior. As already stated above, the problem
is not criticizing something that deserves to be criticized; the problem is the manner in which
this critique is performed: gendercide studies seem to be offering us some sort of “payoff”
against radical feminist theory by using the bodies of those who inhabit the Third World and
who are insufficiently significant to be holding the copyrights to their miserable genocidal
lives. As such, they are becoming actors in a movie that is supposed to teach us about all the
mistakes that radical feminism has committed so far. If one can speculate that in the
Rwandan genocide “a greater proportion of women than men participated voluntarily in the
killings” (Jones 2002, 83), how could one possibly bestow any credibility to the radical
feminist theory?; if one could have seen Odette Nyirabagenzi, “the terror of Rugenge”,
sending her militia in pursuit of the Tutsi men of Rugenge, being physically present on every
occasion when men were massacred and taking an active part in selecting the men who
were to die (Jones 2002, 83), would one still be able to hold opinion with those who claim
that women are less villain, more victim-like and more rapable? The theatrical stage has
been set up again, but this time in the Bizzaro fashion in which naming the genocidal figures
such as Odette Nyirabagenzi is functioning as an important approval of the post-radical
and/or post-structural feminist theory, inasmuch as it sustains their primary principle that
there is nothing fixed and definitive about anyone’s identity. In other words, claiming that
women are even more ferocious than men should be understood as a compliment, as it
finally elevates women from the status of victims and caretakers.105 And indeed, the most
105
Consider these sentences from Jones' text on the Rwandan genocide: „Nonetheless, the prominence of
97
influential response to this conceptual fraud written by Charli Carpenter has not been
impregnated with any kind of “anger” over the fact that women are capable, more than
often to a higher extent than men, of genocidal behavior; after all, why such anger in the
midst of this enlightened era of post-dichotomic and post-radical thinking that allows for all
sorts of gender identities? However, although her reaction paper is a very important attempt
to clarify Jones’ confusion over the difference between varieties of sex and gender,
Carpenter misses the point once she introduces broader political implications of the
gendercide framework.
4.2
Staying within technicality of gendercide
In her text Beyond ‘Gendercide’: Incorporating Gender into Comparative Genocide Studies,
Carpenter argues that the problem with the concept of gendercide is that it confuses
biological sex and social gender (Carpenter 2002). In the original article, Carpenter argues,
Jones defines gendercide as “gender-selective mass killing” and specifically claims that
gender can be defined primarily, if not exclusively, in terms of biological sex. Carpenter, on
the other hand, disagrees and instead uses the term “sex-specific massacre” to describe
what Jones has labeled gendercide. According to Carpenter, there are scholarly and political
implications of the term gendercide that need to be distinguished here: whereas political
implications of this term carry with them certain advantages, the scholarly ones need to be
improved. On the one hand, Carpenter argues, gender is defined as bodies, as in genderselective human rights violations. On the other hand, gender is defined as ideas, as in
masculinization of the enemy: not as brute facts of human biology, but as social facts such as
genocidal women may have a certain predictive value, one that is profoundly relevant to the current debate
over women, peace, and conflict . . . One must ask, in fact, whether 'the Rwanda test' does not substantially
refute the equation of women and peace that has dominated much of the aforementioned debate“ (Jones
2002, 84). For a discussion on various human rights tests, see supra note 25 chapter 1).
98
ideologies, norms and intersubjective ascriptive characteristics. This not only makes for
terribly confusing scholarship replete with analytical inconsistencies, enabling Jones, for
example, to make the extraordinary statement that since Jews of both sexes had died,
gender was far from a dominant consideration in the Holocaust; it also renders scholars
incapable of distinguishing varieties of sex (biological and performative) and varieties of
gender (structural and individual) to say nothing about capturing the interplay between
them or identifying pressure points where political leverage could be brought to bear to
create change, Carpenter argues (Carpenter 2002).
Recalling the sex/gender distinction enables us to establish cases where gender is the
cause and sex-specific outcomes the effect, but it also helps us distinguish between different
gendered causes of sex-specific outcomes, Carpenter argues. When it comes to sex-specific
massacre, as Carpenter calls Jones’ gendercide, gender can operate indirectly, as a “cultural
schema” which channels men and women into separate spaces where they are at risk of
different types of harm; or directly, as a “conscious ideology” of actors who may use sex as a
proxy variable for socially constructed attributes - something that MacKinnon herself was
proposing in her rape-as-genocide model, albeit her understanding of gender was identical
to the one Jones uses in his gendercide model. As Carpenter continues, a pre-existing gender
structure can generate sex-specific outcomes without any gender-selectivity on the part of
particular policy-makers. If in any particular case we wish to explain sex-specific killing, one
hypothesis is that men are disproportionately killed just because men happen to occupy the
particular social roles that perpetrators consider threatening. If the target is not “adult
males” but is “everyone in the military and political elite” (institutions which just happen to
be male-dominated), then men will die more frequently. To use the converse example,
where villages are attacked indiscriminately, women, children, and the elderly are often the
99
primary casualties because many adult males have either been conscripted, killed or have
fled. In such cases, Carpenter claims, it is not that women and children are being targeted as
such, but they simply happen to occupy the targeted location in greater numbers. Although
gender ideology on the part of the perpetrators is irrelevant in these cases, it is still true that
gender, as a pre-existing cultural system that has created sex-disproportionality in social
institutions, has played a role in generating these outcomes.106
On the other hand, where gender ideology is the key factor, Carpenter argues, men
may be specifically targeted because of perpetrators’ conscious beliefs regarding ascriptive
characteristics of men. This was clearly the case in the Rwandan genocide, where even small
boys were killed for fear that they would grow up to be RPF107 soldiers, while their sisters
were spared as chattel for the Hutu militias. As Carpenter argues, this can be a deliberate
and self-reflexive act. Thus killing may not be merely sex-specific, where men happen to be
killed because of the social roles they inhabit, but sex-selective as well: men of a group are
consciously selected, because of the assumption that they may possibly inhabit those roles,
now or in the future. Gender structure, as Carpenter argues, may create sex-specific
outcomes regardless of conscious thought on the part of the actors; on the other hand,
gender ideology operates consciously in the decision-making process of those actors
themselves. As she continues to argue, these too can be mutually reinforcing. However,
gender ideologies can become robust even where gender structure has changed. In the U.S.,
for instance, the movement of women into previously male-dominated institutions such as
the military has arguably done little to immediately change the masculinism of these
institutional cultures. Even if women in a particular ethnic conflict are equally well armed
106
If it was not for a gender role in generating these outcomes, there would not be so many cases of rapes
within armed conflicts in the first place.
107
RPF stands for the Rwandan Patriotic Front.
100
and likely to serve in rebel armies, the perception that it is the men who are combatants
may result in sex-selective atrocity, and gender-motivated interventions by third parties
under the assumption that “women and children” are innocent and vulnerable. In this sense,
Carpenter has clarified something that for radical feminists and gendercide scholars did not
have any importance. As Jones argues in his response to Carpenter’s text, the fact that the
blurring of sex and gender is common in colloquial usage, as well as in much international
discourse pertaining to women, might be regarded as conceptual laziness (sic), but it might
also reflect the difficulty of distinguishing, in an analytically rigorous way, between biological
sex and culturally-constructed gender (Jones 2003, 141). Nevertheless, in discussions on
large scale human rights violations, the sex/gender distinction can be a crucial element for
understanding the elements which led to either widespread rapes of women or mass scale
killings of men. As Carpenter says, “’gender matters’ is no longer by itself a novel argument.
The question is, ‘how, precisely?’” (Carpenter 2002, 85).
Beyond this fuzzy conceptualization, Carpenter claims that the key problem with the
gendercide concept is the manner in which it has been equated with genocide. This is due to
a false analogy in Warren’s book and the misappropriation of her concept by Jones. In her
path-breaking book, Warren writes that genocide is defined as the deliberate extermination
of a race of people. By analogy, gendercide would be deliberate exterminations of persons of
a particular sex. As Carpenter argues in her text, the Oxford dictionary defines genocide as
extermination of a race, not just of some persons of that race. If any attack on mere persons
of a particular race were genocide, regardless of the reason or the connectedness to a policy
to destroy the whole group as such, then any racial killing would be genocidal, Carpenter
claims; likewise, to be genocidal, attacks on men or on women must be connected to an
intent to destroy men as a group or women as a group in order to be analogous to racial or
101
ethnic genocides. However, neither women nor men constitute a group that, as a whole, has
been targeted for extermination of another group (members of the opposite sex); nor have
sex-selective or sex-related atrocities generally been directed against men or women as such
- by defining their otherness on the basis of their sex. According to Carpenter, it seems that
this is the key factor that would justify Jones’ emphasis on biological sex as a basis for
extermination in his reworked genocide definition. Nevertheless, this is not borne out in
most of the cases the gendercide literature cites. Were there a case of women or men
targeted because of their femaleness or maleness, as part of an attempt to wipe out women
as women or men as men, in whole or in substantial part, that would be genocide, Carpenter
concludes.
It would be wrong to say that, technically speaking, Carpenter’s account of genocide
and/or gendercide is incorrect: in a strictly technical sense, Jones’ elaboration on gendercide
is purely fictional, inasmuch as destroying the opposite sex as a group has been running only
through the lesbian SF literature or through a certain misogynist or misandrist imaginary
scattered all over the planet. Nevertheless, what Carpenter does not seem to be
acknowledging is that the classical radical feminist thought is as temporal as any other
philosophical or political ideology that has once been actualized, fixated and made
“available” to both historical and immanent temporality. In other words, radical feminist
thought as we know it from the 1970s has been consumed in time and history, reformulated
within the new international constellations and appropriated by the system of liberal antipluralism; it is still present, but endowed with a new reality and new institutionalized
purpose. That is why to say, as Carpenter does, that “[s]ince technology could well provide
the means of enacting a true genocide against either men or women as such on this basis, it
is important not to dilute the concept of genocide against a sex by applying it to cases . . .
102
that are of a fundamentally different character” (Carpenter 2002, 87) is to stay within a
spaceless and timeless technicality of the term “gendercide” and to entirely miss the point
while claiming that any such political implications of this term could possibly carry some
theoretical heaviness at this very moment in time and history. Therefore, Carpenter’s
elaboration on the potential and true gendercide - or “genocide against a sex”, as she calls it
- that would sometime in the future finally manage to correspond to the definition of
genocide found in either the Oxford dictionary or the Genocide Convention is both lacking
understanding of the dynamics of contemporaneous international politics and revealing one
thoroughly alarming academic unwillingness to enter more deeply into the meaning of
Jones’ and similar genocidalist propositions. Carpenter has made a valuable input by
clarifying the sex/gender distinction, but has generally misunderstood the importance of
mechanisms by which certain discursive factors interacted so that the very idea of
gendercide moved beyond epistemic possibility and into something which is called discursive
actuality. It is true that saying that “gender matters” is no longer by itself a novel argument;
however, the question is not “how, precisely?”, but “why, precisely?” it matters?
4.3
On why gender matters
Once again, it is necessary to make reference to the metonymical representation of the nonWestern world that functions here as an indicator of universal gender relations: by using
gender as their primary theoretical tool in explaining the motivations behind genocidal
events such as those in Rwanda or Bosnia, a certain part of Western academia is first and
foremost depoliticizing the historico-political aspirations that led to such tragic outcomes in
these countries. Moreover, by using these specific locations as metonymical representations
of generic gender relations, they are at the same time distancing themselves as Western
103
subjects from the rapes and slaughters of the non-Western world. As in the case of
MacKinnon’s rape-as-genocide model, gender equals ethnicity – Rwandan, Bosnian,
Serbian… or any other non-Western ethnicity for that matter. In this sense, gender matters
because it is a powerful tool for discussing the universal, but pointing to the particular.
Consequently, the universal ceases to be universal and becomes condensed within
particular, whereas everything that stays outside this condensed space functions as a
neutral, post-gendered space that is, quite logically, impossible to associate with the
particular. As such, everything that is outside this condensed space of particular is implicitly
defined as fait accompli – it is resolved, it is advanced and it is -post. But let me put this in a
less abstract way by introducing the case of the Rwandan genocide with the following
questions: don’t we all feel the distance of space and time while reading about 800, 000
people being killed within the period of 100 days? And don’t we all consider it impossible for
something like this to happen on the well protected and blessedly safe Western soil? Why
do we use something as universal as male/female relations? Are we really that naïve as to
think that the Rwandan genocide can be analyzed through such universal lenses?
The only possible conclusion we would be able to come up with when discussing the
Rwandan genocide through the universal lenses is that we simply cannot associate any
aspect of our gender identities with the mass killings, rapes and slaughters perpetuated
during the Rwandan genocide. Even if “[w]omen joke among each other about a world
where there were no men” (Carpenter 2002, 87), as Carpenter notes, discussing the
recruitment of women whose sole purpose would be the extermination of the whole (or part
of) male Western population means inhabiting one thoroughly ungrounded theoretical
position that Carpenter is inhabiting in her paper. As all of us are very much aware, genocide
104
of any kind does not happen in the West;108 this is the essence of the West defined by the
West, sustained by the West, and controlled by the West. Therefore, encountering such an
analysis would undoubtedly create the very feeling of estrangement from the genocidal
events in Rwanda and help us conclude that we have nothing to do with these hardly
intelligible male and female identities. This is exactly the moment when the universal ceases
to be universal and becomes condensed within the particular territory of Rwanda. Also, this
is the moment when everything that stays outside this condensed space - our everyday
experience of well protected and blessedly safe Western soil - can easily be defined as fait
accompli: if we have learned so far to cohabitate peacefully as men and women and to go
through our lives without wishing to harm each other on such massive scale, then our very
own experience can prove us that this battle of the sexes has been pretty much resolved in
our case; if we have learned so far how to restrain ourselves from taking advantages of the
opposite gender, then we simply must be advanced in one way or the other; if the gender
dichotomy does not seem to be troubling us as nearly as it troubles those living outside the
West, then we are simply ready for labeling our gender relations as –post.109 So why does
gender matter? Gender matters because it helps to conceal all possible circumstances that
108
The fact that the genocide did happen in the West during the Second World War is the sole reason the West
is re-affirming its civilizational supremacy through nazification of others and de-nazification of the West itself.
What the West really needs is a complete historical dissociation from the concept of genocide, as the major
obstacle to re-affirm its civilizational superiority has always been the Nazi Holocaust; the concept of “biological
gender”, on the other hand, can run this process of dissociation and re-affirmation more smoothly. And indeed,
in his text Jones is making a sort of genocide hierarchy and claiming that the Rwandan genocide, solely by
reason of its gendered pattern, is simply without historical precedent: “The gendering of genocide in Rwanda
bears comparison with many of the worst atrocities of the twentieth century. In the Armenian and Jewish
genocides; the annihilation of Soviet prisoners of war during World War II; the massive slaughters in East
Pakistan/Bangladesh and Indonesia; and the gendercides in Bosnia and Kosovo, a pattern of initial targeting of
males is inescapably evident. The role of anti-male gendercide as a 'tripwire' or 'onset phase' of genocide
should be one of the most powerful analytical weapons of anyone seeking to predict, confront, and end
genocides. However, the Rwandan genocide, as we have seen, cannot be integrated into this framework
without qualification: the elderly, children, and women were all swept up in the slaughter from its very first
hours, though much less systematically than adult and adolescent males“ (Jones 2002, 87).
109
The same goes for the category of post-human that I consider extremely problematic and, briefly speaking,
oriented towards a very subtle, but intense apologia of the technological progress. As Jokic argues in his text
Genocidalism, academics can turn apologia into veritable art form (Jokic 2003).
105
brought about the events such as those in Rwanda. It matters because it strategically dehistoricizes our reality and makes the Western safety look natural and timeless. It matters
because it gives the impression that the Western linear advancement does not carry the
historico-political reasons for being advanced in the first place. Using spaceless and timeless
gender means sustaining one ideology whose roots can be traced back to MacKinnon’s
pamphletic texts from the beginning of the 1990s, but whose tentacles are hard to denounce
in their overwhelming Deleuzian kind of virtuality.
106
Conclusion
Ideas do not die. Not that they survive simply as archaisms. At a given moment they may
reach a scientific stage, and then lose that status or emigrate to other sciences. Their
application and status, even their form and content, may change: yet they retain something
essential throughout the process, across the displacement, in the distribution of a new
domain. Ideas are always reusable, because they have been usable before, but in the most
varied of actual modes (Deleuze and Guattari 2009, 235).
Although it may seem the radical feminist idea is a yesteryear's story, my assumption is that
it has changed its form and content and actualized itself in various modes everywhere
around us. Even the Sex and the City, one of the most popular shows ever, has been carrying
the intensities and potentials of the radical thought, though this time within new domains of
the so-called late capitalism and its pop culture. Though some would never connect it with
MacKinnon’s remarks on the totalizing patriarchal structure, this show is thoroughly based
upon the idea that women are inherent victims of social rules that constantly condition their
utter vulnerability to men’s sexual desires. Such a displacement of a certain idea – from
MacKinnon all the way to Sex and the City - can be perplexing and difficult to grasp, but its
mere change of form and content should not prevent us from acknowledging its intensively
radical re-usage. Regardless of its promotion of independent and emancipated womanhood,
Sex and the City is essentially drawn from the radical feminist thought. Exactly the same
process has happened in the case of radical feminist thought when it entered the realm of
international law. In this sense, my thesis attempted to reveal that this “uneasy alliance”
between radical feminism and international law is such only because we have presupposed
107
in advance that these various actual modes cannot contain the plurality of supposedly
incompatible ideas. Radical feminism and international law do go together, but their alliance
is conditioned by circumstances other than those from the 1970s and 1980s.
On the other hand, this alliance is a symptom of one moment in time and history
when a dominant system embraced the radical thought instead of dismissing it as a mere
female blubbering. Therefore, the fact that such an alliance has actualized its existence
within manifest discursive practices should be an excellent starting point for discussing a
certain discursive (or epistemic) regime. In this particular one, it is very much accepted to
use metonymical representations of the non-Western spaces in order to achieve legal goals
and secure the conditions for legal prosecutions. As I have argued in my thesis, this practice
is overwhelmingly present in areas other than the legal feminism, but it is in legal feminism
that it has found its most intensive reproduction. These legal texts typically begin with big
numbers and unfortunate facts about the violence perpetrated against women, but are
usually accompanied by an enumeration of “distant” countries where such violence is
“condensed” and is happening in fast motion. Subsequently, the category of gender - in all
its biological meaning – merges with the notion of ethnicity and encourages the distancing
from these unintelligible human forms and their intense becoming-gender-ethnicity. As Vali
Nasr, Senior Advisor from the U.S. State Department, has argued at the BBC World Debate
from Brussels Forum, in order to start a dialogue with them, we must first bring the Western
kind of “space and time” to these countries.110 The way they are killing and raping each
other is simply too condensed and way too fast for us.
110
BBC World Debate – Afghanistan: A Winnable War?, BBC World (March 26, 2010).
108
What I have discussed in my thesis has not been a product of reading certain texts
where this information can be obtained, but a product of “sensing” the practices that install
the “regime of sayability”: what is sayable is what is written within the controlling and
paranoid practices of a certain regime. In this sense, the regime of sayability has been
directing me towards assumptions which very often lack a straightforward relation to some
of the texts, but are a result of my constant digging out and digging deeper into the soul of
the regime, as Foucault writes in his Discipline and Punish. By detecting the cooperation
between legal feminist genocidalism and the anti-pluralist liberal system I have been, at the
same time, detecting the maladies of the Western soul that nurtures itself on the myths
about the Balkan irremediable bellicosity. As stated by EurActive Network, the “EU's main
objective for the Western Balkans region (South East Europe) is to create a situation where
military conflict is unthinkable – expanding to the region the area of peace, stability,
prosperity and freedom, established over the last fifty years in the European Union”.111
But if peace is expandable and follows the linear line of historical temporality, where
was the Balkan region fifty years ago when the West was preparing itself for a major
destruction? Was it on the other side of this linearity, ahead of the West, more civilized and
peace-minded? By claiming what it claims, isn’t the West unconsciously acknowledging that
the epicenter of the war and destruction lies exactly in the West, at the center of the
European Union in Brussels or at the UN headquarters in New York? Nevertheless, by
criticizing this structurally violent system, do we really want to apply such a childish Bizzaro
theory of inverse relations that Jones has applied in the case of gender relations? And do we
111
“EU-Western Balkan Relations”, EurActive Network (14 December, 2007) [italics mine].
http://www.euractiv.com/en/enlargement/eu-western-balkans-relations-linksdossier-188295
109
really want to imply that the West should accept its destructive nature as a compliment, as it
finally elevates it from this thoroughly traumatized status of innocent viewer of the fast
motion movies coming from the non-Western counties? This is exactly what the terrorism
has been doing so far: warning the West that its complicity in the nowadays wars and
violence is way more serious than the West has been capable of imagining. However,
terrorists have been doing this by spreading hatred towards the West and killing innocent
people that, according to them, are never innocent and never only standbyers. A theory
critical of the West must find alternatives to spreading violence and wishing for the “death”
of the West. Instead, it should be capable of claiming that that which has been actualized is
always a product of immense virtuality of possible interrelations and that the idea of the
Serbian rape-machine is always already in us, disguised under the name of radical feminism,
hiding beneath the frustrations of not-yet achieved equality, and floating in the air of sorrow
over the unacknowledged, but ever-present fact that justice will never be achievable
through the rule of law. Using the other to consolidate one’s inherently destabilized
subjectivity should never be the answer.
110
Bibliography and works cited:
Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford: Stanford University
Press, 1998.
Allison, Roy. The Soviet Union and the Strategy of Non-Alignment in the Third World.
Cambridge: Cambridge University Press, 1988.
Arria, Diego E. Interview by Meliha Pihura, Esad Krcic and Belma Pekmezovic. Bilten
Srebrenice, Year 7(36) (February 2006). <http://www.srebrenica.ba/?link=bilteni&b=7#br36>
BBC World Debate – „Afghanistan: A Winnable War?.“ BBC World (March 26, 2010).
Batinic, Jelena. “Feminism, Nationalism, and War: The ‘Yugoslav Case’ in Feminist Texts.“
Journal of International Women's Studies, 3(1)(2001): 2–23.
Brownmiller, Susan. “Making Female Bodies the Battlefield.” In Mass Rape: the War against
Women in Bosnia-Herzegovina. ed. A. Stiglmayer. Lincoln and London University of Nebraska
Press, 1994.
Buchanan, David. “Gendercide and Human Rights.” Journal of Genocide Research, 4(1)
(2002): 95-108.
Buss, Doris. “Prosecuting Mass Rape: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and
Zoran Vukovic.” Feminist Legal Studies, 10 (2002): 91-99.
Butler, Judith. “Disorderly Woman.” Transition, 53 (1991): 86-95.
------------------. Precarious Life. The Powers of Mourning and Violence. London: Verso, 2006.
Campbell, Kirsten. “The Gender of Transitional Justice: Law, Sexual Violence and the
International Criminal Tribunal for the Former Yugoslavia.” The International Journal of
Transitional Justice, 1 (2007): 411-432.
111
Carpenter, Charli R. “Beyond ‘Gendercide’: Incorporating Gender into Comparative Genocide
Studies.” The International Journal of Human Rights, 6(4) (Winter 2002): 77-101.
Charlesworth, Hilary and Christine Chinkin. The Boundaries of International Law.
Manchester: Manchester University Press, 2000.
Charlesworth, Hilary, Christine Chinkin, and Shelley Wright. “Feminist Approaches to
International Law.” The American Journal of International Law, 85(4) (October 1991): 613645.
Conaghan, Joanne and Susan Millns. “Special Issue: Gender, Sexuality and Human Rights.”
Feminist Legal Studies, 13 (2005): 1-14.
Copelon, Rhonda. “Surfacing Gender: Reconceptualizing Crimes against Women in Time of
War.” In Mass Rape: the War against Women in Bosnia-Herzegovina. ed. A. Stiglmayer.
Lincoln and London: University of Nebraska Press, 1994.
Deleuze, Gilles, and Félix Guattari. A Thousand Plateaus. Capitalism and Schizophrenia.
London: Continuum, 2009.
Douzinas, Costas. Human Rights and Empire. The Political Philosophy of Cosmopolitanism.
Abingdon, New York: Routledge-Cavendish, 2007.
Edkins, Jenny. “Humanitarianism, Humanity, Human.” Journal of Human Rights, 2(2) (June
2003): 253-258.
Engle, Karen. “Feminism and Its (Dis)contents: Criminalizing Wartime Rape in Bosnia and
Herzegovina.“ The American Journal of International Law, 99(4) (October 2005): 778-816.
-----------------. “International Human Rights and Feminism: When Discourses Meet.” Michigan
Journal of International Law, 13 (1992): 517-611.
112
----------------. “Liberal Internationalism, Feminism, and the Suppression of Critique:
Contemporary Approaches to Global Order in the United States.” Harvard International Law
Journal, 46(2) (Summer 2005a): 427-439.
“EU-Western
Balkan
Relations.”
EurActive
Network
(14
December,
2007).
<http://www.euractiv.com/en/enlargement/eu-western-balkans-relations-linksdossier188295>
Gossett, Sherrie. “Former NY Times Reporter: 93 Pulitzer Should Be Revoked.” March 22,
2006.
<http://www.spinwatch.org/-news-by-category-mainmenu-9/157-us-politics/2734-
former-ny-times-reporter-93-pulitzer-should-be-revoked>
Grewe, Wilhelm G. The Epochs of International Law. New York: de Gruyter, 2000.
Gutman, Roy. “Roy Gutman: Granatiranje Knina nije bilo prekomjerno, a HV nije odgovoran
za
protjerivanje
Srba.”
Interview
by
Nacional,
3
(June
17,
2003).
<http://www.nacional.hr/clanak/10622/roy-gutman-granatiranje-knina-nije-biloprekomjerno-a-hv-nije-odgovoran-za-protjerivanje-srba>
Halley, Janet. “Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related
Violence in Positive International Criminal Law.” Michigan Journal of International Law, 30(1)
(2009).
----------------. “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International
Law of Armed Conflict.” Melbourne Journal of International Law, 9(1) (May 2008): 78-125.
Harding, Christopher. “Statist Assumptions, Normative Individualism and New Forms of
Personality: Evolving a Philosophy of International Law for the Twenty First Century.” NonState Actors and International Law, 1(2) (2001): 107-125.
Haritaworn, Jin, Tamsila Tauqir, and Esra Erdem. „Gay Imperialism: Gender and Sexuality
Discourse in the 'War on Terror'.“ In Out of Place: Interrogating Silences in
Queerness/Raciality. ed. A. Kuntsman and E. Miyake. York, UK: Raw Nerve Books, 2008.
113
Helms, E. “The ‘Nation-ing’ of Gender? Donor Policies, Islam, and Women’s NGOs in PostWar Bosnia-Herzegovina.” Anthropology of East Europe Review, 21(2) (2003).
Henkin, Louis. International Law: Politics and Values. Dordrecht: Martinus Nijhoff Publishers,
1995.
Holter, Oystein Gullvag. “A Theory of Gendercide.” Journal of Genocide Research, 4(1)
(2002): 11-38.
Jokic, Aleksandar. “Genocidalism.” The Journal of Ethics, 8 (2004): 251-297.
Jones, Adam. “Gender and Genocide in Rwanda.” Journal of Genocide Research, 4(1) (2002):
65-94.
---------------. “Gendercide and Genocide.” Journal of Genocide Research, 2(2) (2000): 185211.
----------------. “Gendercide: a Response to Carpenter.” The International Journal of Human
Rights, 7(1) (Spring 2003): 141-147.
---------------. “Of Rights and Men: Towards a Minoritarian Framing of Male Experience.”
Journal of Human Rights, 1(3) (2000a): 387-403.
Kennedy, David. Of War and Law. New Jersey: Princeton University Press, 2006.
Kennedy, David. “The International Human Rights Movement: Part of the Problem?.“
Harvard Human Rights Journal, 15 (Spring 2002).
MacKinnon, Catherine A. Are Women Human? And Other International Dialogues.
Cambridge, Massachusetts: Harvard University Press, 2006.
----------------------------------. “Rape, Genocide, and Women’s Human Rights.” In Mass Rape:
the War against Women in Bosnia-Herzegovina. ed. A. Stiglmayer. Lincoln and London:
University of Nebraska Press, 1994.
114
----------------------------------. “Turning Rape into Pornography: Postmodern Genocide.” In Mass
Rape: the War against Women in Bosnia-Herzegovina. ed. A. Stiglmayer. Lincoln and London:
University of Nebraska Press, 1994.
Mills, Alex. “The Private History of International Law.” International and Comparative Law
Quarterly, 55(1) (2006): 1-51.
Nikolic-Ristanovic, Vesna. Women, Violence and War: Wartime Victimization of Refugees in
the Balkans. Budapest: Central European University, 2000.
Nixon, Nicola. “Cinderella’s Suspicions: Feminism in the Shadow of the Cold War.” Australian
Feminist Studies, 16(35) (2001): 209-223.
O'Neill, Brendan.
„A 'Legal War' Would Have Been Even Worse.“ March 11, 2008.
<http://www.spiked-online.com/index.php/site/article/4860/>
Orford, Anne. “Feminism, Imperialism and the Mission of International Law.” Nordic Journal
of International Law, 71 (2002): 275-297.
Puren, Nina, and Alison Young. “Signifying Justice: Law, Culture and the Questions of
Feminism.” Australian Feminist Law Journal, 13 (1999): 3-13.
Radcliffe, Sarah A., Nina Laurie, and Robert Andolina. “The Transnationalization of Gender
and Reimagining Andean Indigenous Development.” Signs, 29(2) (2003): 387-416.
Shibles, Warren. “Radical Feminism, Humanism and Women’s Studies.” Innovative Higher
Education, 14(1) (Fall-Winter 1989): 35-47.
Simpson, Gerry. “Two Liberalisms.” European Journal of International Law, 12(3) (2001): 537571.
Tesón, Fernando R. A Philosophy of International Law. Oxford: Westview Press, 1998.
Tonkens, Evelien, Menno Hurenkamp, and Jan Willem Duyvendak. Culturalization of
Citizenship in the Netherlands, 2008.
115
<http://www.assr.nl/conferences/documents/StaffsempaperTonkens41108.pdf>
Ward, Cynthia V. “Radical Feminist Defense of Individualism.” Northwestern University Law
Review, 89(3) (1994-1995): 871-900.
Wing, Adrien K. and Sylke Merchán. “Rape, Ethnicity, and Culture: Spirit Injury from Bosnia
to Black America.” Columbia Human Rights Review, 25(1) (Fall 1993).
Xavier Fellmeth, Aaron. “Feminism and International Law: Theory, Methodology, and
Substantive Reform.” Human Rights Quarterly, 22 (2000): 658-733.
Yuval-Davis, Nira and Floya Anthias. Woman-Nation-State. Palgrave Macmillan: London,
1989.
Zizek, Slavoj. “Divine Violence and Liberated Territories.” Interview by Soft Targets. Los
Angeles, March 14, 2007. <http://www.softtargetsjournal.com/web/zizek.php>.
Legal sources websites (accessed 01-04-2010):
CRIMES AGAINST HUMANITY: http://avalon.law.yale.edu/imt/imtconst.asp
GENEVA CONVENTIONS: http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions#a1
GENOCIDE CONVENTIONS, 9 DECEMBER, 1948:
http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/a2ec826e5d083098c125641e00
40690d?OpenDocument
ICC: http://www.icc-cpi.int/menus/icc
ICTY: http://www.icty.org/
ICTY STATUTE: http://www.icty.org/sections/LegalLibrary/StatuteoftheTribunal
IHL: http://www.icrc.org/eng/ihl
THE KUNARAC CASE: http://www.icty.org/cases/party/712/4
116