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Article Excerpt
[The specific criminalisation of sexual violence in war has made immense strides in recent years, as feminists engaged with the International Criminal Tribunal for the Former Yugoslavia. the International Criminal Tribunal for Rwanda and the Rome Statute processes have proposed--and often won--a wide range of new legal rules and prosecutorial practices. This essay briefly describes some of these feminist achievements, in particular the reframing of rape and other sexual violations as a freestanding basis for charging serious humanitarian crimes and as the sole predicate act in particular prosecutions; and the demotion of a consent-based defence to charges of rape. The essay then turns to an anonymously published account of one woman experiences during the fall of Berlin to the Soviet Army in 1945, published in English as A Woman in Berlin: A Diary. By analysing the Diary's ideologically saturated reception in Germany and by analysing the text itself the essay proposes that rape in war is not merely either ignored and condoned or prosecuted and punished, but intrinsically problematically related to our evaluations of the badness of rape and the badness of war. The essay derives from its reading of A Woman in Berlin a war-rape antinomy: the literary, achievement of the Diary, the author argues, is that it keeps the badness of war and the badness of rape in mutual suspension; and the pathos of its typical reception is that this antinomy collapses in ways that ratify some of the most problematic ideological investments linking rape to war. The essay concludes by deriving from this literary-critical excursion some hard policy questions for law-makers deciding how to criminalise rape and other sexual violence in International Humanitarian Law and International Criminal Law: what are the costs of ignoring the ideological discourses that surround rape? What are the downsides of ratifying the idea that rape in war is a fate worse than death? Could the special condemnation of rape weaponise it? How should criminal law handle the problematic of consent under coercive circumstances when those circumstances are armed conflict? And how might the new feminist-inspired rules entrench nationalist differentiation and antagonism? It concludes that the intrinsic dilemma-like structure of our answers to these questions cannot be transcended, and that international policy-makers should temper triumphalist excitement about the new feminist-inspired rules in order to take these problematics on board.]
CONTENTS I Introduction II Governance Feminism and IHL A Moving Sexual Violence Crimes 'Up' the Hierarchy of IHL and ICL and Prosecuting Them Separately B Consent III A Woman in Berlin A Reading A Woman in Berlin, Reading Rape IV Re-thinking The Politics of Criminalising Rape in IHL A Rape as Ideology and Thus as Representation B The War--Rape Antinomy and the Discourse of Equivalents C Weaponising Rape D The Problematic of Coercion E The Convergence of Feminism with Nationalism V Conclusions VI Select Bibliography
I INTRODUCTION
The specific criminalisation of sexual violence in war has made immense strides in recent years, as feminists engaged with the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and Rome Statute of the International Criminal Court ('Rome Statute') (1) processes have proposed--and often won--a wide range of new legal rules. Elsewhere I give a detailed account of their work both on the statutes and in adjudication; (2) here I can only point to the bibliography of feminist writing that forms the basis for my claim that they were not only active but effective. (3)
I have understood these reforms as the product of something we could call 'Governance Feminism': feminism grown up, professionalised, and adept at wielding power for the good of women globally and locally. (4) These are days of partial triumph.
But that should also give feminists and their allies pause: what exactly will it mean to inscribe into international humanitarian law ('IHL') and international criminal law ('ICL') new crimes of sexual violence, new commitments to prosecute wartime rape, new understandings of the relationship between sexual violence, sexual pleasure and war? Will these victories be good for feminism? Will they be good for women involved as combatants or civilians in armed conflict? Will they be good for the cause of peace? They are part of a broader turn of Western feminism to criminal law as its preferred mode of deploying their power in policy- and law-making: is this new 'carceral feminism' (5)--intent on criminalising, indicting, convicting, and punishing perpetrators of sexual violence in numerous domains of domestic law as well as IHL and ICL--going to have entirely good effects in the family, the workplace, the public sphere?
I have been asking this question in one way or another for several years now, and I have found it particularly difficult to ask when the subject matter is rape. In my work on feminist achievements and defeats in the prosecutions of the ICTY and ICTR and in the Rome Statute processes, I repeatedly find myself confronted by a near-universal consensus that making rape in war more criminal--criminalising it at the highest possible point in the hierarchy of humanitarian law, prosecuting it preferentially, making it easier for prosecutors to gain convictions and long sentences--is a good thing to do.
For me, this assumption is subject to some doubts. We live in a world in which rape is a terrible wrong and tape's badness can be deployed in an alarming number of ways to advance contested ends, ends which one might well want to resist. The badness of rape can be a reason to start a war; can be a reason to fight harder in a war; can be a reason to rape someone. It is possible to charge and convict people of rape who have not raped; it is possible to use the badness of rape to protect accusing women from political or moral scrutiny. The 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' (6)--is to background the death that armed conflict brings to people generally, and specifically to the death it brings to men. Of course none of these possibilities cancels out the possibility that intensifying the criminality of rape in war will produce, overall, less rape or less violence or even fewer wars. But that is only a possibility--one which comes with risks.
In my experience, even asking about the possible downsides of this underlying strategy is, repeatedly, almost immediately and universally, taken to minimise the importance of rape, of women's suffering, of women. Working through the legal materials on the ICTY, ICTR and the Rome Statute, I found it extremely difficult to articulate my misgivings. To be sure, I had some significant help. (7) But over and above what I could derive from the critical literature on international humanitarianism generally, and feminist efforts in that domain more specifically, I wanted to understand why condemnations of rape seemed particularly susceptible to discursive closure.
The essay that follows is my effort to map the discursive investments that we bring to the table when we condemn rape in war. My method is to depart from law for a while, and to develop a literary critical appraisal of a book, A Woman in Berlin, (8) which comes to us as the diary of a German woman who survived the fall of Berlin in 1945 and the occupation of her neighbourhood by the Soviet Army. I selected this text because the narrator explicitly reflects on the questions that have vexed me so much as a politically engaged student of legal reform: when men are killing and being killed, when they are also raping women and women are being raped, what discursive habits do we have for patterning these four modes of human action? Perhaps an understanding of those patterns can help us interrupt our consensus that making sexual violence in war more criminal is an unequivocally good thing to do.
This essay comes in four parts. Part one spells out just a very few of the recent achievements of governance feminists advocating for reform in IHL. Part two introduces A Woman in Berlin and situates my reading of it in the controversies that have persistently attended its publication. Part three is a close reading of A Woman in Berlin. And part four suggests some ways in which this literary critical interlude opens up some specifically legal problems for further reflection.
II GOVERNANCE FEMINISM AND IHL
Feminists have been closely and intensely active in the reform of IHL and ICL, conflicting sometimes among themselves, but also working in consensus. They have been activists, amicus-brief writers, special rapporteurs, prosecutors and judges. As 1 argue in two articles describing in detail their work on the statutory processes leading to the ICTY and ICTR statutes (9) and the Rome Statute, and their work in and on the prosecutions in the international criminal tribunals ('ICTs') and the International Criminal Court ('ICC'), they have been able to persuade other lawmakers to adopt many--though not all--of their proposals. (10) As a result, IHL and ICL now contain some of the world's most feminist rules on rape and related sexual violence.
The relevant legal materials are voluminous. Where amongst them are feminist interventions most in evidence? Several statutes set out the subject matter jurisdiction of the new courts; the most important are the ICTY Statute, ICTR Statute and the Rome Statute. These include specifications of the crimes and were an important site for feminist intervention. Each of the new ICTs promulgated its own rules of procedure and evidence, and here again feminists worked hard on the definition of sexual violence crimes, the scope of defences, the allocation of burdens of persuasion, and so forth. (11) The Rome Statute authorised the states participating in the ICC regime to promulgate Rules of Procedure and Evidence, (12) and those rules now exist and are binding on the ICC. (13) The Rome Statute also authorised the promulgation of an Elements of Crimes document, but did not make it binding on the new court. (14) Resolution and/or mediation of many issues of particular concern to feminists was relegated to these secondary and tertiary documents.
The development of prosecutions and the actual litigation and adjudication of cases also occupied feminist attention. (15) The most important cases were Prosecutor v Tadic; (16) Prosecutor v Akayesu; (17) Prosecutor v Delalic (I will call this case 'Celebici' after the name of the camp where the offences occurred, in part to avoid using the surname of Dejnil Delalic, who was acquitted); (18) Prosecutor v Furundzija; (19) Prosecutor v Kunarac; (20) and Prosecutor v Kvocka. (21) All of these cases show the mark of feminist advocacy, including the work of feminist insiders. The ICC has begun to investigate and indict, but will probably produce only investigations and indictments while this essay is in press.
It is helpful to keep in mind that, though the process of negotiating statutes and the process of charging and trying crimes are quite different, the ICTs were establishing themselves as active tribunals while state delegations and NGOs were hammering out the Rome Statute. Indeed, it is possible sometimes to see that the courts were aware of the Rome controversies and vice versa. Issues jumped from forum to forum. The feminist reform agenda for the Rome Statute grew out of their experience in ICT litigation and vice versa.
This is not the place for an exhaustive description and assessment of these struggles and achievements. I tell here only a partial story, selecting some high watermark events because of their direct relevance to my understanding of A Woman in Berlin. I will concentrate on three reform programs. The first two are so closely related that I will discuss them in one section: the effort to move sexual crimes 'up' the hierarchy of crimes and to particularise them in specifically feminist terms, and the effort to concentrate specific prosecutions exclusively on charges involving sexual violence. The third requires separate treatment: the effort to minimise the evidentiary requirements for proof of rape or other crimes of sexual violence by eliminating or modifying the defence of consent.
A Moving Sexual Violence Crimes 'Up' the Hierarchy of IHL and ICL and Prosecuting Them Separately
When the United Nations authorised the establishment of a special tribunal to try violations of the Geneva Conventions, (22) war crimes and crimes against humanity in the Balkans conflict, feminists at first had the very simple goal of making sure that rape was explicitly included in the statutory statement of the court's jurisdiction and was vigorously prosecuted. By the time the Rome Statute negotiations were underway, they had an elaborate agenda aimed at making a broad range of sexual violence crimes independent predicate crimes of all the categories of IHL criminality; some even sought to make sexual violence crimes freestanding international crimes, not subsumed under any higher-echelon category of crime. One way of understanding this aspect of the feminist vision is to see it as an effort to move sexual violence crimes 'up' the hierarchy of IHL and ICL criminality. We can think of it as the vertical reform project. It was accompanied by a horizontal reform project, of isolating sexual assaults against women not only for high-echelon but for separate prosecution. (23)
The shift from the initial project of 'making rape visible' to the 'independent predicate crime' project entailed a major shift in how feminists structured the categorical relationship between armed conflict and sexual violence occurring within it. To put it bluntly, making rape visible contextualised sexual assaults in war--while framing sexual violence as an independent predicate crime reclassified rape as war. The former placed the rape of women in visible proximity to the death of men; the latter exceptionalised the rape of women, detached it from other aspects of the armed conflict in which it occurred, and focused prosecution, conviction and punishment on rape alone. Both projects manage what I will call the war-rape antinomy, but they manage it very differently. The strong trend in the feminist vertical reform project over the course of the 1990s was to tilt this antinomy towards rape: to suppress war by accentuating rape, and to accentuate rape by suppressing war. It involved, for instance, understanding the Balkans conflict as a 'war against women', and framing it as continuous with rape in everyday life, life that can be called 'peacetime' only in scare quotes.
The catalogue of feminist successes and defeats in their pursuit of this vertical and horizontal reform project is complex and cannot be presented here, but 1 can provide some examples. As Karen Engle indicates, feminists were in conflict over whether to seek prosecutions against Serbian militants for rape-as-genocide: the 'genocidal rape camp', as Engle dubs it, devoted immense intellectual and political energy to framing Serbian rape of Muslim and Croat women as a genocidal project; while the 'everyday rape camp' objected to this effort for describing some rapes as worse than others (instead, feminists should object to all rapes--rapes in wartime and everyday rape--as equally grave), for ranking Serbian rapes as worse than the rapes that were committed 'on all sides', and for falling into complicity with nationalist understandings of a war which should instead be seen not as a war of ethno-nationalist groups but as a 'war against women'. This intra-feminist conflict was intense, but short lived: the ICTY prosecutor's office was not having any part of the 'genocidal rape' project, and was instead scrupulous to charge sexual violence crimes against all sides. To be sure, the ICTR held in Akavesu that rape and rape alone could be the sole predicate crime sustaining a conviction for genocide (24)--a holding that kept the 'genocial rape' idea alive. But the intra-feminist conflict subsided, at least temporarily.
Elsewhere, the 'sole predicate crime' strategy, conjoined with the 'sexual crimes only indictment' strategy, enjoyed a feminist consensus and had significant successes in the ICTY. Some feminists experienced Tadic as a signal defeat: a panorama of crime was proven against the defendants--including a lurid act of forced male-male sexual violence--but the case against the defendants for rape collapsed when the victim witnesses refused to testify. From there we go to Celebici, in which several convictions for rape were included in a panoramic death-camp prosecution of Bosnian Muslim defendants. The facts involved massive and lethal assaults on men. Amongst many convictions for those assaults, some of the defendants were convicted of several rapes, which were held to be torture and cruel treatment, and both of which, in turn, were held to be violations of the Geneva Conventions' prohibition on violations of the laws and customs of war. (25)
From there we go to Furundzija, in which a single Serbian commander was initially charged for a wide range of crimes but eventually convicted solely for aiding and abetting the rape and forced fellatio of a single Bosnian Muslim detainee. The court held that both acts of sexual assault were rapes (expanding the Celebici definition of rape to include oral contact; this was also a broader definition than existed in local law). It also held that these rapes were torture and outrages upon the victim's personal dignity; and that these crimes were, in turn, violations of the Geneva Conventions' prohibition of violations of the laws and customs of war. (26) Furundzija was the ICTs' first 'sex crimes only' conviction, but this framing of the case happened in medias res, when other charges failed. The feminist vertical and horizontal reform project finally had their most perfect success in Kunarac, the first planned 'sex crimes only' prosecution in the ICTY. Kunarac began as a rape-camp case: panoramic crimes committed against detained civilians, including mass-scale lethal abuses against men, yielded an indictment against several camp overseers for sexual assaults only. But because many of the defendants never appeared in The Hague, the case was reframed by the time of trial to include only the rapes which the accused men committed outside the camps, almost all of them under conditions that the court perceived as coerced cohabitation. Several vertical victories were nevertheless gained for the feminist reform effort: the defendants were convicted of rape as torture as a violation of the laws and customs of war, but also of rape as itself a violation of the laws and customs of war and rape itself as a crime against humanity; and they were convicted of enslavement as a crime against humanity. (27)
From the perspective of the feminists' categorical effort, Kunarac was only a partial success. The initial indictment tilted the war-rape antinomy strongly towards rape: although men vastly outnumbered women at the Omarska Camp, the indictment charged only assaults on women, and only sexual assaults on women. The case framed the Balkans conflict as a 'war upon women'. And in the convictions, rape was moved 'up' the hierarchy of IHL criminality: like Akayesu, which recognised rape as the sole predicate crime of genocide, Kunarac recognised rape as the sole predicate crime of violating the laws and customs of war and of crimes against humanity. But feminists were aggrieved that the 'rape camp' imagery with which they had first imagined the case dissolved with the narrowing of the indictment; they were aggrieved that the very next important case involving sexual assaults, Kvocka, (28) reframed the panoramic detention-camp case as involving both the death of men and the rape of women; and they were aggrieved that the Trial Chamber silently declined to describe the enslavement that the women suffered as sexual slavery. (29)
The story does not end with the case law of the ICTs. In their work on the Rome Statute, feminists succeeded in securing new rules making 'rape, sexual slavery, enforced prostitution, forced pregnancy ... [and] enforced sterilization', predicate 'war crimes' (30) and 'crimes against humanity'. (31) Rape and sexual slavery are now recognised predicate crimes very high 'up' the hierarchy of IHL/ICL criminality. One of the first cases docketed in the ICC charges Germain Katanga with war crimes and crimes against humanity he allegedly committed in the Democratic Republic of Congo in 2003. (32) One hundred per cent of the sexual crimes alleged in this case are charged as sexual enslavement. (33) This indictment suggests that the ICC Office of the Prosecutor will be highly responsive to feminist 'war upon women' framings of current conflicts. (34) The emerging consensus shared by feminists and ICL elites is that rapes in wartime are understood to be stand-alone elements of a war--a war within the war, perhaps the most important part of the war tout court.
One last example of the (partial, by no means complete) feminist victory in the vertical reform project is the Rome Statute provision making it a crime against humanity to engage in
[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... or other grounds that are universally recognized as impermissible under international law (35)
There are, in all, four new grounds of prohibited persecution: national, ethnic, cultural and gender, with persecution based on gender alone now prosecutable as a crime against humanity. The door is now open to prosecute the rapes that happen within an ethno-nationalist conflict like the Balkans war or the Rwandan meltdown as persecution based on gender. If this does happen, it will be a signal victory for the new feminist project of tilting the war-rape antinomy away from war and towards rape.
B Consent
The facts underlying the amended indictment in Kunarac, combined with the defence offered by several of the accused, suggest a hypothetical that is at the crux of the feminist reform effort to minimise or eliminate the defence of consent when rape is charged as a war crime, crime against humanity, violation of the laws and customs of war or genocide. As part of their assault on the city of Foca, Bosnian Serbs killed Bosnian Muslim men and separated men from women, children and the elderly for detention in a number of severely inadequate detention centres. The detained women were repeatedly raped--but as I've indicated, no defendant charged with these detention-centre rapes was ever brought to trial. According to the defendants who were captured and tried, they removed several women from these rape-camp conditions and lodged them in houses and apartments in the vicinity. The Trial Chamber found that some of the women had keys to their residences and were free to come and go; that they did housework for their captors; that they repeatedly had sex with them; and that one of the women was forced to dance naked on a table to entertain the men. (36) The defendants claimed, essentially, that they were protecting these women; that they had attempted to get the women passes to leave the area to join the men's families in safer regions; that the relationships were consensual. Let us say that the defence was right: that the women, faced with the choice between life in the detention centre under conditions of certain, repeated rape by many men and life as the forced mistress of one man, chose the latter. What should that mean, legally? Should the defendants be able to avoid conviction for rape because the women consented?
Feminists and the ICTY found this question to be among the most daunting they faced in the entire course of their work on the Balkan cases. The controversy came to the surface of publicly available documents when the ICTY was drafting its Rules of Procedure and Evidence. Rhonda Copelon's Task Force initially advocated striking a balance between maximal conviction, maximal protection of victim witnesses and fairness to the accused, by establishing a presumption in all rape cases that the woman did not consent, based on the coercive...
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