The culturalisation of identity in an age of ‘ethnic conflict’ – depoliticised gender in ICTY wartime sexual violence jurisprudence

Abstract

Gender-based violence, particularly mass sexual violence against women in situations of armed conflict, has been a greatly topical issue within recent years in feminist legal scholarship, the media and the surrounding debate. The armed conflict in the former Yugoslavia has notably contributed to the increased visibility of sexual violence in international law with significant legal developments emerging from the International Criminal Tribunal for the Former Yugoslavia (ICTY). While the prosecution of sexual violence has become a cause célèbre for many feminist advocates, this ‘moment of victory’ has coincided with a more problematic trend in legal scholarship of representing armed conflict through a predominantly ‘ethnic’ lens. This article explores the legal modalities by which gendered subjectivities are brought to being by international criminal law in an age of ‘ethnic conflict’. It examines the intersection of gender and ethnicity in ICTY wartime sexual violence jurisprudence and questions whether such readings have produced ‘ethnicised’ victims. Moreover, it explores whether feminists have been complicit in the perpetuation of hierarchical and dichotomised gendered subjectivities that have done little to dispel deeply entrenched stereotypes of women in international law. It asks whether these feminist tendencies can be attributed to a trend in late modernity of ‘culturalising’ identity so as to eliminate from view power and history as the driving forces of armed conflict.

Keywords:

• gender
• ethnicity
• wartime sexual violence
• feminism
• critique
• conflict
• culture
• power

Notes

The portrayal of the Yugoslav conflict as a ‘war against women’ was linked to the findings produced by the Commission of Experts in 1992, a body established by the UN to examine evidence of war crimes in the territory that rape had been used systematically during the Yugoslav conflict. The evidence collected by the Commission led the UN Security Council in Resolution 798 (1992) on 18 December 1992 UN Doc. S/RES/798 (1992) to declare that it was ‘appalled by reports of the massive, organized, and systematic detention and rape of women, in particular Muslim women, in Bosnia-Herzegovina’, demanding that ‘all detention camps, in particular camps for women, should be immediately closed.’ Final Report of the Commission of Experts, established pursuant to Security Council Resolution 780 (1992) UN Doc. S/1994/674/ Add. 2 (Vol.1), annex II), para. 2 (May 1994),at paras. 29–32. Feminists in particular seized on this evidence to argue that the detention camps were in fact ‘rape camps’ established for the specific purpose of committing sexual violence against women. For a dominant representation of the Yugoslav conflict as ‘war against women’ see: Beverly Allen, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia, (Minneapolis: University of Minnesota Press, 1996). There is a vast feminist literature that conceives of wartime sexual violence as an extension of the everyday, see for example: Charlotte Bunch, ‘Transforming Human Rights from a Feminist Perspective’, in Julie Peters and Andrea Wolper (eds.), Women's Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995) 11; Isabelle Gunning, ‘Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries’, 23 Columbia Human Rights Law Review (1991–1992) 189; Rhonda Copelon, ‘Recognising the Egregious in the Everyday: Domestic Violence as Torture, 25 Columbia Human Rights Law Review, (1994) 291. For an argument that rape was used as a strategy to impregnate women with the intent of producing ethnically different offspring, see: R. Charli Carpenter, ‘Surfacing Children: Limitations of Genocidal Rape Discourse’, 22 Human Rights Quarterly (2000), 428; Rape and Sexual Abuses by Armed Forces, Amnesty International, January 1993, AI Index: EUR 63/01/93, at 5.

See for example: Ruth Seifert, ‘The Second Front: The Logics of Sexual Violence in Wars’, 19 Women's Studies International Forum, (1996), 35–43; Joanne Barkan, ‘As Old as War Itself: Rape in Foča’, 2002 Dissent 1–7; Alexandra Stiglmayer, ‘The Rapes in Bosnia-Herzegovina’ in Mass Rape: The War against Women in Bosnia-Herzegovina', (Lincoln: University of Nebraska Press, 1994), 82–164; Catherine MacKinnon, ‘Rape, Genocide, and Women's Human Rights’ in A. Stiglmayer, Mass Rape: The War against Women in Bosnia-Herzegovina', (Lincoln: University of Nebraska Press, 1994), 183–195, Catherine MacKinnon, ‘Rape, Genocide, and Women's Human Rights’, 17 Harvard Women's Law Journal (1994), 5; Richard P. Barrett and Laura E. Little, ‘Lessons of Yugoslav Rape Trials: A Role for Conspiracy in International Courts and Tribunals’, 88 Minnesota Law Review (2003–2004), 30.

The 1993 Vienna Declaration and Programme of Action was promulgated at the World Conference in Vienna. The concluding document formally recognises the human rights of women as ‘an inalienable integral and indivisible part of human rights.’ In General Assembly A/CONF. 157/23 World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in Vienna, U.N. Doc. A/CONF. 157/23 (12 July 1993), para. 18, www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/A.CONF.157.23.En?OpenDocument (accessed 24 January, 2011).

The women delegates at the conference also called for international action, including the promulgation of the 1993 Declaration on the Elimination of Violence Against Women. Although lacking in binding force, it has nonetheless been described as a comprehensive document that defines violence against women broadly to encompass physical, sexual and psychological harm or threats of harm in public or private life. Sally Engle Merry, Human Rights & Gender Violence (Chicago: University of Chicago Press, 2006), 23.

For an account of sexual violence committed in Rwanda in 1994, see: Binaifer Nowrojee, ‘Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath’ (New York: Human Rights Watch, 1996), 24.

This term is based on Janet Halley's description of the feminist advocacy that led to the incorporation of wartime sexual violence into the statutory framework of international criminal law. Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’, 9 Melbourne Journal of International Law (2008–2009) at 8.

Kirsten Campbell, ‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia’, 1 The International Journal of Transitional Justice (2007), 411–432.

Halley, ‘Rape at Rome’, 6.

The gender equality rhetoric was forcefully invoked in the 1980s–1990s by the influential anti-pornography campaign of radical feminism, as espoused by Catherine MacKinnon and Andrew Dworkin. Their campaigns were based on the presumption that pornography, in particular, was inherently harmful in itself to all womanhood, so that individual consent could never be endorsed as valid. In C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987), 81.

For a discussion of the Laws and Customs of War on Sexual Violence after the Second World War, and the work of the International Military Tribunal for the Far East (IMTFE) (Tokyo Tribunal) and the International Military Tribunal (IMT) held in Nuremberg see Kelly Dawn Askin and Dorean M. Koenig (eds.), Women and International Human Rights (Volume 1), (Ardsley, NY: Transnational Publishers, 1999) 51–54. Although crimes against women were extensively reported and documented, these crimes were omitted from the jurisdiction of the IMT Charter, they were not charged in the indictment and they were not prosecuted. For a discussion of Second World War sexual slavery and the so-called ‘Comfort Women’, see: Christine Chinkin, ‘Women's International Tribunal on Japanese Military Sexual Slavery’, 95 (2) American Journal of International Law (2001): 335. For an excellent discussion of the rape of women following the Soviet occupation of Berlin see: Janet Halley (2008), 79.

J. Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’, 9 Melbourne Journal of International Law (2008) at 78.

Karen Engle, ‘Feminism and its (Dis)Contents: Criminalizing Wartime Rape in Bosnia-Herzegovina’, 99 American Journal of International Law (2005), 779.

Vanessa E. Munro, ‘On Power and Domination: Feminism and the Final Foucault’, 2(1) European Journal of Political Theory (2003), 87.

Wendy Brown has vigorously defended the value and purpose of critique in her recent work. In Wendy Brown, ‘Untimeliness and Punctuality: Critical Theory in Dark Times’ in Wendy Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton, NJ: Princeton University Press, 2005).

Wendy Brown and Janet Halley (eds.), ‘Introduction’ in Left Legalism/Left Critique, (Durham, NC: Duke University Press, 2002), 28.

For example, Dorothy Chunn and Dany Lacombe (eds), Law as a Gendering Practice (Oxford: Oxford University Press, 2000).

Munro, ‘On Power and Domination: Feminism and the Final Foucault’, 81, referring to Carol Smart, Feminism and the Power of Law (London; Routledge, 1989); Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London: Routledge, 1993).

Wendy Brown has argued that identity in contemporary legal and popular discourses is instrumentalised as a key modality by which institutional power remains entrenched. In Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire, (Princeton, NJ: Princeton University Press, 2006), 15.

Prosecutor v. Kunarac (Trial Chamber) Case No IT-96-23-T/1-T (22 February 2001) (Judgement); Prosecutor v. Kunarac (Appeals Chamber) Case No. IT-96-23-T/1-A (12 June, 2002) (Judgement) (collectively, ‘Kunarac’).

Dubravka Zarkov, ‘Towards a New Theorizing of Women, Gender and War’, in Kathy Davis,  Mary Evans and Judith Lorber (eds.) Handbook of Gender and Women's Studies, (London: Sage Publishers, 2006), 21.

As Wendy Brown has shown, modern liberalist discourses produce a dichotomy between culture as saturating and defining non-Western people and moral autonomy as informing the rational subject of liberalism, for whom culture becomes a mere choice. In liberalist ideology the former is uniquely capable of being ‘culturally neutral and culturally tolerant’, while the latter is entirely subsumed by cultural markers. For liberal individualists in the West, culture is, thus, optional, while for non-Western, non-liberal people (including ethnic and religious minorities within liberal societies), culture is not only fixed and static, but also ‘saturating and authoritative.’ In W. Brown, Regulating Aversion, 151–154.

Janet Halley, ‘Describing Governance Feminism: Four Studies in Contemporary Feminism’, 29 Harvard Journal of Law & Gender (2006) 340.

Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, NJ: Princeton University Press, 2006). See also Janet Halley, ‘Take a Break from Feminism?’ in Karen Knop (ed.), Gender and Human Rights (Oxford: Oxford University Press, 2004), 57.

Ibid.

Beverly Allen, Rape, Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia, (Minneapolis: University of Minnesota Press, 1996), 23.

‘Rape as Nationbuilding’ in Catherine MacKinnon, Are Women Human? Reflections on the Universal Declaration of Human Rights (The Hague: Martinus Nijhoff Publishers, 1999), 169.

One of the most notorious cases involving the confinement of predominantly Bosnian Muslim civilians inside the Omarska camp was the Prosecutor v. Tadić decision (IT-94-1), the first trial to be held by either UN tribunal. Amongst its considerable legal achievements, the case produced findings regarding the legitimacy of the Tribunal, defined the scope of customary international law pertaining to internal and international armed conflict and the applicability of crimes against humanity, and expanded the scope of the grave breaches regime of the Geneva Conventions. From a gender perspective, the decision was deemed pivotal for its reclassification of rape and other forms of sexual violence as priority crimes in the ICTY. For an overview, see: Sean Murphy, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status’, 93 American Journal of International Law, (1999), 101.

As she has put it, ‘[S]erbian aggression against non-Serbs is as incontestable and overwhelmingly one-sided as male aggression against women in everyday life. Wars always produce atrocities, especially against women civilians. But there is no Muslim or Croatian policy of territorial expansion, of exterminating Serbs, of raping Serbian women. This is not a reciprocal genocide’. MacKinnon, Are Women Human?, 161.

MacKinnon has, for example, argued that pornography had saturated Yugoslavia before its war and was heavily consumed in Serbia in particular. As she sees it: ‘When pornography is this normal, a whole population of men is primed to dehumanize women and to enjoy inflicting assault sexually…. Pornography is the perfect preparation-motivator and instruction manual in one for the sexual atrocities ordered in this genocide’. Ibid., 164

For examples see: Maria Todorova, Imagining the Balkans (Oxford: Oxford University Press, 2009 updated edition), 7.

For a critical analysis of MacKinnon's work see Dubravka Zarkov, The Body of War: Media, Ethnicity, Gender in the Break-up of Yugoslavia (Durham, NC: Duke University Press: 2007), 145–146.

The term ‘hypervisibility’ is borrowed from Doris Buss' analysis of ICTY wartime sexual violence jurisprudence. She has argued that the ‘hypervisibility’ of rape has marginalised other forms of gender-based violence from being acknowledged in key decisions. Doris Buss, ‘The Curious Visibility of Wartime Rape: Gender and Ethnicity in International Criminal Law’, 25 Windsor Journal of Access to Justice, (2007), 3–22.

Anne Orford has critiqued the recurring treatment of women in international law as a ‘special needs’ category in relation to men. On her view, this staging in international law between men and women as the central framework for understanding the link between conflict, peace and security often obscures many of the issues that critical feminists and women's human rights groups have attempted to raise, such as the relationship between insecurity and economic liberalisation, or the extent to which the division of labour is itself a violent process. See Anne Orford, Reading Humanitarian Intervention, (Cambridge, Cambridge University Press, 2003).

Johanna Bourke Rape: Sex, Violence and History, (Berkley, CA: Shoemaker and Hoard, 2007), 421.

Vesna Kesić, ‘Muslim Women, Croatian Women, Serbian Women, Albanian Women…’ in Dusan Bjelić and Obrad Savić, (eds.), Balkan as Metaphor, (MIT Press: Cambridge, Massachusetts, 2002), 311–321.

For a critical discussion, see Drazen Petrović, ‘Ethnic Cleansing – An Attempt at Methodology’, 5 European Journal of International Law (1994), 342.

Susan Woodward ‘Violence-Prone Area or International Transition?’ in Veena Das and Arthur Kleinman, Violence and Subjectivity, University of California Press: Berkeley, California, (2000), 24.

Ibid., 12.

Ibid.

Ibid., 31.

As Woodward has observed, all national groups in Yugoslavia, whether rich or poor, advantaged or at risk, were numerical minorities. They could therefore imagine themselves at risk from some larger group and thus legitimately act in self-defence, regardless of how aggressive their actions might have been construed by a group that was watching the situation from the same, apprehensive perspective. Woodward, ‘Violence-Prone Area or International Transition?’, 29.

Valère Phillip Gagnon, The Myth of Ethnic War; Serbia and Croatia in the 1990s, (Ithaca, NY: Cornell University Press, 2004), 1–22.

Ibid., 1.

In surveys conducted in the early 1990s prior to the outbreak of the conflict in Bosnia-Herzegovina, only 18 of the 106 municipalities of the republic had populations that were 80 per cent or more of a single group. The experience of living with others led Serbs in Bosnia, for example, to have a more positive view of ethnic pluralism than Serbs in homogenous Yugoslavia. In a similar survey undertaken in November 1989, 80 percent of the wider population surveyed considered interethnic relations in the places where they lived to be positive, and 66 percent saw interethnic relations in Bosnia-Herzegovina as the most stable in Yugoslavia. Gagnon, The Myth of Ethnic War, 39–42.

‘International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991′, SC Res. 827, UN SCOR, 48^th Sess., 3217^th mtg. At 29, UN Doc. S/827/1993 (1993). The Statute is contained in UN Doc. S/25704, Annex (1993), and attached to the ‘Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808’. See International Criminal Tribunal for Rwanda, SC Res. 955 UN SCOR, 49^th Sess., 3453d mtg. At 15, UN Doc. S/955/1993, Annex (1994).

See Kelly Dawn Askin, ‘Reflections on Some of the Most Significant Achievements of the ICTY’, 37 New England Law Review (2002–2003), 903.

Key Figures of ICTY Cases 28/03/2011, at http://www.icty.org/x/file/cases/keyfigures/key-figures_110328_en.pdf (accessed 12 April 2011). Three of the seven cases currently at trial, three of those awaiting trial (including Ratko Mladić, the former top Bosnian Serb military leader) involve sexual violence allegations and charges. Four of six trial judgements subject to actual or potential appeal also involve sexual violence findings. See: United Nations Department of Peacekeeping Operations: ‘Review of the Sexual Violence Elements of the Judgments of the International Criminal Tribunal for the Former Yugoslavia, The International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820’, www.unrol.org/files/32914_Review%20of%20the%20Sexual%20Violence%20Elements%20in%20the%20Light%20of%20the%20Security-Council%20resolution%201820.pdf (accessed on 28 February 2011).

See ICTY Statute, Rules of Evidence and Procedure, UN Doc IT-32/Rev, (13 June 2006). Over the years, the ICTY has shifted from an institution lacking a basic structure, staff and other resources to a fully functioning court.

Rule 96 provides: in cases of sexual assault:

i.	No corroboration of the victim's testimony shall be required;
ii.	Consent shall not be allowed as a defence if the victim a. has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or b. reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;
iii.	before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;
iv.	prior sexual conduct of the victim shall not be admitted in evidence.

See: Rule 96 of the Rules of Procedure and Evidence of the ICTY, Evidence in Cases of Sexual Assault, IT32/Rev. 21, 12 July 2001.

Prosecutor v. Kunarac, Judgement, (IT-96-23-T & IT-96-23/1-T) (22 February 2001). (hereafter referred to as the Kunarac Trial Chamber Judgement).

For a discussion of the significance of this holding for wartime sexual violence jurisprudence see for example: Christopher S. Maravilla, ‘Rape as a War Crime: The Implications of the International Criminal Tribunal for the former Yugoslavia's Decision in Prosecutor v. Kunarac, Kovac &Vukovic on International Humanitarian Law’, 13 Florida Journal of International Law (2001): 321.

See also Doris Buss, ‘Prosecuting Mass Rape: Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic’, 10 Feminist Legal Studies (2002) 91.

The conditions inside the detention centres were described as extreme: the facilities were unhygienic, little or no food was made available to detainees and routine abuse of prisoners was commonplace. In Kunarac Trial Chamber Judgement, at paras. 31–33.

Prosecutor v. Kunarac, Amended Indictment, (IT-96-23-T), 1 December 1999 and (IT-96-23/1-T), 3, March 2000).

Kunarac Trial Chamber Judgement, paras. 35, 36.

See Kunarac Trial Chamber Judgement, para. 188.

This is also emphasised through the description of the men as being ‘armed to their teeth’. Moreover, the metaphor of the locked apartment from which there was seemingly no escape implies female vulnerability and lack of agency to escape. In Kunarac Trial Chamber Judgement, at para. 210.

Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory, (Oxford: Hart Publishing, 1998), 106.

Ibid., para. 592.

Kunarac Trial Chamber Judgement, para. 577.

Ibid., para. 579.

In another passage, for example, the trial chamber argues that Kunarac knew that Muslim women were specifically targeted. In taking it upon himself to rape the women, he used verbal and physical aggression to express his view that the rapes against Muslim women were ‘one of the many ways in which the Serbs could assert their superiority and victory over the Muslims.’ Moreover, during the rape Kunarac told the woman that she should ‘enjoy being “fucked by a Serb”….adding that she would now carry ‘a Serb baby and would not know who the father would be.’ In Kunarac Trial Chamber Judgement, para. 583.

Dubravka Zarkov, ‘Gender, Orientalism and the History of Ethnic Hatred in the Former Yugoslavia’ in Helma Lutz et al. (eds.), Crossfires. Nationalism, Racism and Gender in Europe (London: Pluto Press, 1995), 105.

Doris Buss, ‘Women at the Borders: Rape and Nationalism in International Law’,VI Feminist Legal Studies (1998), 171.

Brown, Regulating Aversion, 15.

Dianne Otto elaborates upon this model in her analysis of the recurring gender narratives that inform human rights law. Dianne Otto, ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford, (ed.), International Law and Its Others, (Cambridge: Cambridge University Press, 2007), 320.

J. Halley, Split Decisions: How and Why to take a Break from Feminism (Princeton, NJ: Princeton University Press, 2006).

Brown, Regulating Aversion, 20–21.