Sex and International Tribunals. Chiseche Salome Mibenge

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СКАЧАТЬ asset solidifies the construction of rape as an honor crime that primarily befalls menfolk as well as their communities. The patriarchal anxieties ignore the violent and traumatizing impact of rape on individual women. Ultimately, concepts of virtue and family honor objectify “pure” women and stigmatize “impure” women according to the gender standards of the day (Turshen 2001: 65). Both objectification and stigmatization are tools for the policing of women’s sexual autonomy, economic productivity, and sexual reproductive potential in conflict.

      Similarly, the exclusive portrayal by the laws of war of all women as “mothers,” “nursing mothers,” or “pregnant women” strips women of individuality and focuses legal protection on women’s sexual reproductive potential.²⁴ This presumes and perpetuates the patriarchal claim of guardianship over the sexual and reproductive function and potential of women, an androcentric view of women’s central role in society.²⁵

      The legal implications of reducing sexual violence to an honor crime are evident in the categorization of crimes. While the Geneva Convention (IV) prohibits rape, the category of crimes known as grave breaches does not include rape. The legal significance of this omission is that in the case of violations categorized as “grave breaches” of international humanitarian law—the erga omnes principle obliges states to prosecute violators or extradite them for prosecution in another jurisdiction. The placement of rape outside the category of grave breaches signified that sexual violence was subject to domestic jurisdiction only at the discretion of national prosecutors and not as a positive obligation.

      The International Committee of the Red Cross (ICRC) attempted to remedy this miscategorization in 1958. The ICRC Commentary on the Geneva Convention (volume IV) recognized that the grave breach of “inhuman treatment” should be interpreted in the context of Article 27 (which prohibits rape) (Uhler and Coursier 1958). However, this contribution was ignored by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (1977) on the enactment of the Optional Protocols (I and II of 1977) to the Geneva Conventions. These protocols were introduced in order to increase the scope of international humanitarian law from international conflicts between states to non-international conflicts, such as civil wars and armed resistance against colonial domination and alien occupation.

      The only provision applicable to non-international armed conflicts before the adoption of Protocol II was Article 3, common to all four Geneva Conventions of 1949.²⁶ This article proved inadequate since the majority of the victims of armed conflicts since 1945 have been victims of non-international conflicts and non-international conflicts are more likely to target civilians than are international conflicts.²⁷ The aim of Protocol II relating to the protection of victims of non-international armed conflict was to extend the protections of international humanitarian law to internal wars fought between “government’s armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (art. 1).

      Despite the unprecedented attention the Diplomatic Conference raised around the experience of civilians in contemporary armed conflicts, the humanitarian law narrative remained fixated on women as mothers and generally marginalized any wider interpretation and analysis of gender and its interface with armed conflict.

      Since the mid-1990s, there have been impressive gains whereby the trial chambers of ad hoc criminal tribunals have clearly adjudicated rape and other forms of sexual violence as acts of aggression against individual women. And the human rights discourse also increasingly eschews the narrative of vulnerable mothers in favor of civilian women navigating and challenging the insecurity of armed conflict. The gendered human rights critique at present requires scholars to privilege individual harm over collective harm, and at times it denies the collective harm altogether. This approach is said to provide women with the full recognition their war experience merits.

      These positions, however, have left little room for an inquiry into the intersection between what Tina Sideris (Sideris 2001a: 57) refers to as the individual psychic injury and collective social traumatization caused by political violence. Entirely erasing the intersection between communal and individual harm makes it difficult for scholars to analyze the root causes, the motive behind and the impact of war crimes and crimes against humanity. The widespread repercussions of sexual violence, such as when women are raped in order to force an entire community to flee a region, cannot be entirely categorized as attacks against the individual. Particularly in the case of crimes against humanity, where a threshold of “widespread or systematic” attacks must be attained, the collective social trauma must necessarily be incorporated into the legal narrative. Introducing the collective impact of gender-based violence need not negate women’s individual suffering, and it can enhance an understanding of the extent of harm and aggravating ramifications for women survivors.

      The gender critique has focused its gaze on international humanitarian law and the way it constructs women chiefly as mothers and wives in relation to men. What is missing from this critique is women’s own perception of their gender roles regarding, for example, the care and protection of children and the self-sacrifice of personal interests over those of their families and communities. I introduce the following three examples of women’s experience of conflict in Asia and Europe to illustrate timely disruptions by scholars of the dichotomous construction of violence against women as either individual or communal in nature. The studies of the repatriation of abducted Indian women from Pakistan, the repatriation of Korean women from enslavement by the Japanese military, and the detention of Jewish women in ghettos and in the Holocaust provide vastly different contexts of armed conflict but raise related questions about constructions of gender and violence and the most effective responses to the harms suffered by women.

      Ritu Menon and Kamla Bhasin have analyzed how women themselves do not necessarily separate their individual and communal identities from their experience of gender-based violence. Menon and Bhasin describe the political capital gained by the Indian government in its response to abducted women through the Central Recovery Operation carried out between 1948 and 1956.²⁸ The rescue was bitter and painful for many women: the women were abducted as Hindus, converted and married as Muslims, then repatriated where they reverted back to Hinduism; but they were required to relinquish their children because they were born to Muslim fathers and subsequently disowned as impure and ineligible for membership within their erstwhile family and community. Their identities were in a continual state of demolition and reconstruction by others (1996: 3 and 16).

      The individual harm that some “rescued” women experienced cannot be grasped without an understanding of gender constructions governing the trajectory of women’s lives within both Hindu and Muslim communities. Individual and communal ideas about gender roles, particularly relating to motherhood and marriage, shaped women’s resistance to rescue. Thus, Menon and Bhasin’s research shows that many Hindu women expressed a desire to remain with their husband-captors in order to preserve relationships with their Muslim children and/or to preserve the status and protection provided by Muslim husbands within the sacred institution of marriage. An intimate knowledge and even acceptance, in part or in whole, of communitywide ideas of motherhood, marriage, chastity, and honor shaped these individual choices to resist repatriation. The failure of the state’s remedy (a recovery operation) to take this confluence of individual and community harm into account resulted in the pain and bitterness that Menon and Bhasin so poignantly recount.

      Testimonies taken by the ICoJ from Korean victims of Japanese wartime military enslavement reveal the interconnectedness of individual harm and community harm in women’s narratives of gender-based violence. ICoJ reports, in contrast to the scholarship of Menon and Bhasin, focus on a legal narrative and the need to insert both an individual and collective standard of harm when understanding women’s war experiences. Because the ICoJ testimonies were collected decades after the period of enslavement, they prominently featured the hardship that women experienced after their liberation and repatriation. Society’s СКАЧАТЬ