International Law: Supporting or Ignoring Survivors of Gender-Based Violence?

Image: Victims of sexual violence in eastern Congo, 2007. James Akena/Reuters

“Man’s discovery that his genitalia could serve as a weapon to generate fear must rank as one of the most important discoveries of prehistoric times.” – Susan Brownmiller, 1975[1]

In conflicts ranging from the 18th century Scottish Highland Clearances to the Rape of Nanking in the 1930s, sexual violence has been a lurid, ceaseless feature. The rationale is that sexual violence is an unfortunate, but inevitable, consequence of the breakdown of the rule of law and the militarised, masculine culture of conflict zones. Until recently, victims of the violence are seen as ‘spoils of war’ – rewards for the conquering army – and the phrase ‘boys will be boys’ was used to justify heinous, violent acts of sexual assault during conquest[2]. Thankfully this began to change with the development of the ‘weapon of war’ narrative, which emerged in the 1990s. This was based on a recognition that rape is not an unfortunate byproduct of war – it is a strategic and systematic act used to undermine the enemy by demoralising and humiliating, instilling terror and devastating communities. The very deliberate nature of this widespread sexual violence was revealed and could no longer be sidelined by international legal institutions.

This development in the interpretation of wartime sexual violence had positive implications for increasing accountability and prosecution of perpetrators. On the 26th April 1995, in the International Criminal Tribunal for the former Yugoslavia (ICTY), the case of Duško Tadić marked the first international criminal trial to include charges of sexual violence. This was based on evidence that systematic sexual violence had been employed for the purposes of ethnic cleansing – defined by the UN as “rendering an area ethnically homogenous by using force or intimidation to remove from a given area persons of another ethnic or religious group”[3]. It was recognised that in the context of the former Yugoslavia sexual violence had been used in order to present the Bosnian nation as inferior and humiliated, ordered by superiors as a strategy of war. A second landmark case for the prosecution of sexual violence took place in the International Criminal Tribunal for Rwanda (ICTR) in September 1998. Jean Paul Akayesu’s guilty verdict for employing rape as a tool of genocide, defined by the UN as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”[4], marked the first time sexual violence had been considered to be a crime of genocide. This judgement was based on a recognition that acts such as forced sterilisation, abortion and forced pregnancy could be strategically used to affect the ethnic composition of a group. The weapon of war narrative, which recognises the deliberate and systematic nature of wartime sexual violence, has therefore been vital in drawing attention to the extent of this violence, and has been celebrated as a key achievement in feminist literature on the subject.

“This rhetoric serves to enforce gendered stereotypes and excludes the vast majority of the women”

The prosecution of wartime sexual violence in international law is something to be celebrated, the weapon of war narrative is not. This rhetoric serves to enforce gendered stereotypes and excludes the vast majority of the women it claims to serve. I make this statement based on two claims: the weapon of war narrative has institutionalised a notion that women are only worth protecting when the violence is aimed against men; and it fails to acknowledge and challenge the role of misogynistic societal norms which justify and provide the logic for wartime sexual violence. There were a mere 34 convictions of sexual violence across all of the UN special courts, including the ICTY and the ICTR, despite the fact that the UN estimates that between 250,000 and 500,000 women were raped in Rwanda alone in the time frame of 3 months. International law failed the victims of sexual violence in these conflicts by stating that their case was only worth pursuing if they could prove the intention of their rapist – that they were acting with the purpose of ethnic cleansing or genocide. Clearly the outcome is the same for the victim whatever the intent of the attacker. It established strict victim narratives that dictated the ethnicity of the victim, the time frame of the assault, and the level of violence which was deemed sufficient. Further it was regarded as a weapon against only the men in society, attempting to make them seem weak and humiliated for being unable to protect ‘their’ women, resulting in the breakdown of communities. The societal norms which sustain this potential for breakdown are also rendered invisible by the weapon of war narrative – the belief that women are the property of the men in their community and that women are somehow ‘tainted’ if they are victims of rape. Sexual violence can only be weaponised because of these norms, existing on a continuum with peacetime sexual violence, but this is obscured by the notion that sexual violence is merely a strategy of conflict. This is succinctly summarised by Inger Skjelsbaek, who states that “women are raped not because they are enemies, but because they are the objects of fundamental hatred that characterises the cultural unconscious and is actualised in times of crisis.”[5]

Binaifer Nowrojee writes that “of the prosecutions of rape at the ICTR, there were more acquittals than convictions. So there has been a miswriting of history where those responsible for the genocide are absolved of rape.” What accounts for this rewriting? One explanation is that the international community failed to acknowledge the inherently patriarchal nature of the societies themselves. Gendered practices such as giving men exclusive control of family assets, recognising only male heads of households and requiring grooms to pay for brides denigrate and objectify women during peacetime, and have the potential to be translated into the weaponisation of women during conflict. Rape is an effective weapon because of these gendered norms – women are seen as property and therefore by assaulting them military groups undermine the community as a whole. These patriarchal norms also served to silence victims – Maxine Marcus, an investigating attorney at the Special Court for Sierra Leone, found that for many women their trauma was not recognised by the communities because rape was not considered to be a grievous crime. International legal responses failed to dislodge these patriarchal norms, as they reinforced the notion that this was purely a problem during wartime and so failed to expose the magnitude of the violence and ensure that victims voices were heard. In order for international law to prove its genuine commitment to combating sexual violence, there must be a recognition that women’s rights do not warrant protection because their violation threatens national security, but because they are human rights in themselves.

It is not yet time to celebrate the mere acknowledgement of wartime sexual violence in international law. Greater emphasis on breaking down institutional socio-economic gender inequality in peacetime society is vital and support must be provided for victims of such violence regardless of the broader circumstances. To do so, we can support initiatives such as GAPS, which provides consultations on how governments and organisations can fulfil their gender equality commitments. We must increase accountability for governments, and support groups such as End Violence Against Women Coalition, which lobbies the UK government to improve policy around violence against women. International law has the potential to be a powerful force for punishing perpetrators of wartime sexual violence, but it must work in tandem with other initiatives. Regardless of whether the abuser is held to account in a court of law, victims still suffer long-term physical and psychological consequences such as PTSD, depression and the transmission of HIV/AIDS.

Hosting a Chai Day is a way that you can take part in efforts to raise funds to support projects working to end violence against women and ensure that survivors are provided with the services and support they may require.

This article was written by Iona Cable. Iona is currently doing an MSc in Human Rights at the LSE, with a specific interest in gender and international law. She has experience in human rights organisations and undertook a project this summer researching how NGOs in the field work to tackle gender-based violence and post-conflict reconstruction. She also works for a London-based charity which seeks to improve social mobility by teaching key employability skills in schools.

 

[1] Brownmiller, Susan “Against Our Will: Men, Women and Rape”, Bantam Books (1975), p15

[2] Crawford, Kelly “From Spoils to Weapons: Framing Wartime Sexual Violence” in Gender and Development Vol 31 No 3 (2013), p511

[3] United Nations, Commission of Experts Established Pursuant to SCR 780 S/25274 (1992), p16

[4] United Nations Convention on the Prevention and Punishment of the Crime of Genocide, Article II (1951)

[5] Skjelsbaek, Inger “The Elephant in the Room: An Overview of How Sexual Violence Came to be Seen as a Weapon of War” Report to the Norwegian Ministry of Foreign Affairs (2010), p2

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