Women at the Borders: Rape and Nationalism in International Law

Feminist Legal Studies

Volumn 6, Issue 2, 1998, Pages 171-203

  Buss, Doris E ^a  

^a KEELE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 84978036269     PISSN: 09663622     EISSN: None     Source Type: Journal    
DOI: 10.1007/BF03359629     Document Type: Article

References (88)

1. Numerous organisations have documented and produced extensive reports on the atrocities committed in the former Yugoslavia in the name of “ethnic cleansing”. See, for example, the United Nations, Rape and Abuses of Women in the Territory of the Former Yugoslavia, UN Doc. E/CN.4/ 1993/L21. The focus of my discussion will be primarily on the mass rapes of women in Bosnia Herzegovina. For a discussion of rape and other atrocities committed in Bosnia, see: Helsinki Watch, War Crimes in Bosnia -Hercegovina, vol. I (New York, Washington, Los Angeles and London: Helsinki Watch - A Division of Hutnan Rights Watch, 1992). It is important to note that while I am focusing on the rape of women, Helsinki Watch has documented rapes of men in Bosnia. The rape of women in the former Yugoslavia will be discussed in more detail below.
2. For a discussion of narratives of male bravery and sacrifice during war, see: J. Elshtain, “Sovereignty, Identity, and Sacrifice”, in Gendered States: Feminist (Re)Visions of International Relations Theory, ed. V.S. Peterson (Boulder and London: Lynne Rienner Publishing, 1992), 141–154.
3. Ruth Harris notes that the rape of French women was extensively publicised, sometimes with lurid detail, in order to garner support for World War One. Despite this publicity, the rape of French (and German) women has not been part of the iconography or story of that war: “The ‘Child of the Barbarian’: Rape, Race and Nationalism in France During the First World War”, Past and Present 141 (1994), 171–206. Cynthia Enloe has also written about how images of women were predominate in the days leading up to the Persian Gulf war, but once “the serious business of combat had begun”, stories of women disappeared: “The Gendered Gulf”, in Seeing Through the Media: The Persian Gulf War, ed. S. Jeffords and L Rabinovitz (New Brunswick, NJ: Rutgers University Press, 1994), 211–228, at 212–13 [hereinafter “The Gendered Gulf], and The Morning After: Sexual Politics at the End of the Cold War (Berkeley, Los Angeles, London: University of California Press, 1993) [hereinafter “The Morning After”].
4. For a detailed discussion of incidences of wartime rape in the last century, see: S. Brownmiller, Against Our Will: Men, Women and Rape (New York: Simon and Schuster, 1975).
5. V. Penezic, “Women in Yugoslavia”, Genders 22 (1995), 57–77, at 64
6. see also K. Bhavnani, “Towards a Multicultural Europe? ‘Race’ Nation and Identity in 1992 and Beyond”, Feminist Review 45 (1993), 30–45
7. A. Brah, “Re-framing Europe: En-gendered Racisms, Ethnicities and Nationalisms in Contemporary Western Europe”, Feminist Review 45 (1993), 9–28
8. T. Modood and P. Werbner, eds., The Politics of Multiculturalism in the New Europe: Racism, Identity and Community (London and New York: Zed Books, 1997).
9. A.L. King, “Bosnia-Herzegovina — Vance-Owen Agenda for a Peaceful Settlement: Did the UN. Do Too Little, Too Late, to Support this Endeavor?”, Georgia Journal of International & Comparative Law 23 (1993), 347–375, at 349.
10. The Yugoslavian Federal Army is dominated by Serbs who make up 70% of the generals: A. Stiglmayer, “The War in the Former Yugoslavia”, in Mass Rape: The War Against Women in Bosnia-Herzegovina, ed. A. Stiglmayer (Lincoln and London: University of Nebraska Press, 1994), 1–34, at 16.
11. See, for example, N. Malcolm, Bosnia: A Short History (London & Basingstoke: Macmillan London, 1994)
12. R. Ali and L. Lifschultz, “In Plain View”, in Why Bosnia? Writings on the Balkan War, ed. R. Ali and L. Lifschultz (Stony Creek, Conn: The Pamphleteer’s Press, Inc., 1993), xi–lv
13. E. O’Ballance, Civil War in Bosnia: 1992–94 (New York: St. Martin’s Press, 1995)
14. S. Golubic, S. Campbell and T. Golubic, “How Not to Divide the Indivisible”, in Why Bosnia? Writings on the Balkan War, ed. R. Ali and L. Lifschultz (Stony Creek, Conn: The Pamphleteer’s Press, Inc., 1993), 209–232
15. J. Udovicki and J. Ridgewar, ed., Yugoslavia’s Ethnic Nightmare: The Inside Story of Europe’s Unfolding Ordeal (New York: Lawrence Hill Books, 1995)
16. D. RiefT, Slaughterhouse: Bosnia and the Failure of the West (New York, London, Toronto, Sydney, Tokyo, Singapore: Simon & Schuster, 1995)
17. M. Ignatieff, Blood & Belonging: Journeys into the New Nationalism (Toronto, London, New York, Victoria, Auckland: Viking, 1993).
18. “Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission of Human Rights, pursuant to paragraph 15 of the Commission Resolution 1992/S-1/1 of 14 August 1992”, UN. Doc. E/CN. 4/1992/S-1/10, as cited in C.C. Joyner, “Enforcing Human Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal”, Denver Journal of International Law and Policy 22 (1994), 235–274, at 249.
19. An action was commenced by Bosnia Herzegovina against Yugoslavia (Serbia and Montenegro) in the International Court of Justice, alleging acts of genocide by Yugoslavia against Bosnia. The ICJ issued a provisional order on April 8,1993: ICJ Rep. 3; 321.LM. 888.
20. Jane Doe v. Radovan Karadzic, Civil Action no. 93, CIV. 0878 (PKL) (U.S. Southern District of New York, Filed 1993); S. Kradic v. Radovan Karadzic, Civil Action no. 93 CIV 1163 PKL (U.S. Southern District of New York, Filed 1993), as cited in R. Copelon, “Surfacing Gender: Reconceptualizing Crimes against Women in Time of War”, in Mass Rape, supra n.8, 197–218, at 197; B. Stephens, “The Civil Lawsuit as a Remedy for International Human Rights Violations Against Women”, Hastings Women’s Law Journal 5:2 (1994), 143–169.
21. In addition to these four areas, international humanitarian law refers to crimes against peace, which is the planning and waging of a war of aggression, intervention in times of war to provide medical and other assistance to civilians and injured soldiers, and the overlap between international humanitarian law and human rights: Joyncr, supra n. 19, at 262, and L Doswald-Beck and S. Vitc, “International Humanitarian Law and Human Rights Law”, International Review of the Red Cross No. 293 (March–April, 1993), 94–119.
22. Annex to 1907 Hague Convention IV: Regulations Respecting the Laws and Customs of War on Land, adopted Oct. 18, 1907, American Journal of International Law, Supplement 2 (1908), 90–117 (Eng.Fr.), entered into force 26 January 1910. The 1907 Convention was the result of a series of “peace” conferences concerning the reduction of weaponry: G. Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (London: Methuen & Co. Ltd., 1980)
23. H. McCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts (Aldershot: Dartmouth, 1990).
24. For example, both the UN. Charter (1945) and the Universal Declaration of Human Rights (1948) are landmark documents in the development of the rights of individuals in the international arena.
25. There are four Geneva Conventions, the most significant of which for my purposes is Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted Aug. 12,1949,6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter “Geneva Convention IV”].
26. Conventions on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, G.A. Res. 260 A (III), 78 U.N.T.S. 277 (Entered into force Jan. 12, 1951).
27. Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of International Armed Conflicts. 12 Dec. 1977, 1125 U.N.T.S. 3, 16 I.L.M. 1391; Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 12 Dec. 1977, 1125 U.N.T.S. 609, 16 I.L.M. 1442.
28. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, vol XXII, IMT Secretariat, Nuremberg, 1948, as reprinted in Roberts and GuelfF, Documents on the Laws of War (Oxford: Clarendon Press, 1989, 2nd ed.), at 155. A war crime tribunal was also established to prosecute Japanese war criminals: Charter of the International Military Tribunal for the Far East, 19 January 1946, amended 26 April 1946, TIAS 1589. For various reasons, that tribunal was plagued by irregularities which make its contribution to international humanitarian law more difficult to judge.
29. This characterisation of rape is consistent with earlier military prohibitions against rape which defined sexual assault as an attack on family honour. See for example, article 46 of Hague Convention (IV) which prohibits sexual assault but only explicitly refers to the protection of “family honour and rights”: “Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)”, Letter Dated24 May 1994 From The Secretary-General to the President of the Security Council, UN Doc. SI 1994/674 [hereinafter “Commission of Experts Report”].
30. Acts which constitute grave breaches of international law arc killing, torture or inhuman treatment, causing great suffering or serious injury, deportation, transfer or unlawful confinement, deprivation of the right to a fair trial, etc.: Article 147, Geneva Convention IV, supra n. 36.
31. Supra n.36.
32. “Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia”, Human Rights Quarterly 17 (1995), 649–690, at 673.
33. T. Meron, Editorial Comment, “Rape as a Crime under International Humanitarian Law”, American Journal of International Law 87 (1993), 424–428
34. B. Stephens, “Women and the Atrocities of War”, Human Rights (Summer 1993), 12–15, 30
35. A.K. Wing and S. Merchan, “Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America”, Columbia Human Rights Law Review 25 (1993), 1–48
36. C. MacKinnon, “Crimes of War, Crimes of Peace”, in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books Ltd., 1993), 83–109; C. MacKinnon, “Turning Rape into Pornography: Postmodern Genocide”, in Mass Rape, supra n.8, at 73–81
37. C. MacKinnon, “Theory is not a Luxury”, in Reconceiving Reality: Women and International Law, ed. D.G. Dallmeyer (Washington: American Society of International Law, 1993), 83–92
38. J. Mcrtus, “‘Woman’ in the Service of National Identity”, Hastings Women’s Law Journal 5/1 (1994), 5–23
39. C. Chinkin, “Rape and Sexual Abuse of Women in International Law”, European Journal of International Law 5 (1994), 326–341
40. E.A. Kohn, “Rape as a Weapon of War: Women’s Human Rights During the Dissolution of Yugoslavia”, Golden Gate University Law Review 24 (1994), 199–221
41. Niarchos, supra n.43; T.L. Tompkins, “Prosecuting Rape as a War Crime: Speaking the Unspeakable”, Notre Dame Law Review 70 (1995), 845–890.
42. K.A. Hochkam mer, “The Yugoslav War Crimes Tribunal: The Compatibility of Peace, Politics and International Law”, Vanderbilt Journal of Transnational Law 28 (1995), 119–172, at 161.
43. Some have argued that Article 3, in effect, codifies the 1907 Hague Convention: Hochkammer, supra n.45, at 158.
44. Joyner, supra n.19, at 261.
45. Hochkammer, supra n.45, at 160.
46. P. Sellers and K. Okuizumi, “International Prosecution of Sexual Assaults”, Transnational Law and Contemporary Problems 7 (1997), 45–80, at 48–50.
47. Sellers and Okuizume, supra n.59, at 59.
48. J.B. Elshtain, Women and War (New York: Basic Books, Inc., 1987), at 166–167 [hereinafter Women and War]; “Thinking about Women and International Violence”, in Women, Gender and World Politics: Perspectives, Policies and Prospects, ed. Peter R. Beckman and Francinc D’Amico (Westport, Conn: Bergin & Garvey, 1994), 109–118, at 115 [hereinafter “Thinking about Women”].
49. M.R. Higonnet, J. Jenson, S. Michel and M. Collins Weitz, “Introduction”, in Behind the Lines: Gender and the Two World Wars, ed. M.R. Higonnet, J. Jenson, S. Michel and M. Collins Weitz (New Haven and London: Yale University Press, 1987), 1–17, at 4.
50. The literature in this area is substantial but see, for example, C. Enloe, Bananas, Beaches, and Bases: Making Feminist Sense of International Politics (Berkeley: University of California Press, 1990)
51. C. Enloe, Does Khaki Become You? (Boston: South End Press, 1983)
52. C. Enloe, The Morning After, supra n.3; J.A. Tickner, “Feminist Approaches to Issues of War and Peace”, in Reconceiving Reality, supra n.44, at 267–274; Ann Scales, “Militarism, Male Dominance and Law: Feminist Jurisprudence as Oxymoron?”, Harvard Women’s Law Journal 12 (1989), 25–73; M. Cooke and A. Wollacott, cds., Gendering War Talk. (Princeton, NJ: Princeton University Press, 1993); J. B. Elshtain, Women and War jupra n.63; M. R. Higonnet et al., supra n.67.
53. Elshtain, “Thinking about Women”, supra n.63, at 110; Higonnet et al., supra n.67, at 4.
54. I am not suggesting by this analysis that men are not also constructed along predetermined guidelines. Men who do not conform to the ideal of masculine warrior are also marginalised within military discourse. Males who are very young, very old, or unfit for military service, arc feminised as part of the class of protected civilians: Tickner, supra n.69, at 271. In addition to being male, the “ideal” warrior is also heterosexual. A significant part of the construction of gender identities within war and military discourse has focused on sexuality, and gays and lesbians have been actively excluded from military service: W.J. Scott and S. Carson Stanley, Gays and Lesbians in the Military: Issues, Concerns, and Contrasts (New York: Aldine de Bruyter, 1994). My discussion in this section is focused primarily on the construction of female gender roles because of their importance in legitimating violence against women. Certainly, a part of this equation will be the role of the military in constructing a masculine culture which permits — or encourages — violence against women. Understanding military culture is an important but large area that I could not adequately cover in this paper. For work concerning women within the military, see: J. Holm, Women in the Military: An Unfinished Revolution, Rev. ed. (Novato, CA: Presidio Press, 1992)
55. C. Wekesser and M. Polesetsky, eds., Women in the Military (San Diego, CA.: Greenhaven Press, 1991).
56. Enloe notes, for example, that media coverage of international crises tend to focus on women as victims or dependents: “‘Womenandchildren’ rolls so easily off network tongues because in network minds women arc family members rather than independent actors..”, “The Gendered Gulf”, supra n.3, at 214. See also A. Lant, Blackout: Reinventing Women for Wartime British Cinema (Princeton, NJ: Princeton University Press, 1991).
57. Enloe, The Morning After, supra n.3, at 237; Harris, supra n.3; G. Seidel and R. Gtinther, “‘Nation’ and ‘family’ in the British media reporting of the ‘Falklands conflict’”, in Nature of the Right: A Feminist Analysis of Order Patterns, ed. G. Seidel (Amsterdam and Philadelphia: John Benjamins Publishing Company, 1988), 115–127, at 120.
58. In my analysis of the gendered nature of humanitarian law, I am influenced by the work of H. Charlesworth, C. Chinkin, and S. Wright, in “Feminist Approaches to International Law”, American Journal of International Law 85 (1991), 613–645.
59. For a discussion of some of the gendered aspects of international humanitarian law, see J. Gardam, “A Feminist Analysis of Certain Aspects of International Humanitarian Law”, Australian Yearbook of International Law 12 (1992), 265–278 [hereinafter “A Feminist Analysis of Humanitarian Law”], and “The Law of Armed Conflict: A Feminist Perspective”, in Human Rights in the Twenty-First Century: A Global Challenge, ed. K.E. Mahoney and P. Mahoney (Dordrecht: Martinus NijhofT Publishers, 1993), 419–436, at 419.
60. “The Legitimation of Violence: A Critical History of the Laws of War”, Harvard International Law Journal 35 (1994), 49–95, at 50.
61. During the first World War, for example, France was portrayed as a woman raped by the invading German army: Harris, supra n.3, at 171. More recently, the “rape of Kuwait” was a standard refrain which evoked images of a feminised Kuwait attacked by the dark, sexualized Iraq: Ella Shohat, “The Media’s War”, in Seeing Through the Media, supra n.3, 147–154, at 153; Farmanfarmaian, “Sexuality in the Gulf War: Did you Measure Up?”. Genders 13 (1992), 1–29, at 2. See also M. Layoun, “The Female Body and ‘Transnational’ Reproduction; or, Rape by Any Other Name?”, in Scattered Hegemonies: Postmodernity and Transnational Feminist Practices, ed. I. Grewal and C. Kaplan (Minneapolis and London: University of Minnesota Press, 1995), 63–75.
62. G. Eley and R.G. Suny, “Introduction: From the Moment of Social History to the Work of Cultural Representation”, in Becoming National: A Reader, ed. G. Eley and R.G. Suny (New York & Oxford: Oxford University Press, 1996), 1–37, at 26.
63. A. Parker et al, “Introduction: Nationalism and Respectability”, in Nationalism and Sexualities, ed. A. Parker et al. (New York and London: Routledge, 1992), 1–22, at 6.
64. From a speech to the National Socialist Women’s Congress, published in the Volkischer Beobachter, Sept. 15, 1935 (Wiener Library Clipping Collection), as cited in G.L. Mosse, Nazi Culture: Intellectual, Cultural and SocialLifein the ThirdReich (New York: Schocken Books, 1981), at 40.
65. Seidel and Gilnther, supra n.74, at 123.
66. F. Anthias and N. Yuval-Davis, Racialized Boundaries: Race, Nation, Gender, Colour and Class and the Anti-Racist Struggles (London and New York: Routledge, 1992), 22 [hereinafter Racialized Boundaries]
67. Mertus, supra n.44, at 8. See also Seidel and Gunther, supra n.74, at 117.
68. Parker et al., supra n.89, at 5.
69. Elleke Boehma, “Stories of Women and Mothers: Gender and Nationalism in the Early Fiction of Flora Nwapa”, in Motherlands and Black Women’s Writing from Africa, The Caribbean and South Asia (London: The Women’s Press, 1991), 5, as quoted in A. McClintock, “‘No Longer in Future Heaven’: Women, Nationalism, Gender and Race”, in Becoming National, supra n.89, 260–284, at 261. See also N. Natarajan, “Woman, Nation, and Narration in Midnights Children”, in Scattered Hegemonies: Postmodernity and Transnational Feminist Practices, ed. I. Grewal and C. Kaplan (Minneapolis and London: University of Minnesota Press, 1995), 76–89.
70. “Gender & Nation, Ethnic and Racial Studies 1/4 (1993), 621–632, at 627.
71. Higonnet et al., supra n.67; Lant, supra n.72, at 76. In a similar vein, in post World War I Germany, women were increasingly blamed for Germany’s loss. Renate Bridenthal et al, argue that a “stab in the back” myth circulated after the war according to which the war was lost on the home front because of subversion by Jews, communists, Social Democrats and women: When Biology Became Destiny: Women in Weimar and Nazi Germany (New York: Monthly Review Press, 1984), 7.
72. “Women, Democracy and Nationalism after 1989: The Yugoslavian Case”, Canadian Woman Studies 16:1 (1995), 10–13, at 10.
73. Women can “contaminate” the mythical ethnic or racial purity of a nation by giving birth to babies of “mixed” parentage. This is particularly the case in Bosnia, where forced pregnancy has been part of the process of ethnic cleansing because babies are assumed to have the same ethnicity as their fathers: D.M. Hughes, L. Mladjenovic and Z. Mrsevic, “Feminist Resistance in Serbia”, The Europ ean Journal of Women’s Studies 2 (1994), 509–532, at 519.
74. Z. Eisenstcin, Hatreds: Racialized and Sexualized Conflicts in the Twenty-First Century (New York and London: Routledge, 1996), 59.
75. See for example, Malcolm, supra n.11; Ali and Lifschultz, supra n.11; Udovicki and Ridgeway, supra n.11; RiefF, supra n.11; IgnatiefF, supra n.11.
76. Udovicki and Ridgeway argue, for example that the “principle of self-determination” in Yugoslavia with its “completely intermixed populations of diverse nationalities” was “not only absurd but perilous”: “Introduction”, supra n.11, at 6.
77. Udovic ki and Ridgeway, supra n. 11, at 35.
78. Malcolm writes, for example, that “the fragments of historical misinformation which have appeared in the Western media over the last two years have been washed in by tides of national and political mythology from within the old Yugoslavia.” Supra n.ll, atxxiii. RiefF notes that this “nationalist myth making” was very successful: “[w]hen one went into a village.. it was often easier to get a history lesson than a reliable account of what had occurred earlier the same day.” Supra n. 11, at 69.
79. Udovicki and Ridgeway, supra n.11, at 35.
80. Banal Nationalism (London: Thousand Oaks; New Delhi: Sage Publications, 1995), at 17. Sec also Eisenstein, supra n.106, at 45.
81. T. Cushman, “Collective Punishment and Forgiveness: Judgments of post-communist national identities by the ‘civilized’ west”, in Genocide After Emotion: The Postemotional Balkan War, ed. Stjepan G. Mestrovic (London and New York: Routledge, 1996), 184–194, at 185; Eisenstein supra n.106, at45.f
82. B. Aretxaga, “Ruffling a Few Patriarchal Hairs: Women’s Experiences of War in Northern Ireland”, Cultural Survival Quarterly 19:1 (1995), 46–49, at 47.
83. Some American feminist academic scholarship has, for example, argued that rape is particularly traumatic for Bosnian Muslim women because of cultural dictates of chastity: Wing and Merchan, supra n.44; D.M. Koenig (speech), “Women and Rape in Ethnic Conflict and War”, Hastings Women’s Law Journal 5 (1994), 129–141.
84. J.A. Camillcri, “State, Civil Society, and Economy”, in The State in Transition Reimagining Political Space, ed. J.A. Camilleri, A.P. Jarvis and A.J. Paolini (Boulder, CO and London: Lynne Rienner Publishers, 1995), 209–228.
85. D. Otto, “Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society”, Human Rights Quarterly 18 (1996), 107–141.
86. See for example, J. Peters and A. Wolper, eds., Women’s Rights, Human Rights: International Feminist Perspectives (New York and London: Routledge, 1995)
87. R. Cook, ed. Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994).
88. See generally, GlobalLegal Studies 4 (1996).