A history of violence: The evolution of gendered crimes in international law
Posted 1:52 PM by Internal Voices in Labels: 12th Edition |
| UN Photo/Louise Gubb |
“For most of history,Anonymous was woman”
Virginia Woolf
The evolution and effect of emerging theories of gendered crimes within the international legal system is a particularly remarkable subject. Within a matter of 50 years or so, we have seen a dramatic change and great progress through the recognition of women’s rights but also the emergence of gendered crimes such as rape, forced prostitution, sexual slavery and others, as crimes prohibited during times of war. However, this change of approach towards gendered crimes followed a longstanding silence and invisibility of women within international law: prior to the early 1990s, theories surrounding the ‘feminine’ perceptions of war crimes and sexual violence were almost nonexistent. Despite the strong feministic movements that eventually granted women ‘equality’ in the eyes of human rights law, there was little to be told within the ambit of the laws of war. Therefore, the underlying question is: what kept these silences imminent for so many years? When considering that women represent about half the world’s population, why were they not given more protection?
Some would immediately jump to a conclusion that sexual crimes are the “spoils of war”, that “boys will be boys” and since war is immediately associated with the masculine, rape and sexual crimes can only be considered as an inevitability of war. Alongside the atrocities that took place during the Holocaust in World War II we saw violence against women of any ethnicity, race or peoples. Likewise, the Japanese Imperial Army used “comfort women” to the grotesque realization of providing encouragement to the Japanese soldiers while on the field. The “abductions” of women during the Indo-Pakistani war, the violent acts against women during the conflict in East Timor, these are only few examples of the poorly documented history of violence against women.
One of the first war-regulating international documents is the 1949 Fourth Geneva Convention on the Protection of Civilian Persons during Times of War that granted women some protection through Article 27 requiring that ‘Women will be especially protected against any attack on their honor…”.
What must be noted is that the Geneva Conventions drew up a list of international crimes that are carried out during times of war, and gave that list a form of hierarchy. Needless to say, the crime of ‘rape’ or any form of sexual violence was not added to that list. This is further reflected in a number of subsequent international documents where the international legal system avoided elevating the status of women during times of armed conflict.
What is more troubling than the legal hierarchy, figures and events are the perceptions and the theories underlying the approach of international law, that is, its inability to view violence against women from the eyes of women themselves. What was most disturbing, for example, is the use of the word ‘honor’ in the text of the Fourth Geneva Convention. The use of the word immediately places rape as a crime against the dignity and pride of a woman, rather than a crime of violence. What was ultimately wrong with this definition is the very fact that rape is not a matter of dignity but a bodily abuse, a torture, a treatment of violation of psychological and bodily integrity. Taking this a step further, such a provision oversees not the protection of the woman herself, but a protection from shame of men in the community.
In 1993, the world saw the first substantive change in the approach of women in armed conflict during the Vienna Human Rights Conference when the topic ‘Violence against Women’ received unprecedented attention. The resulting Declaration not only recognized gender-based violence but also called for national and international cooperation in pursuing the adequate legal measures, indicating some improvement in the area. More impressive however, was that with the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), we saw rape enter the grand ‘pantheon’ of international laws of war. Both their legal instruments were the first to enlist ‘rape’ within the ambit of ‘crimes against humanity’ – one of the gravest forms of crime. With the emergence of these legal instruments, we also impressively saw the Courts themselves taking groundbreaking decisions. The ICTR for example, ruled that rape can be recognized as an instrument of genocide and the ICTY saw rape and enslavement as crimes essentially constituting sexual slavery. The greatest milestone of all, however, was the Rome Statute 1998 that established the International Criminal Court and has placed ‘rape and sexual violence’ both as a crime against humanity and a war crime.
Over the decades, we have seen great development on the perception of rape and other forms of sexual violence during times of armed conflict. Most importantly, we saw the riddance of the ‘honor’ baggage that was given to such crimes, which are now considered as crimes of violence and not of pride or dignity. There has been a shift of trying to protect the men of a community to the protection of the community as a whole, and this has made a significant impact on how these crimes are viewed in the international legal system. Of course, many Feminists continue to argue that despite these changes, the continuing secondary nature of the crimes does not give them the eminence they need in international law as they remain secondary in the humanitarian priorities of the international legal system. Nonetheless, this shift in the human reality that grants greater protection to women during times of war remains a promising step forward that may eventuate in even stronger protection of women in the years to come.
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