Sex and International Tribunals. Chiseche Salome Mibenge
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of women in order to better serve women’s interests and concerns with regard to the enjoyment of their human rights. The protocol calls on African states to take special measures to protect women in distress, including elderly poor women, women heads of families, women from marginalized population groups, and women with disabilities (art. 22 and 23). States are called upon to provide these women with an environment suitable for their condition and their special physical, economic, and social needs. It takes into account that formal equality will not suffice for women who are historically and systematically subordinate to men and to other women and who require special assistance to overcome physical, economic, and social disadvantages before they can begin to compete on a level playing field (art. 24).19
Feminist Critique of International Humanitarian Law
Before the consolidation of an international humanitarian law framework (and long before the consolidation of an international human rights law framework), international law did not directly address the status of women in armed conflict, although implicitly it reduced women’s vulnerability to rape and other forms of violence. The Japanese Army’s enslavement of Korean and other women in the 1930s and then throughout World War II is a good example of the outcomes of this exclusion of women from the public realm. Because women and girls were perceived as private objects rather than public subjects in law (Mitchell 2005: 236–37), the fact that they suffered extreme physical and mental anguish as a result of their enslavement was irrelevant. Military commanders saw this system of military enslavement as vital to maintaining troop discipline, public health, and public order in occupied areas. And even though the sexual violence was illegal, it was seen as inevitable during armed conflict.
Sadly, the Allied response to war crimes committed by the Axis Powers affirmed this position. The military trials in Tokyo and Nuremberg represent the first international effort to establish individual criminal accountability for war crimes and crimes against humanity. The prosecution of German and Japanese leaders showed that the enforcement of human rights could be possible with political will and international cooperation. An international treaty prohibited slavery in 1926, and yet the narrative of the international criminal justice process ignored well documented evidence of the systematic enslavement of Asian girls and women in World War II.20 The first comprehensive legal narrative condemning the Japanese Army’s enslavement of up to two hundred thousand women during World War II was promulgated in 1994, nearly fifty years after the fact. The International Commission of Jurists (ICoJ) commissioned a study that led to a mission to the Philippines, the People’s Republic of Korea, and Japan (Dolgopol and Paranjape 1994).
All laws are products of their place and time. The atrocities committed by the Axis Powers, particularly the Holocaust, influenced the four Geneva Conventions (1947).21 While little reference is made of it in the Nuremberg judgment, women’s experience of anti-Semitism and of the Holocaust was a gendered experience. Fionnula Ní Aoláin provides one of the few gendered legal analyses of the Holocaust. She describes in particular how traditional attitudes toward women, their gender, and unique maternal responsibilities heightened the vulnerability of women living in ghettos (2000b: 53–55). Many of the atrocities committed against women in the Holocaust centered on their maternal position and included the deprivation of the reproductive rights of women through enforced sterilization, abortions, and separation from their children (ibid., 54, 57, 58). Women with young children were usually selected for extermination upon their arrival at camps. Their maternal status and their continued attachment to their children made them uniquely assailable and defenseless (ibid., 53, 56). Ní Aoláin’s insightful gender analysis of the Holocaust explains in part the preoccupation of the Geneva Conventions with the protection of women as mothers. Few of the several specific references to women in the Geneva Conventions and the Additional Protocols (1977) transcend the woman-as-mother model of vulnerability and victimization in armed conflict.
This maternal narrative of women and their experience of war predates World War II and the Holocaust. Article 46 of both the Hague Conventions of 1899 and 1907 also provided an “honor based” construction of sexual violence. They asserted that “Family honor and rights [my emphasis], the lives and persons, and private property, as well as religious convictions and practice must be respected.” This opaque language conceptualized sexual violence as a crime offending the virtue of women as opposed to a crime of aggression violating the human dignity and physical integrity of women. Family honor connotes the chastity of women and the potency of men to penetrate as well as protect “their” women from impure relations with rival men, and it is rooted in such patriarchal considerations as fear of miscegenation.22 At its most basic construction, this is based on the idea that women raped by the enemy army/nation/race will bear children that will be alienated from the targeted group. Conversely, the symbolic poisoning of women by the enemy rapist makes them physically, psychologically, or socially infertile.23 When enemy belligerents kidnap, rape, marry, or impregnate women, the fear that men will be deprived of a reproductive 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