Sex and International Tribunals. Chiseche Salome Mibenge
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from children as a physical act of aggression against their own person, concentrated on their own experienced sense of being female, aimed at undermining their sexual identity by taking away the expression of that reproductive self or product of sexuality, namely, the child (ibid., 61–62). I fully concur with Ní Aoláin when she judges the laws of war a failure in the wake of the Holocaust because they did not recognize forced separation as sex based harm targeting the woman’s body, both in its symbolic and actual manifestations (ibid.).29
Sexual violence, whether inside or outside of armed conflict, carries a unique stigma because of its general perception as a specifically sexual violation, a view that tends to subsume its violent nature and gravity as a gender-specific offense (Mitchell 2005: 247). There are few modern societies that do not valorize purity and fertility in women. Acknowledging this valorization is a necessary step toward investigating the power of rape to destroy the fabric of society through the gendered targeting of women and, more important, toward finding social, political, and legal responses that can diminish this power. The call for the individualization of gender-based violence within international humanitarian law and a focus thereon as an act of aggression rather than an honor crime or a crime against a community is a valid one. However, a focus on the individual need not exclude her relationship with her community and its dominant constructions of gender, be they contested or accepted in whole or in part.
My brief accounts of the repatriation of Indian-Hindu-Muslim women and of Korean women highlight the fact that women’s experience of gender-based violence is not extinguished with the end of armed hostilities. Hostile legal, social, and political responses often pursue women survivors of violence such that a state of conflict persists, at least in their private lives. It is therefore a striking omission that while international humanitarian law protections have moved from international conflicts to encompass internal conflicts involving nonstate actors, they have failed to expand their temporal jurisdiction, which is restricted to active hostilities. Thus, the scope of protection provided by international humanitarian law ends abruptly with the official ending of hostilities. The resultant narrative suggests that gender-based violence is temporal and unique to armed conflict. This short-sightedness results in a lost opportunity for policy makers (such as members of the Council of Europe responsible for the drafting of reports on sexual violence in armed conflict), who are charged to dismantle and reconstruct political and social structures that contribute to the conditions for the perpetration of widespread sexual violence against women in war and its aftermath. Leaving these structures intact generates new forms of sexual exploitation exacerbated by postconflict conditions.
Sexual exploitation proliferates in the immediate aftermath of armed conflict. Peacekeepers, humanitarian workers, invaders, occupying forces, demobilized fighters, and retreating forces are regularly implicated in the sexual exploitation of women and girls made vulnerable by months or even years of armed conflict. In the aftermath of World War II, Susanne Zwingel (2004: 8) describes how in the French, British, and American occupation zones, the situation of material deprivation generated considerable dimensions of “occasional prostitution” in exchange for basic goods.30 Richard W. McCormick (2001: 106) reviews Helke Ander’s film BeFreier und Befreite (1992) (U.S. title: Liberators Take Liberties) and presents as evidence of mass rapes an interview with a doctor who treated German women raped by the French on a massive scale in Freudenstadt, a town in the Black Forest, as a reprisal for atrocities committed against French civilians.
Yuki Tanaka has written about the widespread incidence of sexual violence by Allies in occupied Japan. He describes American soldiers breaking into the homes of civilians and raping women and girls, fondling girls and women clerking in public offices, and abducting girls and women for sexual violence (Tanaka 2002: 121–22). Most disturbing, however, is Tanaka’s revelation that the defeated Japanese government created a “comfort woman” system for the occupation forces. Duplicitous police officers recruited Japanese geishas and prostitutes and coerced women and girls impoverished by the war into volunteering for a “special task” (ibid., 136–39). GIs typically gang raped “volunteers” repeatedly before they were sent to comfort stations also referred to as “recreation” and “amusement” centers (ibid., 140). Tanaka’s account of the normalization of widespread and systematic sexual violence by Allied occupiers emphasizes that women’s security remains precarious even as transitional governments appear to commit to democracy, rule of law, and good governance projects.
These postwar situations of gender-based violence are equal in scale to violence committed against civilian populations in armed conflict. And yet civilian women and their families were not able to seek justice from occupying powers responsible for the violence. Reporting sexual violence to the military police was futile, and the liberators and victors abused women and girls with impunity.
Human Rights Law Responses to Gender and Violence in Armed Conflict
As a state fluctuates unpredictably between war and peace, human rights advocacy has played an important role in bringing such forms of abuse to light. Human rights laws play an important role in the response to the harms women suffer. In the decades since the ratification of the Universal Declaration of Human Rights and the Geneva Conventions, the human rights law framework has developed at a faster rate in response to global trends in warfare than the more conservative international humanitarian law. It is fair to say that third tier instruments, in particular, have encroached on the territory of international humanitarian law standards and in many respects have overtaken international humanitarian law in protecting women against violations in “war,” particularly with respect to the periods preceding and following war.
The committees for CERD and CEDAW have provided important interpretations of the relationship between human rights and conflict, and world conferences have acted as a platform for states, civil society, and NGOs to affirm their shared commitment to human rights and to broaden their understanding of rights and duties. The impact of war on women’s human rights has become a central point of advocacy and activism at these conferences.
The End of Decade Conference held in Nairobi in 1985 and the Forward Looking Strategies for the Advancement of Women referred to the especially vulnerable situation of women affected by armed conflict, including threats of physical abuse.31 However, violence against women was not specifically linked to widespread and systematic violence in armed conflict nor was there a strong affirmation that violence against women was prima facie a human rights issue (UN Division for the Advancement of Women, 1988: 13). The reference to vulnerability implied that the concerns of international humanitarian law over women’s honor remained the dominant area of concern.
To counteract the invisibility of abuses against women in the mainstream human rights discourse, the Center for Women’s Global Leadership with a consortium of hundreds of women’s organizations worldwide launched a global campaign for women’s human rights to influence the Second World Conference on Human Rights in Vienna (1993) (Dauer 2001: 68). Their campaign goal was to give visibility to forms of violence against women that UN experts in human rights and governments had failed to include as part of human rights, especially those occurring in the community, family, and private sphere, and to demand government accountability for eradicating them (ibid.). To do this, the global campaign organized a series of (nonbinding) tribunals around the world, culminating in the Vienna Tribunal for Women’s Human Rights, in which thirty-three women testified to firsthand experience of violence, including war crimes against women, political persecution, and discrimination (ibid., 66).32
An audience of NGOs and country delegates heard the testimonies while a panel of judges presided. The judges concluded that the failure to recognize violence against women and to protect their human rights was pervasive and required urgent attention. They identified three reasons for this general failure: a lack of understanding of the systematic nature of the subordination of women and of the social, political, and economic structures that perpetuate such subordination; a failure to recognize the subordination of women, particularly in the private sphere, as a violation of their human rights; and state neglect in both condemning and providing redress for discrimination and other violations against women (Dauer 2001: 68, citing Bunch and Reilly, 1994: 3). The judges made several recommendations, including the appointment of a Special Rapporteur on Violence Against Women at the UN Human Rights Commission; General