SEELINE: The Status of Rape as a War Crime in International Law

- a line froma female character after she has been raped by a Russian soldier in front ofher daughter in Helma Sanders-Brahms’ film, "Deutschland, bleiche Mutter”.

“In most wars Ihave read about, soldiers loot and rape. This is sometimes seen as a loss ofself-control that threatens military discipline.”

- Prof. JimMiller’s comment on my thesis proposal.

“This is ethnicrape as an official policy of war: … Rape under orders; not out of control,under control. It is rape unto death, rape as massacre, rape to kill or to makevictims wish they were dead.”

- CatherineMacKinnon (MacKinnon OHR 89-90

“I would neverallow anyone to talk about a raped Croat or Muslim woman while failing tomention the raped Croatia or raped Bosnia.”

- ZeljkaCorak, “Children of Paradise”, Documenta Croatica 1993.

“Understandingthe military involves examining gender relations – in particular the waymasculinity and femininity are defined. The military mobilizes genderidentities, and in period of war this process is sharpened…”

- JacklynCock (Cock vii)

“Women did not participate in makingpolitical or military decisions before or during this war and yet, war and itsmisery more and more acquire women’s and children’s faces.”

- ZagrebCenter for Women War Victims (CWWV) (Belic 46)

“It is a‘universal soldier,’ not ‘universal Serb, Croat, Muslim….’ that rapes; rape inwar is a war weapon against women, not an ethnic but gender crime.”

- Belgradefeminist’s statement

“I have come tobelieve that the two problems (sexist oppression and militarization) not onlyare symbiotically related, but are twin manifestations of the same underlyingcause … socially sanctioned violence.”

- Betty A.Reardon (Reardon 2, 4)

This sample of quotations demonstrates howcontradictory and how controversial the perceptions and possible explanationsof wartime sexual violence against women still are – in theory and in everydaylife. As abuse of women has been noted in every war from ancient times torecent history, one could expect at least some degree of agreement in public opinionon the topic; among feminists, for example, or among progressive liberalscholars -- perhaps. However, this is not the case. It is apparent that thevariety of forms of wartime violence against women and the variety of warsrequire diverse explanations, at the same time posing a number of furtherquestions. But these quotations, along with the numerous articles and books(both fictional and nonfictional) and other forms of representation of sexualwar violence against women (for example, paintings, movies), as well as theexisting body of theories, disclose utter disagreement in understanding thephenomena. Some of the aforementioned quotations reveal an approach that couldbe characterized as a “gendered” approach, a “male” point of view that sees rapein wars as a normal byproduct of wars, as “men’s rights” to women’s bodies inthe victorious outcome of a battle (Akashi, Goebbels, the Sanders-Brahmsmovie). Others (Reardon, Miller, Cock) are in search of the connection betweenmilitarism and violence against women, but again, provide this connection witha very different explanation.

Here, the key question appears to be: Whoactually rapes during wars or other forms of armed conflicts? A man, or “men” –an individual with specific psychological features, or members of the malegender? Are the war rapists members of the armed forces trained in militarized,patriarchal institutions, or is it a renegade soldier, acting beyond militarycontrol? In cases related to religiously and ethnically-characterized armedconflicts and collective violence, do the rapists – as members of a particularethnic or religious group – assert their collective identity over women’sbodies as symbolic battlefields \[1\] that represent a different culture, a “genetic code,” the reproductive groundof the enemy; do the perpetrators, while raping women, fight and conquer menfrom other and different groups by attacking their “land” and“property,” including their women, or do they sexually violate women as utterlyother and different ? Here,we can usually point out two types of approaches: those which emphasize womenas a targeted group and a collective object of violence (“Belgrade feminist,”CWWV) while the other, ethnically centered, is sometimes described as a“genocidal” approach to sexual war violence that stresses the ethnic group ofviolated women as being targeted and collectively violated (MacKinnon, Corak).During the wars in the former Yugoslavia the different meanings that wereinscribed onto sexual violence against women turned into a source of furtherideological and political struggles between warring sides and governments.

Sexual war violence also became a bitterlycontested issue among women’s groups, both within and across ethnic lines. Itis easy to presume that in wartime reality both of these approaches, gender andethnicity, along with their manifold intersections, played a major role ingenerating war propaganda and inciting both sexual and ethnic violence.However, theorizing gender and ethnic differences in attempting to understandsexual and ethnic wartime violence took prominence in not only feministscholarship but also in the newest development of international law concerninggender war crimes.

I find that the inquiry into theconstruction of gender and ethnic identities, and the discussion of the rolesof these identities in the inceptionof war and its violence, is important in those aspects in which theconstruction of gender replicates andreflects the overall social and political status of women in society,particularly within the ethnically /nationalistically centered model of the nation-state. Particularly interesting isthe legal status of women as it relates to violence in national andinternational laws and the effect of that status on war violence against women.

One of the most interesting questions, inmy opinion, is whether and to what extent is gendered war violence aqualitatively new and different phenomenon than everyday “peace time” violenceagainst women such as rape, battery, sexual harassment, or do these differentforms of violence all belong to the same continuum of violence against women?

In an attempt to better understand theindicated problems, I shall examine how the model of the nation-state and itsinstitutions enable violence against women to continue in everyday life inpeace time, despite the modern state's monopoly on the use of force andviolence. Within this context, I shall examine the processes of change of thecriminal status of sexual violence, and rape in particular, in national andinternational jurisprudence, in peace and in war times. The particular focuswill be on recent changes that were introduced to international humanitarianlaw following the wars in the former Yugoslavia and Rwanda, and the impact thatthe (recent) recognition of women’s human rights and women’s movementsinternationally had on these changes.

To understand these changes and thesituations that led to them, I would like to address the following sets ofissues:

1. The history of wartime rape and of theimpunity of sexual war crimes against women.

2. The construction of gender andethnicity in nationalistic/ethnic conflicts, and their impact on incitingwartime violence (the case of Yugoslavia).

3. The shaping of the relationshipbetween private and public spheres and the impact of that relationship onviolence against women in society.

4. The contribution of feminist theoryand international women’s human rights movements to the changes ininternational law following the wars in Yugoslavia and Rwanda.

5. The character of the changesintroduced into international law concerning gender and the importance of thesechanges for the social, political, and legal status of women, nationally andinternationally.

In the past century alone there were atleast six documented cases of mass sexual abuse of women during various wars:the Rape of Nanjing in 1937; the case of “comfort women” and sexual slavery in Japanesecamps throughout Asia during World War II; the pervasive rape of German womenat the end of WWII; rapes during the Bangladesh-Pakistan war in the early1970s; and the mass rapes of women during the ethnic conflicts in Bosnia andRwanda in 1990s. To prove the massive scope of these crimes, I shall quote somenumbers here, although, as I shall demonstrate, such an attempt at"objectivity" raises another controversy. The numbers in all thesecases have been forcefully contested and they vary, depending on the source andthe context of the debate. For example, the Bosnian Ministry of InternalAffairs released a statement in October 1992 saying that in Bosnia, there were60,000 women raped by Serbian military and paramilitary, many of themintentionally impregnated, while the U.N. Commission of Experts released areport in 1994 claiming 4,500 documented cases of rape and sexual violation. \[2\] At the same time, U.N. Commission of Experts gave credibility to the estimationof 20,000 women being violated in Bosnia and Croatia that was stated in areport by the EC Investigative Mission of Experts, in February 1993 \[3\] (the mission was mainly composed of European women, doctors, academics,politicians). These distinguished, international fact-finding missions agree thatall the warring sides performed rapes, although they disagree as to the scale;and that members of Serbian military and paramilitary troops committed thegreatest number of such crimes. Nevertheless, all the warring sides for a longtime denied any involvement of their soldiers in such deeds.

From the very beginning, the Croatian sidein particular, and some of the international researchers , including feministscholars, \[4\] gave very different interpretations of the purpose and meanings of wartimeviolence against women in the Yugoslav wars. The crimes committed by Serbs,deemed these interpretations, were systemic and planned actions for the purposeof ethnic cleansing, so-called genocidal rapes, and impregnations madeintentionally (women kept incarcerated for the purpose of giving birth to the"little chetniks") to destroy the "ethnic composition" ofCroats and Bosnians (the term genocide by procreation was used in someof these claims). The Croatian and Bosnian sides pronounced, rapes executed bythe Serbs as unique in the whole history of mankind and specificallyinhuman. Not surprisingly, different Serbian and pro-Serbiancounter-information groups and international lobbyists (again composed of“experts”), after the numbers were disputed by international fact-findingmissions, began to claim that there were no mass rapes (whatever “mass” means)at all in Bosnia, and that the whole story was part of an “internationalanti-Serbian propaganda and/or conspiracy.” However, all this had already beenseen: women's bodies and suffering instrumentalized and used for nationalisticpurposes during armed conflicts and almost immediately afterward, the thousandsof brutal rapes denied and largely forgotten and the memories of womenrepressed on all sides.

In the Bangladesh-Pakistan war, estimatesrange between twenty to four hundred thousand abused women. German historianand film-maker Helke Sander, after very meticulous research through archivesand other sources, argued that 1.9 million German women, or two-thirds of thefemale population in the Eastern Sector, were raped during the final operationsof WWII (the battle for Berlin) and the establishment of Allied control overoccupied zones in a period between March-November 1945. \[5\] The majority of the perpetrators were soldiers of the Red Army, but French,U.S. and British militaries raped as well. Sander’s film and book project,“BeFreier und Befreite,” (1992) or, “Liberators Take Liberties,” was vigorouslycontested by the German left and right and by some U.S. academics who claimedthat Sander “essentialized” and “dehistoricized” those rapes, turning them into“transhistorical, transpolitical, patriarchal violence. \[6\] ”

Evidently, numbers and statistics in complexphenomena such as war rapes are not the best way to approach or to understandthe problem. On the contrary, they easily become a new issue of conflictinginterests – something what we in the region used to call “the monstrousarithmetic,” i.e. numbers used for further warmongering and the spreading ofhate. During wars, “facts” and numbers are seldom realistic or confirmed byindependent sources, therefore, they are frequently used as supporting evidencein political and ideological nationalistic contests. \[7\] This is what happened in the former Yugoslavia and, as previously mentioned, inGermany, although Sander's findings appeared many years after the warcasualties. However, it is not only numbers that turn out to be contested. Inalmost all cases, rapes committed during wartime are trivialized andmanipulated, and almost immediatelyafter the wars, pushed under the carpet and "forgotten." The“winners” and the “losers,” or put in different terms, the aggressors and victims of wars, tend to repress these kinds of memories and events.These narratives sometimes re-emerge in the form of literature, movies, ormemoirs, but they seldom emerge in serious political and/or theoretical debate.Even within the growing body of feminist literature on gender and violence ofthe last 30 years, only one study seriously approached wartime sexual violenceagainst women: Susan Brownmiller’s classic “Against Our Will: Men, Women andRape,” published in 1975. Brownmiller argued that sexual war crimes are oftentraded and exchanged for various peace or other political arrangementsnegotiated by international mediators between the “winners” and the “losers.”

This brings me back to my previousstatement of the problem: although the sexual abuses of women in wars have beenknown to happen throughout human history, they were not recognized specificallyas war crimes. They were not investigated, prosecuted or punished, because theywere not incorporated into laws. Similar to the peacetime sexual crimes againstwomen, they remained “crimes without a name” in the realm of impunity.

Significant changes occurred after the warsin the former Yugoslavia and Rwanda. The changes are not only in legalconsideration. Even before they became a topic for international law, theatrocities gained widespread media attention accompanied by general outrage.Hundreds of articles and television programs, conferences, round tables, expertand popular debates, and dozens of books appeared on the topic. What causedthat change in reception? Was it the omnipresent, catastrophe-driven news mediathat shape the “post-modern” world, or was it perhaps because there were morewomen employed in leading positions in these media? Or, had the world simplybecome more sensitive toward the suffering of victims? All this could beconsidered as causing the change both in international law and in globalvisibility. However, in my opinion, it was the growing awareness of women andof their human rights within the global women’s movement, and the recognitionof women’s rights as human rights that created the space in national andinternational jurisdiction for recognition of violence against women as acrime, both in peace and in war times.

Legally, this change became effective withthe establishment of the International War Crime Tribunal for the FormerYugoslavia in February 1993, (ICTY) and the Tribunal for Rwanda, 1995 (ICTR).The Statute of the ICTY is the first international legal document thatsingles out rape as a crime against humanity . This means that rape, to beprosecuted under that section, requires proof that the act was part of awidespread or systematic attack "against a civilian population onnational, political, ethnic, racial or religious grounds. \[8\] ”Feminist legal scholars objected to such formulation on the grounds that onceagain the gender dimension of rape during war was being subordinated to theethnic (or national, racial, religious) dimension, and that the Statute doesnot specify patterns of rapes independent of ethnic, political, racial, national,or religious violence as a crime against women. Nevertheless, the Statute isconsidered to be both a success in its recognition of gender-based crimes as adistinct phenomenon, and a cornerstone for the future permanent establishmentof an International Criminal Court that integrates gender crimes ininternational justice (for details, see chapter 4 of this paper).

The mass rapes that took place during thewars in the former Yugoslavia, particularly those in Bosnia and Herzegovina,were the first in history to be brought before an international court and, assuch, these crimes, together with the mass rapes that occurred in Rwanda,contributed to groundbreaking changes in international humanitarian law.

Despite these legal changes and theconsiderable compassionate, sometimes even spectacular attention that theseatrocities received in the news media world-wide, the origins of mass warviolence against women – the mechanisms which turned relatively tolerant peopleand "peaceful neighbors" into killers and rapists – have not yet beencomprehensively examined. The exceptional levels of violence against women thatoccurred on all sides of the conflict remain, in my opinion, unexplained andinsufficiently theorized. Attempts have been made to understand this violent“dirty war” in historical, political and economic terms. Its ethnic dimensionhas been widely acknowledged and researched, even though the Yugoslav wars weretoo often simplified and dismissed as a “violent ethnic-tribal” conflict. Noresearch has yet connected the origins of the war violence to the patriarchalorganization of society, to patriarchal family structure, or to genderrelations. My hypothesis is that the origins of both forms of violence thatoccurred during these wars, ethnic and gendered, should, among otherapproaches, also be researched and explained from the gender perspective andfrom that of patriarchal social structures. The public and private spheres ofboth forms of polities -- the socialist Yugoslavia, which was anauthoritarian, one party ruled state,and the new ethnically-centered nation-states that emerged after the collapseof Yugoslavia -- need to be examined. Patriarchal gender relations and the strict division of male and femaleroles persisted in both the private and in the public sphere, in the sexistculture of everyday life. The new nation-states appeared to be formallydemocratic but they emerged out of a non-democratic political tradition andfrom severe ethnic wars. The same authoritarian power relations, particularlyamong genders, continued to exist.

Ethnic nationalisms have a long history inthe region that eventually became Yugoslavia, whether covertly or in openconflict. The peaceful co-existence of multi-faith, multi-lingual andmulti-ethnic societies was created and reinforced through political programsand as social practice in socialist Yugoslavia. The country’s collapse andpartition as well as the ensuing war were the consequence of a number of causesthat can be condensed into two categories: international circumstances andspecifically Yugoslav internal conditions. I see the following circumstances asbeing among the most consequential when viewed from an international context:The fall of the Berlin Wall in 1989 with all of its far-reaching consequences,weak and non-competitive socialist economies, and the discrediting of thehistorical socialist project(s), both from the inside and from the outside. Theexhaustion of ideological commitments combined with weakening of the utopianenergies that in the former Yugoslavia had lasted much longer than in othersocialist countries had, eventually, much more dramatic consequences.

Analysts of the former Yugoslavia haveidentified and analyzed several specific Yugoslav conditions that facilitatedethnic conflicts and war instead of peaceful transition. These are: politicalstruggles between the socialist ruling elite; ethnic and/or religiousdifference and conflicts between and within the Yugoslav republics; thehistorical and cultural complexity of the Yugoslav society; the historicalorigins of the state, which is often seen as an artificial creation; and theideological emptiness and moral crisis that occurred after the fall of communism.Susan Woodward, for example, points to the disintegration of governmentalauthority and the breakdown of civil and political order as the main cause ofthe break-up of the former Yugoslavia. Under such circumstances, statesWoodward: “There is no need for any history of ethnic animosity or civil war topredict growing uncertainty, social chaos, and potential violence.”

In my opinion, all these factors playedsome role in creating conflict in the former Yugoslavia, but none aresufficient to explain how it was possible that they led to such bloodshedamongst people who had lived together in peace and tolerance only a few yearsbefore the war broke out. The "peace and tolerance" among Yugoslavpeople could, of course, be explained as a superficial appearance in anon-democratic setting that repressed and concealed conflicts. But even if thatwas the case, we are still missing the deep psycho-social roots thatdehumanized people and made such extreme scale and forms of violence possible. Iwant to argue that both ethnic and male war violence against women in the warsin Yugoslavia have psycho-social and political roots in patriarchal dominationand patriarchal power relations .

Nationalism and patriarchy share astructural and social congruity: they both appear as “eternal and natural” andimply a fixed hierarchy and dominance above others: those of a differentgender, different ethnicity, or culture. They involve the silencing of othersand their discrimination and exclusion, divisiveness and isolation and theensuing conquering of bodies and territories. Together, ethnic nationalism andpatriarchy can support the rise of the war system and release the potentialviolence that would have been repressed in a more stable time. As Betty Reardonstates in Sexism and the War System , “Only by considering the structuraland psychological causes of sexism and war can we gain a sufficientunderstanding of connections and offer some solution.”

In the former Yugoslavia, sexist culturalnorms and gender relations existed not only in the authoritarian statestructure but also within families and communities, although they were hidden,or “camouflaged” under the socialist ideology of egalitarianism. Thus, thepotential gender and ethnic conflicts and impending violence were notacknowledged and resolved in a democratic manner, rather, they were controlledand repressed by the authoritarian socialist state. With the rise ofnationalistic state-preserving, \[9\] state-seeking and state-building political projects, the ideologicalconstruction of gender – the way of defining “masculinity” and “femininity” –was used and manipulated in the same fashion as the construction of particularethnic identities. In order to understand the eruption of gross violence in theformer Yugoslavia, particularly the ethnic and gender violence inflicted bymilitarized civilians, we need to re-examine the constructions of gender and ofethnicity by both the state of socialist Yugoslavia and by the emergentnationalisms that led to new ethnically-founded nation-states.

My particular focus will be on theconstructions and intersection of gender and ethnic identities, and mutualreinforcement between the categories of violence directed against people ofother ethnicities and/or other (female) gender. My claim is that to generateethnic wars in the former Yugoslavia – especially to incite and mobilize a vastnumber of so-called ordinary people to participate in war-violence – specificconstructions of gender and ethnicity were employed as a strategy to generatehate and war. These two constructs intersected and reinforced each other inmany different ways. Whatever the rationale was used for the war – and it wasdifferent for different warring factions – the war operations and atrocitieswere aimed against those who were others and different in the sense ofethnicity and gender. The question that needs to be answered then is, howdid those different and other , become objects of hatred andabhorrence to such a degree that it was possible to inflict all kinds ofviolence upon their bodies and communities while the perpetrators’ own nationwas being imagined.

News of the massive rapes and the“sexualization of war,” was a shock even to the women who belonged to theYugoslav feminist movement. Knowledge about “rape as a war weapon” throughouthistory did not help us to accept the unexpected. We repeated the classicfeminist truisms, such as “rape in war is a horrible thing, but still only thetip of the iceberg of patriarchal violence against women.” We had difficultyadmitting that sexual violence against women had become a part of thenationalist and war strategy in “our country.” At the same time sexual warviolence was pervading women's bodies, the new national leaders were using thatviolence for warmongering and for reinforcing ethnic conflicts and hatred. Noone, with the exception of a few feminist groups, tried to

understand or explain the roots of thatviolence from a gender perspective and beyond its obvious nationalistic causesas the means of ethnic cleansing.

Only a few years before, in the mid-1980s,Yugoslavia seemed to be the most prosperous among the socialist countries,making considerable strides towards democracy. People of different ethnic andreligious backgrounds lived together, at least in tolerance and with mutualrespect for their respective cultures if not in “brotherhood and unity” – whichwas the official slogan of the former Yugoslavia's ruling regime (note thegender of the slogan).

Bosnia and Herzegovina, with almost 30%mixed marriages, was a truly multicultural society without multiculturalism ordiversity being particularly noted or celebrated. It was simply “normal.” To myknowledge, even in large cosmopolitan cities such as New York, people ofdifferent ethnic and cultural backgrounds do not live in mixed-culturalfamilial relationships to such a high degree. Feminists, though, were awarethat discrimination and violence against women existed despite theegalitarianism pronounced in the official socialist ideology and proclaimedlegal, economic and political equality that included women’s quotas in therepublic and federal parliaments. Feminists were aware of the deep sexisminherent in cultural norms and habits and in the social structures, includingthe laws. Nevertheless, it was fairly safe for women to walk at night inYugoslav cities and villages in comparison to European or American cities ofthe eighties or seventies. The maximum sentence by law for a rape was 10 years.For “especially cruel rape," the maximum prison sentence was 15 years,although the courts usually handed down sentences of 3 to 7 years. Thecontemporary feminist movement in Yugoslavia began in the late 1970s whenfeminist authors began to draw attention to the existence of violence againstwomen in the public and private spheres. \[10\] Violence against women was inherent to the socialist state, both in public andin private. Public discrimination and violence in the forms of job and careerdiscrimination, harassment, and soft pornography existed, but they weresilenced and hardly ever publicly discussed. Domestic violence was neitherrecognized as a social issue, nor appropriately legally sanctioned. Anefficient women’s movement couldn't have developed under the state-controlledcivil society. In the centralized,authoritarian, socialist system, the "women's question" wasofficially resolved with socialist egalitarianism and class-based “economicdistributive justice,” and the autonomous women’s movement and organizing wasnot tolerated until the late eighties. Nevertheless, feminist initiatives wereemerging already in the late seventies, at least one decade ahead of othersocialist countries, though women activists were mostly denigrated andcondemned as “bourgeois imports from the West” and, in any case, not widelyaccepted by the broader women’s population.

However, women comprised up to 40 percentof the labor force, which enabled economic independence for a great proportionof women, and accomplished many legal and social advantages for women. Amongthem, equal legal status and rights for married and unmarried couples; childrenborn out of wedlock had the same rights and benefits as children from marriage,a great achievement for single mothers that nearly eliminated the term"illegitimate child" from popular use. Abortion was legal, free and accessible to all women, as wascontraception, counseling and family planning. The percentage of women inrepublic and federal parliaments varied between 16 and 30 percentage. In the lastCroatian parliament of socialism, before the first multi-party elections(1990), there were 25 percent women. At that time, it was one of the highestlevels of political representation of women in the world. In other Europeanstates and the U.S., women then barely exceeded 10 to 15 percent ofparliamentarians. Nevertheless, the high representation of women in politicswas not a result of the recognition of women’s political rights or the outcomeof a broad and well-organized women’s movement. Rather, it was imposed fromabove, by the “democratizing” politics of the Communist party, and again, notin the name of gender equality, but to fulfill an ideological requirement ofsocialism that claimed that the equality of women, like ethnic equality, can beachieved through the socialist system of economic distributive justice. Despitesome of the achievements noted and the advantages that women gained, it wasapparent that women in a non-democratic state and society that does not fullyrecognize their rights and freedoms did not have equal status with men. Theywere discriminated against as citizens and were not fully protected fromviolence. The practice of discrimination of women continued from theauthoritarian, socialist state to the newly emerged nation-states founded onthe principle of ethnic identity.

The rise of ethnic nationalisms and warsreleased unexpected violence among people representing all sides andethnicities involved in the war. As many female victims of sexual war violence haveconfirmed, the perpetrators were neighbors, sometimes teachers and colleagues,men they had known their whole lives. Suddenly, the people of Yugoslavia were destroying themselves andthe country in a bloodshed and civil war beyond all models of rationalexplanation.

Bosnia and Herzegovina has often beendescribed as the heart of the former Yugoslavia, and not solely because of itscentral geographical position. The ethnic makeup of Bosnia and Herzegovina,with its historically mixed cultures, religions and nationalities, was symbolicof Yugoslavia’s political and social experiment. This experiment was, amongmany other things, an endeavor to build a society that would find its identityin features and values other than ethnic differences and historical tensionsand conflicts. Yet, the cruelty of war and sexual abuse against women explodedright in Bosnia. The three main ethnic groups in Bosnia and Herzegovina –Serbs, Croats, and Bosniacs – are very similar in language and socialorganization (family structure, education, gender relations). Their maindifference is religion: Serb are Orthodox Christians, Croats Roman Catholics,and Muslims, who were in the seventies pronounced an ethnic group (a"nation"), although the term Muslim for a long time denominated onlythe people of Islamic religion.. However, in socialist Yugoslavia religion,although considered a civil right by the constitution, was completely relocatedto the private sphere. In each of the three dominant religions, the status ofwomen within family and society was similar. The traditional cultural values ofall ethnic and religious groups living in the former Yugoslavia privilegedpatriarchal manliness, which endorsed the inhibition of emotions and affection;it put a high value on “chastity” and family honor, and a certain taboo onsexuality. Sexual mockery and ridiculing was a common form of folkloric andeveryday culture. Particularly in ruralsettings, gender roles were rigidly separated, and the worlds in which men andwomen lived psychologically different. During the recent wars, men from allwarring sides, though not to the same degree, engaged in all forms of violenceand torture.

Contemporary feminist scholars (Chodorow,Chafardet, Benjamin) claim that gender differences are constructed in thepsycho-dynamics of the early childhood period in which infants dependexclusively on the mother for nurturing. Because boys have to make a greatereffort to separate and differentiate themselves from their mothers in order tobe able to identify with their fathers, men may have a potential for a greaterdegree of violence and aggression. The trauma of separation and its ensuingfrustration, according to Christopher Lasch, can be deeper, or at least different,from that of girls. In traditional societies such as the rural regions of theformer Yugoslavia were with their rigid gender roles and division, boys, andlater men, may have developed even greater capacity for violence, aggression,and hatred against women in order to be able to achieve independence and beaccepted in male society. Besides that, the nations in the region have a longhistory of domination by foreign colonist and occupiers, that was alwaysaccompanied by the history and mythology of "heroic resistance." Bothof these were a fruitful ground for asserting masculinity as a quality needed for fighting theindependence. Here may lie the origins of the overall misogynist perspectivethat, triggered by nationalism and war, transformed the repressed, ”normal,”peacetime violence into massive wartime cruelty against women.

Bosnian Muslim women have said that intraditional Bosnian culture, a man’s dignity depends on the “purity” of “his”woman. It is more damaging to family honor if "their" women aredishonored than if their men are killed. The mass rape of women functioned as Endloesung – a final solution, for people never return to places of such “dishonor.”It is that kind of shame that cannot be ever forgotten. Some of my Bosniancolleagues, women scholars and intellectuals, suggested that since the goal ofthe enemy was to destroy Muslim culture, Bosnian women were raped because oftheir role in the community as bearers of the Muslim culture and tradition.Even if I do not agree that such aninsight entirely explains sexual violence, it does speak about the position ofwomen within patriarchal culture and about the construction of female and malegenders. A woman is not a subject, not even a person to be exterminated; she isnot an enemy who threatens the interests and lives of the other side. Rather,she occupies the position of a “symbolic

battlefield,” \[11\] as Brownmiller states: “She is adepersonalized symbol, a bearer of man’s honor, a reproducer of the culture andof other traditional values.”

Some so-called international experts on theregion have tried to prove that the bloodshed in the Balkans was unavoidable asit was a “logical” consequence of an ancient bellicose hatred. \[12\] Even some regional authors have tried toprove this to be so. I deeply disagree with such arguments. By focusing on warand violence, these authors forget that the peoples of the Balkans have hadthroughout their history longer periods of peace and tolerance than of war andhatred. Slavoj Zizek has often noted that the West describes the Balkans as a“dark and irrational region.” His psychoanalytic interpretation claims thatactually the West projects its own repressed irrationality onto the Balkans.Accordingly, the specifics and particularities of a culture or differentcultures in former Yugoslavia need to be researched in order to discover theirpotential to produce violence and wartime cruelty. However, this does not meanthat any of the former Yugoslav nationalities are predestined, more than anyother nation, to conflicts and cruelty. It simply implies that culturalspecificity, among other factors, has to be understood in order to explain howit happened that all human relations became so quickly and easily distorted,and deep irrationality and severe cruelty released. In this paper, more thanwith the culture in general, I will try to establish what it is within theculture of modern civil society, as well as the "culture of thestate" and its legal mechanisms, that enables the permanent possibility ofwars that then break down all ethical and moral restraints and barriers,distorting and inverting exactly those values that are ranked so highly in thetime of peace. I am particularly interested in how gender relations and thestatus of women in both civil society and the state are related to daily lifeas well as to war violence against women. Or, to quote Brownmiller once again,"the political analyses of rape" \[13\] is what needs to be researched and what is systematically left out of thepicture of wartime rapes.

Feminist scholars of violence against womenhave shown that for a long time most of its forms were neither addressed by lawnor socially sanctioned; violence against women belonged to the private sphereinto which the state and its legal instruments did not interfere. Physicalviolence against women entered the public/social sphere at large as a crimeonly with the growth of the contemporary women’s movement, that is, since the1960s. For rape in marriage to be considered punishable violence, the divisionbetween the private and public spheres took even longer to erase. In the US,for instance, marital rape became recognized in all states as a crime onlyduring the 1990s. In the former Yugoslavia, only one of its six republics,Slovenia, incorporated marital rape into its jurisdiction, while Croatia hadbeen about to do the same. Formal legal protection or remedy against domesticviolence remained denied to women for a long time, even though almosteverywhere in the world, violence among family members or between partners isthe leading cause of injury inflicted to women. Until the 1970s, courts andlegislatures in the U.S. permitted abuses of women and children, ranging fromdomestic violence to date rapes and childhood sexual abuse, under the cloak of“privacy rights.” \[14\] MarkWhatley claims that the function of this arrangement was to protect male rightsand power, implying that powerlessness and helplessness belong solely to women. \[15\]

Rape within the public sphere by an“unknown” perpetrator, that is, someone who was not a husband, fiancé or loverwas, in one form or another, legally sanctioned since the beginning of themodern legal system, but through most of that time, at least until the end ofthe 19 ^th century, redress belonged – if a woman was married – to herhusband. The difference in the legal status of violence against women, i.e.,whether or not it was criminalized at all, and whether rape was recognized as acrime, reflected the patriarchal structure of the private and public spheresthat excluded women as autonomous subjects, as persons who had the legal rightto be protected from violence. Privacy rights, like other patriarchal rights,gave men the right to a woman’s body, or as Carole Pateman put it, the maleright to women and sex . (Pateman, 1-3) Until the rather recent past, theprivate-public division perpetuated male-defined culture and politics thatestablished paternity as a political and proprietary feature. One of theorigins of such patriarchal legal arrangements can be identified as the"questionability" of fatherhood. That is, only with very recentdevelopments in modern science, DNA and blood tests, for instance, did“fatherhood” become “scientifically” provable. Scholars of Roman law stillrecall one of its postulates: mater certa, pater semper incertus est (the mother is certain, the father always uncertain). As Roman law stands asthe basis for Western legal systems, this might be at the roots of Westernpatriarchal civilization and its ownership stipulations.

Rape or sexual violence against women inwar has, to some extent, a different history. Though rape is on record as beingforbidden and punishable in some way from the Roman times, – though not as acrime against women \[16\] —rape in war has not been clearly listed as a crime, nor was it prosecuted orpunished until the establishment of the International War Crimes Tribunals forformer Yugoslavia, in 1994 and Rwanda, in 1995 (ICTY, ICTR). In the Geneva Conventionsand Protocols of 1948, 1949 – which came into existence after WWII – and whichstill serve to define war crimes and their prosecution, rape, although notspecifically listed, could have been prosecuted under other guises, as tortureor as a form of a genocide, among others. Yet, this did not happen at theNuremberg Trials in 1945-46, although under these particular laws two suchsentences were handed out at the Tokyo trial in 1946. Even these were far from adequate considering the degrees of sexualcrimes committed. \[17\]

The persistent impunity of sexual warcrimes against women even after WWII bears in the fact that the GenevaConventions, as well as other norms of humanitarian law, did not treat rape andother forms of sexual crimes against women as forms of war violence or torture.In the Geneva Conventions, rape was condemned but as an offence against “familyhonor and rights,” “assault against personal dignity,” “humiliating anddegrading treatment.” In short, rape was treated as an assault on honor and onthe reputation of the women, or as a crime against morality, an attack on thewhole family, etc., not in terms of violence against a human being. As such,rape in wars maintained already existing biases in international law about thevalue of women. \[18\] Even therelatively recent Protocols to the Geneva Conventions from 1977, which couldhave been referred to as a modern-day legal platform, mention “rape, forcedprostitution and any other forms of indecent assault (italics mine),”and address them as “humiliating and degrading treatment;” not as violentcrimes against women. In legal terminology, this clearly implies a lessercriminal degree and, in social terms, shame and stigmatization for women.

The two most radical and widespread formsof sexual abuse of women – rape in the private sphere and rape in wars –remained the least condemned of crimes. I wish to argue that sexual crimesagainst women gained recognition as serious crimes and therefore became subjectto national and international jurisprudence only when women as women worked their way out of the private realm and entered the public sphere,demanding civil freedoms and women’s human rights. I claim that this wasachieved with the support of the broad international women’s human rights movement,the development of which coincides with the development of the theoreticalconcept of gender in feminist scholarship and its practical use in thepolitical and social struggles of the contemporary women's movement. The ViennaDeclaration and Program of Action, adopted by the U.N. World Conference onHuman Rights in 1993, is the first international document that recognizes therights of women as human rights. At the same time, the Vienna Declarationclearly states that violations of the human rights of women in armed conflicts,in particular murder, systematic rape, sexual slavery and forced pregnancy, areviolations of the fundamental principles of international human rights andhumanitarian law. \[19\] In thestatutes of the ad hoc tribunals for the treatment of war crimes committed inthe wars in the former Yugoslavia and Rwanda established 1993 and 1995, rapewas listed as a specific form of crime within the category of crimes againsthumanity. \[20\]

At this point, I would like to review therelevant theories that discuss the relation of the social and political originsof violence against women. There is no doubt that these theories differdepending on historical, cultural and social contexts. Considering that thedeparting point of my research is the empirical insight into sexual warviolence in the wars of the former Yugoslavia, despite the fact thatinternational law has increased significance in this day and age, I willaddress theories, primarily feminist, that derive from the so-called Westernpolitical and social reality. This approach is, in the particular case offormer Yugoslavia, to some degree debatable, as the countries of EasternEurope, or even former socialist countries such as Yugoslavia was, cannot beentirely explained in liberal-democratic terms. Especially disputable is thenotion of the division between the private and public spheres that is, in everycase particular, and negotiable in every single society. Thus, “Western” feministcriticism cannot always be applicable for these countries and the genderrelations that reigned within them.

All the same, I will use these theories forseveral reasons. First, because the private-public division is crucial fortheorizing gender violence in general, regardless of its particular features.Furthermore, I want to point to the absence, to my knowledge, of appropriate“local” theoretical research on how these two spheres functioned in socialistcountries. \[21\] Second, theinitiatives for political changes in former socialist countries were initiatedfrom within civil society and carried out in the form of a liberal-democraticcriticism of authoritarian state regimes. Unfortunately, these initiatives didnot pay enough attention to the existing critique of liberal democracy,including the crucial and ongoing feminist debate on how private-publicconditions determine the social status of women.

The feminist theories I refer to assertthat state-sanctioned punishment of any kind has always been informed by thepatriarchal structures and ideologies that have determined woman’s place insociety and the character of crimes committed against women. As Angela Davisremarks on the situation of black women in US prisons, “[the] ideologicaldivision of the ‘public’ and ‘private’ renders [an] underlying complexity ofcriminal [which means public] status of violence against women." \[22\] (Davis 5-7) Only at the end of the 19 ^th century was a socially-approved “domestic model” of imprisoning women relocatedto the public sphere, that is: to prisons.

The theories I choose to discuss at largehere, those of Carole Pateman and German historian Mechthild Rumpf, address theorigins of modern society and its division into private and public spheres ascrucial for the status of women, and for the positioning of violence againstwomen in relation to the state and civil society. Rumpf particularly analyzesthe complexity of the connections between war and the prevailing form of theCentral European nation-state, but she also addresses the psycho-social originof war violence against women within this complexity. In another hand,CarolePateman analyses the classical contract theories (Rousseau, Locke,Hobbes) not only in the light of the “fictional political genesis” of modernliberal democracy, but also within the context of “wider contemporary politicaldevelopments centered on an interpretation of democracy as individualinitiative (or choice), which can be summed up succinctly in the slogan ofprivate enterprise and privatization." (Pateman x) Pateman emphasizes thather approach primarily accounts for traditional liberal-democratic societiessuch as the United States, Great Britain and Australia. Nevertheless, hercriticism is also interesting in the context of the economic and politicaltransitions of Eastern European states. In these states, after a long period ofnon-democratic, collectivist, and totalitarian rule, the attempt to buildliberal democracies was commonly called “Westernization.” This is usually inreference to democratic political pluralism and market economy. Thesignificance of contract theory here, as Pateman shows, is that these theoriesare concerned with more than the fictions of the original agreement: they claimto show how major political institutions should be understood properly.According to her, the main failure of social contract theories is in theirclaim that free social relations take a contractual form, while at the sametime, they keep a deep silence about the “ sexual contract,” which excludeswomen:

The story of the sexual contractis also about the genesis of political right, and explains why exercise of theright is legitimate – but this story is about political right as patriarchalright or sex-right, the power that men exercise over women. The missinghalf of the story tells how a specifically modern form of patriarchy isestablished. The new civil society created through the original contract is apatriarchal social order. (Pateman 1)

This, according to Pateman, relates to thetwo major interpretations of contract theory. The first, related particularlyto Hobbes and Locke, states that people exchanged their free but insecure lifein the state of nature for, in Locke’s terms, equal civil freedom, within thecivil society, protected from the state or, according to Hobbes, for securityguaranteed by the state. In both theories, however, freedom and/or securityshould be universal and all adults entitled to exercising them by replicatingthe original contract when they enter specific contracts like employment ormarriage. The second interpretation, characterized by Freud or Rousseau, statesthat freedom was won by sons who cast off subjection to their fathers in thestate of nature, and replaced paternal rule with civil government. In this version,patriarchy is overthrown and civil society established through the originalcontract created after paternal rule, which means that civil society ispost-patriarchal. Pateman challenges both of these views because they neglectthe sexual contract, which, according to Pateman, precedes the social contractas they frame it. Pateman’s main objection is that women are already excludedfrom the original social contract, which is, emerging from the Enlightenment,presumed to be an act of reason. The difference between men and women in termsof capacity to reason or endowment with rationality follows from the “naturalsexual differences” in the original state of nature. Thus women have been, fromthe beginning of contract theory, denied the capacities for being"reasonable individuals.” The sexual contract gives the fraternity of menthe right to enjoy equal sexual access to women. While the social contract, asthe genesis of political rights, is a story of freedom, in silentlyincorporating the pre-political sexual contract, it is in fact a story ofdomination: that of men over women. Therefore, the original contractconstitutes both men’s freedom and women’s subjection. The sexual contract ispatriarchal, not in the sense of the paternal right that was overthrown withthe social contract, but in the sense that it establishes men’s power overwomen, i.e., it is sexual in the sense of establishing orderly access by men towomen’s bodies. Eventually, such a relationship of domination and subordinationdeveloped into the gendered social and political relationship. Pateman closes her introduction to thecritique of the historical and present understanding of civil society bysuggesting that patriarchy ceased to be paternal long ago. Modern civil societyis no longer structured by kinship and the power of fathers, but neither doesit completely depart from the pre-modern, i.e. patriarchal, order of status infavor of the contractual order of free individuals. In the modern world, womenare subordinated to men as men , or to men as a fraternity; modernpatriarchy is fraternal patriarchy . It is Pateman’s idea of “corporatefraternal patriarchy” and “collective male rights” of men to women that to meseems the most important if we want to understand political and social originsof male sexual violence against women in wars. The history of warfare showsthat most of the violence happens in public, in front of relatives and/or othermembers of the defeated community, and is carried out by groups of men. Even ifit is committed within private spaces, homes and bedrooms, its function and“spectacularity” gives it its public meaning.

Of equal importance for the status of womenis that the public realm is not only the space of the state, but the space ofmen. Patriarchal civil society was from the beginning divided into two spheres:the public sphere, as the sphere of civil freedom reserved for men, and thepolitically irrelevant private realm designated for women. Though women had nopart in the original social contract, neither were they left behind in thestate of nature, because that would trounce the purpose of the sexual contract.They were integrated into a dubious, private sphere that both is, and is not,civil society. This dichotomy perpetuates the order of sexual difference fromnatural conditions:

The private sphere is part ofcivil society but is separated from the “civil” sphere. The antinomyprivate/public is another expression of natural/civil and women/men. Theprivate, womanly sphere (natural) and the public, masculine sphere (civil) areopposed but gain their meaning from each other.... (Pateman 11)

The consequence of this dichotomy is thatcivil freedom is not universal, that is, is not equally free for men and women.It is of course, not equally free for all men either, but the differences havedissimilar political origins. This is how in the contract theories sexualdifference became political difference , the difference betweenfreedom and subjection.

The exclusion of women from the category of“rational individual” in the original contract, the neglecting of the sexualcontract and placing of women in the private realm, further influenced theirsocial and legal status. Contrary to the widely accepted understanding thatcontract theory presents original and actual contracts that exemplify andsecure individual freedom, Pateman asserts that: “in contract theory universalfreedom is always an hypothesis, political fiction. Contract always generatespolitical rights in the form of relations of domination and subordination.”(Pateman 8) Accepting Pateman’s critique of contract theories as relevant to myinquiry on the origins of social and military violence against women, I wouldlike to conclude that not all violence comes from the state – although,especially in this century, we have witnessed how much the nationalism of anation-state, militarism and the military industry contributed to themobilization of violence. Nevertheless, in wars, state-enacted violence,combined with social-patriarchal violence, should be seen as the cause forgender specific forms of war violence.

German historian Mechthild Rumpf, buildingupon Hannah Arendt’s political analyses, sees the model of the (Western)sovereign nation-state and the idea of war as the ultimate means of resolvingconflicts between states, as two inseparable concepts. The constitutivecharacteristic of the modern state, the state’s monopoly on violence asformulated by Machiavelli, Weber and other classical state theorists, was fromthe beginning a myth, she claims, because it did not require relinquishment ofthe patriarchal right to violence that originates in the powers of the paterfamilias to the state. The violence in family and in gender relationsremained out of the state monopoly. Through patriarchal marriage and family,which were seen as civilizing from the Enlightenment onwards and as instancesof social-order, violence remained structurally anchored in society andlegitimate within the family. “In monopolized violence, the everyday violenceof patriarchy went on,” states Rumpf. (8)

To reach the political-legal understandingof mass rape as a war-tool, we must not dissolve different levels of analysesinto one blended continuum of indiscriminate workings of patriarchy, sovereignnation-state, or globalization and war. Rather, we need to unravel how men andwomen become agencies of the particular processes. In the case of war violencein the former Yugoslavia, in my opinion, the intersection of gender and ethnicidentities – which nationalistically motivated state-building projectsinfluenced and controlled – was one of the decisive elements in the incitementto violence. The important features of this endeavor were the state-sponsorednationalisms induced with the breakdown of the former Yugoslavia. \[23\] This brings the concept of the sovereign nation-state and its relation with theconstruction of gender into our primary focus.

Rumpf cites Arendt \[24\] who claimed that as long as national independence and the freedom from foreignrule, to which every people have a right, were indivisible and equated with theconcept of state-sovereignty, the prospect of tenable peace remained utopian.In this assemblage, Arendt sees the theoretical impossibility of resolving theproblems of war. Between sovereign states, war is, logically, the ultimate wayof resolving conflicts. The concept of state sovereignty as such excludes thepossibility of trans-sovereign solution. Arendt renders a rather pessimisticprojection: A suprastate entity, such as the UN, would remain ineffective, oralways monopolized by the strongest. Later in this work, I would like tochallenge Arendt’s approach in light of some recent developments ininternational law (ICTY, ICTR, ICC).

In a modern nation-state, civilizing processesgo hand-in-hand with growing militarism. Rumpf outlines three main aspects ofthe modern concept of state sovereignty that, with its monopoly on violence,influence gender relations and social capacities for peace or for war. First,the concept of nation-state sovereignty supports through its institutionsasymmetrical gender relations. In the sphere of reproduction, the control ofwomen’s sexuality and partial control over woman’s working power are thecentral conditions for the differentiation of private and public-politicalrealms. This is where Rumpf locates the myth of the state monopoly on violence.Second, men dominate economic social processes, which are regulated bycontracts. Therefore, political roles assumed mostly by men result from the economicas well as political asymmetry between genders. The roles of men and women alsoresult from the gender differentiation within the economic sphere. Women areexpected to be Christian mothers who civilize male drives and create andmaintain the good and moral life in the form of the household. A peacefulprivate sphere (household) and the state’s monopoly on violence are fundamentalfor intra-state “social peace,” and contractually-regulated exchange relations.

Through the strict division between themoral-private sphere – where private morality and consciousness rule – and thepolitical-public sphere, the state was rooted in the de-politicization of themoral sphere to which the realm of women belonged. Through the marriagecontract, men are given the right to use violence in the private sphereunrestrained by state law. Such a distribution of power determines the powerrelation between sexes; at the same time, such power relations decide thecharacter of a modern nation-state: its hierarchical constitution, itsexclusivity, and war and militarism as the ultimate means for resolvinginter-state problems. The separation of conscience and politics, of nature andculture, morality and law, originates with the separations of man as the humanbeing, located in the private realm, and man as the (universal) citizen and theexclusion of women from the sphere of law and legal protection against violence– in both the public and private spheres. Subordination of the male subject tothe power of the sovereign state is exchanged for the assurance of malesovereignty in the domestic sphere. In modernity, the moment of conceiving thesovereign state with its monopoly to violence – theoretically speaking – is atthe same time the moment of creating contemporary political, social, and legalgender differences.

The delineation of the private(bourgeois/civil) man and public (citizen/ citoyen ) man who pursuedifferent virtues became, during the Enlightenment (with the exception of a fewegalitarian impacts), the point of origin for the particular moralresponsibilities of a woman as wife, housewife and mother. The idea of amodern, democratic constitutional state, and the idea of a sovereign citizenwith the right to vote, and who is not subjected to the (Machiavellian) sovereign,abandons the old division between morality and politics and the separation ofthe (male) private man and the citizen. But through the division of civilsociety into public and private spheres, as Pateman designates, and throughvarious social arrangements, including the marital contract, the modernconstitutional state still remains rooted in the previous version of a modernstate. The division between bourgeois and citoyen remains constitutive forthe separation of the state and society, however, with different meanings. Thedivision of private and public violence became internalized despite themodifications of psycho-dynamic conditions and violence-prone behavior, but theviolence of social relationships remained structurally anchored andintentionally made “invisible.” These processes are, although seeminglycontrasted, tightly connected to the processes of emancipation and demands forfreedom and equality that excluded women from emancipatory processes and fromsome citizen’s rights, as well as from the protection from violence at home andin war in the first place.

The frequently repeated statement thatwomen are those who raise, nourish and educate future soldiers and militants, inaddition to more some profound psycho-dynamic and psychoanalytic explanations(Benjamin, Dinnerstein, …), should be seen as a social and political dynamic,viewed through the ideology and positioning of women in the private-publicdivision where they, socialized as private persons, tend to raise their sonsand daughters accordingly to socially and legally standardized roles:

The foundation of a male subjectis not only new codification of gender differences, it is also connected to theasymmetrical gender relation, which in every male childhood repeats fencing offthe motherly-feminine... At the end, individualizing and humanizing interactionprocesses in the family became conditioned by the authoritarian an military habitus ,not only by means of real power

and symbolic meaning of thefather, but also partially through the practices of motherhood. (Rumpf 25)

We can find the most extreme consequence ofthis condition in the Nazi Kinder, Kueche, Kierche ideology that wasactualized in the nationalist state-building projects in Eastern Europe,particularly in the states of former Yugoslavia where war was part of therealization of these projects. Thus militarism and patriotism as the socialsuperstructure made their way into the private realm.

Rumpf also made an attempt to situateeroticism and sexual desire within civil society as divided intoprivate-public, male-female realms. The “pacifying” function of the privaterealm (family), with its “chaste” role for women, heterosexual norm andrepressed sexual self-assertion of men, persists in some male stateinstitutions where men assert a hidden eroticism among themselves. Many socialand cultural institutions arose within the state as homoerotic, so-called Maennerbunde, exemplified by the military. Rumpf claims that homoeroticism andmilitarized aggression are central in power relations in military institutionsof the modern state’s national sovereignty. They are the other side of thecivilizing processes anchored in self-compulsion and the compulsion of theothers. “In militarized societies of the 19 ^th and 20 ^th century, we can see the dialectics of violently imposed nonviolence: Fragileindividual renunciation of violence, leads to return of the repressed incollective, national where delusion of the self-asserted nonviolence imposesitself violently.” (Rumpf 28) The male fantasy of immortality has beenprojected into the collective military units since Greek times. The same couldbe concluded for collective projections of “imagined communities” of sovereignnation-states.

Indicative for our research on the statusof gender in war and in international law is the analogy that Rumpf makesbetween the concept of state sovereignty and the idea of the absolute,autonomous, self-identical subject. (Rumpf 10) Historically, when the free andautonomous male subject and the concept of a sovereign (western) state wereproclaimed universal, they were denigrated by the denial of autonomy to womenand colonial people that continued through post-colonial economic, politicaland cultural dominance. This is what can be described as a specificmisunderstanding of modernity – there is the failed dream of the autonomousmale subject on one hand, and the illusion of a sovereign nation-state togetherwith the corresponding promise of a national, collective identity on the otherhand, that over and over again creates distinctive fantasies of violence andeven produces violence, including wars. Defense of the personal feeling ofindividual powerlessness can, in such condition, bring about identificationwith aggressive militarizing politics that feed fantasies of omnipotence. But,Rumpf warns us – the fantasy of immortality of the military collective has itshigh price: the de-civilizing and de-individualizing of soldiers. To conclude:the notions of the individual subject, citizens' responsibility and moralityembedded in reason, as they were defined during the Enlightenment, aredisavowed through the processes of separation of the female and male sexes, theeroticization of violence and its means, as Theweleith describes in his"Male Fantasies.” Releasing aggression repressed in bourgeois societydestroys individual identity. Training in patriarchal, military institutions ofthe modern state suppresses the feelings of empathy, compassion and pain,represses fear and releases a violent potential among military trained men whoare further dehumanized through brutal actions.

In addition to the gender differences thatcolor the law’s treatment of violence, feminist legal scholars have alsoanalyzed how the private-public division has formed the status of women within law. Western law has traditionally interpreted domestic life as imbued withaffective bonds within which violence has no legitimate place, ignoringviolence that in fact did occur within the private realm by men against women.One consequence is that the law recognizes women in relation to violenceprimarily as victims. Lucinda Joy Peach states:

The consequence of the law’sgender-biased treatment of violence is to place women in a double bind: On oneside, the lack of adequate legal protections accorded to women for the“private” violence they endure at the hands of men serves to reinforce andfoster social attitudes that women are helpless victims who are not valuedenough or who do not deserve effective protection from violence. On the otherside, legal restrictions of women’s use of state-sanctioned violence reinforcessocial attitudes that women lack the agency to defend themselves or others fromviolence. This double bind insures that women remain essentially the victims ofviolence. (Peach 61)

Peach claims here that not only is the lawbiased, but also that violence in law is gendered masculine. Women are neitherprotected from violence, nor are they allowed to exercise state-sanctionedviolence, which has been delegated to the state.. As stated earlier: themonopoly on violence is one of the primary prerogatives of the state; thisviolence is exercised through legal and military means. Every national lawgenerally recognizes the military as an institution vested with legitimateauthority to use violence against its own citizens (for discipline, as a meansof punishment, and maintaining “order”) and in wars between states. We can saythat state violence is also gendered in the sense that women have historicallybeen excluded from the most repressive state roles involving violence: themilitary, the penal system, and the police. Although formal legal barriers havebeen partially removed in some countries in the last few decades, a significantopposition to women working in positions that exercise state monopolizedviolence remains. \[25\] Even wherewomen are permitted to work in the institutions that exercise state-sanctionedviolence, such as in the U.S., the view, which is also reflected in laws,remains that women are primarily victims of violence. Violence and wars aregendered and legislated as masculine through the character of the nation-state,its laws and in international law, while victimhood is gendered feminine.

Even the well-known narrative of womentaking over important male roles on the home fronts while men fight in “real”battles, does not change this notion. It actually emphasizes women’s domestic –and domesticating – role and their need to be protected by the man who fights.Therefore, it only contests the equality of women in peace times, her abilityto participate in public and economic life, leaving behind women’s status withregard to citizens’ rights and duties that include defense and violence, andmaintaining gender-based legal biases. Theweleit argues similarly in his “MaleFantasies,” that women are included in the modern history of warfare only asvictims, which includes widowhood, or as nurses, cooks, laundresses, cleaningpersons and prostitutes. This division of wartime gender roles replicates thebourgeois concept of women as peacemakers and men as fighters. It reveals thelogical development from women as weak, non-violent creatures needingprotection to women as victims, who, paradoxically, remain without protection.

War – as the highest patriarchal activity –has always reinforced the traditional roles of women, building firmly upon theconcept of “social motherhood” or childbearing in the interest of the nation.Once again it constructs the female gender as weak, vulnerable and ineffectivein one of the highest activities important for the sovereignty of the state –that of waging wars, both defensive and offensive. More importantly, women’sassigned roles in war predetermines them as vulnerable civilian victims of thewar situation. In a similar way, Jacklyn Cock argues that: “War is a genderingactivity. It both uses and maintains the ideological construction of gender inthe definitions of ‘masculinity’ and ‘femininity.’ Women are widely cast in therole of ‘the protected’ and ‘the defended’….” (Cock 9) Cock also claims thatdividing the protector from the protected, the defender from defended, becamecrucial to both sexism and militarism. Contrary to Cock, who argues thatchanging gender relations is one of the essential tasks for reducing the risksof future wars, Peach suggests:

“If the law recognized that women,as well as men, are capable of using state-sanctioned forms of violence ineffective and responsible ways, the military would be required to bestowgreater respect to women, both as potential combatants as well as in terms ofbeing the unjustified victims of sexual and physical abuse.” (Peach 68)

No matter what position we take on theseviews, we can conclude that the social and legal positioning of women in thesovereign nation-state influenced international law in such a way that itignored most of the violence unleashed by military men against women. Althoughit positioned women in the role of “protected” and “defended,” it did notdevelop the jurisdiction that would explicitly criminalize sexual crimesagainst women in war or by the military. In the same way, nationaljurisdictions did not criminalize violence against women in the private sphere.Wars have always been initiated and carried out by men. They are gendered onreal and symbolic levels, re-creating gender dualism: Peace is seen as a“feminine” and war as a “masculine" element, or, as popular literature wouldput it: “Women are from Venus, Men are from Mars.”

Deconstructing the legal linkage ofviolence in national and international law demonstrates that gender andviolence are both social and cultural constructs and can entrench a long-termand significant disempowering of women. The treatment of rape as a crime asdelineated in the ICC is probably the most significant achievement that hasbeen accomplished towards reversing this entrenchment.

At this point, I would like to challengeArendt’s pessimism concerning the potentials of international mechanisms in aworld where sovereign states are the dominant form of polity. Some of thecurrent world affairs (the US-Afghanistan conflict, for example) might seem tosupport her view. However, I would like to claim that some developments ininternational law could be considered as showing a different potential,especially if we are willing to view it as a process, and not as a staticachievement. What I have in mind is the present development of theInternational Criminal Court (ICC) that gave the status of a war crime to warviolence against women under the proposition that it be defined as a crimeagainst gender, not only -- as until now -- a crime against an ethnic, national or religious group.

In the past, sexual war crimes againstwomen remained invisible, were trivialized, or justified as an inevitableby-product of war or as an award for the fighting men, for instance. Thus, inaddition to exclusion from the public-political sphere in terms of nationallaws, women were also “privatized” in the international arena. This seemsparadoxical in light of the fact that sexual and military war violence againstwomen happens, by definition, within the public sphere, as wars between states,in legal terms, belong to the domain of international affairs and internationallaw. As I stated earlier: even if the act of violence takes place in somebody’sprivate premises, the function of this violence, whether it is ethniccleansing, humiliation of the enemy, or violence against female sex, the basicrelation is political and the act belongs to the public sphere. Just like inancient Greek histories, the pattern of military or paramilitary rapes in Bosniaand Rwanda occurred in such a manner that a group of soldiers sexually violatedwomen in front of their relatives and/or members of the community. The mostintimate and personal of human relationships, as sexual intercourse is supposedto be, was turned into a public gesture and martial demonstration. Rape in waris, as Susan Brownmiller puts it, a message that one warring male faction sendsto another using women’s bodies as their battlefields. (Brownmiller 271)

However, rape as a crime has not been entirelyomitted from national or international jurisprudence in recent history. Rapewas first identified as a capital offence in the Leiber Code, whichregulated the conduct of the Union Army during the American Civil War. Thisprecedent was followed in the Hague Convention of 1907, and later in the GenevaConventions and Protocols of 1948 and 1949, which took force in 1950 and whichwas to have determined the prosecution of war crimes in the Nuremberg and Tokyoad hoc tribunals. But, as already mentioned, this did not happen at theNuremberg trials, and it was only implemented at the Tokyo trials to a limiteddegree (see further on for details). The impunity of sex crimes rests in the“meaning” that was given to rape as a criminal offence in both The Hague andGeneva conventions. \[26\] Rhonda Copelon, a feminist lawyer who wasinvolved in starting a civil suit against Radovan Karadzic in the U.S. toindict him for Bosnian military rapes, offers the following explanation for thefailure of international jurisprudence to enforce the provisions given in theseconventions \[27\] :

...[R]ape was not treated asviolence, and was therefore not included in the list of "gravebreaches" subject to the universal obligation to prosecute.... [rape had]a characterization that reinforced the secondary importance as well as theshame and stigma of the victimized women. The offence was against male dignityand honor, or national or ethnic honor. In this scenario,

women were the object of a shamingattack, the property or objects of others, needing protection perhaps, but notthe subjects of rights. (Copelon 7)

The consequence was that, despite theconsiderable evidence for mass rapes in occupied Europe during WWII, theInternational Military Tribunal at Nuremberg (IMT) failed entirely toexplicitly criminalize and prosecute rape and sexual violence as a war crime, acrime against humanity, or as a crime of genocide. y Susan Brownmiller quotesthe French Prosecutor as asking the Tribunal for forgiveness if he avoidedciting the “atrocious details” from the records on sexual crimes committedagainst women, calling this attitude “the standard censoring mechanisms thatmen employ when dealing with the rape of women." (Brownmiller 53)

A somewhat different situation happened atthe International Military Tribunal for the Far East (IMTFE) in Tokyo.Throughout Asia, the Japanese military established rape camps, which they named“comfort stations," and the women detained in these camps, “comfortwomen." In Tokyo, several high-ranking officers were held responsible, aswas the war-time foreign minister of Japan who was convicted of directresponsibility for violations of the laws or customs of war, which includedwidespread rapes in Nanjing, 1937, where an estimated 20,000 women and girlswere raped. \[28\] During thistrial though, rape was not considered a war crime or a crime against humanity,and the facts of enforced prostitution and sexual slavery were ignored underprovisions for these crimes. As in Europe, existing documentation revealed thatAllied forces knew about the Japanese rape camps and sexual slavery throughoutAsia. The full scope of sexual torture against Asian, as well as Dutch womenwho happened to be in Indonesia at the time of the Japanese invasion, camefully to light only in the early 1990s when Korean and other Asian womenstarted the first regional and then later international movement forrecognition of these crimes. \[29\] Among their demands, which to this day have still not been fully met, is therequest for recognition of responsibility by the contemporary Japanesegovernment for crimes committed by the Japanese army during WWII. The request,commenced in seventies, included an official apology to the women victims andnot only to the Korean government, reparations to women survivors and inclusionof these events in the official Japanese history, including textbooks. Manywomen were killed or died in these camps of exhaustion, malnutrition,mutilation, sexually transmitted diseases and torture in the form of sexualviolence. The rape camps in Asia, where women, in addition to sex, were alsoforced to provide other services such as cooking, cleaning, serving thesoldiers, could easily have been compared to the German forced labor camps, butthey did not receive such treatment at the tribunals.

The wars in the former Yugoslavia andRwanda have brought about ground-breaking changes in relation to the treatmentof sexual crimes committed against women in war at international criminaltribunals. Both Statutes of the ad hoc international criminal tribunals havelisted rape as a form of crime under the category of Crimes against humanity .These two tribunals have historical significance in ending the impunity for sexwar crimes against women, which ceased to be “a crime whose name isunspeakable.” Presently, at both tribunals, a number of current publicindictments have laid charges of sexual violence including rape. Charges ofrape have been made under three out of four groups of listed crimes: Violationsof the laws and customs of war , Grave breaches of the Geneva Conventionsof 1949 , and Crimes against humanity , and once (the Akayesu case atthe ICTR) under the Genocide provision.

An interesting question is why charges ofrape have not been filed under the category of Genocide (Article 4 atICTY; Article 2) in the case of former Yugoslavia, where most of the “popular”explanations (media, governments, some women's groups, local political rhetoricat large) merely treat mass rapes as an act of ethnic cleansing, and hardlyever as a crime against sex, with the exception of some feminist groups. \[30\] This however did not happen despite the fact that some acts listed under thedefinition of genocide in the ICTY could have easily been applied to some formsof sexual war violence committed in Bosnia and Herzegovina. The answer might bethat the Court has simply failed to raise charges for sex crimes as genocidalacts , or that the evidence was not sufficient for such charges, which iseven less likely then the first presumption.

My argument is that this shift from womenbeing seen as and protected as part of a national, ethnic, or religiouscommunity, to women being recognized as having rights as women and thus legallyprotected is of fundamental importance in general, not only for women. Not only has international jurisprudencebeen forced to confront publicly and in a meaningful way sex crimes againstwomen, it has had to consider for the first time gender and the implications ofsocial and political constructions of women. It significantly improves the legal and social status of women whobecame the subjects of international law, but also, in a broader sense, thischange indicates the reallocation of the focus of the international law fromthe sovereignty of a nation-state to citizens and groups of people definedother than by ethnic, cultural or religious basis/belonging. The shift ininternational jurisprudence also recognizes the importance other actors, suchas trans-national social and political movements, besides the nation-states, asparties in international arena.

Among all the other causes of this change,the change in the legal status of women I see as the consequence of thestruggles of the contemporary women’s human rights movement, as well assubsequent international mechanisms \[31\] that required that women become the subjects of rights and freedoms, whichaccordingly, introduced sex and gender into international (and national) humanrights and humanitarian law.

The Statute of the ICTY provides a legalbasis for prosecuting persons for serious violations of internationalhumanitarian law committed in the territory of former Yugoslavia since 1991.Rape as a crime is explicitly listed within the category of Crimes againsthumanity . \[32\] Thesecrimes are defined as being: “committed in armed conflicts, whetherinternational or internal in character, and directed against any civilianpopulation.” (ICTY, Article 5) The category further defined these crimes as committedas widespread or systematic “ persecution on political, racial and religious grounds.” (ICTY, Article5, line h ) Such a formulation might suggest that scattered, so-called“gang rapes” that do not qualify as “widespread and systematic,” do not qualifyas rape as a crime against humanity. I also want to stress that the targetedpopulation under Crimes against humanity is defined and protected onpolitical, racial and religious grounds, but not on gender grounds.Despite that, the majority of the gender crimes in wars in the formerYugoslavia that have been prosecuted were prosecuted under this provision.

Rape or other forms of gender violence canalso be prosecuted (and in some cases they were) under the other threecategories of crimes singled out in the ICTY: Grave breaches of the GenevaConventions of 1949 (including willful killing; torture or inhumantreatment including biological experiments; willfully causing great sufferingor serious injury to body or health; compelling a prisoner of war or a civilianto serve in the forces of a hostile power; unlawful containment); Violationsof the laws or customs of war (Article 3) and as a Genocide ,(Article 4). The definition of genocide in both the ICTR and ICTY Statutesreplicates the one given in the UN Genocide Convention from 1948 (Article II),which states that:

Genocide means any of thefollowing acts committed with intent to destroy, in whole or in part, anational, ethnic, racial or religious group, as such: killing members of thegroup; causing serious bodily or mental harm to members of the group;deliberately inflicting on the group conditions of life calculated to bringabout its physical destruction in whole or in part; imposing measures intendedto prevent births within the group; forcibly transferring children of the groupto another group.

Under all the categories of crimes listedin the ICTY and ICTR, defendants can be charged with both individual and whatis called “command responsibility,” which considers the position of authoritythat enables ordering, instigating, aiding, abetting, not preventing, and notpunishing the criminal acts of which the defendant knew or was in the positionto know.

In the case of Rwanda, one of the accused,J.P. Akayesu, a former teacher and a city mayor who became a war-lord duringthe Hutu genocide against Tutsis, was charged with rape and gender violence asa genocidal act. This charge was not included in the original indictmentagainst Akayesu; the indictment was amended after the spontaneous testifying oftwo Tutsi women in Court with substantial evidence. The amendment was alsorequested by the so-called Amicus Brief submitted to the Court by acoalition of women's NGO's. The original indictment contained charges for Crimesagainst Humanity (Article 3 of ICTR) with respect to rape and genderviolence and with respect to outrages committed upon personal dignity underArticle 4 of ICTR, referring to the Violations of Geneva Conventions andadditional Protocols under which rape is not explicitly listed as a form ofcrime. After amending of the original indictment, the Chamber judgment statedthat rape and gender violence can constitute genocide “in the same way as anyother act as long as they were committed with the specific intent to destroy,in whole and in part, a particular group, targeted as such.” (Akayesu Judgment,§731) The key element for a case of gender violence to be considered genocidalwas, in legal terms, the mens rea , the intention with which the crimewas committed.

Akayesu was charged with commandresponsibility as someone in a position of authority, for ordering,instigating, aiding and abetting acts of gender violence. In the Akayesu case,again, it was not women as a protected group whom the Court was protecting andrestituting, but female members of the targeted ethnic group. At any rate, thecase is interesting because for the first time in the history of internationallaw, an international court laid a charge for rape of women under the GenocideConvention (Article 2 of the ICTR). In this case, wartime gender violence wastreated as an integral part of the overall intention ( mens rea ) and theprocess of the destruction, in whole or in part, of the particular group,targeted as such, with women specifically targeted as part of that group. Thesentence and its explanation \[33\] did not explicitly state that sex or gender can be taken as the basis for astable and permanent identity, as race, ethnicity, etc. can. Nevertheless, byexpanding the four grounds explicitly mentioned in the notion of a “stable andpermanent group” (religion, nationality, race, ethnicity) whose protection issecured with the Genocide Convention and ratified in ICTY and ICTR, somefeminist lawyers argued that “gender” appeared as a category of rights andprotection, already in the Akayesu case, even though he was charged under the Genocide article of the ICTR \[34\] .

The definition of a “stable” group in theUN Genocide Convention refers to groups constituted in a permanent fashion and whosemembership is determined by birth in contrast to the more “mobile” groups, suchas political and economic groups, which one joins through individual voluntarycommitment. With the Akayesu judgment, the question of gender as a ground forwar crime remained open and subject to further discussion. In fact, the ICTR'sdecision on Akayesu reflects the overall feminist discussion on the content ofthe concept of gender. Contemporary science and life practices have shown thatneither gender nor sex necessarily need to be a permanent condition, and mostfeminist scholars have refuted an “essentialist” understanding of the concept.However, the same can be argued, maybe even more so, for groups such as nation,ethnicity, even race, not to mention religion, as chosen identities.Nevertheless, most feminist theorizing has claimed the “practical” political,social and legal usefulness of the concept of gender as a means for theadvancement of women’s status. I would like to argue that the concept of genderhas also demonstrated its usefulness in legal practices of internationallaw.

In both the Rwanda and Yugoslavia cases,the media and local and international policymakers characterized systematicrapes as a tool of ethnic cleansing or genocide. \[35\] There is a common belief that this publicity and the widespread attitudesagainst gender violence as a “tool of war” and ethnic cleansing influenced amajor change in international humanitarian law and finally enabled theinclusion of rape and gender violence onto the list of crimes treated byinternational law. Many women, lawyersand researchers claim that this formulation operated to transform rape from aprivate, off-duty, collateral, and inevitable excess to something that is publicor “political,” in the traditional sense. Others though, like some women’sgroups in the former Yugoslavia and women’s human rights lawyers and activists,while admitting that the “ethnicization” of war rapes contributed to the forceof condemnation and to the changing of public attitudes, at the same timelaunched the following critique of such a stand:

Rape drew broad attention, at theoutset, however, more because it was a genocidal or ethnic attack, than becauseit was an attack on women…like all arguments that deflect attention from theessential need to recognize women as subjects, it had a potential regressiveaspect in suggesting that this use of rape was qualitatively different from thetraditional use of women as booty…or as the reward for the pen