This year’s Nobel Peace Prize surely does certainly not address a new development. Sexualized violence is a constant feature of armed conflicts. The only thing that has changed is our understanding and response to it: For a long time, sexualized violence was viewed as an unfortunate yet natural by-product of war – an unavoidable part of the “rapelootpillage” paradigm. This has aptly been labelled by Maria Eriksson Baaz and Maria Stern in their significant work entitled Sexual Violence as a Weapon of War as the sexed narrative. The basic idea behind it is that rape is a part of war because war is waged by men who are biologically driven by their heterosexual needs. The shortcomings of this narrative are obvious: Apart from casting the male sex in a rather negative light, it is both essentializing and deterministic, but most importantly, it renders wartime rape inevitable, thereby having a naturalizing and depoliticizing effect.
Scholars therefore subsequently replaced (or rather reworked) the sexed narrative with the gendered narrative, which focuses on socially produced gendered identities rather than sex/biology and revolves around the concept of militarized masculinities. The gendered narrative also aids in illustrating that sexualized violence during wartime is not a singularity of war. Rather, it must be understood as forming part of a continuum of gender-based violence which has its roots in pre-existing structures of gender inequality and does not end with a peace-deal.
The gendered narrative overlaps with and forms an important part of another line of explanation – the weapon of war narrative. This is today’s dominant – if not sole – narrative on conflict-related sexualized violence and it features prominently in the Nobel Committee’s statement. According to this narrative, sexualized violence during conflict is employed strategically by rational actors who are therefore to be treated as culpable and punishable subjects. The weapon of war narrative shapes the current understanding and responses to conflict-related sexual violence in academia, policy and practice. It is appealing because it moves beyond ignorance and silence, focusing the international community’s attention on the usage of sexualized violence during armed conflicts, and forces it to increase its efforts to end this practice by breaking with the view of rape as a tragic but inevitable outcome of war. Yet, the narrative is not free from criticism: Baaz and Stern, for instance, explain that it does not always fully reflect the realities of the complex conflict situations to which it is applied and, due to its universalizing narrative, conceals and excludes certain subjects and accounts which could improve our understanding of conflict-related sexualized violence. In addition, the weapon of war narrative also perpetuates certain characteristics of the sexed narrative. As Kelly-Jo Bluen and Tshegofatso Senne note, it “relies on both gendered and victim-perpetrator binaries, essentialising women and barbarizing men in such ways as to often reproduce colonial representations of black men and women”.
Sexual and Gender-Based Crimes Under International Criminal Law
The creation of the International Criminal Court (ICC) marks an important development with regard to the prosecution of conflict-related sexualized violence. The ICC has often been lauded for its broad inclusion of sexual and gender-based violence as crimes under international law. The Rome Statute lists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity as crimes against humanity and war crimes. It also recognizes gender-based persecution as a crime against humanity. Furthermore, it acknowledges that sexualized violence can constitute genocide: Although the Statute only mentions “causing serious bodily or mental harm to members of the group”, the Elements of Crimes contain a footnote stating that “[t]his conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”. They furthermore explicitly refer to rape as being a gender-neutral crime. Together with the regulations on sexual violence in the Rules of Procedure and Evidence, holding inter alia that credibility, character or predisposition to sexual availability of a victim cannot be inferred by reason of the sexual nature of the prior or subsequent conduct and that prior or subsequent sexual conduct of a victim shall not be allowed into evidence, they form part of the ICC’s progressive approach towards gender justice.
Sharp criticism concerning the court’s approach towards sexual and gender-based crimes was also raised in the subsequent cases against Bemba, Katanga, Muthaura and Kenyatta. The first positive turn was marked by the launch of a Policy Paper on Sexual and Gender-Based Crimes by the Office of the Prosecutor in 2014. As Valerie Oosterveld delineates, the paper is significant for a number of reasons: First, it proposes a comprehensive understanding of gender, thereby avoiding the pervasive but highly problematic conflation of gender with women. Secondly, it illustrates how the definition of gender in the Rome Statute should be applied in practice. Third, it explains what gender-sensitive investigations and prosecutions entail, thereby facilitating the exercise of gender-competent complementarity and helping to reduce what scholars have called the gender justice shadow of complementarity.
Anniversaries and prize-givings are seldom a time for criticism but rather seem to call for praise and celebration. Nonetheless, this year’s 20th anniversary of the Rome Statute together with today’s Nobel Peace Prize ceremony should serve as a reminder that the problem of conflict-related sexualized violence is far from solved. Complex problems require complex solutions. Simplifying narratives contribute to such problems and hinder adequate solutions. The ICC as well as academics, policy makers, and practitioners should acknowledge and grapple with this complexity.
Steinl, Leonie: Of Rhetoric and Reality: The Nobel Peace Prize and Conflict-Related Sexualized Violence, VerfBlog, 2018/12/10, https://verfassungsblog.de/of-rhetoric-and-reality-the-nobel-peace-prize-and-conflict-related-sexualized-violence/, DOI: 10.17176/20181210-075641-0.
Dr. Leonie Steinl, LL.M. (Columbia) is a research assistant at Hamburg University, where she works in a DFG-project on "Strategic Litigation Networks and Accountability for Gross Violations of Human Rights" headed by Prof. Dr. Florian Jeßberger.