SEXUAL violence in peacetime and in war is as old as historical memory; yet its entry into the mainstream of international and national jurisprudence is of recent date. It was only in the 1990s, after about fifty thousand rapes in Bosnia, a quarter of a million sexual assaults in the wars in Sierra Leone and about half a million rapes committed over a period of a few weeks in the Rwandan genocide, that rape and sexual violence found official limelight and were recognized internationally as war crimes and as crimes against humanity. Prior to this, as borne out by the Fourth Geneva Convention of 1949, women lagged behind ‘civilians, medics and aid workers’ as noncombatants to be protected from the barbarity of war and, as defined in Article 27, rape and sexual assault were seen as attacks on women’s honour and dignity and not as crimes of violence.¹ Similarly in ‘traditional’ societies such as those in South Asia, peacetime rape, though legally recognized, was seen largely as a crime against the family, kin group or community, with sexual violence in its various forms, both overt and covert, accepted uncritically as an indelible part of the condition of being female.

Historically, rape, abduction and sexual violence have long been an integral part of the political economy of traditional warfare and the celebratory logic of the conquest and subjugation of the ‘enemy other’,² with war itself being seen in Homeric terms as ‘men killing and men being killed’.³ It was with the rise of the nation state in Europe that in the nineteenth century war came to be seen as an ‘armed contest between men of fighting age’ for territorial gain and resources.⁴ Women, and the rape, violence, forced impregnation, and the indignity and humiliation they suffered including death, remained peripheral to this androcentric paradigm and till recently, were accepted as part of the discursive continuum of women as war booty and objects of exchange that reaches into the dark backwards of historical time.

 

This perception is reflected in the marginalization of rape and sexual assault of women in the grand national narratives constructed in the wake of the 1947 Partition of India and in the Bangladesh War Crimes Tribunal of 2009 that makes no mention of the scale of the rape by the Pakistan Army in 1971 in what was then the eastern wing of the country. And this despite the fact that these crimes occupy a significant place in the historical memory of the region, and are the stuff of some of the most powerful literary writings of this age.

Rape and sexual violence specifically as crimes against women, came to the forefront of mainstream jurisprudence through the violence committed against populations during the series of wars and conflicts that marked the turn of the twentieth century and beginning of the twenty-first century. It was not so much the occurrence of sexual violence in conflict zones that awoke the world’s conscience, but the scale and magnitude of the crimes in Bosnia, Sierra Leone and Rwanda that shocked and compelled it to look anew at a phenomenon which was largely unacknowledged and invisible up until the 1990s. The criminalization of sexual violence, particularly rape as a weapon of war and instrument of genocide, was the combined result of women’s movements the world over and the international trials that followed these wars. These drew attention to the various forms of sexual violence, not only as weapons of war and as instruments of genocide but as crimes against humanity.

 

In the 1988 Akeyesu Judgment by the International Criminal Tribunal for Rwanda (ICTR), the tribunal provided a clear definition of rape as a crime against humanity and as an instrument of genocide. Based on the first landmark case on sexual and gender based violence in international criminal law, the definition of rape advanced from the ‘non-consensual’ or forced intercourse of localized parlance to a more complex understanding, which saw ‘rape and sexual violence as a physical invasion of a sexual nature, committed on a person under coercive circumstances and as part of a widespread or systematic attack on a civilian population discriminated on national, ethnic, political, racial or religious grounds.’⁵

The International Criminal Tribunal for former Yugoslavia (ICTY) widened the ambit of this definition to include torture, enslavement and persecution, none of which had been litigated in the context of gender violence. While the Special Court for Sierra Leone (SCLC) brought forced marriage, a form of sexual violence traditionally subsumed and made routine under the rubric of customary practice, into the jurisprudence of international and humanitarian law. At the same time it distinguished forced marriage from sexual slavery and sexual crime, which were also acknowledged as crimes against humanity.

 

Subsequently the Rome Statute of the International Criminal Court (ICC) built on the case law for sexual and gender based violence developed under ICTR, ICTY and SCLC to include different forms of sexual violence as part of the crimes of Genocide and Crimes against Humanity and War Crimes. Stressing that victims could be female or male of any age, specifically enumerated in the list of sexual violence were rape, forced prostitution, sexual slavery, forced pregnancy, enforced sterilization and prosecution on account of gender as specific crimes punishable under the statute, and included environments of sexual threat such as those leading male family members to kill their women for fear of capture and rape.⁶

These trials not only brought sexual violence into the forefront of mainstream discourse, the thinking developed in the course of these trials opened up hitherto unexplored areas of socio-political concern and academic enquiry on gender relations and sexual violence including the resulting social and personal trauma of survivors. This led to a critical reappraisal of existing laws on rape and related issues and problematized the concept of post-conflict peace. The terms and terminology of violence were also re-examined and redefined: the simple ‘wartime rape’ was replaced by the more cumbersome but broader ‘sexual violence in conflict zones’⁷ that also included a more critical examination and reformulation of laws on rape and related issues. These were major steps in the right direction and their significance cannot be underestimated.

 

However, it needs to be kept in mind that discursive fields are shaped and circumscribed by the terms and contexts of their own particular enactment. This is not to denigrate or deny the significance of the international courts, war trials, judgements and statutes, but to draw attention to the fact that the process which granted a central position to rape as war atrocity in the international courts, led to very significant changes in the juridical field regarding the definition of rape and sexual violence, gave an impetus to feminist scholarship on gender based sexual violence and compelled nation states to pay attention to this much neglected area through legislative change, has had a limited impact on general societal perceptions and attitudes towards rape and sexual violence including women’s status and position in society.

This is evidenced in the fact that sexual violence continues unabated across the globe just as the misogyny conducive to violence against women in different culturally available forms continues to be the hallmark not just of societies defined as ‘traditional’ and less ‘developed’ such as in South Asia or the Middle East, but also as demonstrated by President Trump’s sexist and very successful election campaign, of the so-called ‘developed’ world. This not only draws attention to the deeply entrenched nature of patriarchal violence in all societies, it also points to the need to understand the reasons for the disconnect between the larger public and the message of the International Courts and Statutes on sexual violence as a crime against humanity.

A semiotic analysis of the international courts and the modes of transmission of the verbal, visual narratives of wartime atrocities in relationship to the receiving public maybe useful in this regard. To ignore this phenomenon would be to risk the trap of essentialist explanations such as those of evolutionary psychology that traces the continuity and persistence of sexual violence to the inherited immutability of the male gene, or others, exemplified by Susan Brownmiller,⁸ that dehistoricize rape by positing all men as potential rapists.⁹

 

The convergence on one plane of the scale and magnitude of Bosnia, Sierra Leone and Rwanda and the regalia of ‘ceremonial justice’¹⁰ of the Special Courts, the ICC and the Rome Statute, the ICTR, the ICTY along with the protocols and paraphernalia of fact-finding missions and evidentiary procedures sets up an authoritative moral-juridical field of vision with regard to sexual violence as war crime. Recalling, reformulating and, to some extent, re-enacting with the aid of modern technologies, and combining the function of the pre-modern spectacle¹¹ in which public torture and execution as theatre of pain, acted as a mechanism to reinforce monarchical authority,¹² and Bentham’s 18th century Panopticon or ‘watcher’s booth’¹³ that enabled the prison warden to see into each cell, to judge the situation from a distanced yet authoritative position within an established moral order, led to the constitution of a particular discursive field that conferred a mythic quality to wartime rape and sexual atrocities even as it granted them new meaning.

 

The pre-modern spectacle had borne witness to the triumph of justice by pinning the crime to the body of the perpetrator who thus became the ‘herald of his own condemnation’;¹⁴ the Panopticon symbolizing the establishment of latter day systems of surveillance and control changed the status of spectators as subjects to a viewing public as objects of a disciplinary spectacle. The visual-verbal narratives constituted by the international courts, statutes and images of violence, beamed across the world through global media, combine the spectacle of pre-modern justice and the all seeing eye of the Panopticon to perform a similar function in today’s context.

The difference between the two, which is historical and temporal, lies at two levels. The first being the conceptual shift from the punitive and disciplinary to the moral and juridical, and in the pinning of the crime, not on the tortured body of the accused but ironically, on the despoiled bodies of the victims of wartime violence as visible and irrefutable proof of the crime and its perpetrators. The second is to do with the paradox of modern technology that grants an immediacy to images of violence transmitted to differently located individuals and communities operating within diverse value systems in far flung locations, even as it distances the spectators or viewing public from the event that is experienced as a ‘mediation of technological apparatus’.¹⁵ In the process the authoritative gaze of the international courts or the ‘watcher’, is splintered, inverted, dispersed among myriad focal points of consciousness as differently located audiences respond differently to these images.

 

Transformed by the media into a ‘spectacle of war’ and ‘theatre of pain’, the countless rapes, mutilations, different forms of abuse and specific acts of humiliation and debasement are experienced as performance by the viewing public turned voyeurs safe before their television sets. Historically, even in apparently homogenous contexts, public response to authoritative discourse has been unpredictable. Witnessing trial court procedures as a play of ‘ceremonial justice’ enacted through officially sanctioned modes of punishment and redress, the response of today’s very diverse audiences is potentially more variable and uncertain.

Whether shocked, appalled, moved to pity, or indifferent, viewers experience these images differently and in different ways. Some may see them as images of an outrage that needs to be addressed; for others they may come as corroboration of conventionally held views regarding the woman’s status in society and the debasement and desecration of the female body as the inevitable and immutable part of the discipline and control/revenge and retribution pattern that lies at the heart of patriarchal cultures. Either way, interrupted, diffused and deflected by commercial breaks and colourful displays of consumer goods, the end of the programme heralds the end of the performance and the move to the next perhaps less disturbing set of images.

Never innocent in itself, in such instances, meaning-making is open to the further complications of various political agendas, whether of a warring party or world power, that underpin and shape the terms and terminology of different mediums of communication. In this regard, reports on sexual violence often serve a larger purpose by casting contending groups into the politically constructed binaries of ‘us’ and ‘them’; of ‘good’ and ‘evil’, ‘civilized’ and ‘uncivilised’. One such example is provided by British reports of the First World War where the distinction between the ‘barbaric’ German who raped innocent maidens, and the ‘civilized’ British who protected them, followed a clear propagandist agenda.¹⁶

 

Closer to our times, the competing interests of neo-liberal and extremist Islamic politics have given rise to trajectories of contending discourses premised on the one hand on the perceived misogyny of a monolithic Muslim culture, and on the other on the stereotype of the unrestrained promiscuity and evil designs of an ungodly West. Representing neo-liberal agendas, the global media awakens echoes of the Crusades; of the ‘lustful Turk’ of the western imaginary, to impose a specious continuity between two different and unrelated historical moments thereby setting the stage for an archetypal battle between the forces of good and evil that recast today’s Muslim male in the image of the Byzantian ‘Soldan’¹⁷ complete with ‘blood red crescent’ smile and ‘forest dark’ beard to strike terror in the hearts of the peace loving, civilized nations of the developed world.

 

In a parallel gesture, Islamists, particularly of the Wahabi/Salafi variety, take recourse in the counter narrative of the ‘Dar ul Islam’ versus the ‘Dar ul Harb’¹⁸ binary and deploy images of unveiled, underdressed western as well as ‘westernized’ noncompliant ‘eastern’/Muslim women as mainstays of an amoral/immoral world view to mobilise support and justify ‘jihad’ as moral obligation. Representing the Janus face of the same paradigm, in their bid for hegemony and access to the world’s resources, both essentialize, reinforce and strengthen cultural stereotypes that feed into the ‘clash of civilizations’ argument. What is more to the point, they deflect attention from and politicize the issue of sexualized gender based violence even as in different ways, they objectify women and reaffirm their status as the traditional terrain across which male battles are fought.

 

All this is not to denigrate or deny the significance of the international courts, war trials, judgements, statutes or the approach on which they are premised but to highlight the outcomes of a process in which the convergence of media representations of contending discourses, wartime atrocities and the language and terminology of war trials has created a discursive trajectory that contains the enormity of the crimes within the formal boundaries of legal discourse inflected by global politics and popular imagination at the same time as it highlights and beams the visual-verbal narrative of wartime violence across the world.

 

Not only has the politicization of rape and its emergence as ‘spectacle’ and metaphor for sexual violence in war conferred an iconic quality to it, this privileging by high powered entities such as the international courts, trials, judgments and statutes grants an éclat and a ritual quality to wartime atrocities. This reinforces the ‘invisibility and tacit acceptance of sexual violence in women’s everyday lives’,¹⁹ and diverts attention from the fact that the ‘brutality, repetitiveness, public spectacle and likelihood’²⁰ of rape that have become the hallmark of war and conflict, are an integral part of peacetime settings.

The discursive elision of this relationship has wide reaching impact in that the normative perceptions of sexual violence are left untouched. The foregrounding of sexual violence as wartime phenomenon has also been instrumental in blurring the boundaries between war and peacetime settings with regard to the role and forms that gendered violence takes in the transitional moments from war to peace where the specificity of such crimes is shaped and subsumed by the context specific conventionality of local cultural response even as it masks the fact that the two are mutually constituted. Thus where peacetime sexual violence often shapes the forms it takes in conflict situations, wartime sexual violence sets the terms of its ‘peaceful’ aftermath.

This is evidenced in the heightened masculinization of post-conflict societies and illustrated by examples of the rejection of children born as a result of rape as seen during the partition of India in 1947 and in 1971 as a consequence of mass rape committed by the Pakistan Army against the women of what is now Bangladesh. Further, as argued by Rhonda Copelon, the experience of war ‘…intensifies men’s sense of entitlement and superiority, and gives social license to rape.’²¹ This has been witnessed by the increase in domestic violence and abuse among ‘demobilized soldiers, required for years to commit acts of violence…’²²

 

In this context, the universalist human rights approach, adopted to ensure that perpetrators do not find recourse in culture and circumstance as mitigating factors, needs to be problematized and re-examined as it strips acts of sexual violence of their cultural and historical specificity and limits understanding as to the causes and motivations of particular acts as well as to the forms of redress in specific contexts. While acknowledging that ‘certain rights transcend time, place, and membership in a certain group’,²³ and the need for universal standards for prosecution in international tribunals and national courts, what cannot be ignored are the dangers inherent in bypassing the historically located context-specific uniqueness of each crime.

 

* This essay relies heavily on Zubaan’s Concept Note: ‘Sexual Violence and Impunity in South Asia: A Three Year Research, Publication and Dissemination Project.’

Footnotes:

1. The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war). Article 27: Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

2. Elizabeth D. Heineman, ‘Introduction: The History of Sexual Violence in Conflict Zones’, in Elizabeth D. Heineman (ed.), Sexual Violence in Conflict Zones. University of Pennsylvania Press,Philadephia, 2011, p. 1.

3. Ibid., citing Homer, The Illiad 8, pp. 64-65.

4. Ibid. Kathy L. Gaca, ‘Sexual Violence in Ancient Warfare’, citing Clauswitz’ early 19th century text: On War. p. 76.

5. Rhonda Copelon, ‘Towards Accountability for Violence Against Women in War: Progress and Challenges’, in Heineman, p. 245.

6. Elizabeth D. Heineman, op. cit., p. 2.

7. Ibid., p. 2.

8. Susan Brownmiller, radical feminist and anti rape campaigner of the ’70s and ’80s known for her groundbreaking book on rape, Against Our Will, was among those who insisted that rape was about power, not sex and argued that it was ‘nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.’

9. Joanna Bourke, Rape: A History from 1860 to the Present. Virago, London, 2007, p. 7.

10. Michel Foucault, Discipline and Punish: The Birth of the Prison (1975). Peregrine Books, London, 1979, pp. 32-69.

11. Ibid., pp. 48-49.

12. Ibid.

13. Ibid., pp. 200-202.

14. Ibid., p. 44.

15. http://csmt.uchicago.edu.glossary2004/spectacle.htm

16. Heineman, ‘Introduction’, op. cit., p. 11.

17. Battle of Lepanto, 1571: naval engagement between Allied Christian forces of the Holy League and Ottoman Turks to acquire Cyprus. It marked the first victory of a Christian naval force over the Turkish fleet. Wikipedia, the free encyclopedia.

Gilbert Keith Chesterton, ‘Lepanto’:

‘White founts falling in the courts of the sun,

And the Soldan of Byzantium is smiling as they run;

There is laughter like the fountains in that face of all men feared,

It stirs the forest darkness, the darkness of his beard,

It curls the blood-red crescent, the crescent of his lips,

For the inmost sea of all the earth is shaken with his ships.’

‘Lepanto’ was published in 1911. In World War I, the Turkish Ottoman Empire had become an ally of the Prussian enemy whom Chesterton saw as the perfect epitome of Paganism, Germanism, Imperialism, and Determinist Materialism. In this context, the victory of Christian Europe over its Turkish enemy depicted by Chesterton in vividly blood-stained terms became readily acceptable to those sympathetic to the British cause as a straightforward allegory of right – the Allied nations representing the traditional morality of Christendom – triumphing over wrong – the Central Powers representing the rejection of that morality in the name of the previously mentioned ‘-isms’. From Wikipedia, the free encyclopedia

As an instance of strategically constructed historical continuities, Lepanto’s centrality to this discursive trajectory in today’s context is interesting. As is the strong family resemblance it bears to Islamic fundamentalist logic of divine intercession for the favoured side as evidenced in the following piece written as part of Amazon’s sales gambit for the paperback edition of the poem published by Ignatious press along with ‘helpful notes and commentary by Dale Ahlquistand several essays that provide the background on the battle and poem.’ Titled ‘Why You Should Read G.K. Chesterton’s ‘Lepanto’, Today, 7 October 2016 Lepanto-GKC. ‘Today is the feast of Our Lady of the Rosary, which was commissioned after the pivotal Battle of Lepanto on 7 October 1571, a key turning point in the history of the world. Muslim forces were threatening to attack both Venice and Rome, which would likely have led to the collapse of Christian Europe. If the Islamic forces had won (and most people thought they would) our world today would likely be majority Muslim. But Pope Pius V called all the faithful to pray the Rosary – including the fighters – and through the intercession of Our Lady, a miraculous turn of events swayed the battle in favor of the Christians. The great G.K. Chesterton wrote a poem about these events, appropriately titled "Lepanto", which I’ve enjoyed reading several times.’ You can read the whole poem free online in 10-15 minutes – it’s relatively short. But I highly recommend buying the short Lepanto paperback… On this Feast of Our Lady of the Rosary, read and remember this pivotal battle upon which the feast is based, and renew your trust in the intercession of Our Lady.

18. The classic dichotomy of the world by early Islamic jurists into ‘Dar-ul-Islam’ or abode of peace where Islamic law prevails, and ‘Dar-ul-Harb’ or enemy territory under non-Muslim rule. In modern times this view was subscribed to by Maulana Maududi of Pakistan, whose theories were almost identical to the Egyptian ideologue Syed Qutb of the Muslim Brotherhood and only superficially different in detail from those propounded by Imam Khomeini of Iran. That said, it is interesting to note that along with other known figures of the radical right political Islam, Maududi was a member of the US backed Muslim World League founded in 1962 as part of the Eisenhower-Dulles Doctrine propounded in 1957 to contain Soviet influence in the Middle East. Ishtiaq Ahmed, Pakistan the Garrison State: Origins, Evolution, Consequences 1947-2011. Oxford University Press Pakistan, Karachi, 2013, pp. 237 and 99.

19. Elizabeth D. Heineman, op. cit., p. 2.

20. Ibid., p. 2.

21. Ibid., p.3.

22. Ibid.

23. Ibid.