War and Rape: Law, Memory and Justice, London: Routledge, 2011
Reviewed by Eve Darian-Smith, University of California
War and Rape: Law, memory and justice is an extraordinarily brave, important, and timely intervention into thinking about the aspirations and limitations of international humanitarian law. Just when most of the world (apart perhaps, from the United States) takes increasing comfort in a robust international legal regime, this book offers an important commentary on the limitations of international law and global legal institutions. These limitations are not based in the common critique of international law, which typically focus on problems of enforcement by nation-states. Rather, this book looks at the intrinsic limitations of adversarial liberal legal systems to accommodate and take into account the emotional, psychological, and subjective dimensions of injustice in international (and by implication domestic) contexts.
The book’s central focus is on rape and sexual violence in wartime, and charts how these crimes are articulated, discussed and treated in post-conflict legal adjudication.
Henry is interested in how the legal treatment of rape informs collective memories about the past, and how collective counter-memories circulating beyond the courtroom in turn shape legal engagements. Noting how rape in national legal jurisdictions has historically been marginalized as private domestic matters and not typically the concern of the state, the author notes that in international legal settings rape has historically fared not that much better. For reasons both personal and political, victims’ experience of rape and sexual violence have been to a great degree silenced or obliterated from public records, or simply not recognized in international law as crimes against humanity.
Henry charts the changing way rape is treated in international humanitarian law starting with a close discussion of the Nuremberg and Tokyo trials immediately subsequent WWII. She then compares these mid-century trials with those conducted in the 1990s and later under the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court.
Through close reading of transcripts, evidentiary evidence, and surrounding political discussion, Henry notes the shifts in thinking about wartime rape from a crime peripheral to all war and less significant than looting and pillage – as was the case at Nuremberg – to a crime designated as genocidal and against humanity as in Rwanda with the rape of over 500,000 Tutsi women and girls.
At the Nuremberg trials and Tokyo trails, no women were called to give evidence and testify that they had been raped, despite the widespread acknowledgement of such things as the 20,000 Chinese women raped or enslaved for prostitution in what is know as the Rape of Nanking and the mass violation of German women by the liberating Russian forces. This silencing of wartime rape and sexual violence was viewed as an incidental and largely inevitable by-product of war, rather than a tactic of war. Moreover, notes the author, rape and forced prostitution were often viewed as something in which women were complicit in some way. As a result, suffering was implicitly given a hierarchical status, with victims of rape seen to have suffered less than those who those who suffered death by gas in concentration camps.
But, as Henry argues, there was a bigger political picture to this dismissing of wartime rape that cannot be totally explained by the widespread gender discriminations of the mid 20th century. The victorious nations were hell-bent on prosecuting the elite 2 military and political leaders of Germany and Japan. And in so doing, they focused attention on crimes of aggression and crimes against peace rather than crimes against humanity. As the author writes, “victors’ justice” dominated, in turn centering attention on nationalist conflict rather than individualist suffering. Importantly, this focus glossed over the fact that all countries – including the victors – had engaged in horrifying acts of rape and sexual violence. In this way, notes Henry, all the judges and players at Nuremberg were complicit in using the law to “shape, select and institutionalize the way the past is remembered” (2).
However, despite the silencing of crimes of rape and sexual violence at Nuremberg and Tokyo, memories of such atrocities beyond the courtroom were, of course, never obliterated. These memories circulated in the public imaginary, informing a collective consciousness about the past and a form of memorializing that did not correlate to the official legal narrative of wartime experience. As Henry innovatively discusses – reminding me of Marianne Constable’s recent book Just Silences: The Limits and Possibilities of Modern Law – this forced silencing in law was not entirely destructive or negative. In fact, Henry argues, silence at certain moments can be constructive and powerful, and in this particular instance created over time a counter-memory of significance.
Writes Henry: The upshot of the Nuremberg and Tokyo trials’ legal amnesia regarding rape and sexual enslavement, therefore, is that the silence – or at least the collective memory of silence – has helped create a powerful political counter-memory, particularly since the 1990s when women began to speak out publically about their horrible experiences (60).
This counter-memory is explored in the trials and evidence presented before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court since its establishment in 2002. In all these formal legal settings, wartime rape is treated very differently in that it is explicitly regarded as a strategy of war and not assumed as an inevitable consequence and by-product of armed conflict, as was the case at Nuremberg. In other words, between the 1940s and 1990s there is a significant shift in thinking about gendered violence in international humanitarian circles. And while the author does not expressly mention it, I imagine this shift is also linked to the 1993 UN Declaration on the Elimination of Violence against Women which helped to create greater international recognition of the patriarchal dimensions of modern western law. As Henry eloquently argues, in these more recent international legal institutions, women were allowed to give testimony about sexual crimes and express their own personal experiences of such events. In the case of Rwanda, for the first time rape was prosecuted as a crime of genocide and a crime against humanity in 1998.
Of course the increasing recognition granted to wartime rape and violence in recent years is a very welcome development in international legal prosecution. But in a theoretically sophisticated chapter titled “Trials and Trauma: the impossibility of bearing witness”, the author notes the limits of legal processes to fully give voice to the atrocities and experiences of sexual violence. Because of the nature of sexual violence and its 3 associated stigma, and the largely unutterable emotional and psychological wounds such acts perpetrate on victims, legal recognition of such violence can only go so far in righting wrongs and imparting a sense of justice.
Notes Henry on pages 98-99, the international tribunals and the ICC have made huge advances. These “formal procedural mechanisms are unparalleled and they reflect a greater appreciation of the importance of participation and process for victims of gross human rights violations.” However, the author goes on, “it is important to note here that the legal trial is conducted in a specified time and place and it may not extend the narrative beyond the trial itself, so in a sense the story of wartime rape, as told through and by law, is always incomplete. While the trial does help to construct a narrative about sexual atrocities and this helps to break an enduring historical silence on this matter, the narrative is inherently fragmented, sterilized through the procedural and evidential limits of law”.
As a consequence, Henry points out: It remains to be seen what contribution the ICC will have not only to the memory of Darfur, the Democratic Republic of Congo, Northern Uganda and the Central African Republic, but also to the memory of the prolific nature of wartime sexual violence in these various sites of armed conflict. It is simply too soon to determine what the ICC’s legacy will be.
In summation, I want to stress the importance of this book in advancing our sociolegal understanding of reconciliation processes. Elegantly weaving together various bodies of literature and theory including feminist writings on the gendering of law; work on memory and the relevance of the past in shaping the future, and an increasingly large body of writing on transitional justice and how to best deal with the repercussions of violence in post-conflict settings, the book offers an impressive range of theoretical and empirical insights. In short, while the book is about international law’s dealing with wartime rape over the past 60 years, the analyses and implications are of relevance to us all in highlighting the subjectivity of justice and the intrinsic limitations of our modern human rights discourse. In a particularly disquieting and powerful passage the author writes: Justice is elusive, subjective, and even impossible. Justice is much broader than the prosecution of a few offenders; it involves not simply legal justice, but social and political justice, including both practical and symbolic forms of security, safety, and stability. The limitations of justice are also the limitations of collective memory. The collective memory of international criminal courts is thus a potent reminder of both the promise and the impossibility of justice in the aftermath of mass atrocities (125).