Sex and International Tribunals. Chiseche Salome Mibenge

conflict.

      Since the mid-1990s, there have been impressive gains whereby the trial chambers of ad hoc criminal tribunals have clearly adjudicated rape and other forms of sexual violence as acts of aggression against individual women. And the human rights discourse also increasingly eschews the narrative of vulnerable mothers in favor of civilian women navigating and challenging the insecurity of armed conflict. The gendered human rights critique at present requires scholars to privilege individual harm over collective harm, and at times it denies the collective harm altogether. This approach is said to provide women with the full recognition their war experience merits.

      These positions, however, have left little room for an inquiry into the intersection between what Tina Sideris (Sideris 2001a: 57) refers to as the individual psychic injury and collective social traumatization caused by political violence. Entirely erasing the intersection between communal and individual harm makes it difficult for scholars to analyze the root causes, the motive behind and the impact of war crimes and crimes against humanity. The widespread repercussions of sexual violence, such as when women are raped in order to force an entire community to flee a region, cannot be entirely categorized as attacks against the individual. Particularly in the case of crimes against humanity, where a threshold of “widespread or systematic” attacks must be attained, the collective social trauma must necessarily be incorporated into the legal narrative. Introducing the collective impact of gender-based violence need not negate women’s individual suffering, and it can enhance an understanding of the extent of harm and aggravating ramifications for women survivors.

      The gender critique has focused its gaze on international humanitarian law and the way it constructs women chiefly as mothers and wives in relation to men. What is missing from this critique is women’s own perception of their gender roles regarding, for example, the care and protection of children and the self-sacrifice of personal interests over those of their families and communities. I introduce the following three examples of women’s experience of conflict in Asia and Europe to illustrate timely disruptions by scholars of the dichotomous construction of violence against women as either individual or communal in nature. The studies of the repatriation of abducted Indian women from Pakistan, the repatriation of Korean women from enslavement by the Japanese military, and the detention of Jewish women in ghettos and in the Holocaust provide vastly different contexts of armed conflict but raise related questions about constructions of gender and violence and the most effective responses to the harms suffered by women.

      Ritu Menon and Kamla Bhasin have analyzed how women themselves do not necessarily separate their individual and communal identities from their experience of gender-based violence. Menon and Bhasin describe the political capital gained by the Indian government in its response to abducted women through the Central Recovery Operation carried out between 1948 and 1956.²⁸ The rescue was bitter and painful for many women: the women were abducted as Hindus, converted and married as Muslims, then repatriated where they reverted back to Hinduism; but they were required to relinquish their children because they were born to Muslim fathers and subsequently disowned as impure and ineligible for membership within their erstwhile family and community. Their identities were in a continual state of demolition and reconstruction by others (1996: 3 and 16).

      The individual harm that some “rescued” women experienced cannot be grasped without an understanding of gender constructions governing the trajectory of women’s lives within both Hindu and Muslim communities. Individual and communal ideas about gender roles, particularly relating to motherhood and marriage, shaped women’s resistance to rescue. Thus, Menon and Bhasin’s research shows that many Hindu women expressed a desire to remain with their husband-captors in order to preserve relationships with their Muslim children and/or to preserve the status and protection provided by Muslim husbands within the sacred institution of marriage. An intimate knowledge and even acceptance, in part or in whole, of communitywide ideas of motherhood, marriage, chastity, and honor shaped these individual choices to resist repatriation. The failure of the state’s remedy (a recovery operation) to take this confluence of individual and community harm into account resulted in the pain and bitterness that Menon and Bhasin so poignantly recount.

      Testimonies taken by the ICoJ from Korean victims of Japanese wartime military enslavement reveal the interconnectedness of individual harm and community harm in women’s narratives of gender-based violence. ICoJ reports, in contrast to the scholarship of Menon and Bhasin, focus on a legal narrative and the need to insert both an individual and collective standard of harm when understanding women’s war experiences. Because the ICoJ testimonies were collected decades after the period of enslavement, they prominently featured the hardship that women experienced after their liberation and repatriation. Society’s rejection and the women’s internalization of this rejection were responsible for much of this hardship. Sexual violence summarily and irrevocably deprived them of the honor and inviolability that attaches in patriarchal societies only to unmarried virgins, wives, and mothers.

      I selected this first narrative because it so clearly emphasizes the interruption of motherhood and its fruits through stigmatization, ostracism, and a perpetual sexual objectification of the survivor of enslavement.

      When I reached my house, my husband received me very warmly while in the presence of the American soldiers. However, when the soldiers had left he immediately distanced himself from me. He told me to sleep in a separate room and made it very clear that he would not share a bedroom with me anymore. I swallowed this insult because of the fact that I could at least be near my children. However, he would not allow me to share my children’s bedroom. I was thus isolated in my own house. Thereafter, I noticed that my husband also treated me just like a comfort woman. He would come to me whenever he felt the need for sex. He said he did not want to restore our original relationship because he termed me as a leftover of the Japanese soldiers. He could not reconcile himself to the fact that it was not my doing and that I was not at fault. My husband never fully understood or even tried to understand my plight. (Dogopol and Paranjape 1994: 74)

      Another woman’s testimony describes the interruption of motherhood through the loss of reproductive potential: “Because of her experiences she had to have a hysterectomy and continues to rue the fact that she has never been able to have children. At the age of 28 she married a man twenty-three years her senior and lived with him and his five children for three years, but as she had not been able to have any children, his family refused to give her any property after his death. She lived for many years in a Buddhist temple, helping the monks by cooking and cleaning and doing general chores” (ibid., 81). The ICoJ report places the sexual abuse of women into a patriarchal framework where male hegemony is absolute. The report duly decries this structural inequality yet also shows that the victims of sexual violence recount their experience of rejection long after the armed conflict in the patriarchal language of “shame,” “virtue,” “honor,” and “impurity.” The loss of access to family life and marriage, sexual intimacy, childbearing, and child rearing is lamented throughout the testimonies. This gendered presentation of victim testimonies does not obscure the fact that many women do in fact embrace the gender roles of mothering and childbearing as sites of social affirmation and personal fulfillment. Without acknowledging this, the resultant legal narrative of justice and remedies would have missed the fact that “the acts of brutality committed against these women go beyond the immediate suffering of having to endure a continuous rape … the pain these women endured has continued throughout their lifetime” (ibid., 57).

      Ní Aoláin’s study of a gender and sex based view of the Holocaust, which I have referred to above, also responds to the postwar enterprise of justice, which fell short of naming many harms that women experienced. To illustrate the failure of the laws of war to engage with the totality of harm experienced by women, Ní Aoláin focuses particularly on the harm arising from the separation of mothers from their children upon arrival at concentration or labor camps (2000b: 63). She makes clear that mothering is a gendered undertaking and both the Nazi captors and their victims understood it as such (ibid., 58).

      Ní Aoláin recognizes the problematic nature of privileging motherhood over individual personhood; however, her analysis individualizes the harm of forcible separation by arguing for its categorization as another quantifiable harm occurring in the realm of the sexual self and not exclusively in the realm of the familial self (ibid.). Ní Aoláin