Violence is masculine. Men are the cause of it, and women and children are the ones who suffer. The sole explanation offered up by criminologists for violence committed by a woman is that it is involuntary, the rare result of provocation or mental illness, as if half of the population of the globe consisted of saintly stoics who never succumbed to fury, frustration, or greed. Though the evidence may contradict that statement, the consensus runs deep. Women from all walks of life, at all levels of power—corporate, political, or familial, women in combat and on police forces—have no fault in violence. It is one of the most abiding myths of our time.1
—Patricia Pearson, When She Was Bad . . . : Violent Women and the Myth of Innocence (emphasis mine)
This book has argued that recognizing women as perpetrators of sexual violence in war and conflict is necessary both for its own sake and for correcting a number of assumptions in media, scholarly, and jurisprudential treatments of what wartime sexual violence is, when it occurs, and how it is/should be addressed. These deconstructions and reconstructions are both complicated and fraught, given the strength of the myth of women’s non-violence.
Sexual violence in war and conflict, whether strategic or transgressive, is an act of feminizaton as devalorization both towards its direct victims and to the group(s) of which those victims are seen to be a part. This is often, in the media, in scholarship, and in the courts, read with a number of shortcuts and essentialist assumptions to understand sexual violence in war and conflict as an act of gender subordination perpetrated against women by men. These narratives have found some attention and success in the global political arena, in part because they make sexual violence clearly intelligible, in part because they fit with inherited notions of gender roles in wars and conflicts, and in part because they can (if not fully correctly) account for the majority of sexual violence cases in wars and conflicts throughout history.
Sexual violence in war and conflict, however, is a case where the exception reveals problems with the assumptions of, rather than proving, the rule. As discussed in chapter 1, the relationships between gender, war, and conflict—the assemblage of gender/violence/war—is complicated and multidimensional. There are gendered dimensions to wars and conflicts generally, and then to sexual violence in them specifically as well. As discussed in chapter 4, it is not that some conflict violence is gendered and other conflict violence is somehow ungendered—it is that the genderings of conflict violence vary and are complex. This leads some analysts to walk away from explicit gender analysis of conflict generally and of sexual violence therein specifically.
Such a move is a mistake—understanding sexual violence in war and conflict as gendered adds explanatory value not only for that sexual violence, but for understandings of war and gender. At the same time, too many times, understanding sexual violence in war and conflict as gendered has been reduced to what Baaz and Stern call the “sex story” and the “gender story” of that sexual violence.2 The “sex story” suggests that sexual violence in war and conflict is caused by men’s unfulfilled need for sex in conflict zones, given that sexual release is a “natural” need for men, exacerbated by the stress of battle conditions.3 In theory, the “gender story” departs from this sex essentialism to talk about sexual violence in war and conflict as related to the expectations and conditionings related to militarized masculinities, and the feminization of the enemy (women, men, culture, and state). With Baaz and Stern, though, I suggest that most of the current instantiations of this “gender story” maintain the assumption that sexual violence’s perpetrators are male and its victims are female, despite the fact that one of the moves from the “sex story” to the “gender story” is the rejection of sex essentialism. While gender-analytic narratives often either do not mention or explicitly reject the notion that sexual violence in war and conflict is something that men do to women, the accounts that they produce of that violence implicitly reify those notions. This reification can happen jurisprudentially, where the “gender justice” paradigm looks to protect women from the violence of men and/or redress violations of women’s human rights when they are violated by gender-based violence. It can also happen in media coverage and scholarly analysis, where assumptions about what women are, what men are, and what men and women signify in war and conflict implicitly require male perpetrators and female victims.
That is why, in chapter 2, I argued that existing narratives of sexual violence in war and conflict overdetermine that rapes among women specifically (or women perpetrators generally) are discursively impossible. This discursive impossibility means that, in myriad situations in which their existence would be appropriately recognized, women who commit sexual violence in war and conflict are often ignored, underplayed, stereotyped, sensationalized, or otherwise treated differently on the basis of their sex and/or gender. Chapter 3 demonstrated that, despite their exclusion from the speakable realm of conflict analysis, women perpetrators exist. These women perpetrators are not, as some stories would depict them, freaks of nature who defy their gender and/or are crazy, broken, scarier-than-men animals who are to be at once defined out of existence and understood as monstrous and discarded as deviant. Instead, they are, like other perpetrators of sexual violence, gendered actors in gendered conflicts, beset by and situated in a number of other factors that account for sexual violence in war and conflict whoever commits it. As I have argued, the double move of sensationalizing women’s engagement in sexual violence in war and conflict and distancing sexually violent women both from agency in their own actions and a normalized notion of peaceful femininity is both repeatedly performed and normatively and practically problematic.
The remainder of the book engaged those normative and practical problems, looking to understand the ways in which recognizing women perpetrators refigures notions of what sexual violence is, what women are, and how sexual violence in war and conflict should be dealt with in international criminal jurisprudence. While I am not arguing that international criminal jurisprudence is the most important part of post-conflict justice, either generally or for sexual violence specifically, I am making the argument that war crimes tribunals are exemplars of the implicit work of the discursive assumption that perpetrators are male and victims are female, and therefore an important potential ground for rethinking and retheorizing these ideas. Additionally, since international criminal jurisprudence has been a frontier for progress in the recognition of sexual violence as a war crime, it is important to evaluate the ways in which it has succeeded in representing sexual violence in war and conflict appropriately as well as the ways in which inaccuracies in those representations reflect and are reflected in other histories and interpretations of conflicts. To that end, I argued in chapter 4 that seeing gender subordination more complexly can strengthen theories of wartime sexual violence, regardless of the sex of the perpetrator—and without abandoning the productive identifications of the many and multilayered was in which conflict generally and sexual violence therein specifically are sexed, gendered, and sexualized. This is a move that, as I argued in chapter 5, does not need to remain in the realm of the theoretical. Instead, some of its insights have the potential to be translated into the realm of conflict sexual violence jurisprudence, both in reframing and reenvisioning interpretations of the current legal grounds for the recognition of sexual violence in war and conflict as a crime and adding the possibility for legal analysis of gender/violence in conflict violence jurisprudence at the international level.
Identifying gender/violence as a war crime is not to suggest that some conflict violence is gendered while other conflict violence is not gendered. Instead, the idea is to suggest that the burden of proof in court cases to identify gender/violence is such that much gendered violence in conflict would remain impossible to charge as a matter of law, but some gendered violence in conflict could be clearly identified as such—with a number of potential payoffs. As I discussed in chapter 5, the potential payoffs include discursive interruption of dominant, essentialist narratives; changes in the ways in which testimony is offered and valued in trial situations; and changes in the elements that trials contribute to shaping post-conflict narratives and memories.
This concluding chapter contends that it is important both to identify rape among women (practically and theoretically) and to conceptually and legally adapt jurisprudential practice to that recognition. It does so, first, by looking at two cases of sexual violence in war and conflict (in terms of media framing and jurisprudential process) explicitly through the lenses of the lessons learned in this book. While these rehearsals and counterfactual recreations cannot, by definition, do justice to the thousands of pages of jurisprudence, years of prosecution and defense work, years of trial, and uncountable media coverage of each case to make thorough reformulations based on authoritative evaluations of the facts of the case, they can explore the extent to which the interpretive keys that this book has critiqued shaped the ways in which each case was made intelligible (or unintelligible) to a variety of audiences, and suggest counterfactually the ways that rereadings of those interpretive keys might provide space for reenvisioning framings and “grids of intelligibility” for sexual violence in war and conflict.4
After rereading those cases, this chapter concludes by recommending the reconstruction of war rape jurisprudence, both for the procedural and normative justice provided by international criminal trials and for broader policy goals. It suggests that the recognition of women’s engagement in sexual violence in war and conflict provides a path to reconceptualize relationships between gender, war, and sexual violence more generally that can produce both a more nuanced and more accurate account. This, in turn, could be the foundation for two more potentially important steps: decreasing wartime sexual violence specifically without essentializing, sensationalizing, or ignoring women’s violence and complicating understandings of what gender subordination is and how it works in global politics.
Many of the details of the case of Pauline Nyiramasuhuko were discussed in chapters 2 and 3, and do not need to be rehearsed in great detail here. In Rwanda, though there was significant evidence that women participated in genocide-related crimes generally and genocide-related sexual violence specifically, indictment, arrest, and conviction rates for women were significantly lower than they were for men in domestic courts—a trend replicated in the ICTR, where Nyiramasuhuko was the only woman arrested and indicted.5 Some attention in both the media and in scholarly work was paid to women perpetrators both of genocide and of genocidal rape, but most of it was either piecemeal or sensationalistic, and very little of it got a significant amount of attention.6 While both men and women were among the perpetrators of the Rwandan genocide as well as both strategic and counterstrategic genocidal rape, Nyiramasuhuko was singled out, both for media horror and for prosecution, as an exemplar of the abnormal phenomenon of women’s perpetration.7
The sex-related crimes with which Nyiramasuhuko was charged were rape as genocide and rape as an outrage to dignity.8 The legal basis for the charge of genocidal rape was twofold: she was charged with rape as a crime against humanity and rape as a violation of the Geneva Convention on war crimes.9 These charges were supported by evidence of Nyiramasuhuko’s open advocacy of getting rid of all Tutsis10 and of her strategic use of rape and sexual slavery as weapons.11 While the ICTR declined to prosecute a number of other high-profile women alleged to have been involved in the genocide, its prosecutors, judges, and media and scholarly audience showered disproportionate attention on the Nyiramasuhuko case, which included both genocidal rape charges and charges for the deaths of tens of thousands of Rwandans in the genocide. Many analysts have attributed this attention (even while replicating it) to the novelty of “the female atrocity perpetrator,” as discussed in chapter 2.12
The coverage of the Nyiramasuhuko case sensationalized the transgression against gender norms that the perpetrator seemed to exemplify—distancing her from “normal” women assumed incapable of such violence, and suggesting that a woman’s capacity to engage in this sort of violence heralds an end to understanding women’s special victimization. This book has gone over the many problems with this sort of analysis. Suffice to say that Nyiramasuhuko was not the first female perpetrator of sexual violence in war and conflict, nor the only one in the Rwandan genocide,13 and that sensationalism around the sex of the perpetrator demonstrates not only problematic gender analysis of this case, but what wartime sexual violence is, who perpetrates it, and how it should be prosecuted.
All of these problems in coverage aside, it remains true that Nyiramasuhuko was convicted by the ICTR of rape as a crime against humanity.14 As discussed in chapter 2, a surface-level reading of the decision in the Nyiramasuhuko case suggests that many of the critiques of international criminal jurisprudence about sexual violence in war and conflict are unnecessary—since the sex of Nyiramasuhuko as a perpetrator is not overemphasized in her conviction.15 At the same time, the sexual violence of which she was convicted was strangely “normal” and “traditional”—she was convicted for her role in commanding male soldiers to abuse female victims. While Nyiramasuhuko was an unconventional commander/perpetrator, the decision emphasized conventional perpetration, and focused on her command role in that conventional perpetration. Above and beyond that, while the decision of the court in the conviction was not clearly pinned to her sex, it was featured strongly in the prosecutorial strategy as well as the legal defense, and clearly struggled with in parts of the court’s opinion.16
An example of the key role of Nyiramasuhuko’s sex in the prosecutorial strategy in the trial is in the prosecution’s opening statement, which characterizes her as
[a] woman from Rwandan society, a woman who is a minister, who is a member of parliament. A woman who lost all her civil nature: people being raped before their parents; watching their children be raped. She had lost her civil nature because in her presence, the most serious rape under the cruest conditions were applauded. She even encouraged her son to do as much. She put everything she had to the point that she was dressed in military gear to play her role of a militant minister. A woman who had lost every sense of feeling.17
While this paragraph in the prosecution opening would have had the same legal effect had Nyiramasuhuko been characterized either by name or as a person, the characterization of her as a “woman,” and the repetition of the word “woman,” serves to compare traditional expectations of femininity with Nyiramasuhuko’s alleged aberrant behavior.
Perhaps uniquely in international criminal jurisprudence around wartime sexual violence, Nyiramasuhuko’s defense also looked to compare her behavior to that of a “normal” woman, and to traditional expectations of femininity.18 As the court recalls, “the Nyiramasuhuko Defence asserts that ordering killings and rapes was contrary to Nyiramasuhuko’s character and that she had worked her entire life to help the women of Rwanda.”19 In the defense’s argument, Nyiramasuhuko’s conformity to traditional expectations of femininity and her previous alignment with causes of women’s rights served as evidence that she was not capable of genocidal violence, either generally or of a sexual nature.
In making its evidentiary findings, the ICTR did not discuss either of these associations with gender. The court also declined to comment on expectations associated with femininity, or on Nyiramasuhuko’s position as the first woman charged with or convicted of engagement in rape as a crime against humanity. At the same time, the court clearly struggled with the co-defendant relationship between Nyiramasuhuko and her son, and with what their mother-child relationship meant for her responsibility as a command superior for his behavior.20 It also struggled with questions of the credibility of witnesses who were Nyiramasuhuko’s husband or daughters, particularly in terms of what if any special bias was in their testimony related to their “mother” and “wife” that wouldn’t be there with a more traditional family relationship between the accused and his family of defense witnesses.21
Juxtaposed against the advocates’ use of gender tropes and the court’s resistance to the use of such tropes were a number of allegations of sex-specific violence committed by Nyiramasuhuko and/or committed at the insistence of her command. The court found significant evidence that she had a role in making rape a strategy of the summer 1994 genocide.22 She was convicted for directly ordering a number of rapes on a number of different occasions.23 The court also decided that Nyiramasuhuko’s commission of the crimes of genocide and rape as a crime against humanity was aggravated by her position at the time as the minister for family and women’s affairs, since her behavior constituted an abuse of that position.24 As the court explained:
Nyiramasuhuko’s position as Minister for Family and Women’s Affairs during the events made her a person of high authority, influential and respected within the country and especially in the Butare prefecture from where she hails. Instead of persevering the peaceful co-existence between communities and the welfare of the family, Nyiramasuhuko, on a number of occasions, used her influence over the Interahamwe to commit crimes such as rape and murder. This abuse of general authority vis-à-vis the assailants is an aggravating factor.25
In my reading, this paragraph in the decision sends mixed messages. On the one hand, it is her “general authority” that Nyiramasuhuko abused, presumably as a member of the cabinet. On the other hand, the reference to how that authority was abused compares her actual behavior to “preserving peaceful co-existence between communities and the welfare of the family,” a reading of Nyiramasuhuko’s specific position among the cabinet of ministers, and a (presumably unique) gendered responsibility to women.
Reading the newspaper articles the day after Nyiramasuhuko’s conviction might have led one to believe that she was convicted of everything of which she was accused, given the high number of convictions and the high number of accusations.26 Looking closely at the convictions at trial, though, helps the sort of analysis in this book. For example, in considering the charge of genocide against Nyiramasuhuko, the court excluded evidence of the commission of rape, remarking at several occasions that the evidence of rape would be considered when it was appropriate—under the charges that alleged the commission of or command of rape.27 The court’s reasoning seemed to be largely that the prosecution had provided insufficient warning to the defendant that rape would be considered an act of genocide.
Additionally, though Nyiramasuhuko was convicted of rape as a crime against humanity and outrages on personal dignity for crimes of sexual violence, there were a number of instances of sexual violence of which the court found evidence but for which Nyiramasuhuko was not convicted. One example stands out: in June 1994,
Nyiramasuhuko, in the company of at least four men and another woman and in a public place, handed out two boxes of condoms to a woman named Anastasie Muksakindi, and said: “Distribute these condom to our young men for them to rape the Tutsi, and after having raped them they should kill them. And moreover, it is these Tutsi women that steal away our husbands. Not a single one of them should survive. Rape them first and use the condom—and after that kill them. Let no Tutsi woman survive.”28
These non-convictions seemed to center around insufficient warning of prosecution—where the prosecution underestimated the evidence they would find of crimes of sexual violence and the defense did not anticipate the additional evidence. In other words, the extent and variety of Nyiramasuhuko’s perpetration of sexual violence was a surprise even to those who charged her with the crimes.
The media coverage of Nyiramasuhuko’s case, and some of the scholarly reactions, echoed either the prosecution or defense’s gender-based accounts of her role in the summer of 1994 genocide in Rwanda—characterizing her as either extra-criminal for her transgression of gender norms, or as incapable of the crimes of which she was accused because of her sex. While these stereotypes were not on display at Nyiramasuhuko’s trial, it was clear that they were just under the surface in the prosecution, the defense, and the decision.
I have contended elsewhere in this book that a more complicated gender analysis of Nyiramasuhuko’s case contradicts a number of these stereotypical, essentialist, or sensationalist narratives of her behavior. On a theoretical level, it is important to note that women can commit political violence, and can subordinate women on the basis of gender—nothing about being “women” themselves stops that from being within their realm of capabilities. Therefore, nothing about Nyiramasuhuko’s being a woman renders her incapable of committing those crimes. It is true, as we have also discussed a number of places in this book, that people identified as women are far less likely to commit war crimes generally and war crimes of sexual violence specifically than people identified as men. To contextualize this empirical observation appropriately, and separate it from assumptions about biological capacity, it is important to realize that both women and men (and people who do not fit comfortably into either category) live within the gendered orders of local, national, and global social and political life. Therefore, for many people identified as women, it is possible that gender tropes determining them incapable of political and/or sexual violence are actually direct or indirect influences on their behavior. At the same time, that does not make people like Nyiramasuhuko less female for their engagement in political violence. Instead, it demonstrates that characteristics associated with masculinities and characteristics associated with femininities do not map one to one onto maleness and/or femaleness. This recognition suggests that Nyiramasuhuko is neither an affront to or a reification of women’s femininity; gender analysis of her behavior is appropriate, but sex-essentialist analysis is not.
A more complicated story of gender and sexual violence in war and conflict still has something to say about Nyiramasuhuko’s case, however. The sexual violence in which she engaged—from ordering rapes and kidnappings to distributing condoms and encouraging rape—is gendered. Again, this claim is not meant to suggest that “normal” or “regular” or “non-sexual”29 violence is ungendered. Instead, it is meant to understand Nyiramasuhuko’s violence as necessarily tied to gender significations in local and global politics. The grounds for seeing her violence as gendered, though, are largely separable from her status as a woman, with one possible caveat.
The argument that the Nyiramasuhuko’s violence was gendered could rest on her persistent tendency to separate commands about what should happen to men (that they should be killed) and what should happen to women (that they should be raped and then killed).30 It could also be seen in many of her derogatory comments towards the Tutsis, which were grounded in a characterization of Tutsi women as dirty, related to their actual or potential sexual relationships with Hutu men.31 In other words, Nyiramasuhuko was targeting women as women on the basis of gendered assumptions about what constitutes a woman. In this respect, the sex-specific violence that she committed and encouraged is gendered in many ways similar to the genderings of the violence that her male compatriots committed during the genocide.
The feminization of the women who were Nyiramasuhuko’s victims also was not unique to her perpetration either. As the court recognized, the commission of rape in Rwanda in 1994 was in large part strategic—an ordered, hierarchical command decision—rather than incidental or a result of military disorder.32 The intent of the strategy of rape was the feminization of the Tutsi population (individually and collectively) and their coterminous extinction.33 The rapes that Nyiramasuhuko commanded, like the rapes that her male co-conspirators commanded, and the rapes that the Interahamwe committed, were both a physical actualization of that intent (hurting or killing the ability of the Tutsis to reproduce) and a message communicating the inability of Tutsi men to defend Tutsi women (and therefore the defeat of the Tutsis).34
Still, much has been made about how much worse, or, at the very least, less comprehensible Nyiramasuhuko’s violence was than the violence of her male co-conspirators. After all, she was a woman who raped. She was not only a woman but a women’s rights advocate. And she was not only a women’s rights advocate, but a government official accountable for the fate of women. The court determined that her position as a government official made her crimes worse, but provided mixed messages on whether her particular position made her crimes worse. These are complicated issues, but I am not sure that any suggestion that Nyiramasuhuko’s status as a woman is necessary to decide that her position in government (as a minister) makes her crimes worse (taking advantage of authority), or even (going a step further than the court was willing to explicitly) that her particular position as minister for family and women’s affairs makes her crimes worse. What makes it particularly reprehensible that these crimes were committed by the minister for family and women’s affairs is not that the minister for family and women’s affairs was a woman—it is that the minister for family and women’s affairs is someone whose job title and job responsibility signifies that s/he would not actively harm women or commit gender-based violence. Counterfactually, both being a minister generally and the minister for family and women’s affairs specifically would be (individually) aggravating factors in understanding the severity of the crimes committed by a male minister for family and women’s affairs.
The suggestion that Nyiramasuhuko’s treatment is due to her position as minister for family and women’s affairs rather than her womanhood is not useful here. The (even counterfactual) existence of a male minister for family and women’s affairs is unlikely. That is, the people who appointed Nyiramasuhuko to her ministerial post probably saw her female sex as a necessary but insufficient qualification for holding the post. This makes her biological sex not irrelevant to the conditions of possibility of her gendered violence. At the same time, the position of Nyiramasuhuko’s womanhood as a necessary condition for a part of the gendering of her sexual violence is not a causal force in that gendering—it is the product of other complex parts of the gendered political orders that make womanhood a condition of possibility of her being the minister for family and women’s affairs.
Thinking through a gender analysis of Nyiramasuhuko’s actions during the 1994 Rwandan genocide shows her participation in genocide, conspiracy to commit genocide, and genocidal sexual violence—and those genderings as not tied to the biological sex of the perpetrator. Women as a class and individually were no less victimized by her violence because she was a woman committing it; her violence would be differently though no less gendered if it were committed with men as the primary victims.
It might be difficult to see this retheorizing mattering in jurisprudential terms. While I cannot rewrite twelve years of trial, hundreds of thousands of pages of testimony, and a 1,500-page decision in a few words in this chapter, I would like to suggest three substantive interventions that my adjustments to the “grids of intelligibility” of her (and others’) sexual violence.35 The first is that gender analyses demonstrate the links between rape and genocide that should make it possible to understand crimes of rape as crimes of genocide, as the ICTR had in other cases.36 Nyiramasuhuko’s actions were no less rape as genocide than Akayesu’s. Second, and relatedly, the gendered logics of the perpetration of Nyiramasuhuko’s crimes extended beyond the crimes that were explicitly sexually violent. The evidence that she talked about the destruction of family units, the killing of children, the femininity of Tutsi men, and women’s responsibility to marry all had links to particular readings of how gender relations constituted and were constituted by Tutsi ethnicity specifically and Rwandan nationality generally.37 Thinking about gender/violence as a potential charge to be pressed would, then, serve three functions in the Nyiramasuhuko case. First, it would provide a basis for linking her sexual violence with her other violent crimes. Second, it would supply a logic with which to recognize as crimes some of the things like condom distribution and incitement of rape that were not subject to conviction in the current international legal framework. Third, it would make the gendered logics that made the crimes that constituted “outrages to dignity” count as such intelligible as part of gender-subordinating stories sexual violence in war and conflict. These functions, together with the deconstructive function that provides a language to critique both prosecutors’ and defendants’ use of gender tropes, as well as the court’s discomfort discussing gender, might make intervening with a different, more complex “gender story” of sexual violence in war and conflict intellectually, normatively, and jurisprudentially useful.
The Akayesu case was decided thirteen years before the Nyiramasuhuko case, but also concerned the Rwandan genocide in the summer of 1994.38 As mentioned in chapter 2, Akayesu has been heralded as the case where the crime of genocidal rape was identified, with the ICTR finding that rape is in fact genocide when its perpetrators rape with the targeted intent to destroy a group, in whole or in part.39 In the case, the court found that the rape of Tutsi women was “systematic” and was “perpetrated against all Tutsi women and solely against them,” which made the act genocidal rape.40
Jean-Paul Akayesu was not charged with rape as genocide. He was charged with genocide, and with rape as a crime against humanity.41 The indictment suggested that the defendant had committed rape as a crime against humanity because Tutsi women who were in his governmental office lived in constant fear,42 and that the defendant knew that acts of sexual violence were happening, was present at their commission, and facilitated them.43 At no point was it suggested that the defendant personally committed rape,44 only that he commanded, supervised, and saw it happening. In fact, originally, the defendant was not subject to any charges about sexual violence at all—the charges were amended during trial to reflect what the court characterized as witnesses’ spontaneous testimony about the occurrence and severity of sexual violence.45 Having heard testimony that suggested the presence and prevalence of sexual violence, the ICTR concluded that, in the Akayesu case, “the investigation and presentation of evidence relating to sexual violence is in the interest of justice.”46
What followed was floodgates opening to many witnesses’ testimony about rapes that took place at or near the defendant’s government offices with his possible knowledge and tacit consent. The testimonies recounted dozens of rapes, in the forest area around the office,47 in the cultural center,48 with male sex organs,49 and with wood and other blunt objects.50 The ICTR chamber found that sexual violence had occurred,51 and that the accused had reason to know about it, and failed to exercise his authority to stop it.52 It therefore convicted the accused of rape as a crime against humanity, and used evidence of the accused’s complicity in rape as evidence of the accused’s complicity in genocide.53
In this finding, the court made a number of observations about its understandings of what rape is. It defined rape as “a form of aggression” where “the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts.”54 Analogizing rape to torture, the court defined rape as “used for such purposes as intimidation, degradation, humiliation, discrimination, control or destruction of a person.”55 The court continued: “like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.”56 In the Akayesu case, the public position that the defendant held constituted consent or acquiescence.
Since the initial discussion of rape in the ICTR judgment did not discuss the sexual nature of rape as a war crime, the following paragraph defined “rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”57 The court defined sexual violence as a broader category, inclusive of but not limited to rape.58 It suggested that sexual violence “is not limited to the physical invasion of the human body and may include acts that do not involve penetration or even physical contact.”59 In this context, a coercive situation was described in some detail: “the Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict.”60 The ICTR classified rape as a crime against humanity under ICTR Statute 3(g), and sexual violence as an “outrage against humanity” and/or “serious bodily or mental harm” under ICTR Statutes 4(e) and 2(2)(b) respectively. It saw sexual violence as a war crime when it was a part of a widespread or systematic attack, on a civilian population, and on certain catalogued discriminatory grounds.61 The court went further to classify rape as an act of genocide.62 It explained:
With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide. . . . Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict harm on the victim as he or she suffers both bodily and mental harm.63
In the case of the accused, the court found that “the acts of rape and sexual violence” that happened in his case “were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public . . . and often by more than one assailant.”64 The impact, the court suggested, was genocidal in nature:
These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.65
In finding that the rapes constituted genocide—as noted at the beginning of this section—the court characterized them as both “systematic” and “perpetrated against all Tutsi women and solely against them.”66
In his unsuccessful defense, the defendant conceded that genocide had occurred, but denied complicity therein—arguing to the court that he “did not commit, order, or participate in any killings, beatings, or acts of sexual violence alleged.”67 Instead, he argued that he could not prevent it, and should not be required to have been a hero for, or a savior of, the Tutsi population.68 While Akayesu did not deny that genocide had been committed, he did deny that there was any sexual violence in his direct control. As the court recounted, “during his testimony the Accused emphatically denied that any rapes had taken place at the Bureau Communal, even when he was not there.”69
So what could rethinking sexual violence in war and conflict possibly tell us about this landmark case? And why analyze this case, with a male perpetrator and female victims, when the whole point of this rethinking exercise is to identify female perpetrators and their victims? When the traditional victim/perpetrator dichotomy not only holds, but has the ideal perpetrators and victims, in Mibenge’s terms?70 As I have argued throughout this book, rethinking theories of and legal approaches to sexual violence in war and conflict through the recognition of women perpetrators provides important correctives for approaching this violence more generally, recognizing the sex essentialism even in gender-based stories and progressive prosecutions, and recognizing the complexities of the gender orders in which it is perpetrated and received.
The Akayesu case reads very differently than the Nyiramasuhuko case—both because the Akayesu court needed to decide whether or not there was a genocide in Rwanda in the summer of 199471 and because it is textually clear that the court saw that its treatment of sexual violence was or would be politically controversial.72 The court therefore spent a fair amount of time discussing the importance of prosecuting sexual violence and what constitutes sexual violence in war and conflict for the purposes of conviction. The result is what many see as the most broad-ranging of war rape definition in jurisprudential history (which does not rely on penetration or touching and does not necessarily include the use of sex organs),73 with the attribution of the responsibility to stop sexual violence from a position of authority.74 Subsequent courts either incorporated this definition or saw it as too broad, and much of the gender justice advocacy community bemoaned the definition not being used as much as it could be.75
As progressive as the Akayesu court was in recognizing the need to prosecute sexual violence to achieve justice, and in using a broad-ranging definition to capture not only rape but sexual torture and sexual humiliation, the basics of a “gender story” in which men=perpetrators and women=victims of sexual violence in war and conflict are clearly used and not interrogated in the case. A number of stories that query the absolute nature of these dichotomies are glossed over in the text of the decision, such as young men asking their female victims to teach them to rape,76 and young women given a laissez-passer from the violence witnessing it and failing to protest.77 There is no direct evidence of the existence of female perpetrators of sexual violence or male victims in city of Taba where Akayesu served as the local government, though general evidence from the Rwandan genocide suggests that both existed most places in Rwanda during the summer of 1994.78 If there were no male victims or women perpetrators in Taba, though, that would be happenstance rather than a structural feature of the sexual violence in the conflict.
Yet in the decision it is treated as a structural feature of sexual violence in war and conflict, where that violence is understood to target and destroy all and only Tutsi women—and by secondary effect, their families. While there is some resonance in that explanation, asdiscussed in chapter 1, it is too simple. While Tutsi women were (largely) the victims (individually and collectively), even the trial evidence shows that some Tutsi women were exempted from the violence.79 Much more importantly, however, are the gendered reasons why the majority of the victims were Tutsi women. These gendered reasons included reading women as the social, cultural, and biological reproducers of the Tutsi ethnicity, and as threats to the purity of the reproduction of the Hutu ethnicity.80 The target, then, is women because they are women, but because that womanhood is identified with certain normalized notions of sex and gender relations that position women both low on gender hierarchies and central to reproduction.81 Seeing sexual violence in war and conflict as a crime of gender/violence complicates the sex-based analysis in Akayesu.
Such a reading of sexual violence as a war crime of gender/violence also could have provided support to the Akayesu court’s broad reading of the crimes that constitute sexual violence in war and conflict as a crime against humanity and an outrage against personal dignity.82 The court seems to understand that violations like being forced to parade naked are sources of embarrassment for women, but does not interrogate the analysis of traditional gender roles that validate this embarrassment by highlighting women’s status as mothers.83 In other words, the court does convict for and punish humiliation that exploits traditional gendered expectations of women’s modesty, but it does so without recognizing those traditional gendered expectations as part of the violence done to the women victims.
This is evident in the treatment of the testimony of another witness, called “JJ” by the court. JJ had left her one-year-old child with a Hutu family that promised it had milk for the baby, but killed the baby instead.84 The paragraph that discusses her testimony, however, does not emphasize the horrors of the loss of a child. Instead, it discusses the special pain of rape for a mother, observing that the witness “testified to the humiliation she felt as a mother, by the public nudity and being raped in the presence of children by young men” as a source of “the heavy sorrow the war had caused her.”85 This humiliation was exacerbated by the witness’s testimony that “she could not count the number of times she was raped.”86 As evidence of the long-term impact of sexual violence in war and conflict on its victims, the court recalled that “witness JJ told the Chamber that she had remarried but that her life had never been the same because of the beatings and rapes she suffered.”87 Here, the wrong of sexual violence in war and conflict is tied to the ways in which it inhibited witness JJ from performing the roles traditionally associated with femininity, as well as to the ways in which her expectations of feminine and maternal privacy were violated. The Akayesu conviction, then, relies on reification of very traditional (yet very complicated) gendered orders in Taba.
The Akayesu fact pattern includes more examples of the complicated ways in which gender norms constituted victims and victimization in the narrative of the Rwandan genocide. The decision, for example, tells the story of a family where the mother “begged the men, who were with bludgeons and machetes, to kill her daughters rather than rape them in front of her.”88 An initial reading of this sentence suggests that the mother was asking that the daughters be killed rather than raped and killed, but the testimony in court being given by one of the daughters suggested that, at least in this situation, killing was not the understood inevitable result. The mother was suggesting that being made to watch her daughters be raped was worse than watching them die. This was apparently a signification with which the perpetrators agreed, given that “the man replied that ‘the principle was to make them suffer’ and the girls were then raped.”89 The daughters survived that and a number of other rapes, but were rejected by their mother as a result. The witness recounted that “their mother asked her daughters to leave rather than continue to be tortured in front of her.”90
In my view, the mother described here (but never mentioned by name) is both a victim and a perpetrator of sexual violence, and a perpetrator of violence more generally. The mother’s request that her fifteen-year-old daughter be killed rather than raped in front of her includes a number of significations about gender. First, the rape of the daughter is understood (first and foremost) as a humiliation of the mother—that is, the violation of the daughter constitutes a humiliation of the mother, and, in the text of the explanation, this is something understood by both the potential rapist and the mother. Second, the life of the daughter is understood as less important than, or at the very least irreversibly destroyed by, the existence of the rape (in front of the mother or not), such that killing appears to be more humane than living with the stigma of rape. Third, then, the mother’s pain at watching her daughter be raped is more important than both her daughter’s pain from the rape and her daughter’s life. The rape that the victim was subjected to, then, was also an affront against the mother on the basis of gender in the gender order of the community at the time. The mother, however, becomes both victim and perpetrator, first when she begs for her daughter’s death, and then again when she disowns her daughter rather than watch her be raped or tortured. There is no evidence on the trial record or elsewhere of the indictment or prosecution of this mother for kicking her teenaged daughters out of the house, after which each suffered significantly and one died. While the witnesses are unidentifiable from the case record, and therefore any evidence of such an indictment or prosecution would be difficult to find, it seems unlikely that any existed.
The complicated gender dynamics of this particular account suggest both that the victim/perpetrator dichotomy is not as clear as it is often treated in either media reactions to sexual violence or in international war crimes jurisprudence. It also suggests that there remain gender-based dynamics between multiple layers of victims and multiple layers of perpetrators, even when expanding the definitions of perpetrators and victims and including both men and women among the ranks of both categories. A more complex gender analysis of the sexual violence in the Akayesu case reveals both more victims and more perpetrators than the jurisprudence or media coverage did, and demonstrates the fluidity of the victim/perpetrator positions.
Finally, a more complicated look at the sexed, gendered, and sexualized assumptions in the Akayesu trial and decision draws attention to the several times when the court struggles with getting witnesses to describe exactly how they were raped and what happened to them during the rapes. In the decision, the court discusses with reference to several victims and at length the difficulty extracting what the witnesses thought that rape was when they described what had happened to them, either using the term “rape” or using language about the insertion of one sex into another sex.91 As the court recounts of witness JJ, “at the request of the prosecutor and with great embarrassment, she explicitly specified that the rapist, a young man armed with an axe and a long knife, penetrated her vagina with his penis.”92 The court is trying to balance its need for “specific evidence” of what happened to the female victims of the sexual violence in war and conflict with the women’s reluctance to testify about it, but a gender analysis about this reluctance to testify is conspicuously absent. A number of feminist scholars have expressed concern about the ways that adversarial and detailed testimonial procedures replicated the violence that victims experience in conflict,93 and, while the Akayesu court seems aware of the “great embarrassment” of testifying to the technical workings of rape, it does not seem to link that embarrassment to the gendered logics of sexual humiliation that underlie sexual violence in war and conflict. The analysis in this book has suggested that the gendered logics of humiliation, punishment, and feminization that underlie strategic sexual violence are not unique to the perpetration of war rape, but can also come up not only in myriad other forms of sexual violence in war and conflict but also in other forms of conflict violence, and in processes of post-conflict reconciliation and justice.
While, like Nyiramasuhuko, there are a lot of progressive elements of the Akayesu decision, and of media and scholarly reactions to it, there are a number of shortcuts in the gender analysis in the case that miss important details both about how the facts in the case worked and how the genocide in Rwanda worked. Thinking of the complexity of gender dynamics would remove the assumption that women have to be the only victims of the sexual violence to be victimized as a class, or that men must be by definition the perpetrators (and solely perpetrators rather than perpetrator/victims) in order for women as a class to be victimized. Considering a non-sex-essentialist version of the “gender story” of sexual violence in war and conflict also allows insight into the gender dynamics among women, and gender dynamics that stereotype sex roles which were both weaponized and overlooked as both weapons and consequences in the perpetration of sexual violence in the Akayesu case and in the Rwandan genocide more generally. The prosecutorial pursuit and court consideration of a charge of gender/violence would allow/encourage/require the court to think about the complicated dynamics of Rwandan gender order that underlie the perception of what is wrong with sexual violence that constitute it as a crime against humanity and an affront to dignity—given that those logics are both implicitly and explicitly gendered. Such a counterfactual charge would have also provided the court leeway to talk about and justify the pursuit of conflict sexual violence charges, as well as rape as genocide charges, with a more clear theoretical logic. In this way, the more complex gender dynamics that are ignored in the decision could have attention paid to them, and the court could stray from sex-essentialist analysis of the victims and perpetrators of the violence while still accounting for, in gender terms, the horror that is sexual violence in war and conflict.
This book has argued that gender analysis is crucial to a full understanding of the conditions of possibility for, the perpetration(s) of, the signification(s) of, and even the legal treatments of sexual violence in war and conflict—but that the manner, depth, and accuracy of that gender analysis matters. I have contended at several points throughout the book that full understandings of sexual violence in war and conflict are hampered by rather than facilitated by oversimplistic sex, gender, and sexuality analysis—especially those that make the assumption that, because most perpetrators are sexed male and most victims are sexed female, sexual violence is something done to women by men. The account of that violence in this book casts it as gendered but not sex-essentialist, using complicated gender analysis to enhance understandings of the gendered dynamics of not only sexual violence in war and conflict, but conflict violence and global political orders more generally. I have opposed such a framework to explicitly sex-essentialist accounts (which are increasingly rarer with the dominance of gender-justice frameworks)94 and implicitly sex-essentialist accounts (which to some extent or another are present in almost all of the dominant scholarly, media, and jurisprudential accounts).95
In this concluding chapter, I have analyzed how such an approach might analyze and impact the decisions in and coverage of two cases decided by the ICTR about sexual violence during the Rwandan genocide. These analyses have been cursory, given the breadth and depth of the cases and the coverage thereof.96 They also cover jurisprudence in only one conflict, and only a small part of the (internationalized) jurisprudence about that conflict.97 These cases are not the outrageous cases on the fringes of conflict sexual violence jurisprudence that inspired the critique that is the foundation for this book. I did not pick the hundreds of cases where female perpetrators, not only of the Rwandan genocide but of sexual violence in war and conflict around the world, were not prosecuted, or the hundreds of cases where male victims were ignored or downplayed because male=perpetrator and female=victim.98 Instead, I chose explicitly sex- and gender-conscious cases. Despite this sex and gender consciousness, and serious efforts at gender analysis by the court, these cases contain a number of the mistakes that the critiques in this book highlight. Also, each case (though in a different way) contains judgments that were at the time (and are still) considered progressive by a significant audience in international criminal jurisprudence, even feminist international criminal law analysis.99
I chose these “progressive” and “forward-thinking” cases to show the vestiges of sex essentialism in their decision-making, and the implicitly gendered dynamics in their analyses of the existence and perpetration of sexual violence in war and conflict. I wanted to show not only that vestiges of essentialist and oversimple “grids of intelligibility” remain in those decisions and the treatment of them, but that a framework that takes account of the complexities of gender dynamics can point out, rectify, and correct those shortcomings without abandoning gender-based analytical tools.
At the end of this book’s analysis, like at the beginning, it remains true that very few women are wartime rapists, issue commands to commit sexual violence in war and conflict, plan intentional sexual violation, personally violate other women, advocate strategies of forced impregnation, force abortions or miscarriages, sell women into sexual slavery, or use rape as a weapon of genocide. It also remains true, however, that it is overdetermined that those very few women are either entirely invisible (given their discursive impossibility) or hypervisible100 (given their transgression of their discursive impossibility). Further, those very few women, while statistically insignificant in many (though not all)101 cases, are significant for a number of reasons. First, their stories are a part of the history of the conflicts in which they committed violence, and need not be omitted from those histories because scholars, lawyers, courts, and media are unable to find frames to make those stories intelligible within broader accounts of sexual violence in war and conflict. In other words, women do commit sexual violence in war and conflict, and making that part of wartime sexual violence invisible is problematic. Second, and the feature of this book—recognizing the existence of women perpetrators of sexual violence in war and conflict forces substantive reconsideration of unexamined and oversimple assumptions about what women are, what men are, what sexual violence in war and conflict is, what conflict is, what perpetration is, and what victimization is. It does so by interrogating the coherence of the category of “woman” and the assumptions that members of that category have essential commonalities, critiquing assumptions about women’s “natural” peacefulness and/or common decision-making processes, complicating the individual and collective assumed simplicity of the perpetrator/victim dichotomy, analyzing the gendered nature of sexual violence in war and conflict, and breaking down continuing sex-stereotypical notions of who perpetrates and who is victimized by that sexual violence. Such an approach, I hope, makes it possible to understand women victimizing women on the basis of sex and gender in wartime sexual violence (as elsewhere), paying as much attention (if not more) to the gendered dynamics of perpetration and victimization as to the sex, gender, or sexuality of the perpetrator(s).