RAPE AT ROME: FEMINIST INTERVENTIONS IN THE CRIMINALIZATION OF SEX-RELATED VIOLENCE IN POSITIVE INTERNATIONAL CRIMINAL LAW: Janet Halley* INTRODUCTION To “GOVERNANCE FEMINISM"... 3 J. Tue ICTY anp ICTR Statutes ano THE ROME STATUTE SEEN SYNOPTICALLY smesnnnnneni A. The ICTY and ICTR Statutes and the Rome Statute 448 Events it Ti oneneninesnnsunnnannnnenn B. Feminist Organizational Capacity and Rhetorical Strategy e..um i 1. The Emergence of GFeminism as an Important NG Force... sees 2. The Emerging Genres of GFeminist Rhetoric. 26 TL. Fesanist Goats, Successes, AND DErEATs IN ‘THE STATUTORY PROCESSES... 49 A. The Legal Backdrop... eee 51 B. Early Feminist Goals and the Emergence of the Feminist Universalist Vision... os 33 C. Feminist Successes and Defeats in the ICTY and ICTR Statutes. : eae 67 D. Feminisis at Rome. -70 1. The Feminist Universalist Vision Comes of Age «70 2. WCGI Operationalization of the Feminist Universalist Vision as Legal Rule Proposals ...r...075 E, Feminist Successes and Defeats in the Rome Statute... 101 1. Horizontal Reforms... tot 2. Vertical Reforms...... 108 Coctusion... a aa 120 (© 2009 by Janet Malley. A righs reserved, * Royall Professor of Law, Harvard Law School, Thanks to David Keanedy, Duncan ‘Kennedy, Valerie Oostereld, Daren Roseablu, Hila Shami, Ralphe Wilde for comments on calicrcrafis, and o A. Ease! Tupaz, Jimmy Richardson, and Hila Shamir for stellar researc assistance. Stephen Wiles and other Harvard Law School ibrariane were immensely generous ‘with tee skils, Thanks also, for opportunites to ciscus earlier drafts ofthis Article, 10 the Hanard Legal Scholarship Workshop 2005), the Harvard Intemational Law Workshop (2006) the Wownen’s Studies Program and Kirkland Endowment at Hamilton College (2007) the “Resistance and the Law” Conference sponsored by Unbound: The Harvand Journal for ‘the Legal Lefi (2007), the Siderow Workshop for Law and Political Thought at Tel Aviv Unik versity Buchmann Faculty of Law Ganaary 2008), the Law Department at the American Univesity of Cairo (April 2005 and January 008), the Brown University Deparment of Eng Tish (March 2008, and the HLS Facalty Workshop Gly 2008). 1 HeinOnline 30 Mich J IL, 2008-20092 ‘Michigan Journal of International Law (Nol. 301 This Article examines the work of organized feminism in the forma- tion of new international criminal tribunals over the course of the 1990s. It focuses on the statutes establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). It offers a description of the evolving organizational style of feminists involved in the legislative processes leading to the establishment of these courts, and ‘a description of their reform agenda read against the outcomes in each court-establishing statute. At each stage, the Article counts up the femi- nist victories and defeats, giving (I hope) a clear picture of how “feminist” the resulting codes really are. ‘The goal is to produce an assessment of the ideotogical/political in vestments that feminists brought to their work on the statutes for the international criminal tribunals (ICTs) and the ICC, and of the degree to which the statutory regimes contain rules that allow participants in adjudi- cation under these statutes to put those ideological/political investments into action. This Article is one of a series. In an essay recently published in the Melbourne Journal of Iniernational Law, 1 read representations of rape both in a literary text and in law reform sought by feminists in the prose- cution and adjudication of actual cases in the ICTY and ICTR." In yet another paper currently in draft, I examine the litigation and adjudication of the ICTs and the prosecutorial output of the ICC to date in far more detail than [ attempt in the Melbourne essay, with the same goals that I pursue in the present Article’s examination of statutory rulemaking? My conclusions in this Article are two. First, feminist organizational style and capacity evolved rapidly over the course of the 1990s. Second, though there were some disagreements among the feminists involved, the organizational style was overwhelmingly coalitional, resulting in a literary “trace” of feminist work that is almost devoid of manifest inter- nal conflict. The consensus that emerged as the feminists’ joint representation of their worldview, argument repertoire, and reform agenda was not, as one might expect, a median liberal feminist view that split the difference between conservative and leftist feminist ideologies. Instead, the manifest consensus view was an updated radical feminism, strongly committed to a structuralist understanding of male domination and female subordination. There was some tension on a few issues be- tween structuralist and liberal-individualist femininists (a distinction 1 1. Janet Halley, Rape ix Berlin: Reconsidering the Criminalization of Rape in the International Law of Armed Conflict, 9 Mee. J. Ir. L. 78 (2008) thereinafer Halley, Rape in Berlin 2, Tobe emied, Rewriting Rape: Feminits Reforms inthe Prosecution and Adjudica ion of Sewal Volence in Armed Conflict. en Oalne 30 Mich J fe. 22008-2008Fa 2008) Rape a: Rome will describe in detail below),’ but it was muted by the coalitional style adopted by feminists and compromised usuelly in the direction of struc- turalist rule choices. INTRODUCTION To “GOVERNANCE FEMINISM” Chantal Thomas, Prabha Kotiswaran, Hila Shamir, end I have de- scribed @ new feminist organizational style thet has evolved over the course of the 1990s as Govemance Feminism (GFeminism).’ We devel- ‘oped this term in part because it captures the strong resemblance of the new, muscular non-governmental organization (NGO) formations adopied by feminists to the prescription for political engagement with Jaw produced by the “new governance” (NG) school’ Amy Cohen de- scribes the project of the NG literature as follows: (Nlew govemance proponents sim to design a wide-seale prob- Jem-solving praxis that is both maximally efficient and normatively (democratically) legitimate. They envisage myriad individual stakeholders grouped into “problem-solving ‘publics’”” 3. See ina Par Db 4, Janet Halley, Prbhe Kodswaran, Hila Shomic & Chantal Thoms, From the fier national tothe Local in Feminist Legal Responses to Rape, ProsinuioniSex Work. and Sex Tracking: Four Suuies in Comemporary Governance Feminiem, 29 Hanv. 14. & Geno 335, 337 (2006), 5. See id. at 340-40 (discussing the “new governance” (NG) projet a8 it relates to Feminism). See generally Detrenine Dewockacy: INSTTTUFONAL TANOVATIONS 8 EM owexeD Parmicipatony Governance (Archon Fung de Erik Olin Wright eds, 2003); Law ‘ano New GOVERNANCE IN THE EU anb THE US (Griinze de Borca & Joante Scott eds, 2006); Joshua Cohen & Charles Sabel, Direty- Deliberative Poiyarchy, 3 BUR, LJ. 313, 313 42 (1997); Michael C. Dorf & Charles F Sabel, A Constinaion of Democratic Experimental- fam, 98 Couun. L. Rey. 267, 267-473 (1998), Jody Freeman, The Private Role in Public Governance, 75 NU. L. REV. 543, 543-675 (2000); Brandon L. Garret & Janes S. Lieb man, Experimentlis: Equal Protection, 22 YaLw L. & POLY Rev. 25}, 261-327 (2004); Olives Gerstenberg & Charles F.Sabel,Directly-Deliberetive Polyarchy An Instiational Ideal Jor Europe?, in Gooo Goverxines i Eunov'slnvrecareo Manker 289 (Cristian Jo- lenges & Renaud Dehousse eds, 2002), Bradley C. Karkkainea, “New Governance” ix Legal Thought and inthe World: Some Spiing as Artidte to Oversealous Lamping, 89 MINN. 1. Rey. 471, 471-81 (2004); James S. Liebman & Charles F. Sibel, A Public Laboratory Dewey Barely Inagined: The Emerging Model of School Governance anal Leg Reform, 28 NVC. Rev. L. de Soc. Chance 183, 183-304 (2003); Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Mux. L. REY. 342, 342-470 (2008), Charles F. Sabel & William H. Simon, Destabilization Rights How Public Law Ligation Succeeds, 117 Hat. L. REV. 1016, 1016-1101 (2008; Joanne Seott & ‘Susan P. Sturm, Courts as Cazalyts: Re-Thinking the Judicial Role in New Governance, 13 CConun. 1. Eun. L, $65, 565-64 2007}; Wiliam H. Simon, Solving Problems vs. Claining Rights: The Pragmatst Challenge to Legal Liberalism, 46 Wut. & Many L. REY. 127, 127~ 212 (200; Susan Sturm, Second Generation Employment Discrimination” A Structural Ap ‘roach, 101 Cows. L. REV. 438, 48-568 (2001). HeinOnline ~30 Mich Jf 3 2008-20084 Michigan Journal of International Law oi. s0:t - that negotiate about issues of social concern and that openly compare their learning with and against other problem-solving publics. By coordinating and monitoring (but not defining or Griving) these horizontal processes from above, moreover, new governance proponents aim to ensure that these local delibera- tions are inclusive, transparent, justified by a record of demonstrable reason, and progressively evolve towards maxi- mally informed, collaborative, and efficient solutions.* While dissenting from the sunny optimism about NG formations (we were more skeptical that norm follows form in any necessary way),’ we id think that the literature captured something important, descriptively, about the newness and the complex, fluid, temporally variable, and net- worked rather than pyramidal character of NG organizational styles. In particular, we recognized the complex way in which NG formations in- vaginate the State with non-state elements and their porosity to NGOs aiming to advance specific social interests. GFeminism has grown up along with NG, and surely not accidentally, has co-invented its most se~ lient features. We also noted the paradox that feminists working on male sexual ‘wrongs against women in the NG mode nevertheless imagine the inter- national and national legal orders as heavy, consolidated, top-down sn power from on high, and to use it to produce absolute results." In Foucault's terms, they have not leared—they do not want to leam—how to cut off the head of 6. _ Amy J. Cohen, Negotiation, Meet New Governance: Interest, Ske, and Selves, 33, Law & Soc. INquinY 503, $14 (2008). 7. See id. Jocating blindspets shared by the NG literature and new work on negotie- tion as development strategy); William E, Scheverman, Democratic Experimentalism ar Capitalist Synchronization? Critical Reflections on Directl-Deliberative Polyarchy, 17 (CanaDIAN J.L, & JuniserudENce 10] (2004) (eriticizing the NG assumpion that the sup- posed democratic dimensions of NG wil also be progressive) ‘8 OF course, male domination through rape and other sexual wrongs i not the only focus of international feminist engagement, ad the egal modalities o which they have te} for remedial strategies are as diverse as te intematonal legal ord. See HUMAN RuoMTs oF \Wostew: NATIONAL ND INTERNATIONAL PERSPECTIVES (Rebecca J. Cooked, 1994) (demon strting the awakening of new feminist energy in intemational law directed at problems ax , and who direct their efforts © carrying a brief on behalf of female or f more generally. See JANET HaLLey, Srust DEC HONS: Ho¥ ano WHY TO TAKE A BREAK FON FEMNasW 17-20 (2006). 78. “The Secretary-General, Note bythe Secretary-General on the Non-Governmental Orgenizaions Accredited 10 Participate in the Conference, UIN. Doe. Aton. 183/173 (Kane 5, 1998). This mumber is up fom the one, then two, then thee feminist organizations eng ing inthe first stages of the ICT state and litigation processes described cupra notes 35-38 and accompanying text. Is mach more onthe scale ofthe eighty organizations signing the smicus brief in Akayesu, See supra note $1 and accompanying text. Indeed, given the much larger organizational capacity needed to pantcipate inthe Rome Conference process, a8 op posed to that required .o sign an amicus bie, the active involvement of thiry women's NGOs ‘Suggest further grow in the scale ofthe feminist NGO establishment HeinOnlge ~ 30 cht 21 2008-20082 Michigan Journal of International Law Not. 30:1 that would have had feminists on board and that worked on the issues of concem to the women’s organizations. Describing this collaboration, Hu- man Rights Watch indicates that “women’s rights activists throughout the world—of every politcal stripe, faith, sexual orientation, nationality, and ethnicity—mobilized at each step of the International Criminal Court (ICC) process ....°" Rana Lehr-Lehnardt indicates that the Feminist Majority Foundation, the Women’s Division of Human Rights Watch, Amnesty International, “and others” participated actively in the feminist reform effort.” These statements suggest a range of feminist NGOs cou- pled with a range of feminist views. Despite the large number of participating NGOs advocating for women, every single explicit statement that I have been able to find iden- tifying the NGOs that actually influenced the process for setting rules relevant to a feminist agenda leads to one emtity in particular: the ‘Women’s Caucus for Gender Justice (WCGD, This is certainly the conclusion of feminists writing about their ex- perience of the Rome process.” But we need not depend on feminist sources for this conclusion: nongeminist recorders of PrepComl and the Rome Statute support it as well. Leila Nadya Sadat and S. Richard Carden credit the “Women’s Caucus and many State delegations” with producing “a much stronger gender perspective throughout ... {the Rome Statute’s} text” than in any prior IHL document.” Benedetti and Washburn indicate that, in PrepComl, there were four “main groups of the [CICC] coalition”; the frst one they mention was the WCGI and the list does not include any other group devoted to women’s issues.” Hall reports that “{iJhe NGO recommendations have had a significant impact con governments’ proposals ..., and, in the absence of summary records in the Preparatory Committe, these recommendations will ad in under- standing the history and meaning of many provisions of the statute...” 79, Human Righs Watch, supra note 76 80, Rana Lehr-Lehnardt. One Smal! Step for Worsen: Female-Frendly Provisions inthe Rome State of the International Criminal Cont, 16 BYU 1, PUA, L. 317,339 (2002). 81. Kelly D. Askin, Prosecuing Wartne Rape ond Other Gender Related Crimes Un- der Inertational Low: Extraordinary Advances, Enduring Obstacles, 21 Benwrity 1 TNT LL. 288, 347 (2003) (hereinafter Askin, Prosecaing Wartime Rape] (enphasizng that efforts by organizations working alongside or under the Wornen’s Caucus for Gender Justice (WCGD) in the lnerational Criminal Cour (ICC) secured the inclusion of rape and other feminist reforms io the ICC); see also Oosterveld, Sexual Slavery, supra note 2), at 613 0.33, osiereld, The Definition of "Gender inthe Rome State. supra note 54, 2 $8 0.21. See ‘generally Bedont, supra note $1; Bedont& Hall- Martinez, supra note 32. 82. Sadar & Caren, supra note 22, a 396 2.73, 83. The others listed are Amnesty Taternation, the Association ofthe Bar of New York City’s Committees on International Law and Inecnational Human Rights, Homan Rights Watch, and the Lawyer's Committee for Homan Rights. Benedett & Washbur, supra note 13,413. Heine ~30 Mich, Jf L. 22 2008-2008a 2008) Rape at Rome 2B He then ists the position papers of five NGOs as the effective legislative history of PrepComl, and again the WCGJ is the only women’s NGO. listed And he publishes the same list, omitting the New York Bar Asso- ciation and adding the World Federalist Association, in his report on the fifth meeting of PrepComl.” Jennifer Schense, Legal Advisor to the CICC, includes the WCGJ as the only nominally women’s or feminist organization on the Steering Committee of the CICC as of March 2002 We are warranted in concluding, I think, that though a large number of NGOs was involved, the WCGJ successfully became their coalition leader. And this fact alone is indirect evidence that it also mastered the behavioral codes that gave some NGOs legitimacy. In the intense advo- cacy and fierce resistance that ensued when the WCGI proposed that “enforced pregnancy” be included among the prosecutable crimes, the WCGI was included directly in the negotiations and at one point it was negotiating directly with the Holy See.” In effect, what the CICC was to the pro-ICC NGOs, the WCGJ was to the feminist ones: the decisive legitimate NGO, enjoying the power, conceded by NGOs and Like-Minded Group delegations alike, to organ- ine and speak for member NGOs. : ‘And what was the WOGJ? Officially recognized at the third meeting of PrepComl,” it was a coalition of women’s NGOs, counting about 200 affiliates at the time the Conference began. It consolidated a cohezent platform for feminist reform and lobbied hard in the Rome Statute nego- tiations.” In addition, as we will see in Parts ID and ILE below, it had ¢ rich platform of proposed reforms, arguments, and strategic practices. Feminists were not shy to claim credit for making a difference in the Rome Statute negotiations, and when they did so they spoke the lan- guage not of expertise but of politics. Writing in the law reviews, they testified to their hard work and their partial success. Barbara Bedont and Katherine Hall-Martinez indicate that “[w]omen’s rights activists viewed the negotiations for the ICC as a historic opportunity to address the fail- ures of earlier international treaties and tribunals to properly delineate, investigate, and prosecute wartime violence against women ™ ‘They de- soribe the WCG3 as an active lobbying entity with the leverage to change 84. Hal supra noe 60, at 125 & 07. 85. Hal, supra note 75, 339 0.17 85. Jennifer Schense, Necessary Steps for the Creation of the Iermatonal Criminal (Court, 25 Forowais IT'LL 717,717 m2 (2002), 87. See Bedant & Hall-Martnez supra wote 32, at 66-74; Onstervel, Sexual Slavery, supra no¥e 21, 8620-21 ‘88. Nicole Eva Erb, Gender-Hased Crimes Under the Draft State for the Permanent Inserational Criminal Court, 29 COLUM, HUM, RTS. L, REY. AO1, 425 2.97 (1958). 89, Bedont & Hall-Manine, supra note 32, a 67 90. ta. 886 ‘HsinOalie ~ 30 cht L. 2 2008-200926 ‘Michigan Journal of International Law [No 304 some States’ negotiating positions: “Few, if any, government delegations would have been willing to expend the political capital needed to secure the provisions {on the WGI agenda] ... without the persistent lobbying efforts of the Women’s Caucus.” Christine Chinkin concludes that the success of the intense lobbying by women’s groups both at Rome and then throughout the first meeting of the Assembly of States Parties shows that it is possible to gain provisions for eq uitable gender representation within the constitutive instrument of an international court and also to insist upon voting proce- dures to ensure that the commitment is met.” Hilary Charlesworth concurs: “This recognition [of sexual violence as a potential crime of genocide, a crime against humanity, and a war crime in the statutes of the two ad hoc tribunals and the ICC] was the result oF considerable work and lobbying by women’s organizations ....” Meanwhile, as we have seen, feminists played many explicitly po- litical roles in the ICTYACTR charging and adjudication process." From outside the institutional structure of the tribunals, they intervened in the form of activist NGOs, writing letters, submitting amicus briefs, and put- ting face-to-face pressure on ICT officials. They also brought pressure by writing law review articles and treatises assessing the tribunals’ pro- gress. One of the things that they pushed for was inclusion in the tuibunals" processes as official players. A particularly important goal was the appointment of ideologically sympathetic judges. As we have seen, they were finally invited inside, and got appointed as experts, special ‘rapporteurs on sexual violence, investigators, prosecutors, and judges. Feminists repeatedly claimed that they mounted a concerted cam- paign that made concrete differences in the outcomes. The consensus among feminists writing about these achievements is so smooth that my collection of quotations testifying to them is highly duplicative. Femi- nists were in complete consensus about the need for political pressure, the fact that they brought it to bear, and the fact that it produced a meas- ure of success.” Two examples may suffice, According to Barkan, 91, Td 869; see alo Lehr-Lehmarc, supra note BO, at 345-54 (arguing a more pessi- snistic assessment that was ene sympathatic to the WCGI?'s aims but more aggrieved about its defeas). 92. Christine Chinkin, “Reconceiving Realty": A Ten-Year Perspective, 97 AM. Soc’ TWP L Proc. 55, 6 (2003 93, "Hilary Charlesworth, Feminist Methods in International Law, 93 Ax. J. It L. 379, 386 (1999). ‘4, See supra txt sccompsning notes 35-53. 95. See, eg. Askin, Proseeuing Warne Rape, supra note 81, at 317 ("The prosec- tion of gender crimes in the Tribunals is typically fraught with inherent dificulties and pratutous obsacles and the crimes are uvally investigated and indicted only afer concerted 50 Mich. J. Int, 24 2008-2008 |2008) Rape at Rome 25 [The new International Criminal Tribunal for Yugoslavia looked like an exceptional chance in 1993 for advocates of human rights for women to make some progress. But every step forward, as it tumed out, required a lobbying campaign. Nongovernmental or- ganizations and university-based institutes wrote briefs and Tenters, requested meetings, did press work, and held seminars and conferences.” The struggle was often intense: “The advocates’ work had to be thor- ough, and there was a lot of it” Barkan attributes the only real successes of the ICTY to this feminist intervention and to the “many prosecutors and judges {who} were responsive, some even courageous.” In light of these achievements, Barkan abandoned some of her cynicism about the tribunals: “From the start, most observers considered the [ICTY] 2 sop to human rights and feminist activists who wanted inter- vention .... Almost no one expected it to succeed. And yet, to some extent, atleast for women, it did” ‘Askin tells largely the same story ‘The cases demonstrate that female judges, investigators, prose- cutors, and translators, particularly those with expertise in ender crimes, are extremely useful in the prosecution of gender pressure by women’s rights organizations and feminist scholar to prosecute the erimes, None theless the progress made is nothing shon of revolusonary"); Kelly D. Askin, Seuat Violence im Decisions and Indciments ofthe Yngosiay and Rwandan Tribunals: Current Stans, 93 Av J. IPL. 97, 98 (1999) fherciafier Askin, Sexual Violence) C{T)he jurisprudence of the United Nations Teibunels refeets women's partcipaon."; Bedont & Hall- Martine, sxpra note 32, a 75-76 ("The gradual sift toward taking rape and ther sexual times seriously and investigating tem zealously can be waced co the participation oF wornen inthe ICTY’ and ICTR as investigators, researchers. judges, legal advisors, and prosecutors”); Charlesworh supra note 93, at 387 (arguing thatthe ICTY recognition of sexual violence a a criminal act ‘under intersational humanitarian aw (HL) “was the result of consierable work and lobbying by wowen’s organiaations), Chinkia supra noe 82, at 55 (observing thatthe effort to secure recognition of" gender crimes" from the [CTY has “ret wit considerable sucess") iat 63 (The work ofthe international Criminal Tbunals forthe former Yugoslavia and Rvanda— ‘once again driven by energetic ouside (NGOs) and committed insiders... [eafed] gender. Sensitive procedure and case law [such as the Akayesu, Kanarac, and Furundija cases)" CUNY Clinic Memorandum, supra note 37, at 173. The sutors ofthe CUNY Clinie Memo- randum sted, [The ICTY] ig. historic in shat iti the firs to give distnetatention to gender based crimes. This is in no small measwe the result of Be persistent effons of sur vivors and their advocates, as wel asthe growing global campaign for women's harman sight, which has made violence against women a major intemational ist ‘CUNY Clinic Memorandum, supra note 37, at 173, 96, ~ Barkan, supra note 44, 63, ota 981d 8. 1m, NeinOntive 30 Mich, ne L 25 2008-20926 Michigan Journal of International Law {6 308 ‘crimes. They further demonstrate that there must be political will to prosecute sex crimes, and that pressure exerted from NGOs is often indispensable to ensuring that gender crimes are investigated and indicted,” Nor are Barkan and Askin guilty of empty boasting. As we have seen, ICTYACTR Prosecutor Richard Goldstone was willing to go pub- lic claiming that his heart and mind had been changed by feminist advocacy. Clearly he, at least, thought that announcing his susceptibility to GFeminist pressure and persuasion added to, rather than impugned, his credibility." 2. The Emerging Genres of GFeminist Rhetoric So far the feminist strategy in legislative and prosecutorial reform appears seamlessly identical. GFeminism, however, housed a vast array of roles, each of which had a number of genres of writing available to it. A judge could write opinions but would probably hesitate to write hard- hitting advocacy op-eds; a hard-hitting advocate might denounce interna- tional law for failing to recognize the harm of rape in war, provoking the ire of a comrade who was writing in the law reviews to argue that inter- national law has always recognized wartime rape as a violation and that the only change needed now was to make this prohibition explicit, | decided early on in the research summarized in this Article that I would not interview participants in the processes I describe here: the result, I thought, would simply have multiplied rather than reduced the interpretive challenges of dealing with the written archive. So [ have ‘made myself entirely dependent on genres of legal writing, ranging from the judicial opinion to the op-ed, for the material on which I base the conclusions of this Article. And this has in turn made me reckon with the particular representational or literary capacities of these different genres. ‘When could I take a given text as reliable reportage of what happened, and when was it an event in its own right? When was the patent spin ex- aggerating 2 legal claim just misleading, and when did it tell me something about feminist strategy and tactics? In thinking about these problems constantly while composing this Article, [ came to the conclusion that, consciously or not, the feminists made an allocation of rhetorical styles to occupants of different roles, and that this allocation shifted over the course of the decade, always in response to an advocacy/egitimacy tension that was immanent in differ- cent ways in different institutional settings and various roles. Part of what 100. Askin, A Decade ofthe Development of Cender Crimes, supra note 50, a 19. OI, See supra ex accompanying notes 47-48 HeinOnline = 30 Mich. Ine L 26 2008-2009Fal 2008) Rape at Rome 27 makes the outsider activist feminists of the early 1990s so different from the insider GFeminists of the late years of the decade was this new rela- tionship to that advocacy/egitimacy tension. ‘One of the most dramatic changes over the course of the 1990s in- volved the deployment of position papers, draft legislation, written talking points, and the like. In the ICT phase, feminists published these, but in the Rome phase, they did not, That is, in the very beginning, while they were ignored by the United Nations personnel drawing up the ICTY Statute, feminists decided to publish some of their blueprints for rule reform—and when they did publish, they set out their agenda rule by rule, rationale by rationale. They also ushered into print some of the documents that they submitted to the rule-making bodies. Both kinds of publications give us snapshots of what they were doing in their actual interventions. Three such publications have been extremely useful to me in my research: 1. The WILP No Justice, No Peace Report."* The printed version of this document does not disclose how or when it was circu: lated in the United Nations. It was produced sometime between the WILP delegation’s February 1993 journey to the Balkans conflict area and the print publication of the Report in the winter of 1994, probably in the winter months of 1993, 2, The CUNY Clinic Memorandum." Submitted to United Na- tions bodies involved in drafting the ICTY Statute, itis undated but must have been in circulation in the early months of 1993, 3. The Greew/Copelon Working Group Proposals." These were submitted to the ICTY judges and were aimed at influencing the Rules of Procedure and Evidence. They too are undated, but we know that they were submitted to the ICTY in late 1993 and, re- vised, again in early 1994 By the time formal discussions leading to the Rome Conference were underway, the practice of publishing this kind of material had fallen into disuse. I have relied on documents I was able to obtain on the WCGJ 102, See No Justice, Mo Peace, supra note 35. 103. See CUNY Clinic Memorandum, sepra note 37, app. Bat 235-41 fos iat 7 HeinOnline 30 ich J fet L, 27 2008-2009,28 Michigan Journal of International Law (Vol. 30:1 ‘website (now closed)," and through the iinmensely appreciated generos- ity of Valerie Oosterveld.™ In my view, the GFeminists® attitude was not that these materials were secret. Rather, GFeminism as it took shape shed the earlier strate- gic impulse to publish position papers. There are many likely reasons for this, probably including the vastly increased volume of such documents, the increasingly minute detail that they encompassed, and the emergence of distribution networks that did not rely on law review publication. In its hammer-to-anvil work, GFeminism entered into discussion with itself and with the world of IHLCL officials. These “blueprint” documents aren’t just direct evidence of the re- form demands made by the feminists issuing them: they are those demands. They give us unalloyed access to the feminist rule demands and the arguments that ferninists thought politically, ethically, and rhet- 105. WCGI, Recommendations and Commentary for December 1997 Prepon on the Establishment of an oternational Criminal Count United Nations Headquarters (Doc. '- 1987) [hereinafter WCGI, 1287 Recommendations] (On le with autor); WCGI, Summary of Rovonimentaions: Composition and Adminstration of the Court; Crimes Against Human pt 112 (March 1998) (hereinafter WCGI, 398 Summary of Recommendations) (on file ‘with author 106.” See WCGI, Recommendations and Commentary for August 1997 PrepCom an the Establishment ofan Inerational Criminal Court (bereinafer WCGH, 897 Recommendations ‘the Court (on file with author); WCGH, Recommendations and Commentary for the Mitch 1998 PrepCom, Reparations, pt. IM (Mar. 18, 1998) fbecenafier WCGI, 398 Recommenda- tions on Reparations} (on ile with author); WCGS, Recommendations and Commentary for the March 1998 PrepCom, Establishment of the Court & Relationship with the United Na ions, Financing the Court Final Clauses, pt, V (hereinafter WOG), 398 Recommendations fon the Institutional Court] (on file with autho): WCGI, Recommendations and Commentary for the March 1998 PrepComn, Composition and Administration, pt. I fereinafier WCC, 398 Recommendations on Composition and Administration}; WOGI, Recommendations & Com mentary for Une March 1998 PrepCom, Amite 3{20] Chapeau, Crimes Against Humanity, pt IV (Max 19, 198) [hereinafter WCGI, 3/98 Recommendations on Chines Against Humanity] (on file with autho; WCGI, Recommendations on Composition and Administration of the ‘Court (Apr 14, 1998) [hereinafter WCGS, 4198 Recommendations on Composition and AG- ‘inisraion] (00 Tle with author; see also WCG), Gender lustice aad the IOC (addested 10 the Rome Conference) (hereinafter WCGS, Gender Jostice andthe ICC} (on file with auton). See also the positon papers composed (o address specie controversies that arose around |WCG) proposals during the Conference. These | subdivide, i tum, into two series, one onthe controversy about "gender volenco” and the second on a controversy about “enforced pre nancy.” Gender violence: WCGS, Briefing Paper on Gender (Mar-Apr. 1998) fereinarer WCGI, 398 Briefing Paper on Gender] (on file win author; WCGI, Applying the Most Re- cently Negotiated Definition of Gender to the ICC Stare [herenafer WCQ), Negotiated Definiton of Gender] (on file with author; WGI, The International Community Has Re- peatedly Reaffirmed the Need to Eliminate Gender Violence (herinafier WCGI, Need to Reaffim Gender Violence} (on fle with author); WCGS, Call 19 Delegates: Resist the Attack fon Gender Justice (Reeinafier WCG, Call to Delegates on Genved (om file with autor), Enforce pregnancy: WCG), Justice for Women: The Crime of Enforced Pregnancy (ne 26, 1998) (teresnafter WCGS, 698 Crime of Enforced Pregnancy (on file with author, WEG), Priority Concerns: Respecting War Cries, ant. B [hereinafter WCG), Priiyy Concems (En forced Pregnancy) (on fie with aur) HeinOnline ~30 Mich. 1 Ine L.28 2008-2009Fall 208 Rape at Rome 29 orically apt to support them. To borrow J.L. Austin’s terminology, they are performative, not constative."” But they are not transparent state- ments of what their promulgators wanted the law to be or harbored as their core ideological reasons for those desires. Controversy among feminists could be hidden behind compromise language, and strategic and even small tactical concems could cause feminists to mute certain demands and to advocate niles quite different from their ideal preserip- tions. It was only as I learned a lot about the process that 1 felt comfortable attributing a “Jegal vision” and a “feminist ideology” to par- ticular moves manifested in these materials. | try to be explicit about how I came to my conclusions so that they can be challenged where I have missed something or am wrong. Even as the feminist law reform archive stopped going into print, & parallel shift was happening in feminists’ use of journals and other print media. In the early days, before the existence of GFeminist insiders and thus of GFeminism as a real possibility, feminist activists producing the “blueprint” documents were also willing to publish guides to their legal and thetorical strategies. Rhonda Copelon published some extremely frank assessments of the advantages and impediments offered to femi- nists by existing humanitarian law."" She, Jennifer Green, Patrick Cotter, and Beth Stephens set out their blueprint for the Green/Copelon Working Group Proposals in an article bluntly entitled “Affecting the Rules.” They put political and strategic motivations directly on the table. Back then. ‘Also in the early days, high feminist legal theory was blunt about the failings of international law and invoked feminism as the source of its norms. For example, Charlesworth, Chinkin, and Shelley Wright, in their article essentially inaugurating feminist interventions in international lays,"* drew up a world in which international law and feminism were distinct sources of normativity, the former sadly in need of help from the latter. Though of course Charlesworth, Chinkin, and Wright invoke in- temational law as a source not only of legal but also of normative authority, they also denounce it as “a thoroughly gendered system." It 107. .L. Ausrn, How 0 Do Tavs wins Woaos 1-24 0.0, Urmsoa de Marina bis) cis, 24 4, 1976) 108, Rhonda Copelon, Surfcing Gender: Reconceptuaizing Crimes Against Women in Times of War, in Mass Ravt: THe Wa AGAINST WOMEN ik Boswta HeRzecovina 197, 197— 218 (Alexandre Stgimayer ed, Marion Faber tans. 1994); ee also Copeion, supra note 42 (providing a substantially evised and republished version of her aniele eniled "Surfacing Gender: Reconceptslzing Crimes Against Women in Times of War) 109. See CUNY Clinic Memorandum, supra note 37, t 171 110. Hilary Charleswoa, Christine Chinkin & Sheliey Wright, Feminist Approcehes ro International Las, 85 At J.P LL. 613 (1991. M1 Ida 615, 30.Mich 1 ft L 29 2008-200930 Michigan Journal of International Law Net 30:1 is feminist theory that constitutes the overarching normative reference point for reform: “By taking women seriously and describing the lences and fundamentally skewed nature of international law, feminist theory can identify possibil a ies for change. This transparency, frank strategy, and feminist—as opposed to le- gal—normativity gradually went missing from feminist publications on rape, sexual violence, and related matters in international law. The first sign of the shift was in feminist work on particular cases in the ICTs Feminists withheld many of the real-time documents that did not have to be officially filed (letters, etc.); they stopped publishing articles settin forth strategy going forward: and instead they published articles describ- ing and assessing the work of the prosecutors and the courts ex post. By the time of the Rome Conference, there was a small library of feminist articles and even books restating and assessing what was actually in the final Statute. In this bibliography, the outsiders—and some insiders— describe, restate, praise, and criticize the already-existing law produced by the insiders, ‘A word needs to be said about the problems involved in using this subsequent, far more voluminous literature as evidence of what hap- pened or of what those involved actually wanted, thought, or did. It is precisely at the line between description/restatement on the one hand, ‘and praise/blame on the other, that the shetorical complexity of this pub- lished record emerges. The feminist legislative blueprints had a manifesto-like clarity, and the frank strategy papers weighed pros and cons and argued for risky but plausible approaches or for conceding im- portant normative points for strategic gains. This relative directness is almost entirely absent from the feminist law review literature describing and assessing both the litigation/adjudication process in the ICT and the legislative process especially at and leading up to Rome. Instead, de- scription is sometimes infused with assessment; assessment sometimes gains its rhetorical punch from artful rather than naive description. In several instances, which ¥ will detail carefully below, feminists were ‘more willing to disclose strategic reasons for positions that they took than to reveal the underlying intra-feminist disagreements that made strategy trump normative assertion. We have here what you might call literary nonfiction. The authorial stance is objectivity, descriptive accu: racy, and legal rightness, but the writing itself is strategic and full of spin, And sometimes the writing goes off the rails of descriptive accu- racy altogether; when it does, 1 experience the work as literary fiction. For my purposes, these deviations from simple restatement were ex tremely valuable. Whenever I could identify them, frustrated feminist 1 i inalie ~ 30 Mich. J In L, 30 2008-2009alt 2008), Rape at Rome a desire was being revealed to me, perhaps even more clearly, if less di- rectly, than in the declamations of the manifestos and the earnest argumentation of the early strategy papers. ‘What follows is a brief analysis of the two main genres of GFeminist writing: contributions by feminists who held official positions in the ICTs, PrepComl, or at Rome;'” and contributions by feminists writing in the mode of restatement, codification, and the objective transmission of existing positive law."* Tam not aiming here to present an encyclopedia of writing on the topic: for instance, strong feminist writing in the tradi- tion of the inaugural Charlesworth, Chinkin, and Wright article did occasionally appear.” and a critical literature also emerged,” and I set them aside. The aim here is to take the measure of feminist writing as feminism was increasingly merged into international law's common sense. a. Contributions by Feminists Who Held Official Positions in the ICTs and PrepComl or at Rome Extremely rarely would an insider don the label “feminist.” and Prosecutor Goldstone was far more willing to affiliate himself with a feminist agenda than were any of the women holding official positions. But women and men invested with official roles contributed decisively to the feminist cause. It is T, not they, who designate them “feminist.” I do soon the grounds that they treated women as a distinct social group, saw ‘women as subordinated to men at least some of the time, and shared the ‘goal of finding for subordinated women some relief from, if not cessa- tion of, their subordination."” It is easy to see why the judges would have been circumspect. The ICTS had to create themselves ex nihilo. For years, they operated under the U3. See tara Pa B22 114, See infra Pan 1B.26. 11S. See Chacesworth, supra note 93 (paring completely from the resate- rmenviadvocacy dichotomy) 116. Karen Engle, Feminism and fs (Dis)Contents: Criminaliing Wartime Rape in Bos ria and Herzegovina, 99 Av. J. It'L L. T78 (2005) [hereinafter Engle, Feminism and is (Dis)Contens}; Karen Engle, Liberal Iuemationalison Feminism, and the Suppression of Critique: Contemporary Approaches to Global Order in the United States. 46 Hav. INT'L LJ. 427 (2005) thereinater Engle, Libera iuernationalion}; Elona Loizidov, Criminal Law and Punishment Indexieal Permission, 6 PUNISHMENT & Soc'Y 303 (2004); Elena Loizidou, ‘The Trouble with Rape: Gender Matters and Legal "Tronsformations”, 7 Fesunest LEGAL Sruo. 275 (1999); Dane Otto, Lost in Translation: Re-Sriptng the Sesed Subjects of Inter- national Hunan Rights Law, in INTERNATIONAL Law AND FTS OTHERS 318 (Anne Orford od, 2006); Annelise Riles, The Viral Socialicy of Rights: The Case of “Women’s Rights are ‘Human Rights”, n TeansMaTIONAL LEGAL PROCESSES: GLOBALISATION AND POMER DIS- aarti 420, €20-39 (Michae! Likosky ed, 2002. 117. See HaLLey, supra note 77, at 17-20 (ffeing the definition offeavnism that use bere). HeinOalne 30 Mic, J. tt 31 2008-2009 |32 Michigan Journal of taternational Law (oL308 constant danger that public confidence in them would collapse, funding dry up, and 2 humiliating, violence-affirming institutional disintegration ‘ensue, They had to apply sui generis statutes to sui generis conflicts. The ICTY had to do this during the conflict it was adjudicating. For the ICTY, illegitimacy could come not in a charge of “victors justice” but of, taking sides in an ongoing war." As a result, the ICTS labored under a near-crippling legitimacy deticit."” ‘There were other legitimacy constraints. When it came time t0 con- sider legal innovations, the tribunals had to pay obeisance to the principle of nullum crimen sine lege. The Rome Conference 100 was sometimes justified on grounds that it merely codified existing interna~ tional aw, though it enjoyed some scope for explicit innovation in that it ‘was negotiating @ treaty document that would apply only to signatory States through a court that would enforce its terms only prospectively But both the ICTs and the ICC were and are supposed to be applying existing law. For their convictions to mean “justice” to many consumers of their output, he judges had to convince people that they were respect- ers of right, neutral objective arbiters of guilt or innocence ‘According to my research, the ICT judges limited themselves to le- al rulings and opinions and refrained from publishing in the law reviews or political journals. Yet, as we have seen, they could be quick to advance the GFeminist cause when the opportunity arose.'” How could this judicial activism be made to jibe with their obligations to remain neutral and merely apply law? By representing feminism as justice and representing feminism as knowledge. Recall ICTR Judge Pillay’s intervention in Akayesu to ensure that testimony of sexual violence became the basis of an amended indictment with new counts charging rape as the predicate crime for genocide, crimes against humanity, and more.” In its closing statement, the Akayesu defense “questioned whether the Indictment was amended in response to public pressure concerning the prosecution of sexual vio- lence.” The argument was that these charges were not law but politics, 118. Why, someone might ask, were those who perpecaed the NATO bombing of Kos ‘v0 not tried as war criminals? 119. See Marti Koskenniemi, Between Inpunity and Show Trals,6 Max PLANCK Y.B. UN. L, 1 (2002) (noting the diem oF legitimacy that bests special Uibunal, and that wi beset te ICC, 2s they sjudicate violations of inemational hsmaniarianfaw and intemational criminal law). 120. Askin, Decade ofthe Development of Gender Crimes, supra note SO, at 17 (ds cussing the story about Judge Pillay intervening in order ro get sexual violence testimony expanded), 121. See supra west accompanying ncees $052 122. Prosecutor v. Akayesu, Case No, ICTR.96-4-, Til Judgment, $417 (Sept 2, 1998). HeinOnline ~ 30 Mich. J Int L. 32 2008-2008at 2008) Rape at Rome 33 ‘The Trial Chamber responded by translating politics into justice through a series of verbal transpositions that successively displaced the former by morphing it into the latter. Here is the first step in the Trial Chamber's response: ‘The Chamber understands that the amendment of the Indictment resulted from the spontaneous testimony of sexval violence by Witness J and Witness H during the course of this trial and the subsequent investigation of the Prosecution, rather than from public pressure.” Here we have gone from public pressure, to simple faet, to objective in- vestigation, The Trial Chamber continues, Nevertheless, the Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concem over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presenta tion of evidence relating to sexual violence is in the interest of Justice.” We have successfully navigated from the rocky coast of public pressure to the calm, smooth isthmus of justice. Note the transvaluation of the term “interest.” The NGOs are represented as interested not in the sense that they form an interest group or have a stake in the outcome, but in the sense that their attention has been focused on events in the trial. They make manifest generic “public concern” that the “interest” not of any politically self-interested group but “of justice” itself be done. ‘The idea thet the commitments of feminism are justice, I would argue, is going to make them more palatable among intemational-law insiders bound to norms of neutrality. It will also meke them more difficult to de- tect: as they become part of international law's common sense, they also 123.1 (emphasis added), 124, 1 (emphasis acide). think that someone at the ICTR was worried about the charge tht the Prozecators amended ingiciment in Adayeru was politically mosivated and Sought to shape te docket to make the charge difficult to lodge, Iwas unable to find anywhere in he official publications ofthe ICTR recor in Akayesu, or onthe CTR website any trace ‘of an orignal indicument lacking charges of sexual violence erimes. Bot the official paper publication and the website begin with an indictment inchoding crimes of sexual violence. RWANDA REFORTS, supra noe $2, at 813. Moreover, tis indietment predoies by several ‘months te wibuna’s order permiting the arpendmnent ofthe original indictment. lat $2-S3, seems Bikey tht these cffical sources substitute she amended indctnent for the eigial ‘one, which remains unpublished. Andi so seems atleast posible that this subsiution snot secidotal hut the result ofa esie to keep the oficial docket innocent of the staring eveats leading tothe fist indictments amendment. HeinOnline ~30 Mic, lL. 33 2008-200934 Michigan Journal of International Law ol 308 lose their fingerprints, become generic, become capable of being hidden in plain sight. They will be ever more difficult to discem as feminist. ‘The same could be said of the second accommodation GFeminism hhas made to the demands of IHL/ICL legitimacy: feminism as expertise. Joanne Barkan, whose writing I will classify below as outsider-activist GFeminist, shows an extremely nice sense of who could fight and who had to know: The cases demonstrate that female judges, investigators, prose- cutors, translators, particularly those with expertise in gender crimes, are extremely useful in the prosecution of gender crimes. ‘They further demonstrate that there must be political will to prosecute sex crimes, and that pressure exerted from NGOs is often indispensable to ensuring that gender crimes are investi- gated and indicted.” Barkan claims for feminism the full range of roles, from NGOs on the outside, to judges on the ultimate inside, And whereas the outside forces ‘exert “political . .. pressure,” the inside players have “expertise in gen- der crimes.” Feminism as knowledge could wear judicial robes and wield prosecutorial discretion without sacrificing legitimacy. We see this defensive re-characterization again and again. For exam- ple, William R. Pace and Jennifer Schense describe a sharp conflict in the PrepComl between a group of Arab States and the WCGJ in ho- mologous terms: [The advocacy-oriented activities of the Women’s Caucus en- ‘countered difficulties because of the sustained opposition of a small number of delegations to what they perceived to be the pursuit of a purely political agenda rather than the contribution of legal expertise based on the real-life experiences of war- affected women and survivors of sexuat violence.” (Of the three italicized modes of operation, Pace and Schense were will- ig to defend the WCGJ's engagement in a lot of the first from attacks that they were really doing the second as long as their work could be described as, really, instead, the third. Feminist judging was really expert judging. Askin praised Judge Pi Jay's intervention in Akayesu for its abrupt effectiveness, concluding that “is highly unlikely that the Akayesu decision . .. which exemplifies a 125. Askin, A Decade ofthe Development af Gender Crimes, supra note 30,219. 126. william R, Pace & Jennifer Schense, Coalition for the International Criminal Court atthe Preparatory Commissian, in THe INTERNATIONAL CRIMIAL COURT: ELEMENTS ff Caines ano Ruts OF PROCEDURE AND EVIDENCE, supra note 30, at 705, 719 (emphasis added). HeinOaine ~30 Mich J I'L. 34 2008-2008an 2008) Rape at Rome 35 heightened awareness of crimes committed against women, would have demonstrated such gender sensitivity without South African Judge Navanethem Pillay's participation in both the trial and the judgment.” ‘That is to say, her intervention worked. And this powerful intervention brought not politics, but knowledge: “Having extensive expertise in gen- der violence and international law, Judge Pillay questioned the witnesses about these crimes.” Similarly, Askin tells us, Judge Odio- Benito, who, by the relevant time, was “one of the three female judges appointed to the Yugoslav Tribunal, was sitting on .. . (Celebici}, and her extensive expertise in gender crimes had a significant impact on adjudi- cating female sexual torture and male sexual violence.””” In fact, the ICTY hhas actually held that experience as a feminist ac- tivist in international legal work can be a qualification for service as a Judge on the court. In one important ICTY prosecation, the accused, An- ton Furundzija, moved to disqualify Judge Florence Ndepele Mwachande Mumba on the ground that her participation in the Trial Chamber proceedings created an appearance of bias. She had been a member of the U.N. Commission on the Status of Women (UNCSW) during the Yugoslav war, and had participated in its work on allegations that mass rapes were occurring there. Moreover, complained the defen- dant, the prosecutor in his case—Sellers—and three authors of an amicus brief filed in his case had participated with Judge Mumba in the United Nations fourth World Conference on Women in Beijing in Sep- tember 1995, And finally, all four of these women—including, again, Judge Mumba—had also participated in an Expert Group Meeting after the Conference that produced recommendations to the United Nations to ensure that rape be prosecuted under IHL as a war crime. The accused argued that these activities and associations created the appearance of bias. The Appeals Chamber rejected this challenge, citing Judge Mumba’s ‘experiences on the UNCSW as positive “qualifications . .. which, by their very nature, play an integral role in satisfying the eligibility requirements” for ICT judges.” Summing it all up, Mappie Veldt concluded, “Judge Mumba's membership of the UNCSW and her general experience in the 127. Askin, Sema Volence, supra noe 95,2198 98 128. Askin, A Decade ofthe Development of Gender Crimes, supro nese SO, 217 (em= phasis added; see also Kety Glassborow, Apartheid Legacy Haunts ICC Appeais Judge, INS. Tor War & Peace ReroamInc, July 25, 2006, htuhwww ivprneW?p-acr&s-f&o= 5322493¢eape,state=henh (proving biography of Judge Pillay, and, in particular, ning that she fas been a member of Equality Now and isa staunch advocate of delendaat rights in imterational tribunals) 129. Askin, A Decade ofthe Development of Gender Crimes, supra note 5D, a 17 (em phasis added) 130, Prosteutorw. Furundja, Case No. TP.9S-17/1-A, Appeals Judgment, $205 (uly 21,200, HeinOnline 30 Mich, oo 35 2008-200936 Michigan Journal of Imernational Law (No), 301 field were, by their very nature, an integral part of her qualifications for nomination as judge of the ICTY" The neutrality of the resulting new official cadre was often subtly indicated by designating their sole qualification as their biological sex, but the real driver was the expertise that feminism had become. For in- stance, Askin describes ICT decisions that represent progress, and indicates that in each of them a female judge was a member of the Trial Chamber hearing the ccase, and occasionally it was her skillful intervention, expertise in women’s issues, of judicial competence that facilitated the j dicial redress process and impacted the development of gender crimes .... There is little doubt that the presence of qualified ‘female judges, prosecutors, investigators, translators, and facili- tators (for example in the Victim and Witnesses Unit) has improved the record in affording redress for gender-related crimes.” We should not be deceived: Phyllis Schlaffly would not have been wel- come. Female here is code for feminist. Men can be—and did become— feminists: “The ICTY and ICTR are case studies on why it is so crucial to include women as well as men with appropriate expertise in interna- tional bodies charged with investigating war and conflict situations” But the call for women was a call for feminists. ‘So much for the judges: what about the Prosecutor's Office? Prose cators were far more willing than judges to write in the law reviews, and to publish their conference papers and after-dinner remarks, We have already heard what Prosecutor Goldstone has had to say in these ven- ues." Chief Prosecutor Louise Arbour published a lecture in which she both espoused the feminist agenda and distanced herself from it, per- forming her neutrality while incorporating parts—but by no means all— 131. Mappie Vldt, Commentary, in 3 ANNOTATED LEADING CASES OF INTERNATIONAL (Crna, TRIBUNALS: THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YuCO- ‘asia 1997-1999, 3387, 358 (André Klip & Goran Sluiter eds, 2001). 132. Askin, Prorecutng Wartime Rape, supra note 81, 2t 345 emphasis added); se also Askin, Sexual Violence, supra note 95, t 98 (“Toe jurispradence of the United Nations Tribu- nals reflects women's parcipation”); Bedont& Hall-Marinez, supra noe 32, at 75-16 ("The ‘gradual shift toward taking rape and other sexual crimes seousy and investigating them zealously canbe raced to te pancipation of women in the ICTY and ICTR as vestigate, researchers, judges, egal advisors, and prosecutors"), 133. Bedont & Hall-Matinez, supra nove 32, at75 (emphasis added), 134. Goldstone, Prosecuting Rape, supra note 50, at 277 (revealing how willing thea- Prosecutor Goldstone was fo disclose the political vexations and moral afiiations of his work); Goldstone, United Nations" War Crimes Tribunals, supra note 48,3231. HeinOnline ~30 Mich. 1 IL, 362008 2009Fat! 2008) Rape at Rome 37 of the feminist agenda." But by far the most complex performance was put in by Sellers. Sellers was Senior Trial Attorney in the Office of the Prosecutor for the ICTY and prosecuted several of the cases that will interest us most." In 1994, then-Chief Prosecutor Goldstone created the post of Legal Advisor for Gender-Related Crimes and appointed Sellers to fill it” It should be noted that Selters was an adviser to the Prosecu- tor's Office, not to the judges or defense counsel: feminism as legal ‘expertise has the same carceral consciousness as the GFeminist effort in THLACL generally. White occupying this post, simultaneously prosecut- ing cases, and advising the Prosecutor’s Office, she also published a series of unusually hard-hitting feminist law review articles, basically putting pressure on herself to do something, finally, about the scandal of THL indifference to rape and sexual violence. ‘An interesting aspect of Sellers’s persona is the sheer absence of per- sonal historical information about her in the voluminous archive of ICT information. I have found only three claims made by others documenting that she was in any way effective.” These three acknowledgements of her interventionist capability are aberrational in the ample commentary I have read about the judges and prosecutors of the ICTS. Generally, the femi- nist activist practice was to pay no attention to the feminist behind the 135. Louise Arbour, Crimes Against Women Under International Law, 21 BERKELEY J INTC L. 196 (2003) (eflectng on hee years inthe ICTY Prosecutor's Office), 136. "Sellers, Individual’) Liability, sypra note 34 indicating thet she had served as tial atorney in Furandéija, co-counsel in Akayesu, and "principal legal advisor to sever cass incling the Kanara cas”) 137. Goldstone, Prosecuting Rape, supra nove 50, at 280 (indicating that Golsione had appointed Sellers asthe “legal advisor to the Office ofthe Proseouor for Gender Crimes") Patricia Viseur Sellers, Semal Violence and Perempiory Norms: The Legal Vetus of Rape, 34 Case W. Res J. nv" L287, 287 nal (2002) (hereinafter Sellers, Sexual Violence) (ndiat- Ing that Sellers served as Legal Advisor for Gender Related Crimes tothe Proseouon" Office ofthe ICTs from 1994 uni at leas 2002), 138,” Payam Abkhavan, Theodor Meron, W. Heys Pasks & Patrcie Viseur Sellers, The CConirtbution ofthe Ad Hoc Tribunals to Inertional Humanitarian Law, 13 Am. U.'L L- Rey. 1509 (1988); Sellers, dividuals) Labi, supra note 3 Sellers & Okeizumi,supre note 28; Sellers, Sexual Violence, supra note 137; Patricia Viseur Sellers, The Cone of Sex tal Vielence: Seeual Violence a5 Violaions of Intemational Humanitarian Law, in ‘SupstaNTive AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW: THE EXPER! ENCE OF INTERNATIONAL aND Nationat. Courts 263-332 (Gabriele Kirk McDonald & Olivia Swaak-Goldman eds., 2000) {hereinafter Sellers, The Context of Sexual Violencel Patricia Viseur Sellers, The Cultural Value of Sexual Volence, 9 An. Soc'y INT'L E. PROC. 312 (1999 (hereinafter Sellers, The Clara Value of Sexual Violence} 139. Dorothea Beane, Human Right in Transition: Freedom from Fear, 6 Was. & LEE Race & Erunic Ancestay LJ. 1, 22-23 2000) (deserbing Seles a8 “one of the Gener (Crimes strategists forthe” ICTS); Goldstone. Prosecuting Rape supra note 50, a 280 (iicat- ing that many of the developments within the Poseeutor's Office and in its prosecutions were “te result of her initiatives and her imaginative approach"); Lete-Lehnarst, supra note 80, st 324 ({Pauicia Viseur Sellers] has been a leading force ensuring that ar crimes against women are punished”. Heine 30 Mic, le L,37 2008-200938 Michigan Journal of international Law (No. 301 curtain, and instead, to introduce her, if at all, only as the embodiment of justice or expertise ‘Those familiar with the simultaneous evolution of GFeminism in the domain of human rights will surely be thinking of the parallel phenome- non there: the appointment of Special Rapporteurs on Violence against Women and the publication of reports that give elements of the GFem- inist agenda official status within the U.N. human rights bureaucracy." Several provisions in the Rome Statute authorize, and even purport to require, the appointment of experts in sexual violence to the judiciary, to the Prosecutor's Office, and to the Victims and Witnesses Unit." A new NGO, the Project on International Courts and Tribunals (PICT), has gen- crated a strategy for empanelling judges with legal expertise on violence against women and children. PICT's goal: “{JJudges with competence in international humanitarian law, human rights law, and with legal exper- tise on specific issues, such as violence against women and children, will be crucial for the work of the Court given its intended subject matter” For PICT, at least, it is sufficient if an ICC judge is merely competent lave, as long as he or she is an expert in gender.” ‘Does that last claim seem extreme? Here is one Special Rapporteur's version of the story I told in Part I.B.1 of this Article: Many positive jurisprudential and structural developments have taken place since 1994; the international community has devel- 140. This bibliography is voluminous. The following have been relied on by GFeminist in the Rome process! UN. Econ. & Soe. Council (ECOSOC), Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, Report ofthe Special ‘Rapporteur on Violence Against Women, lis Couses and Consequences, 60h Ses, U.N, Doe. FJCN 42004166 (Dec. 26, 203) (prepared by Yakin Brrky; ECOSOC, Integration of the Human Rights of Women and the Gender Perspective: Violence Agonst Women, Report ofthe Special kapportewr on Violence Against Women, Its Causes and Consequences, 5th Sess UN. Doc. E/CN.€/2003/15/Ads.! (Feb. 27, 2003) (prepared by Radka Coomarasnam) {hereinafter Coomareswamy, Repor: ofthe Specel Rapporteur on Violence Against Women|: ECOSOC, Sub-Comm. on Promotion & Prot of Human Righs, Contemporary Forms of Slav- ‘ery: Systamatie Rape, Sexual Slavery and Slavery Le Practices During Armed Conflict, UN Doc. EICN.4/Sub.2/2000/21 (une 6, 2000) (prepared by Gay J. McDougal 141, Rome Statute, supra note 23, at. 36:(b) (providing tha, when nominating judges, ‘States “sal. ake into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or chikren"; fan. 42) ("The Prosecvior shall appoint advisers with legal experise on specific issues, including, but not limited to, sexual and gender violence and violence against children”) iat 43(6) ("The Vievims and Wimesses Unit within the Registry... shall include sa with experise i twauma, including trauma related o cxies ofsexval violence"). 42. Thordis Ingadotir, The International Criminal Court: Nomination and Election of Judges 39 (Project on Int'l Couns & Tribunals, ICC Diseussion Paper No.4 2082) (emphasis 26¢e0). 143. Query whether te Project an Laernational Couns and Tetunals (PICT) goals the appoinument of expens in gender asthe Pope understands itor gender as the GFeminiss af- Filisted with the WOGS know it HeitOaine 30 Mich Jt L_38 2008-2008Fall 2008] Rape at Rome 39 ‘oped precise legal standards that confirm that rape and other gender-based crime can be war crimes, crimes against humanity, and components of the crime of genocide, as well as torture or other cruel, inhuman and degrading treatment and enslavement. ‘The [ICTY and ICTR] ... have set jurisprudential benchmarks for the prosecution of wartime sexual violence. In addition the entry into force of the . .. Rome Statute .. . now specifically defines rape and other gender-based violence as constituent acts of crimes against humanity and war crimes... . Women’s rights activists, and principally the Intemational {sic] Caucus for Gen- der Justice™ played a significant role in every major United Nations preparatory meeting on the ICC: (a) to ensure that the range of abuses that happen to women was accurately reflected in the list of crimes over which the ICC would have jurisdiction; and (b) to ensure that the niles and procedures governing how the court functions would be responsive to gender-specific crimes. It was a significant success in the struggle to end impu- nity for crimes of sexual and gender-based violence." Aside from the idea that legal rules are “jurisprudential benchmarks,” every word of this paragraph can be matched by statements in the liter- ary nonfiction of GFeminists writing in the law reviews (10 whom we will soon retumn). I could offer quotations from Askin, Bedont, Bedont and Hall-Martinez, and Oosterveld using every important word and phrase that comes to us here as official knowledge. This is the feminists’ version of what happened in the ICT/Rome Statute process. In this vi- sion, the WCGJ becomes the ensurer of legally correct outcomes: politics is translated, once again, into justice. We also see here the state- ment, very common in GFeminist assessments of the Rome Statute, that “gender-based violence” was actually made a crime in that document. ‘The Special Rapporteur does not bother to note that, though ‘gender vio- ence” was included in several provisions relating to the requiced expertise for various institutional roles in the new ICC, the WCGI effort to insert this new term into the crime-defining provisions was soundly defeated." Citing a Report of the Special Rapporteur on Violence against Women for such tentative verities is much stronger than citing the law review literature, however, precisely because the persona of the Special Rapporteur on Violence against Women institutionatizes femi- nism as an objective expertise. 144. Coomaraswamy must be refersing here othe Women's Canes for Gender Jase. 145. Coomaraswamy, Report of the Special Rapporteur on Violence Against Women, supra note 140,98. 106, See fifa Par 1.8. HeinOnline ~30 Mich ttl L 39 2008-200940 Michigan Journal of International Law uot 301 A particularly delightful indication of the close dependence of exper tise on the work of advocates can be detected in the paragraph just cited.'” ‘The WCGI, as we have seen, was a strong feminist-activist NGO that par ticipated foll-bore in the development of the Rome Statute. Special Rapporteur Radhika Coomaraswamy invokes the WCGJ’s work as a warrant for the validity of the Rome Statute. And in one of its submis- sions to PrepComl for the Rome Statute, the WCGI cited the report of another Special Rapporteur on Sexual Violence for expert knowledge that the right legal term for the “comfort women’ forced to have sex with Japanese soldiers was “military sexual slaves”—a term derived directly from a highly distinctive branch of American feminism, as we will see in Past HLB.1 below. In that submission, the WCGJ includes a block quote from the Special Rapporteur’s Report—in which the Rapporteur argues for reaching this expert conclusion on the grounds that activist NGOs and “some academics” advocate it!" How did the WCGI, its constituent NGOs, and feminists on state delegations resolve the advocacy/legitimacy tension in PrepComl and at Rome? The feminist members of state delegations and feminists repre- senting NGOs that were officially cut into the process were far less tethered by the expectations of objectivity and detachment that attended judicial or prosecutorial power in the ICTs, But legitimacy constraints ‘were not wanting, even in this process of explicit negotiation, For an NGO wanting to play an important rote in the CIC, the ticket of admis- sion to PrepComl was to behave not like a pugilist but like a consultant and an expert. This was partly an accommodation to the effort to pro- duce @ Rome Statute that could be represented not as the product of interest groups in struggle but as the consensus of world nations. Costerveld looks back on the intense but doomed effort of the WCGS 147. See supra tex accompanying note 145. 148. ECOSOC, Report of the Special Rapporteur on Violence Against Women, is Causes and Consequences, Report an the Mission tothe Democratic People's Republic of Korea, the Republic of Korea and Japon on the [ane of Miltary Seva Slavery in Warie, S2nd Sess, {W8-10, UN, Doc. EICN.4/1996)53/Ade.1 Uan. 4, 1996). The Repor reads, [The practice of “comfon women" should be considered a clear cese of sexu slavery... (T]he Special Rapporteur concurs eae withthe view held by mem bers of the Working Group on Contemporary Farms of Slavery, as well as by representatives of non-governmental organizations and some academics, thatthe pase “consort women” does not inthe las reflet the suffering such at mule Tapes on an everyday bass and severe physical abuse, that women victims had 19 ‘endure during their forced prostitution and sexual subjugation and abuse in war- time. The Special Rapponeur, therefore, considers with conviction thatthe phrase “mary sexual slaves" represents 2 much more accurate and appropiate termino|- wy. a HeinOnline 30 Mich. Jt L 40 2008-2008al 2008) Rape at Rome 41 and its allies to include “crimes of gender violence” in the crimes- defining sections of the Statute and defends the WCGJ against accusa- tions that it violated these norms In the author's experience, some have viewed the debate on the term “gendet” as overly confrontational (and emotional) within @ UN, process that works on the basis of consensus. It is true that such debates tend to becorne polarized and are used as a tac- lic by those wishing to restrict or eliminate the term. However, a debate can be helpful for international law if chaired, moderated, or guided by a person who understands the issues, both stated and unstated." According to Oosterveld, if it got too emotional, that was not the GFem- inists” fault. One wonders whether Pace, mastermind of the CICC and its strategy of consensus, agreed The legitimacy of the ICC also rested in part on the representation of the Rome Statute as merely a codification of existing humanitarian law. Christopher Keith Hall, for instance, praises NGOs involved in Prep- ‘Com meetings for the degree to which they forbore from representing their reforms as advances: “Human rights organizations usually sought to ensure that the court would embody the current status of international humanitarian law.” And Hall criticized them for “sometimes. suc- cumbfing] to the temptation to try to use the PrepCom to advance the ‘current status in international law of issues such as war crimes and crimes against humanity” The rhetorical strategy for feminists wishing to participate in the consensus, then, would be to represent advances as restatements. What is the literary output of PrepComl/Rome GFeminist insiders? Official records of these discussions and debates do not exist.” It is an indication of the stature of the WCGI as a legitimate player in the eyes of the CIC that Hall can point to the WCGJ Recommendations as our best source on the legislative history for the otherwise unrecorded meet- ings of PrepComl.'* Oosterveld, as we know a member of the Canadian delegation to the Rome Conference, has provided two highly detailed and astute insider accounts of feminist goals, strategy, and struggle, one concentrating on “sexual slavery” and the other on “crimes of gender 169. Oosterveld, The Defniion of “Gender” in the Rome Stanse, supra tote SA, 283 168 150, Benedeti & Washburn, supra noe 19, 315, 151. Hal, sypra not 60, a 125 06. 152 id.at 2a m7. nOaline 30 Mich J Inet Lt 2008-2009a2 ‘Michigan Journal of International Law (No). 301 violence.” In addition, we have two fascinating law review anicles by Barbara Bedont and Katherine Hall-Martinez, feminists who disclose that they were direct participants in the Rome process and who affiiated themselves with the WCGJ.™* That is to say, GFeminist insiders used the Jaw review article as a strategic and tactical tool. I will discuss the liter- ary status of these interventions and the voluminous law review output by GFeminist outsiders in the next subsection.” Here, just two com- ments on these articles seen as reports by insiders. First, Oosterveld, Bedont, and Hall-Martinez all use the law review venue to address the feminist legal community. They report on successes and losses in @ way that assumes a consensus on what the goals were. osterveld in particular defends the compromise that the WCGS reached inthe fierce fight over “gender violence” from a voluminous law-review- based feminist attack. As will become apparent, I hope, in Parts ILD and ILE below, her articles provide no sign of any significant dissent—in the insider GFeniinist project or in the attacks on them from feminists back home—from the WCGJ agenda. Instead, the attack literature Oosterveld tackles blamed the GFeminist insiders for not achieving the full WCGS agenda, leaving the strong imptication that the agenda itself was shared by everyone. Whether dissent existed or not is another question; dissent was not performed. For anyone accustomed to the strong tendency of feminists to disagree amongst themselves, this express and implied Geminist and feminist consensus is quite breathtaking, Second, Oosterveld, Bedont, and Hall-Martinez. also addressed the international legal community, praising it for its successes in adopting WCGI reforms and expressing dismay at the backwardness, social con- servatism, and patriarchal intransigence that led to its failures. Here again, there is no publicly detectable light between the GFeminist insid- ‘ers using the law reviews as @ venue and the WCGI's expressed agenda. Once again, performed consensus. ’. Contributions by Feminist Activists Writing in the Mode of Restatement, Codification, and the Objective ‘Transmission of Existing Positive Law ‘As Bedont acknowledged, feminists “had the paradoxical task of showing that the existing standards were inadequate and had to be reme~ died ... while also showing that sufficient progress had been made 3. Oosterveld, Sexual Slavery, supra note 24, t 605: Oostereld, The Definition of “Gender” inthe Rome Stout, supra note 4, 255. 134. Bodom, supra note SI, at 183 ».* (disclosing that Bedont was an atte for the WCGi; Bedomt de Hall- Marines, supra note 32, a 65-67 (prising the efforts ofthe WEG). 155. See inf Pan B28 Hein ich. J Int L 42 2008-2008Fal 2008) Rape at Rome 43 under customary intemational law to close the existing gaps.” All pro- ucers of GFeminist law review articles, whether the author was an official insider, a professor, or a student writing a note, faced the chal- lenge of mediating between legal advocacy and law. They had to perform restatement while pursuing advocacy. Here is an example of the dilemma they faced. The post World War Il criminal tribunals in Nuremberg and Tokyo offered significant prece- dent for convicting people of IHL. crimes when they had participated in sexual violence, had supervised troops who raped, or had forced women into prostitution."” To that extent, feminists depended on the judgments and opinions of these triburals as legal authorities. Invoking these prece- dents was a way of legitimating their claims as consistent with nudluon crimen sine lege and the (supposed) nonpolitical character of the Rome process. But feminists were aggrieved that—despite the massive number of sexual assaults of all kinds that women suffered in Burope, the Soviet Union, and the Pacific—none of these trials emphasized sexual violence. And they had to let their grievance become audible. How to do both? ‘One: way was to see-saw: they could invoke pre-existing IHL instra- ‘ments because they treated sexual violence and enforced prostitution as clearly admissible as evidence of war crimes and because a number of convictions included sexual crimes in the panoply of predicate wrongdo- ing—while also representing this legacy as legally defective because neither the Tokyo nor the Nuremberg Charter named rape as a predicate crime, and because rape and sexual violence never stood alone as the sole focus of a count or a conviction. You cannot take both positions at ‘once, so writing that does this tends to swing back and forth between them like a pendulum. Askin provides us with an example of this com- plex maneuver: {see] In part because of the {Nuremberg] trial’s focus on those responsible for waging aggressive war, [saw] sexual violence was largely ignored. « [saw] [T]he IMT Charter failed to include any form of sex- ual violence, and the tribunal did not expressly prosecute such crimes, even though they were extensively documented through- ‘out the war and occupation. [see] Nonetheless, the trial records contain extensive evidence of sexual violence. [saw] While not explicit, [see] gender-related crimes were included as evidence 156. Bedom, supra rote SI at 184 157. Askin, Poseouing Warne Rape, supra note 81, at 295 nn 36-37 (abilating ev dence admit in the Nuremberg and Tokyo tals that could have supported charges of rape and other sexual violence but that was instead considered 10 suppor charges of cer, non sexual eimes). HeinOnline 30 Mich. L 2008-200944 Michigan Journal of International Law vo. 30 of the atrocities prosecuted during the trial and can be consid- ered subsumed within the IMT Judgment Similarly, in the subsequent Nuremberg trials held by the Allied forces under the auspices of Control Council Law No. 10 (CCL 10), (see} which did explicitly list rape as a crime against hu- manity, (saw) gender crimes were given only cursory treatment In the post-World War Il trials held in Tokyo, {see] rape crimes were expressly prosecuted, [saw] albeit to a limited extent and in conjunction with other crimes." Good lawyering. And it all checks out: there is plenty of spin here, but it is all visible on the surface. Askin has been an immensely prolific producer of GFeminist re~ statements with an advocacy intention, or, if you like, advocacy articles that restate/describe while praising and blaming.” It is interesting to ‘compare Askin’s articles, which are mostly about adjudication in ICTs, with Oosterveld’s accounts of the Rome Conference. Oosterveld is far more explicit than Askin about feminist strategy, and far more likely to invoke feminist values instead of legal rightness as her source of norma- tive ideas. It is a small measure of the different places they inhabited in the emerging distribution of roles in the task of building feminist legal legitimacy. Far less trustworthy are the several tomes that have been published as restatements of the statutory and case law reforms."® These codifica- 158. Askin, Prosecuting Wartime Rape sopra note BI, a 301-02. 159. See, eg., KELLY D. Askin, Wak Castes AGAINST WOMEN: PROSECUTION EN I TERNATIONAL Wan Cates TRIBUNALS (1997) fheceinafier ASKIN, WAR CRIMES AGAINST ‘Wonen]; Askin, A Decade of the Development of Gender Crimes, supra note 50; Kelly D. ‘Askin, Gender Crimes Jurispradence tn the ICTR: Positive Developments, 1 I. CRs Just. 1007 (2005); Kelly D. Askin, Issues Surrounding the Creation of @ Regional Hunan Rights System for the Asia-Pacific, 4TLSA J. Int’ & Com. L599 (1998); Kelly D. Askin, Judgments Rendered in 1999 by the International Criminal Tbunals for the Former Yugosla- via and for Rwanda: Tadié (App. Ch): Algksovski (ICTY): Jeli ICTY): Rucinkana & Kayishera (ICTR): Serushago (ICTR): Rutaganda (ICTR), 61LSA J. INV'L & CoM. L. 485. (2000); Kelly D. Askin, Omarske Camp, Boonia: Broken Promises of "Never Again 30 Hum. Rrs. 12 (2003), Kelly D. Askin, Pare IV=ICTY (2001), 8 How. Rts. Bater 20 (2001): ‘Askin, Prosecuting Wartime Rape, supra note 81; Kelly D. Ackin, Reflections om Some of the Most Significant Achieverens of he ICTY. 37 New ENG. L. REV. 503 (2003); Askin, Setaat Violence, supra note 95; Kelly D. Askin, The Iusrmational War Crimes Trial of Anio Fue ‘undtia: Major Progress Toward Ending the Cycie of Impunity for Rape Crimes, 12 Leioen J INT'L L. 935 (1999); Kelly D. Askin, The Quest for Post Canfien Gonder Justice, + Covum. J. Transwxr't L, 508 (2003) fhereinater Askin, The Quest for Post-Conflict Gender Justice. T60. See ¢.. ANNE-MaRE De Brouwer, SUPRANATIONAL CRIMINAL PROSECUTION OF ‘SEXUAL VIOLENCE! THE ICC ano Tue PRacvice OF THE ICTY anb THE ICTR (2005); Ju HeinOaline ~30 Mich 3 I'L, 44 2008-2009al 2008) Rope at Rome 45 tion-style handbooks purport to restate the work of the ICTs and the Rome Conference but instead are permeated with feminist advocacy moves. No one who wants to know what the official documents say should rely on them. Though unreliable sources of the ICTs and Rome Conference, they are extremely useful when read as guides to the struc- ture of feminist ambition. And then there are general restatements, such as Roy S. Lee's com- pendious handbook The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. This volume presents it- self as an authoritative interpretive guide to these ancillary law texts, providing the history of their negotiation and describing and settling ‘many questions about how to interpret them. But Lee’s volume is, from @ GFeminist perspective, an unreliable reporter of the negotiations produc- ing the Elements of Crimes and the Rules of Procedure and Evidence. At ‘one point, Copelon even denounces Lee for altering a GFeminist au- thor’s contribution to his collection of purported restatements. Copelon’s evidence that someone modified it seems watertight, but have not personally inspected the relevant unpublished materials. Here is her claim. The provision at stake is the last sentence of the definition of gender in the Rome Statute: “The term ‘gender’ does not indicate any- thing different from the above.""* As we will see in Parts ILD and ILE below, this provision was the site of intense GFeminist advocacy and intense conservative resistance, one of the biggest conflicts in the entire Rome process. At issue for Copelon is whether this second sentence narrows the Statute's definition of gender, so that, for instance, it could not be interpreted to include sexual orientation. Her quarrel with Lee arises because the published version of C. Steains’ “Gender Issues.” a coniribution to his collection of restatements, legitimates a conservative reading of this provision, one that Steains herself would not endorse." Copelon’s charge of editorial interference is as follows: ‘The published article concludes at 374: “Although many dele- gates felt that the second sentence was superfluous, it was ultimately included to forestall any implication that the issue of sexual orientation could be raised in connection with Article ITH G. Gawbiin & MICHELLE J JARVIS, WOMEN, ARMED CONFLICT AND INTERNATIONAL Law 2000. Gt. Rhonda Copeton, Gender Crimes as War Crimes: Inegrating Crimes Agcins Women inte International Criminal Lav, 46 MCGH LJ. 217 (2000) [hereinafter Copeton, Gender Crimes as War Crimes) 162. Rome Staue, supra note 23, at. 73. 163. See Cote Steains, Gender Issues. in Tue INTERNATIONAL Canmival. Court: THE Marino OF THE ROME STATUTE: ISUES, NegoTiaTiONs, RESULTS 357 (Roy S. Lee ed. 2002). SO Mich J tL 45 2008-2009,% Michigan Journal of International Law (1.308 2.13” of the Rome Statute. The published version is completely inconsistent with the draft submitted by the author, which states in the pertinent part: “The second sentence was included upon the insistence of the ‘anti-gender’ delegations, despite arguments by the ‘pro-gender’ delegations that it was superfluous.” ‘The publication of unreliable GFeminist codifications is surely and un- derstandably motivated by a desire to counteract the danger posed by this sort of incident—but it does mean that anyone uninterested in spin should forego resort to this politically tremulous body of work, Very ofien, and to my mind less objectionably, the law reviews have allowed themselves to be the venue for less transparent representation of the legal materials. Feminist literary fiction amounted (usually) to repre senting the legal materials as more positive than they were. Early on in the work of the ICTs, for instance, proponents of the feminist reforms reported indictments as though they were on par with judgments."* Users of law review and journal articles that do this have to be willing to check to ascertain whether the cases invoked actually ended up issuing hold- ings consistent with these claims, ‘And judgments are often represented to install feminist-inspited re- forms into the positive law when good arguments lie ready to hand that those reforms were actually being rejected. Three examples may suffice. First, Askin persistently refers to the Trial Chamber Judgment in Kuna- ‘rac as the first legal authority making sexual slavery a violation “*—but, as she conceded elsewhere,” that is exactly what the Chamber did not 164. _Copelon, Gender Crimes as War Crimes, supra note 161, at 237 n.60 (quoting C. Stesins, Gender and the ICC (uly 1999) (published draf); Memorandum from C.Steains WOR Lee Gly 2, 1999). 165. See generally Askin, Sexual Violence, supra note 9S. 196. Askin, A Decade ofthe Developmen of Gender Crimes, supra note 50, 18. Askin described Kurarac as {he fist ntemtional wil in history 10 adjudicate rape and erslvernent for crimes ‘essentialy constituting seal slavery... {Alhough the ICC Statute specifically ‘enumerates sexual slavery as crime, the ICTY Statute only lists rape and enslave ‘mont: hence, these offenses were combined vo prosecute the accused jor the sexual enslavement of women and girls 14. (ermghasis added), Askin, The Quest for Post-Confle: Gander Justice, supra note 159, at 1520.43 (summarizing Kunarae as achieving x “conviction Fee... indcia of enslavement for ‘sexual slavery...) (emphasis added). 167. ASkia, Proseeuing Wartime Rape, supra note 81, at 337 (reporting thatthe Kura ‘roc Til Chamber “found two of the accused guilty of rape and enslaverment as ries against humanity for acts essemal'y amounting to sexual slavery") (emphasis added). But see i. at ‘340 C*Regrenably, he tenn “sexual slavery" was never wsed inthe Judgement”), Askin ade, “The facts of the case demonstrate tha the enslavement and rape were inseparably linked, and the accused enslaved the women and girls asa means o effect ca tinuous rape. Since a primary, but not necessarily exclusive, motivation behind the 30 Mic, ne L 46 2008-2009,Fall 2006) Rape at Rome 47 do. To be sure, the defendants were convicted of enslavement on facts that included sexual assaults, forced nudity, and the like. The ICTY Stat- ute, though it did authorize the ICTY to try charges of enslavement, did not include the term “sexual slavery.” This was in strong contrast with the recently adopted Rome Statute, which did include the contested term." Perhaps not surprisingly, the ICTY proved unwilling to engraft the feminists’ preferred term onto a statute from which it was, by com- parison with the Rome Statute, so conspicuously absent, Insisting that Kunarac had, instead, handed down a conviction for “sexual slavery” ‘would make that case a direct precedent in the ICC. It remains to be seen whether GFeminists so argue, and whether the new court accepts their somewhat exaggerated reading of the case. We can find another example of strong GFeminist spin in Charlesworth's conclusion that “the statutes of the two ad hoc tribunals and the ICC... provide much fuller responses to sexual violence, con- structing it, depending on the circumstances, as potentially a crime of ‘genocide, a crime against humanity and a war crime." Well, techaiically and at an extremely high level of generality, that is right. The ICT stat- utes do not use the term sexual violence, but the Rome Statute does; and, While none of the statutes acknowledges that sexual violence is a mode of genocide, there are two legal sources for this idea elsewhere. Akayesu, applying the ICTR Statute, held that rape and other sexual assaults were sufficient to sustain @ conviction for genocide; and the ICC Elements of Crimes includes a footnote indicating that “genocide by causing serious bodily or mental harm’ “may include, but is not necessarily restricted to, torture, rape, sexual violence or inhuman or degrading treatment."” How decisive are Akayesu and the Elements of Crimes for construing the statutory regime? As the timeline in Part 1.A indicates, Akayesw was de- cided affer the Rome Statute was promulgated. Whether its rape-as- genocide holding will be repeated by the ICC remains to be seen. And the Elements of Crimes is a somewhat ambiguous legal authority. The ‘enslavement was to Hold the women and gids for sexual access at will and with ease, the crime would most appropriately be chariterized as sexual slavery 1d. Compare Prosecutor ¥ Kunarte, Kove de Vkovié, Case Not, HE.96-25-1 & .96-2311-7, ‘Trl Judprnent, 728-15 (Feb. 22,2001) (Ceplring the rapes but declining to find them to be the cental purpose for the defendants” entre course of condoct and instead expressing ‘equal outrage tat the victims, all of them women, were forced to perform housework), 168. Rome Stawte, supra note 23, ar. 7-1) (chimes against humavity) fd, on. 8.2(6)xt (Laws and customs of war in nkemational conflicts; i. art. B2(EX!) (awe and ‘customs of war In conics hat are not intemationa in character. 169. Charlesworth, supra note 93, a 386, 170.__ Preparatory Commission for the Inreational Criminal Court, Addendum: Finalized Draft Tet ofthe Elements of Crimes, at. (6) 23, UN. Doc. PCNICC/2OOINFSIAdE.2 (@iov. 2, 2000) hereinafter ICC Elements of Crimes} cinOntine 30 Mich. ine L 67 2008-200948 Michigan Journal of tnternational Law Net 202 Rome Statute provides that the Rules of Procedure and Evidence “shall enter into force,” while the Elements of Crimes “shall” merely “assist the Court.””" Will the Elements of Crimes be held to be binding or merely advisory? It remains to be seen. And what about the footnotes to the Elements of Crimes? Charles Garraway, commenting on one such foot- note, notes that the inclusion of a rule in a foomote rather than in the text itself indicates that some of the players wanted it badly, but that others were either indifferent or, in the case he adresses, mildly to extremely hostile.” Will the ICC read the footnotes as restrictive interpretations of the text they adom or as a rolt call of failed legislative efforts? That, 100, remains to be seen, Not surprisingly, the footnotes repeatedly install WCGI agenda items on this legal periphery: is that going to be a good thing or a bad thing for the WCGI agenda? Again, we will not know un- til the ICC has decided the question, if it ever does. So, under those circumstances, Charlesworth’s legal claim is potentially right One final example of GFeminist art in the representation of positive aw can be found in the writings of Bedont and Hall-Martinez, who con- sistently describe the sexual violence crimes in the Rome Statute as gender crimes even though, as they also concede, GFeminists com- pletely failed to gain sufficient support for this language to install it anywhere in the Statute. In sum, T have found that you need to know the legal outcomes and their representation in the articles in deep detail to detect the gaps be- tween them. The litle bits of spin one eventually learns to detect in the law review archives are extremely reliable indicators that the feminists are writing about reforms that they regarded as crucial, if difficult to ac- complish. Sexual slavery, gender crimes, rape as genocide: I hope to show in Part II of this Article not only that these reforms mattered 0 them, but why they did, Should we regard this bibliography as an element of GFeminism? ‘When it is in full (performed) consensus with the agendas of operative GFeminist insiders, [ think we should. We have already seen evidence of a rich association between GFeminist insiders and the academics. In Part Tl, 1 hope to show also that they engaged in intense idea-trading, and 171. Rome Statute, supra nove 23, an. 91 (noting dat de “Elements of Crimes shall ‘assist the Cour in the intezpretation and application of aricles 6,7 and 8 which re the ati- cles defining genocide, war crimes, and crimes against humanity for purposes of determining ICC jursdicdon). Compare Rome Statute, supra note 23, art 3 (authorizing the promelga- tion of Rus of Procedure und Evidence), 172. Charles Galloway, Elements ofthe Specific Forms of Genocide, in THe IreRNA- ‘TIONAL CrionnaL COURT; Evemens OF Cues AND RULES OF PROCEDURE AND EVIDENCE, supra noe 30, 249, 50-St 173. Bedoot & Hall-Maninez, supra note 32, at 68 (noting the failure of efforts to legis- late “gender crimes”), HeinOnline 30 Mich Jf L 48 2008-2008Fal 2008) Rape at Rome rr that many of their ideas are now ensconced in the language of the Rome Statute. Ex post, itis clear that the immense outpouring of law review articles on making rape and sexual violence the subject of international humanitarian and international criminal concern was part of the reinven- tion of feminism in NG terms. Denying this role for academic feminist legal theory—traditionally understood by its producers and consumers to be excluded from legal and social power and to oceupy a stance opposed to them—would, I would suggest, be not merely inaccurate but, for ‘eminist legal theory itself, an act of bad faith. ‘Taken together, nonofficial GFeminists writing in the law reviews and publishing treatises and the like performed consensus. That does not mean there was consensus; only that the work of feminists, especially as they were drawn into the vortex of the Rome Conference, became more ‘and more compliant with the requirement that consensus be the manifest syle of all participants. Part IL of this Article diagnoses the actual re- forms sought and the arguments made for them in order to discover Whether there was any consistent feminist ideology holding the reform consensus together. IL. Fenanist Goals, SUCCESSES, AND DEFEATS IN THE STATUTORY PROCESSES Feminists had many goals in the massive explosion of lawmaking that attended the constitution of the ICTs and the ICC and their produc- tion of a highly self-referential body of case law. The Green/Copelon Working Group Proposals of 1993, for example, include sections on the scope of the ICTY’s jurisdiction, the substantive definition of gender- related crimes, rules for imposing secondary or indirect liability and command liability, rules about the admissibility of evidence of sex crimes, rules about evidentiary standards for command liability, propos- als for a special system for protection of victim witnesses, proposed penalties, and a proposel for the compensation of victims."* This Anicle studies only one of those efforts: the struggle to alter the rules of IHL with respect to rape and other forms of sexual violence suf- fered by women in war and armed conflict. As the Rome Statute process ‘g0t going, this morphed into an effort to establish rules in that new body of ICL. ‘The initial goals were a matter of perfect consensus among the fem nists involved: they wanted authoritative enumeration of sexual crimes in their own terms. They wanted to establish that rape, sexual violence, and 174. See CUNY Clinic Memorandum, supra nore 27 Heine ~30 Mich, ft L 48 2008-200950 Michigan Journal of International Law Not 30:1 sexual slavery are IHL/ICL crimes. They wanted these sexual erimes t0 be lodged as high up the hierarchy of IHL/ICL codification as they could set them, and in terms that derive from their shared feminist understand- ing of them. { will call these, respectively, their vertical and their horizontal reform projects. Of couse, there were disagreements among the feminists both as to goals and as to means. One early disagreement, analyzed in a brilliant paper by Karen Engle, divided feminists working in the ICTY on the design of specific prosecutions. Some wanted rape to be understood and prosecuted as genocide, while others objected that this framing subordi- nated feminism to nationalism, obscured the fact that rape was committed “on all sides,” and suggested that wartime rape was somehow worse than everyday rape." As Engle also indicates, beyond this very sharp confrontation, the very same feminists were largely in consen- sus,”" I hope to show here that this consensus emphasized the continuity between wartime rape and everyday rape and was vital to the trajectory of their work on the Rome Statute. In this Part, I tell the story of the feminists’ evolving engagement with IHL. I will be asking: what feminist ideas animated their rulemak- ing; where were feminists in consensus, and where were they in disagreement about their goals; what parts of the law and what specific ‘outcomes show signs of the feminists’ intervention; and where were they defeated” ‘As [ have argued in Part L.A above, the actual experience of engag- ing in this work for any of the participants spanned a long period—from sometime in 1994 to mid-1998—when litigation and adjudication in the ICTs was being pursued simultaneously with debates over the Rome Statute and its supplementary documents. These two fora formed impor- tant political and strategie contexts for each other. I have separated the two processes, however, because the rules are somewhat intricate and keeping a close focus on them is erucial to my project here. In this Part, I first set out in a nutshell, in Part IL.A, the legal context in which the feminists’ effort began; then, in Part ILB, T study the early stages of feminist reform thinking and reform goals; in Part ILC, I exam- ine the ICTY and ICTR Statutes to detect the successes and defeats the feminists experienced in the initial lawmaking moment of our story: and return in Part ILD to feminist theory and law reform as GFeminism emerged during the run-up to the Rome Diplomatic Conference; and, finally, | conclude, in Part ILE, with an assessment of GFeminism’s suc- cesses and defeats at Rome. 175, Engle, Feminism and ls (Dis)Coments, supra note 116, at 785-803. 176. 16.20 198, HeinOnline 30 Mich Jf, 80 2008-2009at 2008] Rope at Rome 3 A. The Legal Backdrop ‘An immense body of IHL could be designated “the backdrop” for the feminist reforms. These certainly included the Nuremberg Charer prohibiting “crimes against humanity.” the Geneva Conventions, numer ‘ous treaties prohibiting genocide and torture, and the more diffuse concept of international customary law supposedly govemiing the con- duct of war. Each of these has a distinct trajectory through the ICTIRome process, and GFeminists worked hard on all of them, Here, 1 will start with the Geneva Conventions becanse they provide an espe- cially crisp point of departure for analyzing the ICT/Rome process and the role of early feminist interventions, and eventually GFeminism, in it ‘The Fourth Geneva Convention applies to the treatment of civilians in international armed conflict. Article 27 states, “Women shall be espe- cially protected against any aitack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.”"” Red Cross ‘Commentaries on the Geneva Conventions described enforced prostitu- tion as “the forcing of a woman into immorality” and introduced the term “indecent assault” The emphasis on honor in Article 27, as well as its prohibition of “rape, enforced prostitution, or any form of indecent assault.” reappear almost verbatim in Additional Protocols { and 1 of 1977. The main innovation there is the express classification of these harms as “outrages upon human dignity.” Parties to the Geneva Conventions promised to legislate against “grave breaches,” but they made no such commitments about other breaches of the Conventions.” Grave breaches were subject to 177. Geneva Convention Reluive to the Protection of Glin Persons in Time of War fan. 21, Aug, 12, 1949, 6 UST. 3516, 75 UN-TS 287 [hereinafter Fourth Geneve Conver, ion 175, __4 Tae Geneva Conventions oF 12 AUousT 1949: Grweva ConveNrion RELA- TIVE To THE PROTECTION oF CIVILIAN PERSONS IN Tre OF WAR 206 (lean S. Pett ed, Ronald Bf & C:W. Dumbletn rans, It] Comm. ofthe Red Cross 1958) 179, Protocel Aditional to the Geneva Conventions of 12 August 1949, and Relating 0 the Protection of Victims of Intemational Armed Conflicts at. 76(1), June 8, 1977, 1123 UNCTS. 3 fhereinafer Additional Protocol 1 (addressing special protections for women and chilren, and stating that “{wJomen shal be the objec of special respect ane shall be protected {in panicular against rape, forced prostivtion and any other frm of indecent assault); se id an. 7502) sting he "fundamental guarantees” for civilians in international conflicts, and prohibiting “folurages upon yersonal dignity, in particular humiliating and degrading treat ‘ment, enforced prostitution and any form af indecent assault) ee also Protocol Additonal to the Geneva Comentions of 12 August 1948, and Relating tthe Protection of Victims of Now Teuernational Armed Confit at 4(2X¢), June 8, 1977, 1125 UN-TS.€09 entered into force Dec. 7, 1978) hereinafter Additional Protocol It) (prohibiting “outrages ypon personal dig- nity in panicular humiliating and degrading teatmen, rape, enforced prostitution and any form of indecent assault”), 780. Geneva Convention forthe Amelioration ofthe Condhin ofthe Wounded and Sick in ‘Armed Forces in the Feld an. 49, Aug. 12, 1849, 6 UST. 3114, 75 UNS. 31 [hercnafer HeinOnline 30 Mich, Ine L 5 2008-200952 Michigan Journal of International Law (Nel 308 “universal jurisdiction,” as THL insiders like to say. This established what I will call a hierarchy of prohibition within the Geneva Convention regime. In addition, the Geneva Convention includes a list of grave breaches, one which reads not as exemplary but as exclusive. That is, it does not conclude by opening out to “other conduct of similar gravity.” The provisions of Article 27 of interest to the feminists in the 1990s-— rape, enforced prostitution, and indecent assault—are not referenced or included in the list of grave breaches. ‘Another very highly valued piece of the Geneva Conventions real es- tate is Common Article 3—common in the sense that it is common to all four Geneva Conventions. It is valued for that reason and because it pro- tects noncombatants in “armed conflict not of an international character .2”™ This Article also prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment ... ”"® The replication of this language in the Additional Protocols, and the specification there in that rape, enforced prostitution, and other forms of indecent assault could constitute outrages upon personal dignity, made it possible to ar- gue that Common Article 3 should be understood to embrace those crimes as well. When the ICTs got started, however, no legal authority had connected the dots in this way. First Geneva Convention); Geneva Convention for the Amelioration ofthe Condition of the ‘Wounded, Sick, and Shipirecked Members of Armed Forces at Sea an 50, Avg, 12,1949, 6 UST. 3217, 75 UNTS. 86 thereinafter Second Geneva Convention]: Geneva Convertion Relative tothe Treatment of Prisoners of War ar. 129, Aug. 12, 1949, 6 UST. 3316, 75 ULNTS. 135 fhereinafter Third Geneva Comenton}, Fourth Geneva Convention, supra note 17), an 16, 181. Pour Geneva Convention, supra note 177, an. 147. The Convention provides that {ghrave breaches to which the preceding Antcl elate shall be those involving any of te following acts, if commited against persons or propeny protected bythe pre- Sent Convention: wif killing, torre or inhuman westnent, iacluding biological experimen, wilfully causing great sulfering or serous injury to body o health, unlawful deportation or transfer or unlawful confinement of a protected person, ‘compelling a protected person to serve in the forces of a hostile Power, or wilfully Aeprivng a protecied person ofthe rights of fair znd regular wal prescribed i the present Convention, taking of hostages and extensive destruction and appropriation ‘f property, not jusiied by military necessity and carried out unlawfully and wan ron, i 182. Fist Geneva Convention, supra note 180, a. 3: Second Geneva Convention, supra note 180, art. 3; Tind Geneva Convention, supra note 180, an. 3; Fourth Geneva Convention, supra note 177, a3, 183. Fist Geneva Comsention, supra note 180, ant. 3(1); Second Geneva Convention, supra note 180, an. 31}: Tied Geneva Convention, supra note 180, a. 3(1); Fourth Geneva Convention, supra note 177,230). HoteQeline ~ 30 ich. J tn L. $2 2008-20092008) Rape at Rome 3 B. Early Feminist Goals and the Emergence of the Feminist Universalist Vision AS we have seen, feminists rapidly coalesced to influence the draft- ing of the ICTY and ICTR statutes. But UN. insiders did not at that time. consider them to be indispensable consultants on all matters sexual. The early articulation of feminist goals had therefore an immediacy, even a desperation, in its tone. Even at this early stage, we see a high degree of consensus on the importance of the horizontal and vertical rule reforms. Perhaps the most urgent—you could even say heetic—argument for them came from Sell- ers in a series of articles published while she was the Legal Adviser for Gender Related Crimes to the ICTY Prosecutor's Office. All of these articles come with Sellers’ disclaimer that, in them, she speaks in her personal, not official, capacity. Yet it is impossible to read them as de- void of any intention to influence the prosecutor and judges of the ICTs. This is the voice of GFeminism at or near its apex. Sellers argued that the specific prohibition of rape in IHL was so patchy, intermittent, low-level, and often entirely absent that rape during war could not be understood to violate any peremptory norm in human rights law. She argued that rape could not be considered a violation of Jus cogens, and might even be technically permissible: It is questionable whether a general norm of the prohibition of rape, in and of itself [exists] in human rights law. It is likewise uncertain that the crime rape under humanitarian law has been considered, in and of itself, as imposing a non derogatory ob! gation on the community of states other than protection against its infliction. And quite frankly, rape has never been cited, here~ tofore, as a peremptory norm. [Clould one fathom two states entering into an agreement to rape persons in a third state, without the condemnation of the in- ternational community of States? If so," why has rape, whether a. commonly committed national or international crime or per- haps an emerging human rights violations [sic] that is never justifiable, not crossed the peremptory norm threshold? Is the prohibition of rape’s inability to meet international law's formal- istic peremptory norm requirement the gendered legacy of a patriarchal legal culture? 18d, think that she means “if now” 185. Selle & Okuizami, supra note 28; Sellers, Serual Wolence, supra nove 137, 3 303; see also Sellers, The Cultural Value of Sexual Volene, supra note 138. HeinOnline 30 Mich. Jt L 53 2008-200954 Michigan Journal of International Law (Wot 304 Sellers’ 1997 article, “Intentional Prosecution of Sexual Assaults,” co- authored with Kaoru Okuizumi, was published while the ICTY and ICTR were just getting going as active courts and before the com- mencement of the final Rome Statute Conference. In it, Sellers and Okuizumi offer 2 mind-bogglingly complex display of the arguments that need to be made and accepted to make rape prosecutable under the many heads of the ICTY and ICTR statutes that do not specify rape as a primary form of liability Charging sexual assault under the above provisions of Articles 2 through 5 which do not make explicit reference to sexual assault conduct, ée., provisions other than Article 5(g), requires a so- phisticated recognition of how violations of intemational humanitarian law are prosecuted, as well as some mental gym- nastics.” ‘Their prescription for the Rome Statute discussions was as follows: “{I]tis imperative that the subject matter jurisdiction of a permanent in- ternational court clearly include sexual assaults committed in armed conflicts as among ‘the most serious crimes of concern to the interna~ tional community” within the cour’s jurisdiction.” T have italicized Sellers’ and Okvizumi’s statement of the two intersecting feminist goals: specific mention of rape defined in feminist terms—"sexual assaults’ — ‘as among the most serious crimes of concern. Once again, the horizontal and the vertical feminist rule reform projects. Statements of these goals are everywhere in the GFeminist literature about the ICT statutes and the Rome Statute." Almost all GFeminists held on fast to the most authoritative IHL instruments criminalizing rape and other sex-related harms in war—few were willing to despair pub- Jicly, with Sellers, about their legal existence—but they also thought that this body of law not only fell woefully short in recognizing sexual harms, but also got them wrong when it did take ther into account. They took the ICT/Rome process as their opportunity to introduce ferninist-defined 186. Sellers & Okvizmi, supra note 28, 358. 187. 1d, at 77-78 (quoting In Law Comm'n, Report ofthe ternational Law Commis: sion om she Work of ls FortySith Session, May 2-July 22, 1994, Draft Statute for ax Intentational Criminal Court, IN, Doe. AA9/10 (1998) (emphasis added), 188." See, eg. Askin, Prosecuting Wartime Rape, supra note 81, st 294 (ertguing,inter- ‘ational humanitarian law before the ICT/Rome process and commenting that "despite the fact that many regulations protecting ether combatans or civilians ae ofen deseibed ia minute aed exhausive dei, very lite mention is made of female combatants or civilians”): CUNY Clinic Memorandum. supra ot 37, app. B at 237 ("The explicit recognition of these crimes {rae and forced prostuton) is essen! to assuring tei ull prosecution as wel as 0 undoing the legacy of disregard". at 185 (noting thatthe Geneva Conventions implicitly ‘rohit rape even where they do not do so explicit, but hat “Tit is cecal that his implicit Authority be made explicit”), Heinnlne 30 Mich, Int L 4 2008 2000at! 2008) Rape at Rome 55 ‘crimes as high in the IHL/ICL hierarchy of crimes as they possibly could. In the course of this work a new feminist idea was born. ‘A premier goal, identified very early in the feminists’ work, was to ‘move rape up the hierarchy dividing grave breaches from breaches in the Geneva Conventions regime. To be sure, rape could be the evidence or the underlying conduct of one or more of the crimes constituting grave breaches, particularly “torture” and “willfully causing great suffering to body or health."” GFeminists were willing to argue that rape was “tor- ture” as well as that it was “willful (conduct} causing great suffering to body or health” and, for that reason, a grave breach. But what they really wanted was a judicial, customary, or code-based stipulation that ape was a grave breach.” ‘When feminists justified these reforms, they often wrote as though they wanted merely to borrow the normative bully pulpit of positive THL to issue authoritative condemnations of rape." The examples in note 188 above are all about making explicit and visible: the politics of recogni- tion.” Even when the horizontal reform project became engaged in substantive revisions of the language of prohibition, feminists in the early 1990s wrote about their aims as being limited to changing the rep resentation of rape and sexual violence in IHL. Two important elements of this representation were, first, to put an end to the representation of Wartime rapes as crimes against women’s honor, and, second, to repre- sent victimized women not as members of ethnic, national, or religious groups but as individuals. To be sure, the idea that the wrong of rape was captured by describ- ing it as an “outrage upon personal dignity"—or that the wrong of “forced prostitution” was captured by describing it as an offense against @ woman's honor—did expose a problematic. To some commentators, these formulations usefully captured what sexual crimes during war might well mean to the victims, given the cultural presuppositions they themselves held. For instance, Christopher Scott Maravilla argued that, 189. See, eg, Bedomt & Hall-Mantne, supra note 32, at 72 CUNY Clinic Memoran ‘un, supra note 27, at 186; Sellers & Okuizum, supra note 28, t 38-62. 190. See. eg. Beton de HallManinz, supra nove 32, at 72 (eporting that fersinists ‘were willing to put forth such anumens, but only faut de mews); CUNY Clinie Memorans ‘dum, supra nove 37, at 185 (developing an early statement of the argument that «ape is tonure; Sellers & Okvizumi, supra note 28, at $9-62 (Constructing an argument, over four closely argued pages, shat rapes torte, 191. CUNY Clinic Memorandum, supra note 37, app. B st 236 (“Every act of rape in ‘war—whotber 8 consequence of indscpline, retaliation, or genocidal policies—is a “grave breach"), 192, See, eg, Charlesworth, supra note 93, a 393 (Claims based on iernati ‘can carry an emctional and moral legitimacy that can have considerable pola force 193. Charles Taylor, The Polis of Recognition, in MULTICULTURALISM: EXAMINING ‘He Pouimies oF Recoexrrion 25, 25-73 Amy Gutman ed, 199). a Hew HeinOnline ~ 30 Mich nL. 35 2008-200956 Michigan Journal of International Law (ol. 304 [iln the Balkans, chastity of women is a sign of family and community honor. Rape was used as an instrument of war, used to undermine community ties, and threaten the civilian popula- tion into fleeing . ... The Bosnian Serbs violated the women of their hated nemesis in order to undermine their manhood by not being able to protect their wives and daughters. It was a process of dehumanizing the enemy to the point where the women and children could be treated like cattle only to serve the appetites of the conquering Bosnian Serb forces.” For some but not all feminists, this was a usable idea. They sometimes objected that, because of the Muslim conception of honor, the rapes of ‘Muslim women in Bosnia-Herzegovina were particularly harmful and ‘warranted priority over other wrongs committed by Sezbs and by non- Serbs in the war.” In arguing that rape was torture, under rules that re- quired a showing that the vietim suffered intensely, these feminists sometimes argued that the Muslim conception of honor caused the Muslim rape victims to suffer intensely; in arguing that it was genocidal, they sometimes argued that the Muslim conception of honor ensured that the rape of Muslim women would cause the disintegration of the entire community.” As Karen Engle amply documents, however, these. argu- 194. Chvisiopher Seon Maravilla, Rape as a Wer Crime: The Inplications of the Interna tional Criminal Tribwial for the Former Yagoslavia's Decision in Prosecutor». Kunarac, Kovac, and Vakovie on Intemational Harmaritarian Law, 13 PLa.J- INU L, 321, 338 (2001) 195. See Aaru Zalihie-Kanrin, The Muslim Woman, in Mass Rave: Tae War AGAINST owen is Boswrn-Herzecovins, supra note 108, at 170, 173. Azra Zalihie-Kaurin can be cour example ofthis argument that rape produces an ctnicallyparticulried harm: {People fin Bosnia} told the story of young Muslim woman who fived in the vie City of Sjenica during World War I. Eonina (Ook up a gon to defend her village ‘gaint the loyalist Serbian Chetniks but was notable to hold them back. When she fell in to thee hands she begged one of the Chetniks, "Only leave me my honor, I ‘will forgive you my death” Emina is taken as a movie! Muslim woman; her honor land dignity were worth more to her than her Wife. She forgives the Chetiks for hee ‘murder so that she witl not be raped, humiliated, and defiled. Bosnian Muslims ‘wanted to dedicte one day of the year to her and make March 8 “Emina's Day! ‘But then anew war broke out, bringing nw rapes and new vexual abuses a 196. Adrionne Katherine Wing & Sylke Merchin, Rape, Eric, and Culture: Sprit Injury from Bosnia to Black America, 5 Covuse Hus. Rrs. L. Rev. 1,24 (1993). Adrienne Katrine Wing and Syke Merchén state, The systematic rape of Muslim women in Bosnia could potentially result in the complete destretion ofthe Muslim social fabric. Because of the ceneity of the ‘oncept of honor, the ape af one female member of faily can bring shame and Gisrace to not only her imaedite family, but also the entire extended fei 1 id. st 24-28 (ning that te resuling disruption ofthe social onder, radiating cver oUt ward, ould produce 2 “phenorenen of destabilizing and destroying the socal order of an HeinOnline ~ 30 Atich3IetL $6 2008-2009a 2008) Rape at Rome 37 ‘ments were controversial among feminists: some objected that they ealisted feminists to a nationalist project—pro-Bosnian and anti-Serb— and/or that they made it more difficult to focus on harm to women,” These internal tensions notwithstanding, feminists were completely uniform in opposing any recourse to honor in the statutory definition of rape and other sexual violence. There was complete consensus that the pictorial output of IHL’s most authoritative statements of law must not legitimate and entrench the ideas that the rape of a woman harmed her because of its meaning to the men in her family or culture, or that it harmed a wife, daughter, or sister because it impugned a husband's, fa- ther’s, or brother’s honor. Charlesworth, for instance, objected that Article 27 of the Fourth Geneva Convention, “assumes that women should be protected from sexual crimes because they implicate a woman's honor, reinforcing the notion of women as men’s property, rather than because they constitute violence." Bedont and Hall- Martinez objected that the “characterization of sexual violence as an at- tack against a woman's honor was based on the stereotype that a woman is shamed by being the victim of rape and denies the great physical and emotional harm suffered as a result of sexual violence crimes." Rana Lehr-Lehnardt argued that defining “rape as a crime against a woman's, dignity minimizes the physical and psychological pain she suffered from the rape.”™” They were vigilant against any effort to smuggle in the idea that rape constituted an actual, rather than merely ideational, degradation of a woman’s integrity or dignity.” Oosterveld, for instance, objected to “cast{ing] crimes of sexual violence as crimes related solely to the honor ‘entire population groop”—a har that they term “spirit injury"y ee also Asxin, Wan Ces ‘Acainst WoMen, supra note 159, at 262 n.867; Sharon A. Healy, Prosecuing Rape Under ‘the Starate ofthe War Crimes Tribunal for the Former Yugoslavia, 21 Buoox, J. Ine"t L. 321, 5369.76 (1995); Jocelyn Campanaro, Note, Worten, War and International Law: The Histor. al Treaoment of Gender-Based Cries, 89 G0, 13.2557, 2571-72 (2001). But see Engle, Feminism and lis (Dis)Coments, supra note 116, at 809 0.184 (crtczing the argument a5 both inaccurate in its description of Bosnisn Muslin culture and in is understandiags aad ‘ees of Islamic law), For example, Karen Engle noted that Wing and Marchn invoke itr views that they conducted in the West Bank and Gaza a suhority for claims about Bosnian ‘Masti cular norms about intermarriage 1d; Wing & Merch, supra, at 2 m1, 197. See Engle, Feminism and les (Dis}Contents, supra note 116 surveying the debate; see aso Copelon, supra note 108, at 197-218; No Justice, No Peace, supra note 35, a 108 1.38 (arguing that rape was stigmatic forthe vitim in Creat ang Serb communities as well), 198, Chareswon, supra nove 93, a 386, 199. Bedoat & Hall-Martne, supra note 32,2171 200, LehsLehnard, supra note 80, at 341. 201. See, eg. Samantha L Ryan, From the Furies of Nanking to the Eumenides of the nverational Criminal Court: The Evoluion of Sexual Assoulis as Intemational Crime, 11 ace Inr's L. Rev. 447, 477 (1999) (*When cape is perceived asa crime aginst honou oF ‘moray, shame commonly ensues forthe vitim, who is often viewed by the commonity 35, diny oF spoiled HeinOnline ~ 30 Mich, 1.57 2008-200958 Michigan Journal of international Law (ot 30 and dignity of the victim’ She concluded that secing rape and en- forced prostitution as “outrages on personal dignity” sends “the outdated and potentially harmful message that these violent, physical crimes were to be evaluated based on the harm done to the victim’s honour, modesty ‘or chastity: Oosterveld objected that the Red Cross Commentaries on the Geneva Conventions described enforced prostitution as “the forcing of a woman into immorality ...°°* This was objectionable because it endorsed the idea that women subjected to sexual assaults and enforced prostitution were actually degraded or, worse, morally tainted. In Costerveld’s view, IHL had no business entrenching women in such outmoded ideologies; to do so is to “distance the crime from the perpe- trator.” concentrate attention on the victim’s honor, and “overlook consideration of sexual autonomy?" It is an odd vocabulary for drafters of a criminal code to be using Including language about honor and dignity in the Geneva Conventions reinforces notions, ratifies stereotypes, denies harm, casts crimes inaccu- rately, sends outdated and potentially harmful messages, represents the crime as being about the victim not the perpetrator, and overlooks attrib- utes of the victim that should instead be emphasized. The reform project implied by these modals is entirely ideological: IHL represents rape as X and women as ¥, but it should instead represent them as A and B. Why? Because feminism sees them as A and B. THL should stop sending a pa- triarchal message about the world and start sending a feminist one. ‘What was that feminist message? That rape is a crime of sexual vio- lence. This seems obvious today, a mere statement of fact. But it is actually an immense achievement of feminism itself that it should seem so. For centuries, people thought that rape was a crime against a ‘woman's husband or father, a crime against her honor or dignity, a crime against morality and social order. And, for years, feminists. debated whether rape were primarily a crime of sex or a crime of violence. The feminist law reformers were aware of this debate and sometimes en- 202. Oosterveld, Sexual Savery, supra note 21, a 608, 203. id 20613, 204, 1d. 1680. 205. id. 651 206. See also Bedont & Hall: Marine, supra note 32, at 71 (objecting thatthe) char- acterzaton of sexual violence a6 an attack agsinst @ woman's honor was bascd on the stereotype that a woman is shamed by being the victim of rape and denies the great physical land emotional harm suffered as a result of sezual violence crimes” (emphasis added) CCharlswomh, supra note 93, at 386 (objecting that Arce 27 of the Fourth Geneva Conven- ‘ion “assumes that women should be protected from sexual crimes because they implicate & ‘woman's honor, enforcing the notion of womnen as men’s property, rather than because they const violence” (emphasis added). HeinOnline 50 Mich, Jf . $8 2008-20082008) Rape at Rome 39 gaged it. For some feminists, the violence of rape predominated,” while others saw it as the paradigm instantiation of sexuality understood as mate domination. When the time came to pick a feminist message about rape to send through IHL, however, feminists reached the consen- sus view that rape is a crime of sexual violence. As Copelon put it, “Phe conceptualization of rape as an attack against honor, as opposed to a crime of violence, is a core problem?" Similarly, Askin concluded, “[{TJhe Conventions expressly include rape and forced prostitution, al- though they erroneously link rape with crimes of honor or dignity instead of with crimes of violence. Such a demarcation grossly mischar- acterizes the offense, perpetuates detrimental stereotypes, and conceals the sexual and violent nature of the crime.” ‘As T hope these quotations make manifest, the classification of rape as sexual violence brings some new descriptors in its train: itis a sexual assault; itis violent and physical; it causes physical and emotional (or Physical and psychological) harm: it is painful. The trauma conception of political injury is deeply implicated in these representational choices.” So far, we have described the emerging feminist consensus represen- tation of rape as a crime of sexual violence which, if not explicitly and vehemently condemned by criminalization, is implicitly condoned or trivialized. IHL must prohibit it as high up in its prohibitive hierarchy as possible. But there was something more elusive, more siructural in the femi- nist reform ambitions, something that became clear to me only after ‘months of immersion in the archive of feminist writing on IHL. I argue 201. Ruth Siefen, War and Rope: A Preliminary Analysts, in Mass Rave: THE Wa ‘Against Wowen in Boskia-Heazrcovin, supra note 108, at 54, SS (ITIhere ae good teasons fo asiume thot rages do nt have much to do... with. sexuality. Rater, they ae 4204 of extreme Violence implemented, ofcourse, by sexual means. Studies shaw that rape is ‘ot an aggressive manifestation of sexuality but rather asexual manifestation of aggression”). 208. Catharine A. MacKinnon, Rape, Genocide and Women's Human Rights, 17 HAR. Wowen’s LJ. 5.12 (1994), MacKinnon argoed, 1 will not help say that tis i violence, not sex, for the men involved... One ‘woman was allowed io live ony as long as she Kept her Serbian captor ard all right orally, night afer nigh after night, rom midnight to 5:00 A.M. What be got ‘was sex for him, The aggression was the Sex. ia 209. Cope, supra note 42, at 249 (emphasis added), 210. Askin, Prosecuting Wartime Rape, supra noe 81

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