War rape's challenge to just war theory

Abstract

War rape comes in many forms, is perpetrated for many reasons, has multiple victims and multiple culpable perpetrators. This chapter examines war rape, asks whether Just War Theory (JWT) can tackle the specific challenges posed by the reality of sexual violence during wartime, and suggests that it might actually have an important conceptual framework to offer to philosophical analyses of the problem of war rape. I argue that JWT can be used to ferret out the important differences and functions of various forms of war rape while offering a normative theory in support of human rights that might provide individuals who attempt to resist participation in war rape with normative justification for their resistance. However, JWT falls short of meeting all of the challenges posed by war rape due to a lack of emphasis on the nature and harm of war crimes that target individuals on the basis of gender and that use the body as weapon and site of the war crimes or the war itself. Two broad categories of war rape may be observed though of course variations within these categories abound. The two categories are individual rapes and mass rape. While it may be tempting to describe these as "old" and "new" respectively, history belies such a temporal distinction. Mass rape has been evident since biblical times1 but only recently has it received the media attention2 and moral approbation long overdue. So too, individual rapes continue to be overlooked by militaries while they simultaneously degrade individual victims and their communities. Where there is a difference between old and new is in the international laws against war rape. The "old" law held that rape during war was a war crime. The "new" laws, since 1993, recognize not only rape as a war crime, but mass rape as a crime against humanity and genocide.3 Following the schematic of JWT, an analysis of war rape must scrutinize the various causes, uses or intentions, and ends of both individual rapes and mass rape. Rapes that occur during conflict situations are blamed on sexual needs, boredom, inevitability, entrenched systems of domination, reactions to the constant threat of violence, among other causal factors. Rape is said to be used as a release of tension, an instrument of torture, and a weapon in combat. I discuss these causes and uses, as well as others, below, but an analysis of war rape would be incomplete without a discussion of its ends or purposes which are conceptually though not necessarily practically distinct from its causes and uses. Rape degrades, demoralizes, and dehumanizes enemy combatants and noncombatants, it splits communities, it becomes an instrument in ethnic cleansing through forced pregnancy, and it is both a means to and a form of genocide. In addition to targeting women because they hold political, cultural, or ideological positions, rape creates a war within a war wherein all women are targeted as women. In short, rape in war has multiple causes, multiple uses, and multiple ends. In Section 1, I offer a definition and a system of categorization for war rapes that highlights the differences between forms of war rape. As I show, the context of war makes war rape conceptually different from everyday or peacetime rapes, though there may be some compelling links between the two.4 In Section 2 I use the tripartite distinction mentioned above - cause, use, and purpose - to underscore the particular features of war rape and use the mass rape in Serbia as a demonstrative case. In Section 3, I use Michael Walzer's Just and Unjust Wars to examine the relation between human rights and JWT with the aim of addressing the question I posed earlier: can JWT meet the challenges posed by war rape and does JWT have something to offer in this context? Section 4 addresses the weakness of JWT. For the purposes of this chapter, I wish to bracket the inclusion of rape of an ally or a fellow soldier under the rubric of war rape. Most accounts of war rape include prostitution and rape of allies (citizens or military personnel) and fellow combatants, in part because they emphasize the ideology of rape within the military. I restrict the current account of war rape to enemy combatants or civilians because I think the element of opposition or enmity within these forms of rape alters their nature - makes them categorically different from the rape of a fellow soldier - and because I wish to focus attention on the obligations of JWT. © 2007 Springer.