“We need to be as laser-focused upon what we love and what we are trying to create together, as what we are attempting to dismantle” Ruby Sales
The elimination of violence against women is tied to the elimination of all forms of heteropatriarchal, homo- and transphobic, (neo-)colonial, racist, capitalist, and ableist violence. Sexual and gender-based crimes in the context of mass violence and atrocities are structural manifestations of systems of (in particular heteropatriarchal) oppression exacerbated during wartime or societal breakdown where perpetrators exercise power and control over the sexual and reproductive autonomy, the bodies and minds, (especially) of women, LGBTQI and children. Situated at a point in time in which there is an ever evolving mosaic of law, jurisprudence, resolutions, model laws, pledges and manuals (see for example International Protocol on the Documentation and Investigation of Sexual Violence in Conflict and the Murad Code) guiding the path towards justice and reparations, what is needed are resources and implementation. To get there, we need to see intersectionality, feminist leadership and feminist foreign policy not essentialised but practiced. This requires survivor communities’ demands (see for example Kinshasa survivors’ declaration) to be uplifted, and at the center of all designed responses. Simultaneously, all stakeholders, from state representatives, funders, non-governmental organizations, advocates and lawyers must reflect on their power and positionality - understanding when to step back and when to step in (including redistributing resources). Power within, power to and power with instead of power over (Philanthropy is a feminist issue, Ise Bosch and Ndana Bofu-Tawamba) should be the guiding principle.
In-between the international legal and policy framework: A deconstructing reflection on “(conflict-related) sexual violence” and “sexual violence/ rape as weapons of war”
“(Conflict-related) sexual violence” includes rape but also notably other acts of a sexual nature harming the sexual integrity, sexual autonomy and reproductive autonomy of a person, among them enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. Moreover, evidence of acts of a sexual nature can serve as indication that certain crimes have been committed. To that extent, acts of a sexual nature can be indication of slavery crimes. Women Initiatives for Gender Justice published the The Hague Principles on Sexual Violence providing guidance to legal practitioners, academics, policy-makers on “an enhanced understanding of the various forms of sexual violence, to allow for more inclusive, survivor-centered, forward-looking and culturally sensitive responses to these crimes”. FIDH’s glossary on key terms related to sexual and gender-based violence constitutes for another useful tool in that regard.
The umbrella term “(conflict-related) sexual violence” encompasses various conducts that are criminalised under international criminal law. While convenient, the term foregrounds violence over its sexualized nature, overshadows its criminal, internationally outlawed nature and hides the interconnectedness between the international (both sexual and gender-based) crimes and the structural drivers causing such crimes. The International Criminal Court’s (ICC) Office of the Prosecutor (OTP) (for an overview, see most recently: Sexual and Gender-Based Crimes, Observations on the ICC Office of the Prosecutor, Prof. Kim Thuy Seelinger) offers in its 2014 Policy Paper on Sexual and Gender-Based Crimes distinctions between sexual crimes and gender-based crimes.
Critically, there are severe limitations and risks that go hand in hand with the term “sexual violence as a weapon of war”, or its reductive version “rape as a weapon of war”. It presupposes the existence of an armed conflict as a prerequisite for its (legal) recognition. Yet, for example, the contextual elements of crimes against humanity (as part of a widespread and systematic attack against a civilian population) do not legally require an armed conflict to take place. Sexual and gender-based crimes occur in situations of mass violence in which there is no armed conflict and can be accounted as acts of crimes against humanity. Secondly, it directs our attention to the perpetrator, presuming the commission of sexual and gender-based crimes to be imbedded in a military strategy, and removes it from the array of physical, psychological, economic and social harm to survivors and structural drivers of the violence that caused them. As Regina Mühlhauser in conversation with Marta Havryshko points out the term “sexual violence as a weapon of war simplifies structural root causes for why sexual violence is occurring, being tolerated, and not sanctioned internally in both non-state armed groups and state armies involved in sexual violence”. Besides, the expression may also legitimize meeting the commission of sexual and other gender-based crimes solely with military responses as the most appropriate response rather than prioritizing tackling the historical and present root causes as to why the bodies of women, children and LGBTQI persons are again and again attacked by state and non-state armed actors in the context of mass atrocities. Or to examine the wide-ranging physical, psychological, economic and social impacts of sexual crimes on people, harming their sexual autonomy, sexual integrity and reproductive autonomy, and to identify intersectorial and sustainable responses to such crimes. If we are serious about feminist foreign policy or feminist policy-making overall, we need to center survivors, and survivor communities: learning about their visions of justice, liberation, equity and healing while in simultaneously addressing the structural drivers of crimes with heteropatriarchal, homo-and transphobic, (neo-)colonial, racist, capitalist, and ableist root causes against all people.
Moving towards justice and reparations for sexual and other gender-based crimes in the context of mass atrocities, the relationship between racial capitalism and gender-based violence, through the lens of social reproduction, the colonality of gender, colonality of sexual violence and abolistionist approaches to ending sexual violence, even though they may give rise to structural and inherent tensions, requires space to breathe and reflect in the realm of international (criminal) justice work as well.
Intersectionality and positionality as central pillars in international (criminal) justice work
As Ralph Wilde outlines “international law even fully implemented still operates according to a set of assumptions that drastically diminish the options when compared to that which oppressed people often demand”. In terms of possibilities for criminal accountability today, mindful of the fact that such accountability may constitute a form of justice and not the (emphasis added) only form of justice, the Rome Statute of the International Criminal Court provides for the legal framework to address atrocious crimes, including sexual and gender-based crimes. States, in particular signatories to the Rome Statute committed themselves to adopting legislation in their own jurisdiction to prosecute international crimes domestically in accordance with the statute. Jurisprudence, predominantly from the ad-hoc tribunals for the former Yugoslavia and Rwanda, exists for sexual and gender-based crimes to be investigated and prosecuted as acts of genocide, crimes against humanity and war crimes. Increasingly, jurisprudence is generated from the multitude of trials held under the principle of universal jurisdiction, also addressing sexual and gender-based international crimes (for example in the context of Syria and Iraq). However, the law and jurisprudence alone will not do the trick. We need intersectional approaches not only guiding the application and interpretation of the law (Article 21 (3), Rome Statute), but for intersectionality and positionality to be established as central pillars in the ecosystem that is international (criminal) justice work: from approaching intermediaries and witnesses, to the gathering and analysis of evidence. We need thorough understandings of trauma, its effects on the mind and body, informing all aspects of our work, we need international crimes investigators, related practitioners and scholars proactively engaged in gender analysis and intersectional approaches, we need effective cooperation with states and other actors that provide necessary access and resources, as well as close, safe and confidential cooperation with organizations and structures that support survivors holistically, mindful of the physical, psychological, social and economic impact of sexual crimes.
Intersectionality or intersectional approaches to the investigation and prosecution of international crimes is important because it defies universality and makes space for pluriversality instead. What do I mean by that? Intersectionality, with its roots in black feminist activism, legal thought and praxis, offers a methodology that reveals that multiple realities are possible, that harm and the drivers of the crimes are multidimensional. All of which are needed for gathering valuable evidence, contributing to the historical record and effecting structural transformation. According to Patricia Viseur Sellers, “it is really the harm to the collectivity that international criminal law endeavors to protect” (...) with the “collective protection” being “the doctrinal spinal cord of international criminal law”. It follows that although international criminal law is primarily and doctrinally concerned with the groups it protects, there are subgroups of such protected groups that have different experiences of harm and violence that need to be equally seen and accounted for. Sellers critically underlines that international criminal law requires doctrinally for “the subgroups to be per se included in the collectivity and unable to be excluded from them” (Gendered Intersections of Human Rights and International Criminal Law, Patricia Viseur Sellers). Nikita Dhawan and Maria do Mar Castro note while referring to Butler that “single-issue politics not only erases and hierarchises different forms of oppression, it also essentialises gender” while reflecting on intersectionality as a “corrective methodology” that examines “why specific inequalities are given more importance than others in specific moments in specific spaces”. Critically, Jennifer Nash distinguishes “where diversity is a project of including bodies, intersectionality is an anti-subordination project, one committed to foregrounding exclusion”.
Intersectionality, thus, demands us to allow for international criminal justice to be one form out of the many forms justice can take. It further necessitates us to ask questions about systems of power and oppression at play: in the context in which the crimes are being committed where those involved and impacted are situated, and among individuals, organization, institutions and bodies tasked with international (criminal) justice work - where evidence is being gathered, analyzed and where the law is being interpreted and applied. For example, there are structural reasons that influence and predetermine people’s perception of what violence is (for example, sexual violence = rape), what an international crime looks like (mass killing of cis-male bodies). White supremacist, colonial and heteropatriarchal thought patterns are determining factors that result in the creation of a hierarchy of crimes, of certain crimes being perceived to be more easily prosecutable than others, or of underlying acts of international crimes or biases. In Frames of War - When Is Life Grievable? Judith Butler notes that “when we might think of war as dividing populations into those who are grievable and those who are not. An ungrievable life is one that cannot be mourned because it has never lived, that is, it has never counted as a life at all”.
Feminist leadership and feminist (foreign) policy: co-building the bridges
In response to the above-identified challenges, everyone everywhere informing the design of justice response, irrespective of their profession, position or contribution to the international (criminal) justice work is invited to (un-)learn through the practices of feminist leadership and feminist (foreign) policy. Most notably, to sustainably address and transform the structural drivers of sexual and gender-based crimes in the context of mass violence and atrocities we need both of the aforementioned. It follows that states that are committed, especially on the international stage, to either prevent or end “conflict-related sexual violence” but have not committed to feminist leadership or feminist (foreign) policy are missing parts of their very own equation: one cannot claim to have crossed the river without having built the bridge. That bridge cannot be built through the colonial, white supremacist urge to observe “historically and systematically oppressed bodies displaying their suffering” as “part of the ritual of ‘acknowledgement’, where the act of bearing witness to historic violence in fact becomes a means of reinforcing the consequences of that violence” while “the notion of actually dismantling the oppressive structures from which they continue to benefit appears less popular” (The Commodification of Trauma, Sadaf Javdani).
Srilatha Batiwala understands feminist leadership “as a process of transforming ourselves, our communities, and the larger world, to embrace a feminist vision of social justice. It’s the process of working to make the feminist vision of a non-violent, non-discriminatory world, a reality (…) It’s about mobilizing others around this vision of change”. As practitioners, particularly those that are white and/or well-resourced and respectively privileged, feminist leadership demands us to ask ourselves what role we authentically can be playing in building the bridge. To examine our own complicity in pretending the crossing has happened without the bridge having been built at the expense of those already having been impacted by mass violence with long-term consequences for the rest of their lives.
In “Practicing Feminist Foreign Policy in the Everyday: A Toolkit”, WILPF identifies (1) Intersectionality, (2) Empathetic Reflexivity, (3) Substantive Representation and Participation, (4) Accountability and (5) Active Peace Commitment as five values intrinsic to the formulation of a feminist and ethical foreign policy agenda. Miriam Mona Mukalazi, political scientist and activist, reflects on feminist foreign policy by underlining that "we have to ask ourselves the following questions: Who defines what peace means for whom? Which forms of violence are recognized as a threat to peace and why?" (translated from German by the author).
In the past 22 years, the United Nations Security Council has passed ten resolutions (namely, 1325, 1820, 1888, 1889, 1960, 2106, 2122, 2242, 2467 and 2493) - also known as the Women, Peace and Security Agenda - addressing inter alia sexual and gender-based crimes in the context of conflict and mass violence. There appears to be a multilateral consensus that sexual and gender-based crimes constitute a threat to peace and security. Concurrently, the implementation of resolutions and commitment to address the long-term consequences of sexual and gender-based crimes remains lacking until this day. Attempts to agree on holistic policy measures in response to sexual and gender-based crimes, brought the light the continuous, global attack on women, trans- and queer bodies and, consequently, on survivors’ of sexual and gender-based crimes sexual as well as reproductive health rights.
While the road is long, there are cracks of light on the horizon and we must chase them. In 1984, Bell Hooks, who would have turned 70 this September, wrote in Feminist Theory: From Margin to Center “feminist thought and practice were fundamentally altered when radical women of color and white women allies began to rigorously challenge the notion that gender was the primary factor determining a woman‘s fate”. Tjeu Cole offers a guiding light by reminding us to inquire about our own involvement in “the transnational networks of oppressive practices”. In its Learning Brief: Feminism, Racism and Intersectionality, Coalition of Feminists for Social Change (COFEM) underlines that prevention of and responses to gender-based violence has been dominated “by White Western feminist ideology and practices” - failing to “offer a nuanced and feminist analysis of the co-occurring issues of race, ethnicity, sexuality, class, and historical context/colonialism for non-White women across the globe” acknowledging that “it will take concerted and long-term efforts to unlearn, and understand the various ways to uphold bias, subjective perspectives or blind spots around feminism, racism, and intersectionality – be patient with the process, engage in self and collective care, and find a supportive community”.
Let this day dedicated to the much needed elimination of violence against women, be an (re-)invitation to ourselves to commit to the life-long journey of (un-)learning and self-interrogation. After all, as Leila Billing writes, while “we are all entangled in harmful systems, (...) it does not mean we are all equally responsible for transforming them”. Yet, “the very hard truth is that there is no position any of us can claim outside of complicity or implication. Because of the interconnectedness of our world, we are all likely entangled — if not complicit — in the very systems we purport to be working to upend”.
Alexandra Lily Kather (she/they) is an international justice practitioner and co-founder of the emergent justice collective. Their specialized interest is dedicated to understanding and strategically investigating the intersectional dimensions of core international crimes. Their work alongside affected communities follows a trauma-informed, intersectional approach engaged in the design of responses geared towards equity, healing, justice and liberation. They have worked with the Center for Justice and Accountability, Human Rights Watch, the European Center for Constitutional and Human Rights, the International Truth and Justice Project (Sri Lanka), the International Law Programme at Chatham House and the Atlantic Council.