FEMINISM AND ITS (DIS) CONTENTS: CRIMINALIZING WARTIME RAPE IN BOSNIA AND HERZEGOVINA

摘要

Today many feminists seem relatively content with the treatment of rape and other sexual violence against women under international criminal law. In the context of the conflict in Bosnia and Herzegovina in the early 1990s, feminist activists made a concerted effort to affect the statute establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the rules of evidence under which rape and other qrimes of sexual violence would be prosecuted, the form the indictments of crimes of sexual violence would take, and the strategies and legal argumentation made at both the trial and the appellate levels. For the most part, much to the surprise of many feminists themselves, they have been successful. As Joanne Barkan comments: "From the start, most observers considered the [ICTY] a sop to human rights and feminist activists who wanted intervention. ... Almost no one expected it to succeed. And yet to some extent, at least for women, it did." The ICTY's treatment of rape, of course, resulted from more than the work of feminist advocates. Attention to the rapes in Bosnia and Herzegovina coincided with increasing support in general for an international criminal law that could be enforced through tribunals and courts. To create such law, statutes would need to be drafted and crimes would need to be listed and then prosecuted. Rape had long been considered a violation of international law, and therefore its inclusion per se was not that radical. Although rape had not always been explicitly listed in war crimes treaties, many states and intergovernmental organizations argued in the context of Bosnia and Herzegovina that both the Geneva Conventions and customary international law provided a legal basis for criminalizing rape. There was even some precedent for seeing rape as a crime against humanity.