class: center, middle, inverse, title-slide # Dirty Wars ## Status in War & Sexual Violence in Conflict ### Jack McDonald --- class: inverse # Outline .pull-left[ > Dirty wars are conflicts where one or more parties denies the political, legal, and/or moral status/standing of their opponents. To understand how this happens in war, we need to consider how a person's status is constructed, how it applies, and the role of gaps/silences in international law. ] .pull-right[ - When Should the Law of War Apply? - Regulating Warfare: Which Rules Apply? - What is Sexual Violence in Conflict? - When Did SVC Become a Crime? - Framing and Re-Framing War Crimes - Conclusions and Connections ] ## Main Points Some types of status in war are fixed in theory, others aren't How/when/why LOAC is applied matters as much as the text of treaties Examining the emergence of sexual violence in conflict as a war crime helps us to understand the contingent nature of LOAC ??? --- class: inverse # Part 1: When Should the Law of War Apply? ??? --- # The Problem of War Studies .pull-left[ ![Strategy > Politics > International relations > Security studies > strategy...](img/3/escherstairs.jpg) ].pull-right[ ![War is weird, no matter how you look at it](img/3/escherrelativity.jpg) ] ??? --- # Which Means Varying Categories of War > An inter-state war must have: sustained combat involving regular armed forces on both sides and 1,000 battle-related fatalities among all of the system members involved. Any individual member state qualified as a war participant through either of two alternative criteria: a minimum of 100 fatalities or a minimum of 1,000 armed personnel engaged in active combat. Correlates of War > Armed conflict (state-based) A state-based armed conflict is a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths in one calendar year. > War (state-based) A state-based conflict or dyad which reaches at least 1000 battle-related deaths in a specific calendar year. Uppsala Conflict Data Program > ACLED does not pre-define what a 'conflict' is. Those decisions are left to the user. ACLED does not categorize clusters or campaigns of events into categories of 'state', 'non-state', 'terrorism', 'insurgency'; etc. The Armed Conflict Location & Event Data Project (ACLED) ??? --- # ...Varying Sets of Applicable Rules .pull-left[ International Armed Conflict > the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Common Article 2 ].pull-right[ Non-International Armed Conflict > armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties Common Article 3 ] ??? --- # And Varying Categories of Persons/Objects > THE CONCEPT OF CIVILIAN IN INTERNATIONAL ARMED CONFLICT For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a _levée en masse_ are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. > THE CONCEPT OF CIVILIAN IN NON-INTERNATIONAL ARMED CONFLICT For the purposes of the principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities ("continuous combat function"). ICRC, _Interpretive Guidance on the Notion of Direct Participation in Hostilities_ ??? --- # The Inherent Problem of Defining Internal War > The core of that definition was empirical, not experiential: combatants and victims might believe they were trapped in a civil war, but until the death toll reached a thousand or antigovernment forces had killed at least fifty people, social scientists could tell them they were wrong. David Armitage, _Civil Wars_ ??? quote from p.218 --- class: inverse # Reflection Question .question[When, if ever, is the existence of war an objective fact?] ??? --- class: inverse # Part 2: Regulating Warfare: Which Rules Apply? ??? --- # "The Game is Rigged" > the modern conception of war as a contest between moral and legal equals has only been possible to uphold as a consequence of the constant exclusion and othering of all subjects thought _not_ to be morally or legally equal. Jens Bartelson, _War in International Thought_ .pull-left[ ![FARC Guerrillas](img/3/farc.jpeg) ] .pull-right[ ![ISIS Killers](img/3/execute.jpg) ] ??? --- # IHL and IHRL .pull-left[ Incompatibilities - Ontological incompatibility - "Combatants" don't exist in IHRL - Epistemic incompatibility - Differing standards of knowledge, processes of forming knowledge - Temporal incompatibility - IHL/LOAC applies in armed conflicts, only - Normative incompatibility - IHL indifferent to _jus ad bellum_, IHRL can't be - Conflicts: Right to life, detention, fair trial... ] .pull-left[ Interactions - _Lex specialis_ (ICJ approach) - Where two bodies of law apply, the more specialised body of law takes precedence - Co-application (Human Rights Committee approach) - Both bodies of law apply at the same time - "Belt and suspenders": Body of law that provides the most protection takes precedence - Problem of resolving conflicts of law ] ??? /// --- # Four Problems & Five Ws .pull-left[ ![From Dr Strangelove](img/3/problems.png) ] .pull-right[ - The applicability problem - Which set of rules apply to a given conflict? - The interpretation problem - How should rules produce (or remove) actionable constraints on conflict? - The identification problem - To what extent can institutions and individuals ensure the correct identification of permissible targets? - The decision problem - Who, or what, makes the key decisions? ] ??? --- # Who Can Be Detained? .pull-left[ ![Andersonville prison camp](img/3/andersonville.jpg) ![Mau Mau detention camp](img/3/maumau.jpg) ] .pull-right[ .picblock[ ![Maze prison](img/3/maze.jpg) ![Soviet Gulags](img/3/gulag.png) ] ] ??? --- # Global War on terror ![September 11 Trial at Guantanamo](img/3/guantanamo.jpg) .pull-left[ Transnational armed conflict The "many conflicts problem" ] .pull-right[ Detention in armed conflict - Extraordinary rendition - US Citizens in military custody - "Unlawful enemy combatants" ] ??? --- # Argentina .pic80[ ![Mothers of the Disappeared](img/3/ninos.jpg) ] .pull-left[ Was the "Dirty War" a war? - the "National Reorganization Process" ] .pull-right[ Post-conflict justice - National Commission on the Disappearance of Persons (CONADEP, 1983) - Juicio a las Juntas (1985) - Full Stop law (1986) - Law of Due Obedience (1987) - Mass pardon (1989) - Repeal (2003) ] ??? Was the Dirty War a War? ??? --- # Northern Ireland .pull-left[ ![Propaganda poster after Demetrius](img/3/poster.jpg) ].pull-right[ .medium[ Operation Banner - Lawful authority to use military force in domestic conflict Falls Curfew (1970) - Imposition of curfew Operation Demetrius (1971) - Mass internment Diplock Courts (1973-2007) - Trial without jury ] ] ??? The use of Military Force under the rule of law Big Boys' Rules Maze detention ??? --- # The Vietnam Wars .pull-left[ ![The 'Hanoi Hilton' where many US POWs were held](img/3/hanoihilton.jpg) ].pull-right[ .medium[ Phase of US involvement between Geneva Accords (1954) and full military engagement (1964-65) Secret/covert US military activity in bordering countries Systematic use of concentration/reeducation camps by both North and South Vietnam throughout war US POWs experienced severe mis-treatment, owing to N. Vietnam refusing to recognise them as legitimate combatants ] ] ??? Modern Warfare ??? --- class: inverse # Reflection Question .question[ How do your own personal and professional interests shape the kinds of violent conflicts that you choose to study? ] ??? --- class: inverse # Part 3: What is Sexual Violence in Conflict? ??? --- # "The Oldest Crime" > Exactly what happened to women in these situations is largely a matter of speculation, as there are few records on this topic at the very early parts of written history... the Assyrian sources are replete with numerous other cruelties, but are silent about rape. Anthony Gillespie > Soldiers ought not to be allowed by their officers to commit rape on women and maidens, nor, since it is illegal in itself, does the right of war excuse it, much less justify it. Christian Wolff ??? /// --- # SVC Theories: What Causes It? .pull-left[ .large[ - Substitution - Institution/group - Feminist - Cultural Pathology - Strategic - Biosocial ] ] .pull-right[ > Classic theories advanced to explain conflict-related sexual violence explain only a small part of the observed variation. In particular, theories to explain conflict related rape do not account for its variation because they _over_-predict rape during war. Elizabeth Jean Wood, _Conflict-Related Sexual Violence and the Policy Implications of Recent Research_ ] ??? /// --- # Defining SVC: Argentina > He told me he had orders to kill me... He offered to save my life if in exchange I would agree to have sexual relations with him... I carried out his demands under threat of death, so I felt and consider myself to have been raped. On leaving, he drove me to my in-laws' house. C.G.F. (file No. 7372), _Nunca Mas_ > One night a man came to her cell. He tied her up and beat her, then raped her amid threats, forbidding her to tell anybody what happened. After that he took her to a bathroom to get cleaned up. AN (file No. 6532), _Nunca Mas_ ??? /// --- # Problems With Analysing SVC > any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. _Akayesu_, ICTR > sexual violence in its own right is not accorded the status of an international crime. Rather, it is only when sexual violence has a nexus to armed conflict, the intended destruction of a national, ethnic, racial or religious group, or an attack upon a civilian population, that the conduct becomes an international crime. Accordingly, sexual violence is a subsidiary act, which is recognised as an international crime only when framed by other forms of illegality. Kirsten Campbell, _The Gender of Transitional Justice_ ??? /// --- class: inverse # Reflection Question .question[Which of the descriptive, causal, and normative issues associated with sexual violence in conflict do you find most troubling? Why?] ??? --- class: inverse # Part 4: When Did SVC Become a Crime? ??? --- # "Rape as a Weapon of War" in Yugoslavia .pull-left[ > the acts committed in Bosnia demonstrate a concerted scheme to annihilate the Muslim population of Bosnia through gender-determined genocide, and confirm the realization that rape is not a random or isolated wartime event. Elizabeth A. Kohn, _Rape as a Weapon of War_ ] .pull-right[ ![Bosnia Front Page](img/5/bosniapage2.png) .picblock[ ![Yugoslavia Map](img/5/yugoslav.png) ] ] ??? /// --- # SVC in Context: DR Congo > Approximately 1.69 to 1.80 million women reported having been raped in their lifetime... and approximately 3.07 to 3.37 million women reported experiencing intimate partner sexual violence. > estimates of rape among women aged 15 to 49 years in the 12 months prior to the survey translate into approximately 1150 women raped every day, 48 women raped every hour, and 4 women raped every 5 minutes. > ...because our data did not capture sexual violence among women and girls younger than 15 years or older than 49 years and did not include sexual violence among boys and men, even our estimates are a lower bound of the true prevalence of sexual violence. Amber Peterman et al., _Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo_ ??? https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2010.300070 ??? --- # Courts and Court Judgements .left-60[ ICTY - _Tadić_: Sexual violence against men - _Mucic et al_: Rape as torture - _Furundžija_: Rape as grave breach of the Geneva conventions and violation of laws & customs of war, rape as tool of genocide - _Kunarac et al_: Rape/sexual enslavement as crime against humanity ICTR - Dealing with 250-500k instances of rape ICC - First prosecution Jean-Pierre Bemba Gombo (Bemba) in 2016 for sexual violence in CAR ] .right-60[ ![Mugshots of war criminals](img/5/warrant.jpg) ] ??? /// --- # The Importance of Justice .pull-left[ > Given the unbridled homophobia demonstrated by the U.S. guards, it is indeed ironic, yet predictable, that the United States nonetheless emerges as more tolerant of homosexuality (and less tainted by misogyny and fundamentalism) than the repressed, modest, nudity-shy "Middle East." Apparently, the United States still regards itself as the arbiter of civilizational standards. Jasbir K. Puar, _Abu Ghraib: Arguing against Exceptionalism_ ] .pull-right[ ![Lynndie England in handcuffs](img/5/lynndie.jpg) ] ??? Quote from p.527 --- class: inverse # Reflection Question .pull-left[ Consider commensurability: Non-commensurable: "Apples are not oranges." Commensurable: "Apples and oranges are both fruit." ] .pull-right[ .large[Are "normal" acts of violence commensurable with sexual violence? Why/why not?] ] ??? /// --- class: inverse # Part 5: Framing and Re-Framing War Crimes ??? --- # The Context of SVC: Northern Ireland > when a woman is the target of a sectarian murder in Northern Ireland, invariably there is a great sense of outrage. This outrage exposes the gendered nature of public morality in its opposition to the murder of women in political conflict. However, when a woman has been murdered in a 'domestic' assault in the 'sanctuary' of her own home, there is less of a sense of violation. In Northern Ireland, as elsewhere, there is a kind of continuum that ranges from the least to the most acceptable type of murders that is perhaps best symbolised in the way in which murders not related to the political situation have been euphemistically referred to by police officers as 'ordinary decent murders.' Monica McWilliams, _Violence Against Women and Political Conflict_ ??? https://link.springer.com/content/pdf/10.1007%2FBF02461137.pdf --- # Politics of SVC (Collaboration) .pull-left[ > Women almost always were the first targets, because they offered the easiest and most vulnerable scapegoats, particularly for those men who had joined the resistance at the last moment. Anthony Beevor, _An Ugly Carnival_ ] .pull-right[ ![French woman being driven out of her community](img/5/france.jpg) ] ??? https://www.theguardian.com/lifeandstyle/2009/jun/05/women-victims-d-day-landings-second-world-war --- # Politics of SVC (Forced Prostitution) .pull-left[ ![Wednesday demonstration symbol](img/5/wednesday.jpg) ] .pull-right[ .medium[ The Korean Council's demands: 1. Acknowledge the war crime. 2. Reveal the truth in its entirety about the crimes of military sexual slavery. 3. Make an official apology by the Japanese Government. 4. Make legal reparations. 5. Punish those responsible for the war crime. 6. Accurately record the crime in history textbooks. 7. Erect a memorial for the victims of military sexual slavery and establish a historical museum. ] ] ??? /// --- # Consequences of SVC: Vietnam > By the time the Americans had fully replaced the French in Indochina the war had sufficiently disrupted South Vietnamese society to a point where it was no longer necessary to import foreign women for the purpose of military prostitution. I do not mean to imply that prostitution was unknown in Vietnam before the long war. As Peter Arnett told me, "Prostitution was a time-honored tradition. Certain heads of families would not think twice before routinely selling their daughters if they needed the money." But as the long war progressed, prostitution increasingly became the only viable economic solution for thousands of South Vietnamese women. Susan Brownmiller, _Against Our Will_ ??? /// --- class: inverse # Reflection Question .question[ How do incidents or patterns of sexual violence relate to the kinds of wars/conflicts that you are interested in studying? Why do you think this is so? ] ??? --- class: inverse # Part 6: Conclusions and Connections ??? --- # Key Issues .large[ Conceptual differences between categories of conflict have important ramification for the regulation of conflict itself We cannot escape the function of power in the regulation of conflict, nor the structural gaps that enable creative interpretations of international law Sexual violence in conflict is one way of understanding how the structure of international law obfuscates and enables types of violence in war that occur outside the "clash of arms" ] ??? --- # Key Questions .large[ Do you think that the solution to the issues highlighted in this lecture is more treaty-making? Why/why not? Is it ever possible to escape states making legal arguments in bad faith? What do you think the limits should be on the definition of sexual violence in conflict? What kinds of sexual violence would be excluded by those limits? ] ???