Never Again... and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond

Abstract

In this Article, Simon Chesterman examines the gendered construction of war crimes, and argues that international law must reconceptualize this area of law in order to vindicate the rights of wartime rape victims. The Article initially traces the historical evolution of war-crimes trials, noting that their justification is rooted not in law but in the notion of order that at once provides their rhetorical legitimation and normative telos. The war-crimes trials serve as theater to evince a community's return to order. This understanding of order, however, is gendered in two important ways. First, notwithstanding its rhetorical claims that law imposes order, the traditional conception of order is actually predicated on a 'public" order that is defined through its relationship with violence. Second, this public morality affirms a masculine subjective relation to the world. This backdrop serves as the Article's frame of reference for studying the unique problem of conceptualizing rape as a war crime. Drawing from the present tragedy in the former Yugoslavia, the Article underscores a fundamental tension in international law: Rape has at once been accepted as a concomitant of war, while remaining an ambiguous war crime because it marks the chasm between the private and the public in war. The Article concludes that this dualism-present in the experiences of the former Yugoslavia-mandates a reconceptualization of war crimes that questions the modalities of power that legitimate the violence of the state, both at peace and at war.