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Feminist Perspectives on Transitional Justice Published online by Cambridge University Press: 16 December 2020
The last decade of the twentieth century marked a critical milepost for women: the international legal community had, finally, prosecuted rape in trials at the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for Yugoslavia (ICTY). These prosecutions were rightly seen as a victory for feminists who had lobbied extensively for this kind of recognition and prosecution of sexual violence against women. After centuries of silence, including near silence about rape during the Nuremberg trials and in the Geneva Conventions, with the advent of the ad hoc international tribunals for the former Yugoslavia and Rwanda, the hybrid tribunal for Sierra Leone, and the new International Criminal Court, the international legal community was at last prosecuting rape as a crime against humanity and as torture. While feminists in general applaud this development, they differ on some issues involved and raise important questions. Should wartime rape be seen as different from ‘regular’ rape–that is, rape committed in peacetime? If it is seen as different, should it be treated differently in the international tribunals? What is the relationship between the general oppression and violence towards women in most societies and the treatment of women in times of conflict? Can these two harms be severed for purposes of international trials? Should rape committed during times of armed conflict be treated as other acts of violence in conflict or is the crime categorically different and be so prosecuted? Does the focus on sexual violence against women in conflict obscure the other harms that women experience in times of war? Does it reduce women to a single category-victim? Some feminist scholars also look skeptically at the very mandate of the tribunals and suggest that it categorizes women as victims and fails to address more general and widespread discourses of war and nationalism.
Despite the unsettled and unsettling questions, some feminist activists believe that we should be grateful that rape is being prosecuted at all, that expecting too much of the nascent tribunals creates undue pressure as the jurisprudence evolves.
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