Young child covering face photo: ladyenews

It has become almost commonplace to note that “rape is a weapon of war”. It is a feature of mediatized representations of sexual violence in conflict, it characterises such policy and legal frameworks as the Rome Statute of the International Criminal Court and the UN Security Council Resolutions relating to the Women, Peace and Security Agenda. It has shaped and been shaped by advocacy, academic, and international human rights and criminal responses to the horrifying scourge of conflict-related sexual and gender-based violence.

This substantial visibility and policy attention given to the issue is, on the one hand, a marked interruption of an historical legal and policy indifference to the scourge of sexual violence in war. Sexual violence has been a feature of wars throughout history. Rape was endemic to the barbaric logic of colonialism, and wars have almost always seen rape of people of all genders. Despite this horrifying prevalence, while criminalised by the Lieber Code of 1863, until the early 1990s, particularly with the developments surrounding the spectre of sexual violence in Rwanda and Yugoslavia, it was not considered an issue worthy of international legal and policy attention, largely relegated to an issue of collateral damage, or an unfortunate byproduct of war, an opportunistic and regrettable feature of conflict.

In light of this history, the policy and legal focus is welcome and important. While actual accountability and prevention of conflict-related sexual violence has been slow, it has manifested in substantial developments in accountability for conflict-related sexual violence reflected in the jurisprudence of the International Criminal Tribunals for Rwanda and Yugoslavia and subsequent special courts and tribunals. In March 2016, in the Bemba case, the ICC had its first conviction for sexual and gender-based crimes. In the same year, the Extraordinary African Chambers convicted former Chadian President Hissène Habré of sexual violence as a crime against humanity.

At the same time, in the pushback against legal ambivalence, the ways in which conflict-related sexual violence are discussed tend to be singular in focus, and tend to suggest, without humility or doubt, that there is a uniform fashion in which sexual violence in conflict happens and that it is of concern because it is used as a tool of war. In UNSC Resolution 1820, it is stressed that “sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security.” This language is indicative of much of the narrative surrounding sexual violence in conflict.

In framing sexual violence as an issue of concern on account of its concomitant impact on international peace and security, one reproduces the idea that the ravages of patriarchy are of concern only when they are tethered to international peace and security concerns. In this way, while a powerful advocacy tool, it implicitly cements the notion that sexual violence is worthy of attention only when its impact affects other issues. It further creates artificial distinctions between war and peace, when the violence for those who experience sexual violence does not require the existence of armed conflict, nor mass violence to be real.

Moreover, the singularity in defining sexual violence as a weapon or a tool, so comprehended in international peace and security frameworks is at odds with the vastly diverse ways in which sexual violence happens in conflict. This narrative necessarily suggests that sexual violence is linked to war fighting, and is committed strategically to carry out conflict-related goals. While this is surely the case in some contexts, it certainly does not describe a uniform experience of sexual violence in conflict.

Micro-violence theories of conflict, for example, emphasise the ways in which, violence is perpetrated on civilians as part of localised skirmish settling in ways which may sometimes align with the overarching goals of war. While the ultimate goal might appear to engender an alignment with the overarching war strategy, individual rapes in these contexts are not necessarily committed as part of a strategic programme of elimination or destruction. Erikson Baaz and Stern argue that “writing rape in war as inherently strategic obscures the ways in which military discourses of strategicness vary from one military actor to another”. Relatedly, the strategic component presupposes a degree of coordinated and disciplined organization by militaries, where various accounts suggest that rape is sometimes a result of ill discipline amongst militaries. While in some contexts, sexual violence is committed strategically, in others, militaries are urged not to rape, and rape is perpetrated as a result of deviation from strategic aims, rather than in pursuit of them.

Many wars have seen a prevalence of rape committed by military perpetrators on civilians from the same “side” of the war, which cannot engender the strategic threshold embodied by the rape as a weapon/strategic requirement. In this vein, Chiseche Mibenge has critiqued the ICTR for the exclusion of prosecution for Hutu women who were raped on account of their rapes not meeting the strategic threshold, essentially, in defining Hutu as perpetrator, rape of Hutu women could not engender justice. Similarly, sexual violence committed by UN Peacekeepers in conflict zones, whose mandate to protect civilians cannot be strategically linked to the practice of sexual violence, equally fall beyond the ambit of the universalized acceptance of “weapon of war” narratives, a feature reflected in the extremely limited progress towards accountability for such UN Peacekeeper sexual violence crimes.

Critically, despite an expansive focus on systematic rape by combatants in policy and legal attention, there is substantial evidence to suggest that intimate partner violence constitutes if not the majority, a significant proportion of the instances of rape in conflict, as in peacetime. In one study of rape in the DRC, Peterman, Palermo and Bredenkamp found that approximately 3.07 to 3.37 million women reported experiencing intimate partner sexual violence. Despite this, much legal and policy attention is devoted to sexual violence perpetrated by combatants or “outsiders”

While the above is not an exhaustive discussion of the complexity of rape in war, it illustrates that the types, motivations, and instances of rape in conflict are more diverse and less inevitably strategic than the narratives of “rape as a weapon of war” allow for.

The problem then emerges, that when one centralizes a particular type of sexual violence, one risks marginalizing the experiences of those whose experience does not accord with this overarching narrative, limiting access to justice, limiting recognition and attention. None of the differentiation in motivation has any effect on the horror of the individual rapes committed, but the variation, when narrated through the lenses of the “rape as a weapon of war” framework has implications for both access to justice, and the importance imbued to “non-strategic” rape. Beyond legal recognition as an avenue to prosecution, law confers meaning, distributes priorities and operates in a legal and political context in which humanity and justice can be articulated according to narrated priorities.

Additionally, when presented as such, the narrative relies on both gendered and victim-perpetrator binaries, essentialising women and barbarizing men in such ways as to often reproduce colonial representations of black men and women. It further precludes, in many ways, a genuine conversation about the multiplicity of gender identities. When the narrative of sexual violence describes victims and perpetrators in binaries, this invalidates the experiences of those who do not fall within this gender binary. It allows those who identify with their assigned gender to control the narratives on sexual violence, limiting access to justice and reform to a monolithic victim. Without an inclusive narrative that account for the gender spectrum as it is, the experiences and problems faced by transgender victims will remain unknown and the way forward unclear.

Some progress is being made towards blurring the artificial distinctions. Most recently, in January 2017, Trial Chamber VI of the International Criminal Court in the Ntaganda case held that the court had jurisdiction over sexual violence crimes committed against combatants within armed forces. In critical respects, while still limited to combatants, this potentially contributes towards an erosion of the gendered the victim-perpetrator binary embedded in much international law discourse around sexual violence.

However, there remains much to be done. Perhaps then, what is required is an acknowledgement of the multiplicity of ways in which sexual and gender-based violence happens in war and in “peace”, and attention to the political and often racialised and gendered functioning of drawing an overemphasised distinction between the two.  If we hope to address the scourge of sexual violence in all of its devastating manifestations, there needs to be a policy and legal response that can address this. While a strong advocacy line has impact on creating focus on some forms of sexual violence, in turn it can produce a marginalization of many, and a silencing of those who fall outside of this particular arch and legal reach.

Kelly-Jo Bluen and Tshegofatso Senne are project leaders for the Justice and Peace-building programme