Liberators or Libertines? The Rape of Iraq

AuthorFrancis Eóin McConville
PositionLLB (Hons), LLM Candidate, Queens University Belfast
Pages120-135
LIBERATORS
OR
LIBERTINES?
THE
RAPE
OF
IRAQ
FRANCIS
EOIN MCCONVILLE*
This
article
examines
rape
as
a
weapon
of
war.
It
argues
that
until
the
historic
precedents established
by
the
International
Criminal
Tribunals
of
Yugoslavia
and
Rwanda human
rights
law
failed
to
protect
women
from
war
rape.
I
will
consider
the
origins
of
the
International
Criminal
Tribunals, explore
the
evidence
of
rape
as
a
weapon
of
war
in
the
Gulf
War
II,
and
then
assess
the
applicability
of
lessons
from
the
International
Criminal
Tribunals
of
Yugoslavia
and
Rwanda
to
Iraq.
I
will
argue
that
existing human rights
law
remains inadequate
as
a
source
of
legal
relief
and
remedy to
women
and
conclude
that
protection
and
deterrence
is
achievable
by
reformulating
existing legislation
and/or
fashioning
innovative
women-specific
rights.
The
female
embodiment
of
patriotism
is
a
recurrent
metaphor
throughout
history,'
as
evidenced
by
the personification
of,
for
example,
the
US as
'Lady
Liberty,'
Britain
as
'Britannia'
and
France
as
'Marianne':
"In
many
societies woman
represents
the
symbolic
system
of
a
group,
the
construction
of
the
community being produced
and
made
visible
in
her
person, body
and
life.",
2
Perhaps
it
is
for
this
reason
(the
symbolic
construct
of
woman
as
nation
or
'motherland')
that
the
violation
of
territorial
integrity provokes comparison
with
rape,
hence
the 'Rape
of
France'
during
World
War
II
and
the
modem
'Rape
of
Iraq'.
Although
rape by
soldiers
has
been
prohibited
by
the
laws
of
warfare
for
centuries,
3
a
cursory
examination
of
the
history
of
war
reveals
a
.
LLB
(Hons),
LLM
Candidate,
Queens
University
Belfast. Attorney-at-law
(New
York
Bar,
uncertified),
and
Apprentice
Solicitor
at
the
Institute
of
Professional
Legal
Studies,
Belfast.
The
author
would
like
to
dedicate
this
Article
to the
memory
of
May
and
Pat
McGivern,
requiescant
in
pace.
I
Doris E
Buss, "Women
at
the Borders: Rape
and
Nationalism
in
International
Law"
(1998)
(4)
2
Feminist
Legal
Studies
171,
at
193.
2
Ruth Seifert, "The Second
Front:
The
Logic
of
Sexual
Violence
in
Wars"
(1996)
19(1/2)
Women
Studies
International
Forum
35, at 39.
3
Hugo
Grotius,
On
the Law
of
War
and
Peace
[1625]
A.C. Campbell
tr (Batoche
Books,
2001),
where
'chastity'
and 'conjugal fidelity,' and
the
preservation
and defence
thereof,
are
'esteemed
of
equal value with
life
itself,'
Book
I
at 25
and
Book
II
at
65;
Article
20
-
Lieber
Code
1863.
© 2007
Francis E6in
McConville
and
Dublin University
Law
Society
Liberators
and
Libertines
narrative
of
military
conquest
accompanied
by
sexual
conquest,
which
has
eroded
the
traditional
paradigm
of
men
as
combatants
and
women
as
civilians.
[W]omen
are
the
preferred
targets
because
they
represent
the
ultimate
guarantee
of
family
unity.
To
target them
is
to
humiliate
or destroy
the
whole
community.
And
so,
rape has
increasingly become
a
weapon
of
war.4
Hitherto,
however,
this
paradigmatic
shift
has been
omitted
from
historical
record.
5
Among
the
objectives
of
the
feminist project
has
been
to
restore
this
"invisible
' 6
or
"forgotten
war crime"7
to
cultural
memory.8
Seifert
catalogues
unprosecuted
instances
of
mass
rape
during
20
th
Century
conflicts
from
World
War
11
(1939-45)
and
the
Vietnam
War
(1965-73), to
the
Gulf
War
I
(1990-91),
9
and
infers
that rape
is
not
peripheral
to
conflict but
a
core
strategy
of
violence,
calculated
to maintain
military
morale
1°
and
demoralise
the enemy.
Further,
MacKinnon
argues
that
if
the
Holocaust
was the
logical
extension
of
anti-Semitism,
then
mass
rape
represents the
apotheosis
of
misogyny."
1
Feminists
disagree,
however,
about
the
meaning
of
wartime
rape.
Indeed,
'rape
as
a
weapon
of
war'
intended
to
achieve
military objectives,
is
distinguishable from
"simple"'' 2
or
'incidental'
rape
which occurs
during
wartime.
Critics
recognise
the
motivation
behind
rape
ranges
from
reward
13
to
revenge, although
the
ultimate
function
of
rape appears
context
specific. 1
4
Nevertheless, there
is
a
4
Rodica-Mihaela
Stanoiu,
Rapporteur,
'Rape in
Armed
Conflicts'
(Doc.
8668)
Council
of
Europe,
Parliamentary Assembly,
Committee
on
Equal
Opportunities
for
Women
and
Men,
15th
March
2000.
5
Christine
Chinkin,
"Women:
the Forgotten
Victims
of
Armed
Conflict"
in
Durham
and
McCormack
eds,
The
Changing
Face
of
Conflict
and
the Efficacy
of
International
Humantarian
Law
(Martinus
Nijhoff
Publishers,
1999),
at
23-44.
6
Carolyn
Nordstrom,
"Visible Wars
and
Invisible
Girls:
Shadow Industries
and
the
Politics
of
Not-Knowing"
(1999)
International
Feminist
Journal
of
Politics
1,
at 28.
7
Ruth
Seifert,
"War
and
Rape: A
Preliminary
Analysis"
in
Alexandra
Stiglmayer
ed
Mass
Rape:
The
War
Against
Women
in
Bosnia Herzegovina,
(University
of
Nebraska
Press,
1994),
at
69.
8
Seifert,
note
7,
at 68;
Chinkin,
note
5.
9
Seifert,
note
2,
at
37;
and
Seifert,
note
7,
at
61,
63-65.
10
For
example,
Korean
women
were
enslaved
by
the
Japanese
Government
during
World
War
H1 for
the
purpose
of
providing
sexual
gratification
to
Japanese
soldiers
at
'Comfort
Stations'
hence 'Korean
comfort
women.'
1
Catherine
MacKinnon,
"Crimes
of
War, Crimes
of
Peace"
(1992)
in
Shute
and
Surley
eds,
On
Human
Rights:
The
Oxford
Amnesty
Lectures
(BasicBooks,
1993),
at
86-90.
12
Robert
West,
"Jurisprudence
and
Gender"
(1988) 55
U
Chi
L
R
1,
at
68-70.
13 Theodor
Meron, "Rape
as
a
Crime
under International
Law"
(1993)
87
Am
J
Int'l
L
424.
14
Seifert,
note
7,
at
57;
Judith
Gardham,
"Women
and the
Law
of
Armed
Conflict
-
Why
the
20071

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