Updated: Aug 21, 2020
The heinous act of rape has been a part of war and conflict since antiquity. The idea that women were the property of men and comprised of the winnings of war as either slaves or battle camp trophies along with land and other riches was evident during ancient times. In contemporary times, International Humanitarian Law (IHL) in the form of the Geneva Convention and its additional protocols and the Rome statute of the International Criminal Court has explicitly declared that rape is a crime against humanity vis-à-vis directed against a civilian population on a widespread/systemic scale and a war crime vis-à-vis an individual civilian in conflict zones. In India and abroad, the discourse around sexual violence in conflict zones is situated in the idea that these are aberrations, acts committed by combatants in the fog of war and the fact that rape is used as a weapon of war or represents something systemic within the military/war machinery is contested by the notions of professionalism and moral compass of the armed forces.
Legal Regime Against Sexual violence
The fourth Geneva Convention is tasked with the job of protecting civilians in conflict zones along with the additional protocol I (international armed conflict) and II (non-international armed conflict). Article 27 of the Geneva Convention (IV) states that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault”. The Additional Protocol (I) to the Geneva Convention under its Article 76(1) has also accorded protection to women from rape, forced prostitution, or any other form of indecent assault in international armed conflict. In a similar vein, the additional protocol (II) to the Geneva Convention protects civilians from rape, forced prostitution, and assaults outraging the modesty of a woman under Article 4(2)(e). The International Criminal Court through its Rome statute has also declared rape as a crime against humanity under Article7(1)(g),a war crime in international armed conflict under Article 8(2)(b)(xxii) and a war crime in non-international armed conflict under Article 8(2)(e)(vi).
Rape and Militarized Masculinities
The connection between men and violence in war can be established by the cultural practices of valorizing military men as heroes, encouraging boys to enlist from an early age, motivating them to internalize their potential role as warriors e.g. through competitive sport and the normalization of violence through toys and video games where children pretend to slay and kill their playmates. Masculinities are also defined in relation to femininities and other forms of subjugated masculinities, for e.g. expressing physical discomfort and pain is characterized as “girly”.
The exercise of defining manhood in relation to other masculinities and femininities in the military set up happens in the group context. Men are required to tie their identities to a military squad.[i] Inclusions into these groups follow the patterns of violent rituals which are brutal for e.g. one’s first combat experience, humiliating e.g. hazing during basic training and sometimes even involve sexual violence. These rituals also include constant berating by trainers who attack recruits as being weak and feminine, challenging them to live up to a militarized standard of masculinity. Recruits failing to live up to these masculinities are relegated to the idea of being weak and not suitable for the group. Those who pass through these tough tests have shared traumas that give them a sense of common identity as men who have faced the ordeals of training, recruitment, and deployment and have extreme loyalty to each other and their squad.[ii]
a)- Military training and deployment essentially function as processes by which so-called signs of weakness like crying, loneliness, and expressions of discomfort are weeded out.
b)- Men are trained to suppress the tender, empathetic parts of their sexuality and rather be dominating, risk-taking and aggressive.
Heterosexual activity is promoted within the military units through peer-enforced sexual activities, for instance, the use of brothels by military men to help ‘let off steam’ is widely recognized.[iii] Military officials tacitly accept that military men are uncontrollably heterosexual and rape is an inevitable result of lack of access to women. This essentially shows the lack of understanding in the military set up as to how the informal systems of training, group mentality, etc foster these tendencies amongst soldiers.
Different commentators[iv] have found that soldier’s testimonies regarding rapes show the dichotomy between two kinds of rapes, one which is a lust rape and another rape which is an eviler form of rape done in the name of revenge from enemy combatants. The first category hinges on the idea that soldiers are heterosexual masculine subjects with no control over their sexuality. The second category is explained by pointing to the fact that one’s cognitive ability and moral compass is deluded by the horrors of war. This is intermixed with poverty, neglect, lack of support and the general climate of warring resulting in expressions of frustration over civilians and sexual violence over women in conflict zones, which is further exacerbated by military training and factors associated with it
Epistemic Communities Within International Humanitarian Law
One has to raise the question of military training affects the psychology of a soldier along with external factors like a warring climate, why modern militaries have not solved these issues yet. It is vital that one pays heed to the psychology of a modern soldier as criminal liabilities of war crimes even in the name of states accrues on individual commanders in the field. The functioning of IHL in the realm of rules relating to precaution, distinction and proportionality is also interpreted and applied by reference to the standard of the ‘reasonable commander’.[v]
It would be simple and reductive to say that it is a mere lack of oversight on part of the military/armed forces setup. IHL commentators have extensively said that the field of IHL is divided into two camps[vi], one which comprises of military lawyers and the other by humanitarian lawyers and human rights activists. The two camps have common intra-group esoteric understandings about the concepts of IHL, they represent epistemic communities that understand the IHL regime differently from one another. A military lawyer would talk about these war crimes as a problem associated with the psychological conditions that most soldiers endure in war and are mere aberrations.[vii] The humanitarian lawyer who is fixated with reducing the human cost of the war would look at rapes as a system of oppression or as a weapon of war used to sully and denigrate the honour and decency of women and indirectly enemy men. Military lawyers would vehemently argue [viii]that military matters should be adjudicated by judges within the armed forces set up, the logic being what is reasonable in times of conflict depends on what is reasonable in the eyes of the man who is involved in that conflict. They argue that judges who have a background in the army are more suited to judges who have moved up through the civil setup. The response by humanitarian lawyers comes in the form that military matters are something which the military knows and the civilian doesn’t is a step in the wrong direction, it leads to the military being a state within the state.
The application of AFSPA to Kashmir in 1990 along with the ensuing human rights violations and acts of sexual violence is a prime example of the military being a state within the state with its own judicial bodies adjudicating over military personnel. The incident of Kunan Poshpora (1991)where multiple women were raped by armed forces in the name of military search operations and the ensuing lack of culpability shown by the military reeks of the idea that military personnel can’t be held to the same standard as other institutions like the police.
Nouveau Soldier: A Bureaucrat/Politician?
It can be concluded that the debate between military lawyers and humanitarian lawyers will not resolve anytime soon. The notion amongst military lawyers [ix]that IHL regulates how war is fought between combatants and doesn’t give rights to civilians and amongst military commanders that military advantage is the only goal in war is being actively introspected by the military setup. The fact that modern war is fought equally in trenches and social media is gaining traction and evolving the role of the soldier into a bureaucrat. War crimes are seen as hurting the public perception surrounding just war and image of the military in the minds of the civilian population. It can be expected that practices around military training would be evolved to better cater to this new role of the soldier.
[i] David Duriesmith, Masculinity and New War: the gendered dynamics of contemporary armed conflict (Routledge, 2017) 32 [ii] ibid 32 [iii]Maria Eriksson Baaz& Maria Stern, ‘Why Do Soldiers Rape? Masculinity, Violence, and Sexuality in the Armed Forces in the Congo(drc)’ (2009) 53(2) International Studies Quarterly <https://www.jstor.org/stable/27735106> accessed 9 August 2020 [iv] ibid 508 [v]Tom Broude and Inbar Levy, ‘Outcomebias and Expertise in Investigations under International Humanitarian Law’ (2019) 30(4) the European Journal of International Law 1304 [vi] David Kennedy, ‘War and International Law: Distinguishing Military and Humanitarian Professions’ 82 international Law Studies 18 [vii]‘Discussion: III’ (2001) 78 International Law Studies 211, 211-12 [viii] ibid 211-212 [ix] cf (n 6) 12
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The article has been written by Tarun Singh Rathore who is a final year law student at National Law School of India University, Bangalore. He has a keen interest in International Humanitarian Law, Environmental Law and ADR. He was part of the best mediation team in the INADR Negotiation and Mediation competition held at NLIU, Bhopal