Penal Humanitarianism: The fight against impunity for sexual violence in conflict (Part V)

This is the fifth post in a six-part series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. The research for this post was conducted while Anette Bringedal Houge was a doctoral research fellow at the University of Oslo, and does not reflect the views of the NRC. The post challenges the recent paradigm in which global grievances are interpreted through a legal lens and criminal justice has become the primary means through which conflict-related sexual violence is to be prevented.

The fight Against Impunity for Sexual Violence in Conflict: Penal Humanitarianism Par Excellence?

Whilst sexual violence has been an offence associated both with war and peacetime throughout history, its rise to the tables where international peace and security are negotiated, represents a significant shift. For this reason, last year’s Nobel Peace Prize was an important, hard-fought recognition of rampant sexual violence on a global scale. Indeed, the apex of the fight against impunity for sexual violence thus far was the media coverage of Nobel laureates Dennis Mukwege and Nadia Murad, and their relentless fight against sexual violence. By showing how imageries of humanitarian suffering have shaped the fight against conflict-related sexual violence as the fight against impunity, this blogpost develops work from Lohne’s 2018 Theoretical Criminology article on penal humanitarianism beyond the state.

Members of the UN Security Council adopt a new resolution on Women, Peace and Security. UN Photo

Until fairly recently, criminal prosecution of conflict-related sexual violence was practically unheard of. Today, criminal prosecution has become key in dealing with conflict-related sexual violence. As an example of how penal power spreads in the name of ‘doing good’, we nonetheless challenge this rapid and exhaustive naturalization of criminal prosecution not only as a means by which conflict-related sexual violence can be addressed, but as the primary means through which such violence is to be prevented. As Karen Engle observed some time ago, while ‘criminalization of wartime rape marches forward … there has been little reflection … on whether more criminalization is necessarily better than less.’

Mindful of the way the associations between punishment and humanitarianism seem particularly strong when disembedded from the nation state framework, the combination of a victim-oriented justification for international justice and graphic reproductions of the violence victims suffer, are central in the international advocacy and policy field that responds to conflict-related sexual violence. In our analysis of human rights reporting on conflict-related sexual violence, we find reports to follow a script, including an abundance of testimonies that detail the violence and the victims’ suffering during and after the offences. The reports as such draw their titles from victims’ testimonies – as illustrated by ‘My heart is cut’ and ‘I just sit and wait to die.’ Maria E. Baaz and Maria Stern have characterized survivor testimonies for this use as constituting a pornography of violence. In order to produce outrage, a discourse on ‘war/rape/porn’ has emerged, where activists try ‘to outdo each other with the most barbaric gang-rape scenario’. Yet while ‘victims’ justice’ is often evoked as the raison d’être of international criminal justice, the fight against impunity also produces particular imageries of perpetrators and criminality. Perpetrators are re-presented as barbarian, bizarre, and inexplicable. We suggest that this particular combination of victim and perpetrator subjectivities, and the reduction of causalities that it implies, serve to legitimize calls to ‘end impunity!’ through the projected, all-encompassing catharsis brought by the criminal justice system.

The categorical representations of good and evil, civilization and barbarity, humanity and inhumanity disguise the expansion of penal power through the fight against conflict-related sexual violence. Yet punishment should always raise awkward questions about violence, power, and its legitimacy, even though, and perhaps especially so, when calls for punishment have become naturalized in response to humanitarian suffering.  

While human suffering is what drives the moral imperative to intervene in the first place, the fight against impunity movement reflects a strong faith in the ability of law in general – and criminal justice in particular – to transform people and societies. In our study, we show how this faith has materialized in a prognostic social movement to end impunity, exemplified by UN Security Council resolutions and reports from Human Rights Watch. However, in spite of the emergence of what Kathryn Sikkink has called the ‘justice cascade’, that is, an increase of criminal prosecutions of human rights violations, there has been far less attention to whether this has led to a corresponding increase in justice. Thus, instead of addressing root causes of war/violence/rape, criminal justice is offered as a solution that will ensure that victims’ ‘plight will be heard and their attackers punished [and that] future rapes can be heeded’. The strong footing of deterrence as justification and rationale for criminal prosecutions of conflict-related sexual violence can partly be explained by the more general embrace of liberal legalism as ideology and practice in international policy. It is a world view that substantially privileges individual autonomy – and responsibility. This means that the individual has increasingly become a subject of international law, with corresponding individual rights and responsibilities. Moreover, it has also substantially juridified our understanding of social phenomena: law (particularly rights-claiming) has become the preferred interpretative tool through which to frame global grievances. It is in this paradigm, the fight against conflict-related sexual violence has become the fight against impunity, to the extent that it is only through ending impunity we can address sexual violence. Prevention has become prosecution as humanitarian calls to end suffering has turned to criminal justice.

However, the construction of criminal justice as a panacea for conflict-related sexual violence zealously overestimates its ability to civilize and transform, and distracts attention away from broader social and structural conditions that foster and allow for sexual violence to take place. Paralleling criticism of domestic carceral feminism, we see a need for greater attention to the political, economic and gendered inequalities and structures within which sexual violence take place. Conflict-related sexual violence is indeed part of a repertoire of illegitimate warfare, and a reaction to the chaotic, desperate and demoralizing experiences that war brings with it, but it is also the result of gendered hierarchies, subordination, and poverty, and a continuum of violence that transgresses war and peace. While our article unpacks how conflict-related sexual violence is reduced to a problem of criminal justice, we also recognize its instrumental capacities as a tool for criminal justice. Epitomizing how humanitarianism can facilitate the expansion of penal power, the fight against impunity for conflict-related sexual violence has produced particularly apt imageries of victims and perpetrators that serve the international criminal justice project, contributing to legitimate its current institutions and practices. If ending impunity prevails and perseveres as the ultimately meaningful response to conflict-related sexual violence despite criminal justice’s limited merits as a preventive tool, it is pertinent to ask if the primary aim of this fight is to prevent conflict-related sexual violence, or rather, to strengthen the penal power of international criminal justice as such.