Janet Halley, Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict, 9 Melbourne J. Int'l L. 78 (2008).
Abstract: The specific criminalisation of sexual violence in war has made immense strides in recent years, as feminists engaged with the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Rome Statute processes have proposed — and often won — a wide range of new legal rules and prosecutorial practices. This essay briefly describes some of these feminist achievements, in particular the reframing of rape and other sexual violations as a freestanding basis for charging serious humanitarian crimes and as the sole predicate act in particular prosecutions; and the demotion of a consent-based defence to charges of rape. The essay then turns to an anonymously published account of one woman’s experiences during the fall of Berlin to the Soviet Army in 1945, published in English as A Woman in Berlin: A Diary. By analysing the Diary’s ideologically saturated reception in Germany and by analysing the text itself, the essay proposes that rape in war is not merely either ignored and condoned or prosecuted and punished, but intrinsically problematically related to our evaluations of the badness of rape and the badness of war. The essay derives from its reading of A Woman in Berlin a war–rape antinomy: the literary achievement of the Diary, the author argues, is that it keeps the badness of war and the badness of rape in mutual suspension; and the pathos of its typical reception is that this antinomy collapses in ways that ratify some of the most problematic ideological investments linking rape to war. The essay concludes by deriving from this literary-critical excursion some hard policy questions for law-makers deciding how to criminalise rape and other sexual violence in International Humanitarian Law and International Criminal Law: what are the costs of ignoring the ideological discourses that surround rape? What are the downsides of ratifying the idea that rape in war is a fate worse than death? Could the special condemnation of rape weaponise it? How should criminal law handle the problematic of consent under coercive circumstances when those circumstances are armed conflict? And how might the new feminist-inspired rules entrench nationalist differentiation and antagonism? It concludes that the intrinsic dilemma-like structure of our answers to these questions cannot be transcended, and that international policy-makers should temper triumphalist excitement about the new feminist-inspired rules in order to take these problematics on board.