Ontologies of International Humanitarian and Criminal Law: ‘Locals’ and ‘Internationals’ in Discourses and Practices of Justice

Abstract

This chapter looks at constructions of the ‘local’ and the ‘international’ actors of war violence and justice within the contemporary hegemonic discourses and practices of international humanitarian and criminal law, following two lines of investigation: utilization of gendered and racialized discourses that link war, sexual violence and justice; and the absence of powerful states and political-military leaders from the lists of accused for war crimes, including the crimes of sexual violence. I argue that those constructions are part of a shift in thinking about war, violence and justice that occurred in the past two and a half decades, or more precisely, with the wars in former Yugoslavia and the genocide in Rwanda. Further, that they support ontological distinctions between the ‘community of interveners’, on the one hand, and the victims and perpetrators of violence, on the other.

Some of the ideas expressed in this chapter have a long history. Part of it is my stay at the Five College Women’s Studies Research Center, MA, USA, in 2008, with a Ford Fellowship, also the presentation and discussion of an early draft at the Dutch Politicologenetmaal conference in Amsterdam, May 2012; and of course, the Netherlands Institute of Advanced Studies (NIAS) Fellowship between February and June 2012. I am grateful to the many colleagues whose comments made my ideas sharper.

The distinction between war, counter-insurgency and genocide is blurred in practice. All three tend to target civilian populations. In the era of nationalism and nation-states, power as well as its adversaries tend to be identified with entire national communities, whether defined racially, ethnically or religiously. Yet, the regime identified with the international humanitarian order makes a sharp distinction between genocide and other kinds of mass violence, […]. Even if not made explicitly, the point is clear: counter-insurgency and inter-state violence is after all what states do. It is genocide that is violence gone amok, amoral, evil. The former is normal violence, only the latter is bad violence. But what is genocide, and what is counter-insurgency and war? Who does the naming? To consider this question is to focus on the question of power (Mamdani 2010).

It is the question of power that I want to focus on in this chapter. More specifically, the power of contemporary discourses and practices of international humanitarian and criminal law and justice systems to produce hegemonic ontologies of the world. In the last decade, a number of authors have already criticized the appropriation and hijacking of human rights as a justificatory rhetoric of expansionist politics of the most powerful states. Makau Mutua criticized the contemporary ‘grand narrative of human rights’ for containing a ‘subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other’ (Mutua 2001). Mahmood Mamdani recently argued:

The discourse of human rights emerged historically as a language of resistance to power. Its political ambition was to turn victims into agents. Today, the tendency is for the language of rights to become the language of power. The result is to subvert its very purpose, to put it at the service of a wholly different agenda, one that seeks to turn victims into so many proxies. It justifies interventions by the big powers as an antidote to malpractices of newly independent small powers. (Mamdani 2010, p. 59, 60)

My interest is to contribute to these debates by reflecting on the production of the ‘local’ and ‘international’ —as symbolic geographies and as ontological positions—in theorization and application of international humanitarian and criminal law . In doing so, I am neither agreeing that what ‘small powers’ do is simply a ‘malpractice’, as Mamdani states above, nor am I arguing that human rights or international laws are only the tools of hegemony. For many people across the world, the concept of human rights and international laws that uphold it, with the international institutions and networks that stand up for the plight of the victims, are—literally—the lifeline. Many more people in the world would have been incarcerated, tortured and executed, and many of them in obscurity and silence, without the human rights defenders, activists and practitioners that can today claim and use human rights and international humanitarian and criminal law as legitimate, recognized, institutionalized and globalized tools of protection and justice .

But this should not blind us to the fact that, at the same time, endless lives are destroyed and injustice done through the use of those same norms, those same tools. The world is far from black and white. No word, no deed has only one meaning, or opens up to only one possibility of action. If this is indeed so, then it is important to ask: How are those international tools used today in the context of transitional justice ?

I suggest that understanding constructions of the ‘local’ and ‘international’ brings us close to answering this question. Thus, I will focus on those constructions, pursuing two lines of investigation: utilization of gendered and racialized discourses that link war, sexual violence and justice; and the absence of powerful states and political-military leaders from the lists of accused for war crimes, including the crimes of sexual violence. I argue that those constructions are part of a shift in thinking about war, violence and justice that occurred in the past two decades, or more precisely, with the wars in former Yugoslavia and the genocide in Rwanda in the early 1990s. The shift has been enabled by the very foundational narratives of the contemporary Western world—the enlightenment and modernity—and their political projects of colonialism and imperialism. As Megret (2005) argues, colonialism ‘continues to reverberate through and inform our understanding of the categories of international humanitarian law’, even though those laws came about as an answer to European affairs (such as Franco-Prussian and Crimean wars) and were never meant to address European treatment of non-Europeans (see also Mutua 2001, p. 210). The International Committee of the Red Cross was established between the 1870s and 1890s, at the same historical time when the ‘scramble for Africa’ and the ‘devastation on the African continent’ were going on (Megret 2005, p. 5). Megret further reminds: ‘As late as 1945, while delegates assembled at Dumbarton Oaks to adopt the UN Charter in the wake of German capitulation, the French massacred tens of thousands of Algerians at Sétif under the pretense of “maintaining order”’ (ibid., p. 5). Thus, Megret argues, the non-European is, from the onset, the ‘constitutive Other’ (ibid., p. 2) of international humanitarian law.

Reflecting on some academic discourses on violence and on practices of transitional justice regarding the wars in former Yugoslavia and the genocide in Rwanda, I propose to show that, today, this Otherness is employed to create ontological distinctions between the people(s) and the spaces commonly referred to as ‘local’ and ‘international’ , with the objective of sustaining hegemonic world-views and justifying contemporary military interventions.

Gendered Ontologies of Violence: Discourses on ‘Locals’ and ‘Internationals’

When in January 1991 the UN-authorized coalition force started Operation Desert Storm against Iraq, and forced it to withdraw from Kuwait, the world already looked very different from just a few years before. The Union of Soviet Socialist Republics (USSR) has been disintegrating since the late 1980s, with violence in Azerbaijan becoming a predictor of wars in the region yet to come. By the end of 1991, the USSR no longer existed, with most of its former republics becoming independent states. By that time, Germany was reunited, following the famous and hugely televised ‘fall of the Wall’ in 1989.

Those events gave the USA and the West the perfect material to argue for the superiority of the Western political system.¹ Democracy became not just a system of Western domestic governance and a value within Western social-political life, but the goods that suddenly gained currency in the international political market: goods that can, and should be exported. As Fabry (2009) argues, the post-Cold War era has created a global context within which many authors in the West agreed that there is a global ‘democratic entitlement’ or that every country, or rather its population, has a ‘right to democracy’. This ‘entitlement’ or ‘right’ is based on two presumptions: first, that liberal democracy is ‘the best form of government’ as it ‘guarantees social tranquility, human rights and justice internally’ and second, ‘that coercive foreign intervention in defence of democracy is morally legitimate’ internationally (ibid., p. 722).

The old liberal thesis—that democratic states do not forge wars against each other—underpins both of those arguments implying that once democracy is exported throughout the world, there will be no wars. This argument appears very logical—for if the absence of democracy creates wars, then its presence will prevent wars. But this logic is contingent to unacknowledged exclusions. First, while historically, after the Second World War, Western states did not wage direct wars against each other, they did so through proxy wars. So, only if we exclude proxy wars from the equation, can we say that Western democracies do not wage wars against each other. Further, this means that the presence of democracy is not what prevents wars from happening—but rather the power of a state to extrapolate war onto a different territory, other locales with other ‘warring parties’ and presents oneself as a disinterested observer, a ‘third party’, a legitimate enforcer of democracy. The point here is not just simple hypocrisy, whereby ‘democratizers’ are dangerously ‘prone to sophomoric oversimplification and deliberate manipulation, [and] tend disproportionately to reflect the perspectives of those conflict participants with whom they personally most closely identify’ (ibid., p. 738). The point is, indeed, that this locale, this other space is constituted through symbolic geographies of violence, through ‘the architecture of enmity’ (Shapiro 2007), becoming, ontologically, a totally different world, a world that justifies ‘all necessary means’ (as stated in the UN Security Council Resolution 678² that approved the war against Iraq in 1991) in acting towards it. And gender , race and ethnicity have played an absolutely crucial role therein.

Already in relation to the First Gulf War in 1991, a number of feminists have pointed out that political and cultural representations of femininity, religion and sexuality were essential in this war’s justificatory rhetoric in the USA and UK.³ Demonization of Iraqi men as savages and rapists of Kuwaiti women and of Saddam Hussein as the ultimate tyrant was a crucial ingredient of political speeches and media representations. In addition, celebration of Western women’s emancipation (but yes, still, not at the expense of their unmistakable femininity) was coupled with images of Muslim women as (multiple) victims of (religious and patriarchal) traditions. Mainstream feminists in the USA and Europe—whose work for decades was largely concerned with differences between women and men, remaining often blind to differences among women (or among men)⁴—seem to have realized that other forces, next to gender , are at work here. It was clear that nationhood, religion and race, as well as specific assumptions about female and male (hetero)sexuality have been informing the images of the coalition forces’ male and female soldiers and civilians, pitting them against the ‘enemy’ women and men.⁵

The significance of those discussions was in pointing out the use of gendering and racializing in representing countries and peoples, cultures and traditions, showing that entire histories of geopolitical relations stood behind those images: histories of slavery and racism, colonialism and imperialism, with their ‘civilizing missions’ that define the Other men anything between the beastly and the effeminate (see, for example, Sinha 1995), and the Other women anything between the docile doormats and the threatening matrons (see Bloul 1997).

Those feminist voices spoke not just about the use of gender and race by the war-mongering political mainstream but also about some of their own postulates of equality and emancipation, asking: Into what political projects do women soldiers enter when they enter the state armies and is the equal right to kill and be killed a measure of gender equality? Not surprisingly, those questions were ignored by the political and academic mainstream that, by the end of the 1980s and beginning of the 1990s, had already embraced, to a large extent, the exportability of democracy. Importantly, those questions also did not seem to be loud enough for generating a major debate within Western feminism. As Fraser (2009) notes, second-wave feminists in the West have largely seen their own states as ‘principal addressees’, leaving to a large extent the critique of imperialism to feminists in the developing world and reducing trans-nationalism and internationalism to participation in highbrow UN conferences (ibid., p. 112). More importantly, within the ‘post-modern turn’ in Western feminism, cultural politics, together with identity politics, became not just the predominant focus of theorizing but also of political action. Consequently, on the one hand, this meant marginalization of geopolitical and economic inequalities as feminist issues;⁶ on the other hand, it meant that—once Western feminist eyes were turned towards the rest of the world—the issues of culture and identity were in focus.

It is into this state of global, political and theoretical affairs that former Yugoslavia disintegrated through violence and Rwanda was shattered by genocide. It was into this state of affairs that war rapes came into focus.

In the summer of 1992, the international media first reported that Bosnian Serb forces have systematically used rape against Bosnian Muslim women (in war camps as well as in many other facilities, including private homes) as one of the strategies in acquiring territory populated by Muslims, securing it for the Serb population—a strategy labelled ‘ethnic cleansing’. Those reports have almost instantaneously generated a huge number of activities. First and foremost, women’s and feminist organizations have engaged themselves in creating psychosocial, medical and other support facilities for raped women. But they also engaged in lobbying international organizations to verify the facts, provide protection and apprehend and punish the perpetrators. It is important to note that women survivors of camps and war rapes have themselves been engaged in all of those activities, although much of mainstream media and politics, and feminist writing of the time, depicted them almost exclusively as mute, helpless, devastated and abandoned by their communities.⁷

International and supranational agencies and organizations—from the UN and EU to Amnesty International and Human Rights Watch—have sent a number of fact-finding missions, confirming some of the worst suspicions about the war atrocities, including the existence of war camps and systematic rapes of women.⁸ Parallel to those local and global efforts to find out what was going on, were also the efforts to secure justice. Consequently, the International Criminal Tribunal for former Yugoslavia (ICTY) was set up by the UN in May 1993. As a result of global feminist actions and lobbying, a number of the apprehended war criminals have also been tried for the crimes of rape of women, and, what was much less known at the time and for a long time seldom mentioned, for sexual violence against men.⁹

Less than a year after the establishment of the ICTY, in April 1994, the Rwandan genocide began. While it lasted, it was not widely known that rapes of women were also being perpetrated en masse, nor that some of them apparently involved HIV/AIDS-infected men, with the purpose of transmitting the virus. By the end of 1994, the UN established yet another special court—the International Criminal Tribunal for Rwanda (ICTR).

Next to generating global feminist solidarity networks, the war rapes of women in Bosnia—and to a much lesser extent, rapes during the Rwandan genocide—have also generated a huge amount of feminist theorizing and analyses, in many different fields and disciplines, from anthropology and refugee studies to, especially, law. But many of those studies have taken a rather troubling turn. First, feminist studies of war became largely reduced to studies of war rapes and on sexual victimization of women. This meant that, in contrast to feminist attention to women’s agency in studies on World War II or anti-colonial wars, victimhood and sexual violability became the main conceptual frames for analysing the Yugoslav wars and the Rwandan genocide.¹⁰ Second, much of the feminist work focused on identities, often as an exclusive explanatory factor of violence and often taking ethnicity for granted, as a transparent, fixed identity category, rather than a product of social histories. While the focus on war rapes and identities may appear logical given the dynamics of war violence, it is important to note that reducing causes of violence to ethnic identities and asking how ethnic identity becomes a privileged social category are not the same. The latter approach sees ethnicity as a product of nationalism and violence . The former essentializes identity, predefines both the victim and the perpetrator in exclusively ethnic terms and thus simply endorses, instead of questioning, nationalist discourses that produce ethnicity as the ultimate mode of being. This ethnicization, that marked to a large extent early mainstream and feminist work on the war in former Yugoslavia, has also been apparent in some feminist and mainstream work on Rwanda, though it seems that Rwandan colonial history has made it easier for ethnicities to be seen as produced—especially produced through colonial and post-colonial histories.¹¹

The theoretical attention to war rapes and ethnic identities in feminist studies of Yugoslav and Rwandan violence has been paralleled with mainstream theorizing of war. By the end of the millennium, the attention of the academia and policy world seems to have almost completely shifted to intra-state conflicts and local dynamics of violence, with the concepts such as ‘new wars’ and ‘deliberate targeting’ of civilians as their, presumably, historically new and unique characteristic.¹² Of course, one would only have to remember Hiroshima, Algeria, Vietnam, Cambodia and all the US bombing sprees around the world to understand how outrageous are the arguments of the novelty of ‘deliberate targeting’ of civilians within the intra-state, ‘new wars’ of the 1990s. However, those views, while disregarded by many academics,¹³ have very quickly become the main foundation of intervention(ist) policies of supranational organizations, such as the World Bank, United Nations Development Programme (UNDP) and UN, and have contributed significantly to the shift in thinking about international interventions and state sovereignty, crystallized in the Responsibility to Protect (Bellamy 2008; Hehir 2012; Mehta and Abeysuriya 2009) as a UN-endorsed international policy.

Another effect of much of this work was tremendous in terms of representations of places where the war and genocide were happening, and more importantly, of the peoples in those places. The mainstream political and media discourses on Yugoslavia and Rwanda have already been overwhelmingly saturated with racist, Orientalist and Balkanist imagery. Media have invariably represented both regions through the images of savagery and viciousness of local men and victimization of local women. Coupled with radical feminist discourses of sexuality as a primary site of women’s oppression by men, Balkanism and Orientalism¹⁴ worked together to redefine, once again, the symbolic time–space of former Yugoslavia into the past that it escaped after World War II: as the place of the ‘history of ethnic hatred’ and, as Robert Kaplan stated, the place ‘where Western Enlightenment has not penetrated’ (Tuastad 2003).¹⁵ Media images of the Rwandan genocide were produced through the plain old racism that has defined Africa for centuries as a continent plagued by tribalism, irrationality and violence, stuck in its barbaric past. Coupling of such media and political discourses with academic discourses that focused almost exclusively on rape of women and reduced causes of violence to ethnic identities was neither difficult nor surprising.¹⁶

Thus, while feminist activist and academic work on former Yugoslavia and Rwanda has contributed hugely to the visibility of sexual violence against women in wars, it has, at the same time, contributed to the return of the old colonial imageries of primitivism and violence, viciousness and victimization in the regions. As a consequence, ‘the Balkans’ and ‘Rwanda’ were no longer territorial/geographical references but symbolic geographies marked by ethnicity and violence, the specific locales wherein histories, cultures and peoples are defined almost exclusively through, and by (sexual), violence perpetrated by ‘local’ men against ‘local’ women (and men).

One of the significant implications of this theorizing is that the politics of identity appears to matter only for the ‘locals’, but not for the ‘internationals’. Kaldor, for example, writes New Wars as if Edward Said never existed. She totally ignores the huge significance that the past and ongoing wars across the globe have had for the restructuring of Western identities; for struggles over meanings of the Western citizen-subject, Western values of democracy and liberty upon which this subject is predicated and the Western state as a guarantor of these values. Another implication is that the ‘internationals’ are simultaneously removed and exonerated from any involvements in such wars and such violence. In other words, territorial location of the acts of violence becomes a symbolic location of the causes of violence. Ontologically, this means that the local men’s subjectivity is defined almost exclusively through the perpetration of (sexual and other) violence, local women are invariably given the subject position of the victim of sexual violence, while the ‘internationals’ become the ‘outsiders’—subjects of non-violence. As such, the ‘international’ becomes a totally different ontological subject. Importantly, sexual violence in such theorization is not just the ontological marker of the local people but also the ontological marker of the local(ized) wars. Within the discourses of ‘deliberate targeting’ of civilians as essential characteristics of the ‘new’ intra-state wars, nothing seems more deliberate, more targeted, than rapes of women. Rape of women becomes the ultimate signifier of unjust, illegitimate wars. And this means that it becomes absolutely crucial to represent the ‘internationals’ not just as ‘non-violent’ but also as ‘non-rapists’, and to represent ‘just war’ and ‘humanitarian intervention’ as actions that prevent rapes, protect ‘local’ raped women and punish ‘local’ rapists.

As a result, unless huge scandals erupt, we seldom hear anything about sexual violence or any other forms of ‘deliberate targeting’ of civilians by the peace-keeping or Western militaries against ‘local’ population. And if and when such violence happens, we hardly ever see the perpetrators brought to the international courts of justice .

Symbolic Geographies of Justice: ‘Locals’ and ‘Internationals’ in Legal Practice

In addressing the contemporary division of roles in the international politics of justice, Mutua notes: ‘The human rights movement is marked by a damning metaphor. The grand narrative of human rights contains a subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other’ (Mutua 2001, p. 201, 202). Unlike Mutua who places the victims and saviours on the same side, I argue that, in the contemporary grand narratives of human rights, humanitarian interventions and international law and justice systems, it is the victim and the perpetrator of violence who belong to the same ontological category; they are both ‘locals’, both the Other of the saviours. I argued above that this Otherness is visible in the ontological position of the ‘internationals’ as subjects of non-violence. Here, I turn to their position as subjects of justice and moral subjects, and the subjects of knowledge. I do it by addressing the absence of the ‘internationals’ as accused parties in international courts.

According to the huge debates among scholars and practitioners of international relations and international humanitarian and criminal law that will be brought up here, one could hardly argue that no crimes have been committed by the ‘international community’ during ‘humanitarian interventions’, even if we focus only on the past two decades. Whether any of those crimes have actually amounted to war crimes is difficult to know, among other reasons because hardly any of them have been properly scrutinized, even fewer have been tried and even fewer convicted. Not that there were no attempts—actually, a number of attempts have been made to prosecute the ‘internationals’ for violence perpetrated during ‘humanitarian interventions’.

After the 1999 NATO bombing of Federal Republic of Yugoslavia (FRY), a huge debate ensued not just on the legality of the action within the international criminal and humanitarian law but also on the need for and possibility of prosecuting the NATO for deaths and destruction its Operation Allied Force (as the bombing campaign was called) caused in the FRY (for a review, see Laursen 2002). A number of international courts have been directly involved in different cases. On April 29, 1999—thus amidst the NATO bombing of its territory, which lasted between March 24 and June 7, 1999—the FRY filed a complaint against ten NATO member states (Belgium, Germany, France, the UK, Italy, Canada, the Netherlands, Portugal, Spain and the USA) with the International Court of Justice (ICJ) . The FRY cited the Genocide Convention, asking the ICJ to order immediate stop to the NATO’s use of force and repay damage. The ICJ rejected the request arguing—for the first time in the court’s history—that it has no prima facie jurisdiction on the issue (See Bekker and Borgen 1999). In other words, the ICJ judged that there is no sufficient evidence that actions of any of the member states amount to genocide, and thus, the court has no case to deal with. The court also argued that, as a number of the member states (USA, France, Germany and Italy) would not accept its jurisdiction, it also has no forum prorogatum (ibid.). Few international courts have admitted so openly the limits of their authority when it comes to powerful states as the ICJ did in this case.

In 2000, the ICTY also dealt with NATO bombing of the FRY. Following the fact that the ICTY Prosecutor ‘has received numerous requests that she investigate allegations that senior political and military figures from NATO countries committed serious violations of international humanitarian law during the campaign’, she established a Review Committee which issued the report in June 2000. Following the report, the Prosecutor rejected the general call for criminal investigation of NATO bombing and specific calls to investigate the use of depleted uranium and cluster bombs. She also decided not to investigate the cases of civilian victims. The report justifies this rejection on a number of grounds. It stated that the ICTY has no jurisdiction over the legitimacy of the NATO’s use of force, because ‘crimes against peace’ are a matter for the ICJ (ibid., Art. 4.).¹⁷ In reflecting on the use of depleted uranium and cluster bombs, the report first stated that those weapons are not prohibited by any international treaty, and then compares the use of cluster bombs in the Martić case by Serbian forces against the city of Zagreb with that of NATO against the FRY. The report concluded that in the former case, the objective was to ‘deliberately attack’ and ‘terrorize the civilians’ but that there is ‘no indication cluster bombs were used in such a fashion by NATO’ (ibid., Sect. iii, Art. 27). In the number of incidents that caused civilian deaths, the ICTY systematically argued that civilians were not deliberately targeted and accepted NATO explanations citing legitimate errors, bad intelligence, etc (ibid., Art. 58–89). In its general reflections, the report cited lack of clarity within the law that would allow for successful prosecution. The report and the Prosecutor’s decision seem to have caused as many controversies as did the initial bombing, especially because ‘NATO was conducting a war on humanitarian grounds, sanctioned not by the United Nations but by the public in NATO member countries’ (Voon 2001) and because ‘in too many cases NATO appeared to give absolute precedence to the lives of its forces over those of the civilian population, including the Kosovar Albanians it was fighting to protect’ (ibid., p. 1112). Benvenuti (2001) criticizes the Review Committee for its ‘inadequate approach’ (not demanding official documents from Yugoslavia and not travelling there for collecting evidence), inappropriate use of evidence (‘heavy’ reliance on NATO press statements), a ‘limited and biased choice of the facts to be investigated’ (focusing on five specific incidents of civilian deaths and ignoring in-depth investigation of material destruction, lawfulness of specific targets, impact on environment, etc.). He also criticizes the Prosecutor for accepting the report rather than acting on her discretionary power to pursue the investigation and take the opportunity to clarify the law, if it is, indeed, unclear (ibid., p. 504).

It seems that applications of international humanitarian law since World War II show that non-Western leaders have been punished for subjecting their citizens to violence that went unpunished when perpetrated by the Western leaders and countries. So the US or Dutch governments, presumably, cannot bomb their citizens and claim innocence, but they can bomb any other country, and as Mamdani states, by naming their actions as ‘counter-insurgency’ they can evade the laws of war—for it is not ‘war’ what they do. The implication of such application of justice is that ‘local’ victims seem currently to be recognized by international humanitarian law only if and when they are victimized by ‘local’ violators. If this is indeed true, then the very application of the law constitutes the ‘locals’—be they victims or perpetrators—as a different ontological category from what Heathershaw and Lambach (2008) call the ‘community of interveners’.

When the subject position of the ‘local’ men is exclusively that of the subject of injustice, the very absence of the ‘internationals’ from the narratives of violence turns them into the subject of justice. Evidence from many court cases seems to support this argument. While the previously discussed cases from ex-Yugoslavia have been about perpetration of violence, one could think that a different type of accusation might lead to a different result. For example, given that the Responsibility to Protect has become one of the official international policies, maybe the failure to protect offers more hope in bringing up a court case against Western states and individual leaders? This was the main accusation in many different attempts of the survivors of the Srebrenica genocide to bring the Dutch government and military to justice. Not surprisingly, the UN, France and the Netherlands have all conducted a number of investigations about the events in Potocari and issued various reports (United Nations Report 1999; French Government Report 2001; and two Dutch reports: NIOD Report 2002; and so-called Bakker Report 2003). The report of the UN secretary general acknowledged a certain level of UN responsibility; the French parliament lamented French failures but pointed fingers at the UN and Dutch; Dutch reports criticized the political decision-making process, but largely exonerated the military on the ground.¹⁸ In 2004 and 2007, the ICTY and ICJ, respectively, declared the Srebrenica massacres to constitute genocide. Until now, ICTY indicted more than 20 persons specifically for the Srebrenica case, and prosecuted many more.¹⁹ However, none of those individuals are from the UN, from Dutchbat or of Dutch nationality. The survivors’ search for justice has, for a long time, hit the wall of UN immunity.²⁰ Actually, it has remained impossible to establish Dutchbat and the Dutch state’s criminal responsibility in any international court, although survivors associations have tried many different avenues of justice. In May 2011, finally, one of the civil suits filed at the Municipal Court of The Hague almost a decade ago alleging Dutchbat and the Dutch state’s failure to protect three specific individuals has been won on appeal.²¹ When it comes to the wars since the early 1990s, this is to my knowledge the only case of a successful trial of ‘internationals’ by the ‘locals’ in any international or national court.²²

The European Court of Human Rights has also been approached with two cases on failure to protect, brought by Kosovo Albanian citizens against individual NATO member states, in 2007. Orford (2011) writes about them, indicating that one concerns death of children and another unlawful detention. Both were rejected, as the court declared itself ‘not competent to review the acts of respondent states carried out on behalf of the UN’ (ibid., p. 18). Furthermore, the court stated that to scrutinize UN authority would ‘interfere with the fulfillment of the UN’s key mission’ and its ‘universal jurisdiction fulfilling its imperative collective security objective’ (ibid., p. 19). Thus, while both cases have been brought forward after the Responsibility to Protect has already become an official international norm, the failure to protect seems as hopeless a claim to international justice as the accusation of war crimes.²³

It seems that international justice institutions are far from being prone to investigate international actors and powerful states. On rare occasions when this actually happens, the powerful state either simply ignores the rulings (as did Israel on the ICJ statement on the construction of the Separation Barrier) or withdraws from membership of the court (as did the USA when the ICJ ruled that Mexican detainees have a right to consular consultation; see Liptak 2005).

When it comes to national courts, the situation seems mixed. As noted above, the Dutch High Court has judged in favour of the Srebrenica survivors, and ordered the state to pay reparations. But lest we forget, the case concerns three men, out of about 8,000 who have been massacred in Potocari.²⁴ Whether this ruling opens the door to other similar decisions is yet to be seen. Other situations with national courts in powerful states do not bring much hope. For example, a suit was brought before the US district court against the US Defense Secretary during the 2001 Afghan and 2003 Iraq war, and the senior military leaders, on behalf of nine Iraqi and Afghan men who claimed to have been tortured. The case, known as ‘Ali vs Rumsfeld’ was dismissed in 2007, and the dismissal confirmed in 2011, on two grounds that ‘constitutional protections did not apply to Iraqi and Afghan nationals in US custody in those countries’ and ‘that the US officials were immune from lawsuits stemming from actions taken “within the scope of their official duties”’.²⁵

Maybe the case to consider here is the high rank of the accused. Clearly, it is not the same whether one accuses for war crimes or failure to protect a powerful state and its highest ranking political and military leadership, or a so-called ordinary citizen—be it civilian or military. There is an indication that being a citizen of a Western state does not bring the absolute protection granted to the Western leaders. For example, in 2005, The Hague District Court convicted a Dutch businessman who supplied the Iraqi government with chemicals used to produce mustard gas, employed against Kurdish civilians.²⁶ He was sentenced to 15 years as an ‘accomplice to genocide’. The ICTR has also tried a European—a Belgian journalist, Georges Ruggiu—within the ‘Media case’, with genocide charges.²⁷ The case concerned the Radio Tele Libre des Mille Collines (RTLM) and Kangura newsletter, both seen as crucial in enabling genocide. Four persons have been tried, three Rwandans and Ruggiu. Ruggiu agreed to cooperate with the prosecution, and in 2000, he received a 12-year sentence,²⁸ while the other three defendants received between 30 and 32 years.²⁹

As to sexual violence by intervening and occupying forces, it seems it either goes unseen or is tried only when it hits the news. Abu Ghraib seems to be the penultimate example: until the photos were published, whatever was going on in the prison was known, but ignored. I have addressed the political and symbolic functions of visibility of sexual violence against Iraqi men in the US press elsewhere (see Zarkov 2011), but it is worth noting here that the discourse of ‘bad apples’ has distanced the individual violators from the US military and the state as national institutions. And while the trials under national courts gave the semblance of order, no high-ranking officer was ever brought to justice. Interestingly, the Taguba Commission, which investigated the event, noted in its report, on page 17, under point 6 (‘intentional abuse of detainees by military police personnel included the following acts’) under ‘k’: ‘A male MP guard having sex with a female detainee’ (emphasis mine). To the dismay of feminists and human rights defenders, the official position of the report is that what could be otherwise seen as a sexual coercion, assault or rape of a woman in the context of incarceration during a military occupation is still just—sex (Taguba Report 2004).

When it comes to violence perpetrated by UN peacekeepers, police and civilian administrators, the practice and the rules of the UN engagement have so far provided ample protection to UN personnel, addressing crimes (such as torture of Somali civilians by Canadian peacekeepers or the use of excessive force by UN police in Kosovo) either within the codes of military discipline or within the national laws of the country from which the peacekeeper comes (Megret 2003).

The situation with respect to sexual violence seems even graver. From involvement in trafficking of women in Bosnia in 1990s, to rape and forced prostitution of refugees in the Democratic Republic of the Congo (DRC) to the rape of a Haitian teenager, UN peacekeepers of very different rank and responsibility have been part of violations that the UN presumably exists to prevent. This is far from surprising given that the UN Resolutions 1325 and 1820³⁰ address sexual violence in war by defining it, implicitly and explicitly, as something that happens between the ‘locals’, with UN personnel as the protecting force (see Holzner 2011; Mumford 2010). True to the ontology of ‘local’ wars and violent ‘locals’, Resolution 1820 especially defines sexual violence against women in war as an act against ‘international peace and security’ and a rightful cause for an international intervention, thus assuming that no sexual violence is perpetrated by the ‘interveners’—for who will intervene then? The point here is that, while the UN as an institution apparently stands in defence of international principles, conventions and treaties and in protection of international norms of human rights, it is not accountable under international humanitarian law. The UN has created the ad hoc and permanent courts to deal with war crimes, but the crimes of its personnel, as well as other ‘intervening communities’ are not defined as war crimes and thus do not fall under the jurisdiction of those courts.

In criticizing today’s applications of international law, Orford notes that it ‘immerses its address in a world of military calculations’ which ‘treats the state as its principal referent’ (Orford 2011, p. 11, 14) and thus accepts that ‘the state must remain free to kill and maim those who threaten its existence’ (ibid., p. 15). She asks: ‘Should we take part in the ongoing task of differentiating lives to be saved, lives to be risked and lives to be sacrificed?’ (ibid., p. 15) However, Orford never makes the step of explicitly asking where the lives of the ‘international community’ are among those saved, risked and sacrificed; and which states—within the ‘community of interveners’—have the power to make those life and death decisions. Further, while Orford in the end argues that ‘we should not look to law’ to determine life and death, she does it by recalling the ‘horror of war’ and ‘apocalypse’ (ibid., p. 21) rather than by analysing the fact that, today—by the sheer geopolitical power—a handful of the states, and the institutions and organizations they control, are able to define the violence they inflict on others as justifiable in the view of the larger, ‘humanitarian’ objectives.

Taking up those issues, Hutchings (2011) argues that the morality of humanitarian actions and actors is the predominant script of contemporary military interventions. The moment those interventions are not called military any longer, but humanitarian, the violence used by the ‘humanitarian actor’ is defined as a ‘justifiable technique’, appropriate to the situation in which others use it unjustifiably (ibid., p. 35). Moreover, ‘the humanitarian hero remains himself unaffected by the violence he employs, the practice and exercise of killing and injuring in no way compromises either his authority or his agency’ (ibid. Emphasis mine). The genderedness of the moral subject is not incidental here. In the classical, gendered narrative of Western civilization and its wars, he is the one who has the capacity of moral judgment, as well as the capacity and responsibility to protect. Furthermore, as noted in the previous section, rape is never assumed to be either one of his techniques or justifiable—for rape is the watershed between ‘just’ and the ‘unjust’ wars, moral and immoral subjects.

Dexter (2007) points out how the revival of the discourses of ‘just war’ informs the international juridical systems. The moment a war is called a ‘humanitarian intervention’, she argues, its legality is established through the endorsement of the highest supranational agency, the UN, and its legitimacy guaranteed through the representations of violence against the innocent. Even without direct recourse to the UN approval and international legality—as in the case of the US invasion of Iraq in 2003 or the NATO bombing of the FRY in 1999—the narratives of victimization and vulnerability of the ‘local’ (civilian, female and feminized) population offered a wide scope of discursive legitimization. Dexter’s arguments are all the more relevant as she points to the ‘cosmopolitans’ among the academics and activists and the ‘uncritical support of international criminal justice that [they] display’ (ibid., p. 71) as crucial for establishing new rules of engagement in war. She argues that, while in the past, wars were seen as an evil to be avoided, today we have a situation in which wars become ‘morally required’ (ibid., p. 69). She further states that ‘those writing from a progressive cosmopolitan position…are yet unwilling to acknowledge the changed and politically charged context in which their discourse is being received’ (ibid., p. 69). I would argue that this inability of ‘acknowledging’ geopolitical context here is part of yet another ontological distinction between the ‘locals’ and ‘internationals’: being the moral subjects of non-violence and justice , the latter are also the knowers, those who will teach the ‘locals’ non-violence, justice and morality, those who will show the ‘locals’ how to reconstruct their societies as democratic, free and just.

Finally, as I argued throughout this chapter, the context in which international humanitarian and criminal laws today are produced, justified and received is not incidental. It is carefully crafted through discourses, policies and legal practices that keep multiple ontological distinctions between the viciousness of the ‘local wars’ and justifiable ‘use of force’ of ‘humanitarian intervention’ as ‘truly distinct from war-fighting’ (ibid., p. 77). Consequently, the agent of the ‘humanitarian intervention’ is not just the only subject of peace, justice, morality and knowledge, but also ultimately, the only truly human subject.

Conclusion

The politics of naming that Mamdani so vividly depicts, keeps alive the fable of the ‘humanitarian interventions’ as actions by well-trained and disciplined armies of the ‘international community’ and the ‘local wars’ as vicious violence with savage local men and devastated local women. I do not wish to deny either the viciousness of contemporary war violence or the devastation it brings. Rather, I want to argue against the neatness of distinctions made by those representations. Those distinctions are but a well-rehearsed and apparently widely believed hegemonic narrative of war through which the wars conducted by some nation-states are supposed to keep the appearances of honour, heroism and civility. This is also a gendered narrative, accompanied by ethnicization and racializing, and most recently by Islamophobia, which reconstructs the West vis-à-vis the rest of the world, through symbolic geographies of violence, and ultimately, of humanity.

The tropes of the Balkans and Africa, and with the 9/11 of the Middle East, are the tropes of time–space-specific masculinities against which the West re-masculinizes itself. The clean-shaven, highly trained, young pilots pressing buttons to release bombs are so much more likable—at least to their own nationals—than bearded Arabs, drugged Africans or drunken Balkan men blowing themselves and others up, hacking bodies or raping en masse.

The problem with such a production of difference between ‘local’ victims and perpetrators of war violence on the one hand, and ‘international’ forces on the other, is that it extends from the narratives of war to the narratives of justice. The absence of the Western subject from the narrative of the gruesomeness of the genocides, rapes and ‘ethnic cleansings’ of the ‘local wars’ produces this particular subject as non-violent, while the discourses and practices of international humanitarian law simultaneously produce this subject into a legal and legitimate subject of justice and humanitarianism. The international and supranational legal and policy mechanisms obscure the fact that ‘international’ organizations are based on the membership of states, and even more, that a handful of the most powerful states have had—so far—an unchallenged control over those organizations, and have enjoyed unchallenged impunity within the international legal system.

While feminist interventions into international humanitarian law have made sure that its legal framework recognizes rape of women as a war crime, they have also had implications that we have not envisaged, or have chosen to ignore. Not just in the reinforcement of the gendered-cum-racist constructions of the brutality of men and sexual vulnerability of women from the Balkans and Africa; not just reinforcement of the colonial and ethnocentric constructions of the Balkans and Africa as symbolic continents of violence; but the erasure of the agency and capacity of the people and places that have struggled throughout history against colonialism and imperialism; of achievements that those struggles have brought; and the invisibility of the ways by which the hegemonic powers are implicated in those apparently ‘local’ histories and wars. All this has served to produce discourses and practices of international humanitarian and criminal law that have reproduced ontological distinctions between the ‘local’ victim and perpetrator, on the one hand, and the ‘international’ deliverer of justice, on the other.

As a result, there is an ontological unrecognizability of the ‘locals’ by the ‘internationals’, which ultimately serves hegemonic powers. For its dehumanization of both the ‘local’ perpetrator of violence and ‘local’ victim not just essentializes the former, but also precludes any possibility for political solidarity with the latter.