Literature review

Rape is probably one of the most committed wartime atrocities. However, it is unfortunately the case that it is also the least reported, least investigated and least punished crime, in spite of its frequent occurrence (Salzman Reference Salzman and Barstow2000, p. 87). But painful as it is, rape in wartime is not merely a matter of chance, nor is a matter of sex; it is rather an act of power and control (see Graycar and Morgan, Reference Graycar and Morgan1990). Documented crime statistics in conflict zones support these contentions. Commission reports such as Amnesty International’s 2004 reports on ‘Women and War: Rape as Weapon of War’ and ‘Lives Blown Apart: Crimes Against Women in Times of Conflict: Stop Violence against Women’, and Human Rights Watch’s 2000 ‘Global Report on Women’s Human Rights’ assert that rape is used in armed conflicts to intimidate, conquer and control women and their communities precisely because it has been used as a form of gender-based torture to extract information, punish and terrorise as well as intimidate and humiliate women. Accordingly, they maintain that while 70 percent of the casualties in recent conflicts have been non-combatants, 80 percent of these have been women and children (see Amnesty International Report, 2004). However, Salzman (Reference Salzman and Barstow2000) confirms that the high incidence of rape in wartime has unfortunately led to its acceptance as a common aspect of war. This may explain why during the Bosnian conflict the international community met the initial reports that Bosnian Muslim women were being raped by Bosnian Serbs with indifference. It was not until long after the reports were substantiated that the international community began to address the rapes committed in Bosnia. Thus, according to Salzman (Reference Salzman and Barstow2000), the hesitancy to address the Bosnian rapes is consistent with the rampant but unfounded notion that rape is an incidental aspect of war and that ‘boys will be boys’ – the silly notion that soldiers will inevitably take the opportunity to appropriate the spoils of war such as raping and plundering conquered territories. In the end the international community responded, but for the most part the response was due to the efforts generated by women activist groups. Whether or not the international responses were because the rapes occurred in connection with other wartime atrocities, such as the internment of Bosnian Muslims in deplorable detention centres, the fact remains that the UN eventually responded to the Bosnians’ treatment of Muslim women.Footnote ⁴

The majority of the literature on rape in militarised conflicts depicts rape as an atrocity perpetrated either on individuals or on communities (Allen, Reference Allen1996; Seifert, Reference Seifert and Stiglmayer1994, pp. 63–66; Stiglmayer, Reference Stiglmayer and Stiglmayer1994, pp. 82–146; Turshen, Reference Turshen, Tushen and Twagiramariya1998: 20, Reference Turshen2000), as well as present chronological narratives of rape perpetrated on women in militarised conflicts (Brownmiller, Reference Brownmiller1975; Littlewood, Reference Littlewood1997). Others offer possible explanations and purposes served by rape in war. For example, Seifert (Reference Seifert and Stiglmayer1994, pp. 54–58) argues that rape serves as a tool to terrorise and demoralise women and their cultures. For example, in violence focused on women’s role as mothers of the next generation, women’s bodies are mutilated and foetuses destroyed. For the most part, in these situations women are raped in front of their families to deepen their sense of shame. They may also risk harsher punishment or even death for bringing ‘dishonour’ on the family. Yet another category of literature focuses on the legal status of rape as a war crime, on its evolution, on suggestions as to why rape has not been included as a genre of crimes and on arguements for its inclusion as a crime against humanity (see Sullivan, Reference Sullivan1994; Chinklin, Reference Chinklin1994; MacKinnon, Reference Mackinnon and Stiglmayer1994, pp. 183–188; Copelon, Reference Copelon and Stiglmayer1994, pp. 199–207; also see Tables 1 and 2).

Table 2 Selected elements of gendered crimes in the Statute of International Criminal Court

Source: Reconstructed by authors from ICC article 9 for the interpretation and application of articles 6, 7 and 8 of the Statute of International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.2, 2000.

First, as part of crimes perpetrated on individuals as well as communities, the Bosnian conflict is a prime example. Even though it has been amply documented that in the former Yugoslavia rape was employed as a military and political tactic to achieve the Serbian political objectives of ethnic cleansing,Footnote ⁵ most scholarly accounts agree as to the cruelty of rape as an instrument of warfare with a different emphasis. While Barstow (Reference Barstow2000), for example, sees rape as a deliberate military strategy often used to disrupt the community, Allen (Reference Allen1996) argues that rape and murder are instruments of terror used to intimidate those who survive to abandon their homes and communities, and therefore the intent is to render the vicinity ‘cleansed’ of the ethnic group – what becomes ‘ethnic cleansing’. While both Barstow and Allen agree about the ethnic cleansing intent of the Bosnian Serbian military leaders, Allen argues further that because the military hierarchy co-ordinated and implemented the mass rapes of Bosnian women as part of their political and military policy, it should be viewed with more condemnation than events that were incidental to the conflict. Similarly, Stiglmayer (Reference Stiglmayer and Stiglmayer1994, p. 82) also sees the purpose of mass rape as a way to deter Bosnian women and children from returning to their homes of origin. This fits in with a view of ethnic cleansing which describes the political objective of using terror to compel ethnic group minorities, in this case, the Muslims and Croats, to vacate a geographical location (Allen, Reference Allen1996, pp. 44–63; Stiglmayer, Reference Stiglmayer and Stiglmayer1994, p. 19).

Are mass rapes centrally co-ordinated at the highest levels of military and political planning or initiated at the field level by military commanders acting on their own initiative for tactical reasons? Rejecting Allen’s (Reference Allen1996) and Barstow’s (Reference Barstow2000) conjectures that mass rapes are centrally co-ordinated at the highest levels of military and political planning, Hayden (Reference Hayden2000) presents two counter-theses that highlight context and source. First, he argues that mass rapes are more likely to occur in militarised conflicts where large states are in the process of partitioning into smaller states. Second, he sees military commanders in the field as acting of their own initiative – offering their troops the opportunity to rape – to achieve tactical objectives, amongst which is included the population abandoning personal properties, etc. Thus, the attempted and eventual partitioning of Yugoslavia in 1992, in Hayden’s view, was no different from the partitioning of the Punjab that resulted from the conflict between India and Pakistan in 1947 (see Hayden, Reference Hayden2000). In both cases he argues, as other have done (see Pufong, Reference Pufong2003), that the instances of mass rapes could not be legally attributed to the political and military leadership of the warring factions. In her analysis of the civil wars in Uganda, Meredith Turshen (Reference Turshen2000) came to a similar conclusion, finding that rape is one of the tools used by military commanders in the field to intimidate and terrorise a community. She found that in that conflict, both the Ugandan government and rebel forces encouraged their military forces to use the threat of mass rape to compel residents to either abandon their lands or to punish the community for giving aid and comfort to the opposition. Turshen concluded that the rape of women deprives them of economic, social and political resources in the long run because of the premium placed on women’s sexual innocence and purity in these cultures.Footnote ⁶

In a 1997 article, appropriately titled ‘Military Rape’, examining the plight of sexual violence in international conflicts, Littlewood established that Indian soldiers used rape to punish women for harbouring enemy terrorists during the conflict in Kashmir. He also found that Indian soldiers employed rape as a method of inflicting punishment on women for committing various infractions and as a way to humiliate an entire community during their intervention in Sri Lanka in the 1980s. In her widely cited 1975 classic titled ‘Against Our Will’, Brownmiller traces the history of rape in warfare from antiquity to recent history. Her perspective, even if troubling in the imagination, is simply that rape is a natural consequence of war, usually perpetrated on the vanquished by the victorious military. While devoting much attention to conflicts of the twentieth century with illuminating statistics – e.g. on the number of women assaulted during World Wars I and II – Brownmiller chronicles rapes committed in Bangladesh during the Indian, Pakistani and Vietnam Wars. Unlike others, she surmises that when rapes in conflict situations occur in connection with battles, they are usually initiated by soldiers with the tacit consent of commanders in the battlefield. While she views instances of forcible prostitution as orchestrated by ‘the men in the field’, they are not a necessary component of military strategy designed to achieve a political goal of the war. She points to two exceptions that were policies initiated by the government, notably the Nazi’s enforcement of Jewish women and the Japanese enforcement of Korean and Chinese women into prostitution, or so-called ‘comfort women’. But in both instances, Brownmiller (Reference Brownmiller1975, pp. 62–63) argues, there seems to be a concerted effort by both governments to deny any culpability.

Thus, following our review of the literature on rape in militarised conflicts, and its impact on the individual and community, what emerges is a picture without depth. First, there is a general acknowledgement of rape in militarised conflicts and its impact on women, as well as the precise intent for its use, but there is disagreement regarding where blame should be placed. For example, while Allen (Reference Allen1996) and Barstow (Reference Barstow2000) implicate the leadership at the highest level of the military and political regime, Hayden (Reference Hayden2000), and by extension Brownmiller (Reference Brownmiller1975), instead put blame on field commanders who act on their own initiatives to achieve practical military and at times political objectives – to win the war at all cost. Second, while silent on the specifics of whether events such as mass rapes in militarised conflicts warrant an international response, the literature lacks a theoretical foundation to inform the lack of attention paid to the phenomenon of rape by the international community. Indeed, it is unclear if rape in militarised conflicts is a sufficient condition for international response, or one among several conditions necessary for intervention. While there is consensus in the literature that the last decade of the twentieth century saw an increased use of mass rapes as a strategy to achieve the political objectives of war by military leaders, its use in this fashion is a relatively new phenomenon. For example, Brownmiller (Reference Brownmiller1975) observes that historically when and if rapes occurred in conflicts, they were more often the result of a breakdown of morals and discipline in battlefield conditions. In those instances, she observes, commanders allowed their soldiers to rape and loot conquered territories both as a reward for their loyalty and as a means to secure future loyalty. In most of the cases, she surmised, field commanders did little to control the amount of damage soldiers caused while looting the conquered territories (Brownmiller, Reference Brownmiller1975, pp. 62–63).

Lastly, other plausible explanations for the paucity of constructs to explain the UN’s, and by extension the international community’s, response is the sheer number of militarised conflicts. With roughly sixty-three conflicts between 1989 and 1997, conflicts such as those in Bosnia, Kosovo, Rwanda and the Sudan, their sheer scale is too daunting to provide a one-dimensional answer that explains the broad spectrum of war crimes and violence against women or to offer plausible explanations for their occurrence (Gardam and Jarvis, Reference Gardam and Jarvis2001). To illustrate the point, Table 3 provides a sample of current and ongoing conflicts around the world, where each is unique and yet complex with its unique history, that compounds the effort to put forth a single explanatory construct.

Table 3 Significant ongoing armed conflicts, 2006

1. Where multiple parties and long-standing but sporadic conflict are concerned, date of first combat deaths is given.

2. 2002 cease-fire collapsed in 2006.

Sources: Project Ploughshares, www.ploughshares.ca , and news sources (as of October 2006).

Theoretical expectations

In looking at violence against women and the examination of the particular question of rape in militarised conflicts, constructivists, who emphasise the importance of ‘ideas and culture in shaping both reality and discourse in world politics’, would argue that it is important to recognise that experiences differ, and if they do not, they are influenced by particularised political and cultural contexts, aspects of identity, beliefs and situations (Wendt, Reference Wendt1992). While that may not furnish sufficient explanation as to why the international community would respond at times, an Amnesty International 2004 report entitled ‘Lives Blown Apart: Crimes against Women in Times of Conflict’, presenting what might be viewed as a feminist view of world politics, argues that factors which contribute to violence against women in situations of conflict and militarisation have their roots in the pervasive discrimination that women face in peacetime as well as during and after conflict. Thus, violence and discrimination against women in this view is embedded in the language and rhetoric of conflict and militarisation which becomes an inherent feature of the conduct of war, which itself is endemic in the institutions waging it. Since in peacetime women rarely have the same economic resources, political rights, authority or control over their environment and needs as men do, situations of armed conflicts exacerbates women’s unequal status by fuelling conditions for even greater discrimination and violence against them in the society (see Amnesty International Report, 2004b, EGACT77075-2004).

Conflict and militarisation therefore are seen as reinforcing sexist stereotyping and the rigid differentiation of gender roles, especially where weapons proliferate and violence becomes an everyday means of social interaction (Amnesty International Report, 2004b, EGACT77075-2004). Hence, because conflicts often create conditions of severe economic deprivation where the civilian population – and in particular women – becomes almost totally dependent on certain authorities (whether they are occupation forces, peacekeepers or humanitarian workers) for survival, it leaves them acutely vulnerable to sexual and other forms of exploitation. More than that, the fact that during emergency situations civil or political rights are suspended in law or in practice, it is surmised, further restricts women’s ability to challenge or influence the course of events around them. Since the phenomenon of rape in militarised conflicts has no firm foundation on which to explain or predict any expected response from the international community, it is informative to trace and perhaps use the template of the evolution of genocide as a legal instrument in the aftermath of World War II.

First, the use of the Holocaust by the Germans and the use of rape for political and military purposes by the Bosnian Serbs have some similarities, not only in the means used to achieve ends, but more importantly in how they triggered the initial international response. The similarity, we argue, provides justification for looking to the Holocaust and the eventual response by the international community at the time in formulating an account that explains its response. For example, both cases at their outset challenged the international community because of the unprecedented scale of the inhumanity and heinousness displayed by the perpetrators of these crimes. Furthermore, just as the international community came to the conclusion that it would never ignore the gruesome nature of using rape used as a tool of ‘ethnic cleansing’ in Bosnia, the international community faced a similar challenge when the knowledge of the Nazi Holocaust was make public for the first time. Decisions had to be made on how to respond to Germany’s genocidal campaign, whose goal and ends were the extermination of people of Jewish ancestry.

To be sure, the notion that a state could seek to exterminate an entire race of people was unprecedented then and unimaginable before World War II. After the war, the Allies recognised the need to hold Germany responsible for crimes it committed during the war by putting the perpetrators on trial and punishing them. In doing so, according to Sunga (Reference Sunga1992, p. 46), the political resolve shown by the international community established a precedent for dealing with those who would thereafter use genocide as a government policy in any conflict. In a similar vein, the mass rapes that occurred in the former Yugoslavia presented the international community with a serious challenge – whether to acknowledge rape as a strategic policy used by the Bosnian military hierarchy and how to address the atrocity that was committed (see Pufong, Reference Pufong2001, Reference Pufong, James W. Peterson, Allen and Argyle2002). Upon taking the decision to do so, the next logical question was how to deal with the perpetrators, and lastly to establish guidelines to allocate blame for the crimes committed during the conflict. Since the literature is largely silent on this, we argue that the international community’s response to the war crimes (genocide) committed by Nazi Germany accurately mirrors how the international community might respond to the increased inclination to use mass rape as a means of achieving political and military objectives during militarised conflicts.

Prior to the Nuremberg Trials in 1945–1946, Hitler’s policy of exterminating the Jews did not have a name. Raphael Lemkin coined the term ‘genocide’ and defined it as the intent to exterminate racial, religious and ethnic groups. Initially, reports of the mass executions of Jews were met with shock, incredulity and, above all, no response from the international community (Peterson, Reference Peterson1999). Just as the Bosnian Serbs would do fifty years later, the Germans first attempted to hide their atrocities from the world by burying the bodies in mass graves and later, after it was apparent that they would lose the war, by attempting to erase evidence of the death camps they had used (see Moore, Reference Moore, Scrase and Mieder1996). It is therefore not too difficult to understand the ambivalent reaction coming from the international community when the reports were initially made. In Moore’s (Reference Moore, Scrase and Mieder1996, p. 198) observation, the scale of brutality and inhumanity directed towards the Jews as a group of people was unprecedented; something the world had not witnessed previously. It is also understandable that the international community’s resolve to investigate and punish the Germans would not be assured until the reports of their atrocities were documented and substantiated near the end of the war (see Frencz, Reference Frencz1999). It was therefore at the end of the war that the United States, Great Britain, France, and the Soviet Union set up an International Military Tribunal (IMT) in Nuremberg to prosecute the Nazi war criminals.

Three notable crimes would fall under the jurisdiction of the tribunal: (1) crimes against humanity; (2) crimes against peace; and (3) war crimes (see Table 4). In all, after the war twenty-four Nazi leaders were indicted for war crimes, or genocide. Indeed, genocide, the criminal act of ‘killing members of a group; causing conditions of life calculated to bring about physical destruction; imposing measures intended to prevent births within the group; and forcibly transferring children from one group to another’ with intent to destroy, in whole or in part, a national, ethnical, racial or religious group would become a generic international crime after the war (Peterson, Reference Peterson1999; Rogers, Reference Rogers, Scrase and Mieder1996; Frencz, Reference Frencz1999). The institution of an IMT at Nuremberg to prosecute German leaders, however, was the first occasion that the four major powers who were part of the war, worked together. After Nuremberg, the United States, Great Britain, France and the Soviet Union conducted their own separate military tribunals and the United States prosecuted and executed approximately 450 Germans for war crimes (Rogers, Reference Rogers, Scrase and Mieder1996, pp. 165–166). Table 4 provides the three uniform legal grounds used for the prosecution of German war criminals and other similar offenders, other than those dealt with by the International Military Tribunal, as established by the London Agreement of 8 August 1945. Note in Table 4 that item ‘c’ indicates that, in 1945, atrocities such as ‘torture and rape, or other inhumane acts committed against any civilian population etc’ were criminalised as crimes against humanity.

Table 4 War crimes, crimes against peace, and crimes against humanity as established by the Control Council Law No. 10, 20 December 1945 3 Official Gazette, Control Council for Germany 50-55 (1946)

Source: Formulated by the authors from: The London Agreement Official Gazette, Control Council for Germany 50–55, 1946

Realism, a plausible explanation

While the existing literature on rape in militarised conflicts discussed above is useful in providing anecdotal and descriptive insights, it provides no theoretical insight and is therefore less helpful in explaining the basis of the international response, let alone variations in the kinds of responses. We take the view that the circumstances surrounding the international community’s response to Nazi genocide after World War II, and more recently the Bosnian conflict, are more apt in giving a context to guide our understanding of why the UN responds in some situations and not in others. We find useful prominent theoretical analytical perspectives in international politics, such as realism, liberalism as complemented by a constructivist approach and their associated views on ethics such as sceptics, state moralists and cosmopolitans, as offering powerful insights for understanding world events (Nye, Reference Nye2005, pp. 4–8). Accordingly, those who are realist in their descriptive assessment of world politics are closely associated with sceptics or state moralists in their evaluative approach; and those who emphasise a liberal analytical approach also tend to be either moralist or cosmopolitan moralists in their evaluative approach (Nye, Reference Nye2005, p. 23). On the whole, liberals put the emphasis on domestic politics, where the state, political institutions or state actors dominate, as the basis for their views on world politics and tend to be less susceptible to the balance of power or structural explanations proffered by realists and neorealists (Keohane and Nye, 1977; Waltz, Reference Waltz1979).

Using known interventions, such as the post-war International Military Tribunal at Nuremberg, as a template that illustrates an instance of the international community’s response, one can very well argue that either the realist or liberal view of international politics (Waltz, Reference Waltz1979; Morgenthau, Reference Morgenthau1993; Gilpin, Reference Gilpin1983) offer useful approaches from which to explain the international response to militarised conflicts.Footnote ⁷ Yet the question is: Which of the approaches offers the most compelling framework to explain why international responses in militarised conflicts vary and why? As explained here, realism offers not only a plausible, but suitable, descriptive and analytical framework, and here is why in context. It is noteworthy that the Nuremberg trials were the result of the allies’ victory over Germany, and were surely not staged only in the interest of justice and human rights alone, as the liberals’ analytical framework would have us believe. Consistent with the realist analysis, power and structural politics were an issue, and the intervention in Germany was necessary to preserve world order for peace to ensue. In that view, having prevailed in the war over Germany, the powerful allies, acting in their interests as hegemonic forces, imposed a tribunal on the defeated German military and political leaders to try them for war crimes (Gilpin, Reference Gilpin1983; Keohane, Reference Keohane1984a).

Structural realists argue that a state’s position in the international system tells us how its national interests are defined in a given situation since they can always redefine their interests and strategy to defend these interests differently in similar situations (Nye, Reference Nye2005, p. 50). This explains the variable responses to international conflicts, especially where in the end the final decision to intervene may be supported or opposed by hegemonic actors. In the realist view, hegemonic allies could impose the Nuremburg Tribunal only after the total subjugation and occupation of the German territory (Gilpin, Reference Gilpin1983; see also Boco, Reference Boco1994).Footnote ⁸ According to Keohane (Reference Keohane1984a), relying on asymmetric co-operation, a hegemonic leadership can help to create a pattern of order. It is a reasonable argument that without the total overthrow of the Nazi regime, and the occupation of the German territory, the institution of an International Military Tribunal would have been highly unlikely. Thus, power is an important concept in the realist and neorealist approaches; it provides one explanation of how the IMT in Nuremberg was made possible. The most powerful states creating a hegemonic force at the end of World War II, led by the United States and the Soviet Union, were able to respond to the criminal acts of the German political and military hierarchy because Germany lost both the war and its relative power in the international system.

To understand how power and interests factor in the realists’ assessment of what motivated the decision to intervene after the war, consider that government officials in Germany were not the only ones alleged to have committed war crimes, even if the Nazi crimes were outrageous. The soldiers of the Soviet army also committed serious human rights violations as retaliatory measures for the treatment of their citizens at the hands of the German army (see Brownmiller, Reference Brownmiller1975, pp. 68–71). Some citizens of Poland and of what later became East Germany were also suspected of serious human rights violations, yet the United Nations and the international community never investigated or otherwise sought to hold them accountable. Power, or the relative position of the Soviet Union within the international community, in the realist view, here provides the explanation of why this is the case. Considering that Poland and East Germany were satellite communist states of the then Soviet Union, and the Soviet Union was one of the two nation states to emerge as a superpower after the war, it was never seriously considered that a citizen of the Soviet Union or one of its satellite states would be held accountable for suspected war crimes that occurred during the war. Thus, the relative position held in the international structure by the Soviet Union after World War II, and therefore its balance of power, guaranteed that neither its citizens nor citizens of states in its sphere of influence would be held accountable for wartime atrocities. Thus, short of war, there was no other way the international community could have held the Soviet Union accountable for wartime atrocities.

The same realist assessment applies to Great Britain. It has also been alleged that suspected war criminals escaped to Great Britain and France and countries that were part of the post-war allies, and that these countries refused in some cases to extradite them for trial when called upon to do so. Again, following the realist view, the positions occupied by these countries in the international power structure at the time rendered them immune to diplomatic pressures to respond to extradition requests. Clearly, suspects who were held accountable for war crimes were citizens from the defeated states – Nazi Germany and Imperial Japan. While one may argue that the international community turned a blind eye to the acts committed by the citizens of the Soviet Union or its satellites nations, their crimes were not on the same scale as those committed by Nazi Germany. It would also be difficult to argue that the trials held in Nuremberg and Tokyo were simply cases of the powerful dictating terms to the weak. In both cases, the war had rendered both countries (Germany and Japan) to what amounted to politically and structurally weak states if not totally collapsed states. Under those conditions they could not resist the imposition of tribunals on their leaderships who were suspected to have perpetrated war crimes.

Since the end of World War II, several government or state officials have been suspected of gross human rights abuses or crimes against humanity, but only a handful have been held accountable. Again, one may wonder why, what factors explain this? As Pufong (Reference Pufong2004) has argued elsewhere, the justification lies either in the state’s structural position in the international community or in its proximity to and support from an ally that holds a preponderance of power in the international system. Take, for example, the Cambodian regime, which committed serious human rights abuses under the Khmer Rouge regime that seized power in that country in 1975. Until fairly recently, the international community could not agree on how to address the issue. As it turns out, Cambodia had staunch hegemonic support. When the Khmer Rouge was ousted in 1979 by forces from neighbouring Vietnam, the United States supported the Khmer Rouge exiles and assured their continuing seat in the United Nations. The United States’ backing of the Khmer Rouge kept Cambodian politics in a turmoil, which in turn prevented the pursuit of justice and the prosecution of suspects for the mass killings during the Khmer Rouge regime. Some estimates list between 500,000 and 1.7 million people killed by that regime under their brief government (see Marks, Reference Marks1999; Rudolph, Reference Rudolph2001).Footnote ⁹ However, on 17 March 2003, the United Nations finally reached a consensus for a draft agreement with the Cambodian government to create an international criminal tribunal to try former Khmer Rouge leaders (Madra, Reference Madra2007). The agreement reached came after five years of negotiations and twenty-four years after the Khmer Rouge were driven from power.

Since, under the agreement, the panel of judges for the court will include a majority of Cambodians, human rights groups argue that the government's ability to impose its will on these judges poses an unacceptable obstacle to justice. On the other hand, with many likely defendants over the age of seventy, time is running out for justice to be served. According to the Globe and Mail (14 June 2007), after a year of internal squabbling the tribunal is now on the verge of moving ahead with its first arrests and indictments. It finally agreed on the crucial decision on the tribunal’s internal rules, thus clearing the way for the formal process of taking action against the Khmer Rouge leaders who presided over the slaughter of up to two million Cambodians between 1975 and 1979 (York, Reference York2007). Again, the lack of support from the US and China, both superpowers, is useful for understanding why heretofore the United Nations had not been able to establish a tribunal, let alone hold suspected war criminals in Cambodia accountable for their actions in 1979.

Marks (Reference Marks1999) and Rudolph (Reference Rudolph2001) argue that China, a member in the UN Security Council, and the successive Cambodian regimes which have ruled that country since 1979, vigorously opposed any attempts by the international community to force the surrender of its citizens for trial under an international tribunal, ostensibly because an international tribunal would expose the culpability of some of the members of the regimes. It is clear that until now, without the support of China any move by the United Nations to compel the government of Cambodia to surrender suspected criminals for trial would have been vetoed by China, thus ending any possibility of an international tribunal. The fact that China or the United States or both can succeed in doing this is therefore consistent with the realist principle that when it is not in the national interest of one of the permanent members of the Security Council to support, for example, a decision to intervene, the member can impede or prevent an international response. Pre-Iraqi invasion debate in the UN Security Council and the United States’ insistence to go to war alone with or without UN approval is yet another case in point.

Thus, to explain the international community’s response or non-response to crimes that target women in militarised conflicts, the realist analytical view of world politics appears the most compelling of alternative views. While we find valuable other descriptive analyses, we also deem them to be operable within the realist analytical scheme of world politics. This is the case in our view because hegemonic interests, and therefore power, complicate the decision to intervene in a sovereign state’s territory, especially where a hegemonic interest may be at stake. Also as a process which ultimately involves the Security Council, since the laws and customs that govern international institutions and what they do in the end depend on the dictates of the most powerful nations who must agree, that too makes their implementation complicated. As Nye (Reference Nye2005, p. 23) so eloquently observes, in an anarchic world with no sense of community, let alone community effect, ‘the strong do what they have the power to do, and the weak accept what they have to accept’, and since might makes right, the powerful hegemonic states ultimately get their way.

Research design: assumptions, hypotheses and case studies

Assumptions

In using the realist analytical framework to estimate international response we accept the prospect that different schemes of interests at stake in any given area of militarised conflicts can generate different levels of responsiveness. We assume that any observable difference in response may be due to the nature of bargains that are politically achievable to preserve the balance of power and further the hegemony’s interests at issue. This, we believe, is consistent with realist expectations that a state’s position in the international system either predicts its foreign policies or provides a rough estimate of how its national interests are defined (Nye, Reference Nye2005).

In this article, to gauge international response in militarised conflicts, we assume first that gross humanitarian violations may be committed by a functioning sovereign state, its agent or allied militias with or without the knowledge and support of the regime in power. Such violations may also be caused by an insurgent group at war with the regime in power. Second, we further assume that gross human rights violations may occur in areas of continued unrest where the state and government have become inoperable or dysfunctional. According to Burnell and Randall (Reference Burnell and Randall2005, pp. 174, 387), this includes failed or collapsed states where atrocities have been committed by all sides at war. While state collapse designates situations where a functioning state ceases to exist, state failure implies less than a complete collapse but a situation where the state is progressively failing in some or all of its functions but has yet to reach full collapse. Zartman (Reference Zartman1995, p. 6) refer to both events as the ‘breakdown in good governance and in law and order’. Under this scenario, the political structure of the state ceases to function because of internal strife, possibly precipitated by ethnic or religious conflict where the ruling regime has been deposed, leaving the country without a legitimate ruling government. A total breakdown in governance may therefore invite intervention or may be caused by intervening states, as was the case with the occupation of Nazi Germany by the Allied forces after World War II.

Under the first assumption stated above, and consistent with the realist descriptive analysis of world politics, if a regime has the support of a hegemonic power or is under its sphere of interest, the events (violations) noted under that assumption will the least likely to evoke consensus for an international response, even where the state in question falls under the category of a failed state, and is at a state short of a complete collapse.Footnote ¹⁰ In practice, this means a state that retains its sovereignty, with an active government in charge that has the backing of a structurally powerful hegemonic ally, is in a better position to reject, stall, avoid and delay any attempts by the UN or other international organisations to intervene within its sovereign space, impose economic sanctions or create an international tribunal to investigate and put its citizens on trial for the underlying crimes. A concrete example here is the case of Cambodia, where from the 1970s through to the summer of 2007 it fought hard to avoid an international tribunal, with the active support of major powers such as the United States (Marks, Reference Marks1999; Rudolph, Reference Rudolph2001).

Conversely, the events (violations) under the second assumption above are more likely to evoke consensus in the United Nations or the international community to formulate some kind of response. For one thing, the breakdown in law and order in a state’s capacity to govern due to civil war, especially where its political structure is dysfunctional, with an effectively deposed government, is a breeding ground for gross crimes against humanity that constitutes a breach of international peace. This is the case because not only Chapter VII of the UN Charter warrants a response, politically with no hegemonic support, but also areas of militarised conflicts with massive human rights abuses (within what essentially has become a failed and collapse state), are more likely to gather the attention of the international community. Examples here are situations where the ruling regime no longer has control of part or the entire legitimate boundary, has been deposed by insurgent forces or does not exist anymore.Footnote ¹¹ While civil wars often cause some governments to lose effective control of parts of their territory to the insurgent forces, internal violence motivated by ethnic, racial and religious intolerance may also cause irreparable damage to the existing political structure of a country. We argue that these kinds of situations are more likely to stir up one or all of the known responses that the international community can politically afford for an intervention (see Table 5). For instance, the UN can intervene by placing peacekeeping forces, may impose economic sanctions or create international tribunals to investigate and bring perpetrators of the underlying crime to justice.

In this article, we employ the case study method to assess the Rwandan and Sudanese militarised conflicts. Specifically, these cases are used to examine international responses in both countries, since rapes were apparently used as a weapon of war in both conflicts. Following the specified assumptions and hypotheses, we explore each of the cases in detail to explain why the international community or the UN would respond in some situations and not in others. We operationalise the dependent variables by assessing any reaction or response by the UN or international community in each of the two militarised conflicts using what we term here a ‘modified Nye scale’, ranging from ‘low to high coercion’ (Nye, Reference Nye2005, p. 158; see Table 5). We focus on the timeliness, decisiveness and effectiveness of these responses in assessing the support or opposition of the the UN General Assembly and the fifteen member states of the Security Council, and more importantly the five superpowers – China, Russia, the UK, France and the United States. We deem all of the five superpower nations – who hold the power of veto in the Security Council – to be hegemonic powers as defined by Gilpin (1993, Reference Gilpin1995, Reference Gilpin, O’Brien and Clesse2002). We use mostly primary, with some secondary, source information from the UN records, newspapers, journals of records and the Internet to establish the response. While the international response takes a variety of forms (see Table 5, first and third rows), they also vary in their effectiveness relative to the intended results – low versus high coercion.

Table 5 Types and scale of interventions

Adopted and modified from Nye Reference Nye2005 p 158.

We view the international responses in four possible forms as possibly related, both specifically and generally, to the concerns of the victims in militarised conflicts, and notably in the Rwandan and Sudanese conflicts. The four possible forms (Table 5, middle row) are: (1) condemnation – issued by the international community, such as a resolution by the United Nations condemning the crimes committed, the state’s action or inaction, or the responsible faction within the state; (2) sanctions – the imposition of economic sanctions or embargos for actions or failure to take action; (3) intervention – sending peacekeeping forces for the possible outright overthrow of an existing regime; and (4) international tribunal – the formation of an ad hoc tribunal to investigate and bring suspected perpetrators to justice. Predictably, the lower the method of international response in the event of known cases of atrocities visited on a population, the higher the domestic autonomy and therefore the scale of continued abuses, and vice versa. But that is not always the case, since the ability of the international community to use any of these measures on a member state requires the full support of all five permanent members of the UN Security Council (SC) who hold the power of veto. For example, an SC resolution requesting the establishment of an ad hoc tribunal, or that the ICC commences an investigation and ultimately prosecutes those accused, requires the approval of all five members of the Council. Thus, the preferences of hegemonic powers, or how each member of the SC chooses to define their interests, is an important consideration. In sum, in any militarised conflict, whether it violates the laws of war or breaches international peace, consensus or lack of it among the hegemonic powers is a critical factor in determining international responsiveness or the level of such a response.

Hypotheses

We state as a general hypothesis that in militarised conflicts a regime’s support or lack of support by a hegemonic power predicts the likelihood and nature of any UN response. Specifically, we hypothesise that in the event of lack of consensus among hegemonic powers: (a) the United Nations is the least likely to respond to alleged human rights violation if it occurred under the jurisdiction of a sovereign state whose political structure falls within the sphere of influence of a hegemonic power and there is functioning regime. On the other hand, in the event of consensus among hegemonic powers: (b) the international community or the United Nations is more likely to intervene in militarised conflicts where the existing governing regime has been ousted from power (e.g. by rebel forces) or is said to have been compromised, does not exist or has no hegemonic support.

Specific to the Rwandan and Sudanese conflicts, Table 6 illustrates the positions for both countries on the ‘Failed States Index’ for 2005–2007, showing the ranking relative to each other, and Sudan is worse off than many countries, including Rwanda. Bear in mind that this index covers countries at risk, not countries that have already failed. Ranked according to twelve social, economic, political and military indicators, including economic decline and inequality, demographic pressures, war and corruption, a failed state is defined as ‘one in which the government does not have effective control of its territory, is not perceived as legitimate by a significant portion of its population, does not provide domestic security or basic public services to its citizens, and lacks a monopoly on the use of force’. The United Nations Development Program’s (UNDP) Human Development Indicators for both countries is also consistent with indicators showing that both countries are of the same human developmental achievement level, gender related disparity and human poverty level. Again, Sudan is worse off than many countries and Rwanda on the indexes, but since 2003 the international community had been in no rush to execute even a humanitarian intervention for the reported grave abuse in Darfur. Indeed, if international responses alone are predicated on the potential harm a failing state might cause its citizenry in the event of the total failure, collapse or total breakdown of its political structure, then international responses would be regular occurrences, but unfortunately they are not.

The scale of militarised conflicts around the world, which shows countries on the verge of total breakdown with no international response, underscores the view that international response relies on more than the ranks designated to countries on the Failed States Index of failed states (see Table 6). Because realism and/or hegemonic interests, in our view, determine how the international community responds to militarised conflicts, the international response to militarised conflicts also varies. Realism would surely explain how international politics functions, as being a defeated regime or being one brought down by war, as the case of Germany and Japan during World War II illustrates.

Table 6 The failed states Index: most vulnerable countries

The Fund for Peace rank troubled countries that are in ‘danger’ of collapse. Ranked according to 12 social, economic, political, and military indicators, including economic decline and inequality, demographic pressures, war, and corruption, a failed state is defined as ‘one in which the government does not have effective control of its territory, is not perceived as legitimate by a significant portion of its population, does not provide domestic security or basic public services to its citizens, and lacks a monopoly on the use of force’. The index covers countries at risk, not countries that have already failed. Here we provide the relative ranks of two countries used in this study for 2005–07.

Source: The Fund for Peace. www.fundforpeace.org, 2007.

Specifically, the collapse and breakdown of the political structures in both regimes occurred as the result of their defeat by the allied forces. This also included the imposition of a tribunal to try the culprits as well as a plan to rebuild both countries from the ruins and savages of the war. These postwar measures, undertaken by the United States and its allies, were consistent with political realism, where their hegemonic interests were defined in the balance of power and in long-term strategic, economic and political terms (Nye, Reference Nye2005, p. 49). For the Rwandan and Sudanese cases, two possible kinds of pattern of state failure and state collapse, supplied by Burnell and Randall (Reference Burnell and Randall2005), fits their political fate. While the Rwandan conflict fits the pattern where ‘the state is marked by historical mismatch between the nature and operation of state institutions, and the socio-political process and divisions within the society’, the Darfur conflict fits the pattern where ‘the state is undergoing a major struggle over power as well as the political and cultural orientation and organization of the society’ (2005, p. 179). Both countries are politically unstable but the cause of instability, and therefore the conflicts that resulted in rape and the displacements of civilian populations, are internal not external, which underscores the level of state failure.

Thus, we submit that: (1) where a government is embroiled in a militarised conflict, is in a state of chaos, failing, or otherwise collapsing or overthrown, it increases the likelihood of international intervention, even if such intervention occurs late. Such intervention, even if without hegemonic support, is more likely if mass rape and other crimes against humanity are committed in connection with the militarised activity, which may be the result of ethnic or religious violence. However: (2) where a regime engaged in militarised conflict is under the sphere of influence of a hegemonic power, even if unstable, failing or otherwise collapsing, this decreases the likelihood of international intervention or an effective international response. This is likely to continue to be the case even where mass rape and other crimes against humanity have allegedly been committed in connection with the conflict.

Case studies

Conclusion

The associated problems of failed or collapsed states, ethnic tensions and conflicts generated are an ongoing reality that affect people across the globe, and their number shows no sign of waning. Estimates for eight years – 1989 to 1997 – were at 103 conflicts in 69 countries around the world (Gardam and Jarvis, Reference Gardam and Jarvis2001). The UN Secretary-General’s ‘Report on the Causes of Conflicts and the Promotion of a Durable Peace’ estimates that in the late 1990s over one-quarter of Africa’s 53 countries suffered a conflict of some kind (see UN Doc. A/52/871-S/1998/318). As observed by Amnesty International and other human rights groups, the unfortunate trend which the Rwanda and Sudan cases exemplifies is that in a world ever more at war, where rape is used as a weapon of war, the victims are increasingly civilian and non-combatant women and children who are caught between battles. The statements appended in capsules at the top of this article aside, there is this pessimism that there is no sign in sight that provides consolation to (rape) victims in militarised conflicts beyond their control.

While one might call into question the validity of examining two cases, of importance is the magnitude and scope of the rapes and other atrocities committed in Rwanda and Sudan. The effect and impact on human lives lost and, worst yet, deliberately inflicted, cannot be ignored. For example in Sudan, the government-sponsored Janjaweed, mostly responsible for the reported atrocities in Darfur, makes the nature of the mass rapes committed in that country a purposeful state crime and therefore a state responsibility deserving of international sanction. We argue that but for China’s strong objections in the Security Council, tied to its economic and military interests in Sudan, the decision to intervene in Darfur would have been made easier at the onset of the conflict. Similarly, the delay in intervening at the onset of the mass rapes and genocide in Rwanda, unlike Sudan which enjoyed China’s support, was due to the fact that Rwanda also had no hegemonic cover. That is, while the genocide in Rwanda was ongoing with the knowledge of the Security Council, no resolution for intervention was evoked until long after the Tutsi-led rebel movement (RFP) had deposed the Hutu regime and most of the culprits were on the run.Footnote ³⁸ Both conclusions reached hereFootnote ³⁹ confirm our general hypothesis that regime support or lack of it by a hegemonic power predicts the likelihood of UN response in militarised conflicts.

Rwanda was not the first delay in intervention at the onset of a conflict. In Nazi Germany and in Bosnia in the early 1990s, the international community did not respond to human rights abuses until after the ruling regimes were ousted from power. As long as the regime responsible for the human atrocities remained in power, the international community displayed a lack of political will in addressing the human rights abuses caused by those in power, or which occurred under their watchful eye. In the end, governments whose sovereign capacities are unstable, and, worst yet, whose governing regimes have been deposed, are more likely to be held accountable for war crimes committed under their watch (Rwanda), than those whose sovereign capacity are stable (Sudan) and benefit from the strong support of a strong hegemonic ally (China). While by stable sovereign capacity we mean governments with rigid control over their administrative capacity and territory of the state, by hegemonic support we mean the assistance provided by a hegemonic power with demonstrable objectives – which may be, but are not limited to, economic, political and military assistance (see Keohane, Reference Keohane1984a). According to Keohane (Reference Keohane1984a, p. 39) a hegemonic power must posses enough military capability to be able to protect the international political economy that it supports or dominates from hostile adversaries. This is essential, Keohane argues, because economic issues, if they are crucial enough to basic national values, may become security issues later. In Rwanda, the Hutu regime, implicated in the use of mass rape as a tool in the genocidal campaign, had been ousted from power before an international tribunal was initiated for the suspects to be brought to trial for the crimes of rape and genocide committed during the conflict. It is a reasonable assumption, therefore, that whilst the UN intervention in Rwanda was belated, absent a hegemonic support or interest, Rwanda with no effective government was vulnerable to yet other conflicts as well as ripe for all kind of interventions – internal and external. This explains why the belated decision of the UN to intervene in Rwanda to create the ICTR was never contested.

In the second case (Sudan), the Bashir regime currently in power has been there since 1989, a period which is characterised by a continued unrest in that country with a twenty-year civil war which since 2003 has drifted from the South to the West in Darfur. The fact that the Bashir regime in power enjoys strong and sustainable support from China and Russia – both with powers of veto in the UN Security Council – is strong enough confirmation for the realist analytical framework. As hypothesised, states with governments who benefit from the support of hegemonic powers are less likely to be the object of international intervention. Unlike Rwanda, which had no support, but had a tough conflict which unleashed mass rapes and genocide, China’s hegemonic interests, relationship and support for Sudan has been a decisive leverage in fending UN intervention and sanctions. Specifically, China’s relationship with Sudan includes close and comprehensive bilateral economic, political and military ties, as well as diplomatic support in multilateral institutions such as the United Nations. For example, China is the world’s largest player in Sudan’s oil industry, playing major roles in its development, extraction and acquisition. While accounting only for 7 percent of China’s total oil imports, China is Sudan’s largest foreign investor and the largest stakeholder in Sudan’s national petroleum company, the Greater Nile Petroleum Operatign Company. Chinese firms are also active in several energy-related sectors that include the construction of oil pipelines, electricity and hydropower facilities in Sudan. In the area of general trade, China is also Sudan’s largest trading partner in the world – purchasing over 64 percent of Sudan’s global exports and providing 21 percent of its global imports. Sudan, in turn is China’s third largest trading partner in Africa, where it accounts for 13 percent of China’s total trade with Africa.

Within areas that matters most – in multilateral institutions – such as the United Nations, China has been the leading and staunch supporter of Sudan. Acting on behalf of Sudan, but more for its own self-interest, as would be expected of any hegemonic power, China has objected and placed major impediments to strong UN Security Council action against that government for its role in the mass killing and genocide in Darfur. Most recently, it has succeeded in watering down several Security Council resolutions related to Darfur, including Resolution 1706, which on 31 July 2007 authorised a robust peacekeeping force of 22,500 UN troops to protect civilians in Sudan. Beyond that China has also prevented the passages of resolutions that would have imposed multilateral economic and diplomatic sanctions as well as resisted efforts to sanction Sudanese officials currently accused of war crimes for the Darfur atrocities.

It is apparent, therefore, that under certain conditions the international community will respond to militarised conflicts or conflicts where rapes have been committed on a large scale. While militarised conflicts present occasion where the rape of women occurs, in this article, using the Rwanda and Darfur cases and prior literature on similar conflicts, we have explained why that may be the case and the circumstances and conditions in which such intervention are likely. We argue that while factors that explain the decision to respond are vast, variable and complex, the realist analytical framework of international politics used here provides for a much more plausible framework for understanding prevailing conditions for such decision than alternative and competitive analytical frameworks. More conclusively, we find useful the liberal and constructivist descriptive analysis, which emphasises the role of institutions in providing information and legal frameworks that shape expectations through community law and customs. However, because theses institutions are made useful only within the realist scheme of world order, their practical effectiveness and efficiency can and are always called into question. That being the case, international regimes and institutions such as the UN, UNESCO, etc. are less reliable, if not inadequate, than the realist reliance on balance of power, structural and hegemonic explanations to explain how communities decide to respond to rapes in militarised conflicts, as demonstrated in this article.