Nicola Henry (2011), War and Rape: Law, Memory and Justice, London: Routledge.
Anupa Aryal
Nicola Henry wrote the book “War and Rape: Law, Memory and Justice” in the year 2011, yet the book still holds equal importance in today’s context. The book has been applauded for presenting a different dimension into the concept of rape during the conflict. Rape in war is considered as old as the war itself. Rape is just not an accident of war, or an incidental adjunct to armed conflict. Its widespread use in times of conflict reflects the unique terror it holds for women, the unique power it gives the rapist over his victim, and the unique contempt it displays for its victims. Understanding rape in the wartime scenario is difficult, especially due to the trauma and taboo surrounding it. The issues do not easily surface, those that do are usually the most brutal incidences or the public ones that the whole community discerns.
In this book, Henry deals with some critical questions about the relationship between rape, law, and politics. She in core deals about the role of collective memory and counter-memory in shaping the acceptance and denialism of wartime rape. She addresses the silencing of rape through international legal history and how law can reinstate the muzzled history. Henry has discussed about the memory and silencing of rape, in six parts, each dealing with different approach in understanding the impact of wartime rape and it creating collective memories. In the first chapter, she emphasizes the importance of law in institutionalization of the past through recognition as well as denial. She argues that memory of trauma and terror of rape is lost in the past because no legal attention was given to victim of rape. Henry in the second chapter discusses about collective memory and its variability due to people building different memories with passage of time. This unpredictability of collective memory can be seen in war crime tribunals like the Nuremberg and Tokyo trial, where only selective memory was created through stories and narratives told at a particular time. In the narrative of heroism, masculinity, and martyrdom, memory of rape played only a subsidiary role, as no conflict related sexual violence victims were invited to testify or were taken as an evidence, leading to the subsequent judicial silence. With all these stances she exclaims the power of law to dictate how the past is remembered. Despite the fact that rape, sexual enslavement, forced sterilization and other form of sexual violence was extremely widespread during Second World War, both tribunals failed to address this issue. Rape was neither enumerated as a war crime nor as a crime against humanity. At Nuremberg, evidence of rape was submitted but not formally prosecuted. While in Tokyo trial defendants were convicted for rape committed during Nanking invasion but sexual enslavement of comfort women was all ignored. Presenting examples of several rape victims, she exclaims how all these stories were ignored to build a narrative of negligible violence against women.
The transition of the concept of rape, from the Nuremberg and Tokyo trial to three international courts: International Criminal Tribunal for former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) is deliberately discussed in chapter four. Victims that were silenced through history were discovered by the rise of various moments, media, etc in the early 90’s. Driving forward the concept of counter-memory which challenges the state-centric version of the past, and provided a more authentic account of the past events giving attention towards victims. ICTY and ICTR played a huge role in creating collective memory especially in three cases of Dusko Tadic, crime of torture at Celebici case and Foca case. These cases were historically significant not only because it shows the commitment of international community to recognize and prosecute sexual violence but it also acknowledged the problem and experience of sexual violence survivor when disclosing the details of the violence, it demonstrated the physical, psychological and social impact of sexual violence aftermath of armed conflict. ICC now have created a progressive shift towards building a collective narrative of sexual violence, its success in this matter is yet to be seen.
Henry in chapter five meticulously presents the importance of creating memory, and how legal institutions work on transmission and preservation of memory. Giving example of Furundzija trial when a victim of sexual violence was considered not credible as she was suffering from Post-Traumatic Stress Disorder (PTSD) and foca trial where the defense claimed that witness was considered not credible as they have not displayed any sign of psychological trauma, she elucidate the power of law on fostering a dualism of trauma and credibility. Either they are too traumatized to have reliable memories or not traumatized enough to have that grievous experience, which either undermines or undervalues women’s testimony.
In the final chapter, the author draws attention on the role of international criminal justice on creating collective memory of wartime rape. She believes that the International courts wield enormous power in dictating which crimes make the historical records and which are disqualified and subjugated. They have the power to declare how the past is to be remembered. The author reiterates the failure of international courts and tribunals to adequately capture the extent, nature and emotional impact of these crimes, creating conceptualized confusion.
Writing about wartime rape with the limited resources and data is definitely a challenging job. But Nicola Henry has done a commendable work in understanding rape from the perspective of memory. She elaborately deals with the real-life incidence and cases of rape that happened during the war, recorded formally and informally. She goes into such details of every incidence, analyzing it with every perspective to make the reader understand the gravity of the crime she is talking about. The actual trial proceeding and witness examinations are presented in the book, where she diagnostically understands the hesitation women had stated the fact, the trauma they suffered and how it was used by defense as tactics of minimizing the extent of sexual violence by diverting blame onto the women and waning of their memory. In understanding one specific issue, she had done a detailed analysis of prosecutors, defense perspectives along with the tribunal’s statement. She finds herself in a problematic position when she talks in detail about the trial transcript which is frightening and gruesome for the reader to understand. At one point she also states that she cannot further elaborate, due to the graveness of the incident.
The law’s silencing of victims is crucial to Nicola Henry’s argument, it seems unbelievable to know that the victims of sexual violence were only allowed to testify their horrific experience before the court only after the 1990s. She has repeatedly mentioned how the Nuremberg trial completely undermined the concept of rape, where it was considered similar to looting. Tokyo war crimes tribunal, the issue of comfort women was completely silenced. Henry convincingly shows how victims were forced to tailor their rape accounts to the requirements of the court and legal norms, how witnesses were forced to carve their stories into fragments distorting its meaning and how it was difficult for them to come out of their traumatic experience and testify in this court and ultimately claimed how rape was silenced.
One of her fundamental arguments in the entire book was how law and international tribunals failed measurably to capture the extent, nature and emotional impact of these crimes and thus failing to provide full justice and vindication of human rights. But she limits herself from suggesting the way forward or what alternatively could have been done to avail justice better. The author has a strong dissatisfaction with the investigation and persecution of conflict related sexual violence by the international tribunals, but she fails to explain what type of trial or procedure could have worked better.
Though there is no denying that women are the frequent target of rape but we cannot undermine the fact that not only women but men also face sexual harassment and rape. This fact is completely undermined by the tribunals formed to execute war crime, so has the author in understanding it. But, keeping this quibble aside, Nicola Henry has done a commendable job in writing an erudite and sturdily argued book. Framing arguments and defending them based on such a vulnerable topic of rape is challenging, but she has meticulously presented the role of law in constructing collective memories of sexual violence in wartime. She laments the ‘inherent limitations of law’ in addressing the wartime rape, while at the same time she shows the power of law to give voice to collective understandings.
Anupa Aryal is a Human Right Advocate and holds Masters degree from South Asian University, India.
