In Nicolas Poussin’s 1633–34 painting L’Enlèvement des Sabines, or The Abduction of the Sabine Women, the Sabine women writhe and reach towards their husbands, faces stricken with pain as Roman soldiers abduct the women and strike down the Sabine men. L’Enlèvement des Sabines is a neo-classical representation of a foundational event in Western history and viscerally represents the pain and horror of women as objects of sexual violence. The painting reflects an ancient conception of warfare as a practice conducted by men and between men, with the sexual subjugation of women as an “ancillary byproduct of war.”

The conflicting positioning of sexual violence in the Western canon—as foundational to the establishment of the early Roman empire yet ancillary to warfare itself—presents a continuing challenge to international human rights and humanitarian activists who seek to effectively prevent future atrocities of sexual violence in wartime. Conceptions of wartime sexual violence reflected in the Rape of the Sabine women have remained salient into the modern era. Kathy Gaca, whose research explores the salience of antiquity in modern issues of social injustice, conceptualizes modern attempts to address wartime sexual violence as “an attempt to outlaw one of the most persistent and fundamental purposes of warfare as historically practiced.” This poses a challenge for human rights activists to eradicate sexual violence as “second phase warfare,” as sexual violence is perceived as a tangential phase of primarily man-to-man combat. Without prosecution and eradication, such violence against (typically) women remains “either too specific to women to be seen as human or too generic to human beings to be seen as specific to women.”

Feminist legal scholars have pushed back on the continued influence of this myth and the burden it places on legal recognition of women’s suffering in wartime. Catharine MacKinnon argues that much of the conception of womanhood is tied to a perceived inevitability of sexual violence: “women have created the idea that women have human rights out of a refusal to believe that the reality of violation we live with is what it means for us to be human—as our governments seem largely to believe.” The feminist legal movement surrounding sexual violence in wartime arises out of this pushback against ancient narratives, that “genocide is not business as usual—not even for men.”

This Note examines efforts to ensure accountability for sexual violence in warfare, which require advancing towards a better understanding of sexual violence within conflict and as an “important problem of international security,” rather than an ancillary byproduct of war. Ensuring accountability for perpetrators and justice for survivors requires application of that understanding in modern criminal prosecutions of perpetrators of wartime sexual violence. Modern understandings of the perpetration of wartime sexual violence have informed efforts to fight impunity and effectively prevent sexual violence. But these understandings are hindered by incongruity between theoretical understandings and legal frameworks for addressing sexual violence. This hysteresis stems from the difficulty in grappling with the nature of the violations (as either ancillary to warfare or organizationally oriented) and the role of the legal community in prosecution (in balancing the criminalization of sexual violence and the agency of victims, particularly in novel legal frameworks attributing responsibility to commanders in a statist structure).

This Note discusses this incongruity by engaging first with the emergence of modern theoretical understandings of sexual violence in Part II. It will then explore how these theoretical understandings were first applied in the International Criminal Tribunal for the former Yugoslavia (ICTY) in Part III and later limited before the International Criminal Court (ICC) in Part IV. Efforts to prosecute and eradicate sexual violence in wartime are limited by a) the need to better understand why and how sexual violence is perpetrated in modern warfare and b) the need to build more effective legal frameworks to prosecute and effectively prevent sexual violence in future conflicts, as addressed in Part V.

Keep Reading Sexual Violence in Warfare: Using Theory to Inform Practice, From the Sabines to the ICTY and the ICC