Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict
![handle is hein.journals/meljil9 and id is 80 raw text is: RAPE IN BERLIN:
RECONSIDERING THE CRIMINALISATION OF RAPE IN
THE INTERNATIONAL LAW OF ARMED CONFLICT
JANET HALLEY *
[The specific criminalisation of sexual violence in war has made immense strides in recent years,
as feminists engaged with the International Criminal Tribunal for the Former Yugoslavia, the
International Criminal Tribunal for Rwanda and the Rome Statute processes have proposed -
and often won - a wide range of new legal rules and prosecutorial practices. This essay briefly
describes some of these feminist achievements, in particular the reframing of rape and other
sexual violations as a freestanding basis for charging serious humanitarian crimes and as the
sole predicate act in particular prosecutions; and the demotion of a consent-based defence to
charges of rape. The essay then turns to an anonymously published account of one woman 's
experiences during the fall of Berlin to the Soviet Army in 1945, published in English as A
Woman in Berlin: A Diary. By analysing the Diary's ideologically saturated reception in
Germany and by analysing the text itself the essay proposes that rape in war is not merely either
ignored and condoned or prosecuted and punished, but intrinsically problematically related to
our evaluations of the badness of rape and the badness of war. The essay derives from its reading
of A Woman in Berlin a war-rape antinomy: the literary achievement of the Diary, the author
argues, is that it keeps the badness of war and the badness of rape in mutual suspension; and the
pathos of its typical reception is that this antinomy collapses in ways that ratify some of the most
problematic ideological investments linking rape to war. The essay concludes by deriving from
this literary-critical excursion some hard policy questions for law-makers deciding how to
criminalise rape and other sexual violence in International Humanitarian Law and International
Criminal Law: what are the costs of ignoring the ideological discourses that surround rape?
What are the downsides of ratifying the idea that rape in war is a fate worse than death? Could
the special condemnation of rape weaponise it? How should criminal law handle the problematic
of consent under coercive circumstances when those circumstances are armed conflict? And how
might the new feminist-inspired rules entrench nationalist differentiation and antagonism? It
concludes that the intrinsic dilemma-like structure of our answers to these questions cannot be
transcended, and that international policy-makers should temper triumphalist excitement about
the new feminist-inspired rules in order to take these problematics on board.]
CONTENTS
I Introduction ............................................................................................................. 79
II Governance Fem inism and IHL .......................................................................... 81
A Moving Sexual Violence Crimes 'Up' the Hierarchy of IHL and ICL
and Prosecuting Them Separately ........................................................... 83
B C onsent .................................................................................................... 86
III A W om an in Berlin ............................................................................................. 91
A Reading A Woman in Berlin, Reading Rape ........................................... 99
IV Re-thinking The Politics of Criminalising Rape in IHL ....................................... 110
Royall Professor of Law, Harvard Law School. Thanks to Karen Engle, David Kennedy,
Duncan Kennedy and two anonymous reviewers for comments on earlier drafts, and to
Alison Kamhi, Jimmy Richardson, A Edsel, C F Tupaz, Stephen Wiles, Michael Jimenez,
Janet Katz and all the librarians at Harvard Law School for their stellar research assistance.
Thanks to my brother John Halley for calling my attention to the text that became central to
this essay. Thanks also to the Harvard Legal Scholarship Workshop, the Harvard
International Law Workshop, the Women's Studies Program and Kirkland Endowment at
Hamilton College, and Unbound: The Harvard Journal for the Legal Left for opportunities
to discuss earlier drafts of this essay. All errors of fact and judgement are mine alone.](ViewImageLocal?handle=hein.journals/meljil9&div=6&collection=&method=preview&ext=.png&size=3)
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Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict
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