Rape by Any Other Name: Mapping the Feminist Legal Discourse Regarding Rape in Conflict Onto Transitional Justice in Cambodia
39 Pages Posted: 20 May 2017
Date Written: September 26, 2016
The Extraordinary Chambers in the Court of Cambodia (ECCC), set up to prosecute crimes of the Khmer Rouge, has held that only rape in the context of forced marriage comes within the court’s jurisdiction, leaving the victims of all other instances of rape committed by Khmer Rouge forces without redress. Through the ECCC’s jurisprudence, women who suffered sexual violence under the Khmer Rouge have been dichotomized into two groups: women raped inside of forced marriages, and women raped outside of this context. This paper argues that this narrow construction of rape within the Court’s jurisdiction results, in part, from the problematic and highly politicized constructions of rape in international law in recent decades.
Framed through the Cambodian case law and drawing on analysis of international jurisprudence, such as that of the ICTY and ICTR, this paper explores how feminist approaches to prosecuting rape in conflict have led to unintended consequences in international law. Despite progress being made so that rape can finally be recognized as a crime against humanity in and of itself, international tribunals often still choose to prosecute rape as another offence: as torture, as genocide, as sexual slavery – not rape qua rape. This necessitates further exploration of the role of gender within rape, and within international law, which this paper undertakes by analyzing existing divergent theories on the harms of rape. This paper argues for a revised conceptualization of rape: reconciliation between rape qua rape and rape as constitutive of crimes such as torture and genocide.
Keywords: rape, international criminal law, Cambodia, forced marriage, feminist legal theory
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