Inal - Looting and rape in wartime: law and change in international relations

Looting and Rape in Wartime

PENNSYLVANIA STUDIES IN HUMAN RIGHTS

Bert B. Lockwood,Jr., Series Editor

A complete list of books in the series is available from the publisher.

LOOTING AND
RAPE IN WARTIME

LAW AND CHANGE IN

INTERNATIONAL RELATIONS

TUBA INAL

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright 2013 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America on acid-free paper

10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Inal, Tuba.

Looting and rape in wartime : law and change in international relations / Tuba
Inal1st ed.

p.cm.(Pennsylvania studies in human rights)

Includes bibliographical references and index.

ISBN: 978-0-8122-4476-2 (hardcover : alk. paper)

1. Rape as a weapon of war. 2. Pillage. 3. War crimes. 4. WomenCrimes against
5. Women (International law). 6. International relations. I. Title. II. Series: Pennsylvania
studies in human rights.

KZ7162.I53 2013

To my parents

Contents

4. The Prohibition of Rape in War: First Steps:
The Geneva Conventions and the Additional Protocols

One of the important questions in international relations theory is Why and how does change happen (if it happens at all)? This question is especially critical in the central form of international relations, which is the conduct of war. According to the mainstream theories of international relations, particularly realism, in an anarchical world where states (the main actors in international relations) are primarily concerned about survival, war, as the ultimate resort of states, is one area where we should be deeply pessimistic about change. Why, then, do states make laws binding themselves to change the ways they conduct war? And how is it that a practice long considered perfectly normal in war comes to be perceived as abnormal and becomes the subject of an international prohibition?

This book explores when and why states prohibited two closely associated practices in warnamely, pillage and rape. Given that women had historically been considered the property of men, why were both eventually prohibited and why was one prohibited before the other?

Feminist international relations scholars have long argued that gender ideologies and the marginalization of women within political institutions are at the root of the perpetuation of certain structures in international relationswhether it is the lack of change or the direction of change.discrepancy help us understand the impact of gender on change in international relations?

By explaining specific questions about the development of the prohibition regimes against pillage and rape in war, this book addresses two related theoretical issues: how change happens in international relations and the role of gender as a category in this process of change.

For a prohibition regime to emerge, certain material factors, ideational factors, and agents must be at work. While material factors alone cannot explain the regime changes, they need to be taken into consideration since states do make calculations (regarding the material costs and benefits of any action) when they create and sign on to international laws. In this respect, the costs and benefits of continuing or discontinuing certain practices in war should be examined. Two types of ideational factors also need consideration. The first is the ideas about the practice (including the normative context with core norms and the normative shocks); the second is the belief, on the part of states, in the preventability of that particular practice. The agents (the norm entrepreneurs both within and outside the state apparatus) who were active in the promotion and creation of these prohibition regimes constitute the third focal point of this study. In this story of regime emergence, genderboth as a socially constructed ideology and as a barrier to exclude women from institutions and processes like international lawmakingappears as the key to solve the puzzle of why the prohibition regime against rape emerged almost a hundred years later than the regime against pillage.

What is a regime? What is a prohibition regime? And how do we know whether a regime and a prohibition regime exist? Furthermore, why and how do regimes in general and prohibition regimes in particular emerge and develop?

A regime is sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors expectations converge in a given area of international relations.certain ways converge at a certain point in time. The focus will be on a particular kind of regime, a prohibition regime:

Global prohibition regimes are made up of a certain kind of norms, which prohibit, both in international law and in the domestic criminal laws of states, the involvement of state and non-state actors in particular activities.... These norms strictly circumscribe the conditions under which states can participate in and authorize these activities and proscribe all involvement by non-state actors. Those who refuse or fail to conform are labeled deviants and condemned not just by states but by most communities and individuals as well.

States and people come to consider particular activities deviant as the regime emerges and they seek to suppress them. Therefore, prohibition regimes exist where the substance of these [prohibitory] norms and processes by which they are enforced are institutionalized.

The cases I discuss fit into these definitions of global prohibition regimes. Pillage (or looting, plunder, sacking, appropriation of property) in war is the first case. Defined as the forceful acquisition, seizure, or destruction of property of the inhabitants of a town or place by the soldiers of an invading army without proper compensation to the owners, pillage was a normal part of war for centuries. To name just a few examples, the Visigoths pillaged Rome in 409 and the Vandals pillaged the city in 455; the Crusaders pillaged Belgrade and many villages and towns in Asia Minor in 1096, Jerusalem in 1099, and Constantinople and the Greek islands in 1204; the Napoleonic armies looted Italian towns in 18056, and in return the Russian army looted the French countryside. These lootings included destruction and plunder of food, gold, silver, art treasures, holy relics (as in the case of Constantinople), literary classics, and all kinds of transportation resources, such as horses. Here is how a local historian described the pillage of the French countryside:

They wanted the ruin, the devastation, the desolation and the destruction to complete their demented task of pillage. They shattered doors

Eventually, pillage became undesirable and deviant, and the norm against pillage prohibited the involvement of states and their armies in the practice, with an aim of granting more order and security to people involved in a military invasion. The prohibition against pillage also clearly reflected the moral values and beliefs of the time, such as the liberal values of progress, civilized behavior, and the sanctity of private property.