The culturalisation of identity in an age of ‘ethnic conflict’ – depoliticised gender in ICTY wartime sexual violence jurisprudence

Abstract

Gender-based violence, particularly mass sexual violence against women in situations of armed conflict, has been a greatly topical issue within recent years in feminist legal scholarship, the media and the surrounding debate. The armed conflict in the former Yugoslavia has notably contributed to the increased visibility of sexual violence in international law with significant legal developments emerging from the International Criminal Tribunal for the Former Yugoslavia (ICTY). While the prosecution of sexual violence has become a cause célèbre for many feminist advocates, this ‘moment of victory’ has coincided with a more problematic trend in legal scholarship of representing armed conflict through a predominantly ‘ethnic’ lens. This article explores the legal modalities by which gendered subjectivities are brought to being by international criminal law in an age of ‘ethnic conflict’. It examines the intersection of gender and ethnicity in ICTY wartime sexual violence jurisprudence and questions whether such readings have produced ‘ethnicised’ victims. Moreover, it explores whether feminists have been complicit in the perpetuation of hierarchical and dichotomised gendered subjectivities that have done little to dispel deeply entrenched stereotypes of women in international law. It asks whether these feminist tendencies can be attributed to a trend in late modernity of ‘culturalising’ identity so as to eliminate from view power and history as the driving forces of armed conflict.