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Considering Some Consequences of “Calling in the Troops”

In a recent article, Catharine MacKinnon poses a question that sounds as though it were written for this panel: Should the U.N. Charter be revised so that what have been humanitarian crimes of jus in bello or human rights violations can also be jus ad bellum triggers? If this question is being increasingly asked, it is so far never suggested that brutal systematic violence against women ... could legally justify resort to force unless it occurs as part of a conflagration in which men are also attacking other men. (1) MacKinnon then argues that as long as the United Nations and "international community" are rethinking justifications for humanitarian intervention, it should rethink when and how it should intervene to protect women against multiple forms of violence. At times, the article suggests calling in the troops (assuming they don't further abuse women) to protect women. I will use the question posed by MacKinnon to consider implicitly some of the recent proposals for expanding jus ad bellum in the name of humanitarian intervention (whether based on violations of jus in bello or systematic human rights violations) by revisiting some debates among feminists from the early 1990s. (2) In doing so, I will suggest that the increasing tendency to justify military (as "humanitarian") intervention might function in some problematic ways, including: (1) downplaying the significance of jus in bello and other "ordinary crimes" or human rights violations that occur during war--and for that matter, peace; (2) forcing those who seek to redress a problem to couch it in terms of increasingly accepted jus ad bellum language; and (3) emphasizing military intervention as the best response to jus in bello violations. I will demonstrate these concerns by reconsidering the early 1990s debate among feminists over how to define the rapes that were occurring in Bosnia and Herzegovina. During that time, many feminists inside as well as outside of the former Yugoslavia sought intervention to bring an end to the rapes. Although they did not necessarily call for military intervention--indeed, international criminal law is where many focused their attention--I believe that the ways in which some feminists framed the arguments to justify intervention is instructive for contemporary calls for military intervention to respond to jus in bello and human rights violations. Intervention--even humanitarian, UN-authorized, "neutral" intervention--nearly always raises a delicate issue: intervention on behalf of whom? In the case of Bosnia and Herzegovina, if women were raped on all sides of the war and the feminist goal was to stop all rapes, even perhaps with armed intervention, bow could one choose sides in the conflict? Some feminists did choose sides, seeing the rapes by Serbian men as genocidal and therefore calling for extraordinary attention. Others disagreed, arguing that such a position would deny the extent to which women were always harmed in war, and were specifically harmed on all sides of the Balkan conflict. Catharine MacKinnon was one of the most vocal proponents of the position that rapes in the Balkans by Serbs were "genocidal." (3) Although in her most recently published article MacKinnon suggests that all violence against women is genocidal, in the 1990s she attempted to articulate an international legal understanding of rape in the Balkans that would distinguish between everyday wartime rape and the wartime rapes committed by Serbs. For MacKinnnon. feminists who refused to see the rapes committed by Serbs as uniquely genocidal were involved in a cover-up, one that functioned "to exonerate the rapists and to deflect intervention." (4) Those were fighting words. Rhonda Copelon, for example, responded that "to emphasize as unparalleled [which many had done] the horror of genocidal rape is factually dubious and risks rendering rape invisible once again. …