Placing blame or finding peace: a qualitative analysis of the legal response to rape as a war crime in the former Yugoslavia
Whyte, Angela C.
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This thesis is a qualitative analysis of the international legal response to rape as war crime in the former Yugoslavia. Through the examination of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the case law it has generated, this thesis addresses the question will the androcentric characteristics of law found in domestic rape cases be replicated at the international level? More specifically this thesis undertakes an examination which questions will international law be able to adequately amplify and listen to women voices, or will the women’s words be silenced by the rule of law? The following research is loosely informed by Carol Smart’s (1989) sociology of law theory combined with Liz Kelly’s (1988) notions of coping, resisting, and surviving. The purpose of using Kelly’s theory is to go beyond viewing women as inevitable victims of sexual assault. The methodological approach is both qualitative and inductive. It draws on data from the ICTY structure, Statute, Rules of Procedures and Evidence, case law and transcripts and women’s stories presented outside the legal realm. The analysis reveals that while written law (including the interpretation and application of the law) is somewhat aware of the experiences of women, it falls short of adequately responding to the needs of women. A detailed look at the women’s stories of war revealed diverse experiences not captured in the legal realm. The women’s stories spoke of concerns beyond sexual assault and other crimes identified by the ICTY Statute. This thesis also introduces alternatives or complimentary approaches to law when dealing with war crimes. These alternatives include women’s local groups and truth commissions. This thesis also identifies the criminological relevance of studying war crimes (as defined by international law) and crimes of war and marks an important step in understanding rape and war from a criminological perspective.