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...