Halley discusses developments in the law relating to rape and international humanitarian law. "To prove a rape case in the International Criminal Tribunal for the former Yugoslavia, you have to prove combatant status, penetration, and intent," Halley says. "Nonconsent is inferred from the coercive circumstances of war, that's the per se rule that makes it unnecessary to try the nonconsent of a woman who is raped."
Halley suggests that many radical feminist traditions, which held that forced resistance and consent/nonconsent were the wrong issues in rape because of the coercive circumstances at play in the general society, are vindicated here. The coercive circumstances that they had in mind were male dominance; in the Yugoslavian instance, they are national and genocidal conflict.
For an act to be defined as torture, the cases say, the perpetrator must cause intense suffering intentionally in his/her official capacity for one of the listed purposes, which include punishment, coercion, discrimination, and intimidation. Rape of a woman by a man per se causes intense suffering. This rule means that women need not testify to their intense suffering. It is possible to have trials and convictions without this testimony. This is a huge victory for some feminists, a full-bore legitimization of the idea that rape always causes intense suffering. The rape of a combatant, therefore, is motivated by a purpose to punish, coerce, or intimidate. Rape is motivated by a purpose to discriminate on the basis of sex.
Given Halley's assessment of the current rules and definitions surrounding rape and torture, she sees that there may be unintended consequences for these rules that are considered feminist victories. For instance, according to Halley, the rape rules are also ticking towards an idea that sex between male combatants and women in ethnically opposed groups is rape. If enforcement and/or deterrents were perfect, the rule would require cosmopolitan populations in nationalist conflicts to ethnically cleanse themselves. Halley is concerned that the perceived triumph of feminism over antinationalism may well erode the capacity of international humanitarian law to do antinationalist work.
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