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Copyright © and Moral Rights for This Thesis And, Where Applicable, Any Accompanying Data Are Retained by the Author And/Or Other Copyright Owners Copyright © and Moral Rights for this thesis and, where applicable, any accompanying data are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis and the accompanying data cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content of the thesis and accompanying research data (where applicable) must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holder/s. When referring to this thesis and any accompanying data, full bibliographic details must be given, e.g. Thesis: Author (Year of Submission) “Full thesis title”, University of Southampton, name of the University Faculty or School or Department, PhD Thesis, pagination. University of Southampton Faculty of Social Sciences Graduate School School of Law Adjusting the Narrative Lens: Overcoming the Incommensurability of Representations of Rape and Sexual Violence in the Field of Transitional Justice by Kelly Mackenzie Thesis for the degree of Doctor of Philosophy September 2018 University of Southampton Abstract Faculty of Social Sciences Graduate School School of Law Thesis for the degree of Doctor of Philosophy Adjusting the Narrative Lens: Overcoming the Incommensurability of Representations of Rape and Sexual Violence in the Field of Transitional Justice by Kelly Mackenzie The recognition of rape and sexual violence against women in periods of armed conflict has become increasingly prevalent in the discourse of the international community in recent years culminating in rhetoric concerned with the ending of impunity for such crimes. While the establishment of ad-hoc criminal tribunals may have spawned a jurisprudence that mobilises and articulates the international legal response to conflict-related rape and sexual violence against women, the legal processes implemented, legal agents employed and legal language used all come together to produce a particular narrative construction designed to secure law’s retributive aim. As complex lived experiences are reduced to fit universal legal categories, the construction of legal narratives is achieved at the expense of victim-survivors through narratives that elide the causes and consequences of rape and sexual violence resulting in incommensurable representations. Crimes of this nature continue to take place throughout the word, continually evading capture in law. This work explores the way in which three modes of thought - temporality, genealogy, and spatiality - operate to frame laws narrative, precluding for it the possibility of recognising fully the multifaceted nature of lived experience. These normative modes of thought represent interrelated aspects of law’s boundaries, perceived in a particular way within law. Framed from a feminist perspective, this work pushes at these boundaries to question whether law's limits can be redrawn as commensurable with life through a new perception of narrative, examining the processes and actors designated with the task of providing justice in judicial, quasi-judicial and extra-judicial mechanisms. Adjusting the narrative lens demands acknowledgment of a common thread that ties each of us together - though our languages may differ, our ability to tell stories remains. Through blurring the boundaries, the work not only seeks enrichment through reconfiguration of those approaches already established in law but also attempts to harness the potential of the narrative lens to consider the possibility of overcoming incommensurability. Acknowledgments To my late Grandad, Geoffrey Martin: thank you for igniting my thirst for knowledge with your intelligence and your love for telling stories. To my supervisory team, Dr. James MacLean and Dr. Regina Rauxloh: your knowledge, patience and kind words of encouragement were instrumental in guiding me through to the end. I am eternally grateful to my mum, dad, and brother, for the immense emotional and moral support you each provided throughout this process. And to my other family members and friends for the laughter and reassurance. List of Acronyms Bosnia and Herzegovina BiH Central African Republic CAR Commission for Reception, Truth and Reconciliation in East Timor CAVR Complex Post-Traumatic Stress Disorder C-PTSD Democratic Republic of Congo DRC International Armed Conflict IAC International Federation for Human Rights FIDH International Center for Transitional Justice ICTJ International Committee of the Red Cross ICRC International Criminal Tribunal for Former Yugoslavia ICTY International Criminal Court ICC International Criminal Tribunal for Rwanda ICTR International Human Rights Law IHL Law of Armed Conflict LOAC Lord’s Resistance Army LRA Non-Governmental Organisation NGO Non-International Armed Conflict NIAC Special Court for Sierra Leone SCSL South African Truth and Reconciliation Commission SATRC Trust Fund for Victims TFV Truth and Reconciliation Commission for Sierra Leone SLTRC United Nations UN United Nations General Assembly UNGA United Nations Security Council UNSC United Nations Security Council Resolution UNSCR United Nations High Commissioner for Refugees UNHCR Victim and Witness Unit VWU World Health Organization WHO Women’s Caucus for Gender Justice WCGJ Research Thesis: Declaration of Authorship I, Kelly Mackenzie declare that the thesis entitled: Adjusting the Narrative Lens: Overcoming the Incommensurability of Representations of Rape and Sexual Violence in the Field of Transitional Justice and the work presented in it is my own and has been generated by me as the result of my own original research. I confirm that: § This work was done wholly or mainly while in candidature for a research degree at this University; § Where any part of this thesis has previously been submitted for a degree or any other qualification at this University or any other institution, this has been clearly stated; § Where I have consulted the published work of others, this is always clearly attributed; § Where I have quoted from the work of others, the source is always given. With the exception of such quotations, this thesis is entirely my own work; § I have acknowledged all main sources of help; § Where the thesis is based on work done by myself jointly with others, I have made clear exactly what was done by others and what I have contributed myself; § None of this work has been published before submission. Signature: K.Mackenzie Date: 23/09/2019 Table of Contents Part I: The Normative Lens ................................................................................................... 1 Chapter One: Introduction ............................................................................................................ 1 1.1. The Law of War: International and Non-International Armed Conflict .................................. 5 1.2. Post-conflict and the Rise of Transitional Justice ................................................................... 8 1.3. Incommensurability: Law, Lived Experience and Representations of Sexual Violence ......... 12 1.4. The Normative and The Narrative Lens: Framing Lived Experience ................................ 14 1.5. Outline of Thesis ............................................................................................................ 18 1.6. Terminology, Definitions and Conceptual Boundaries ................................................... 21 Chapter Two: From Absence, to Acknowledgment, to Acquittal – Feminist Victories in the Fight to Recognise ConFlict-Related Sexual Violence .......................................................... 25 2.1. From Recognition to Realisation: ‘Women’s Rights as Human Rights’ ........................... 26 2.2. Prosecuting Gender-Based Violence in the ICTY and ICTR .............................................. 34 2.3. Mobilising for Gender Justice: The Women’s Caucus, the Rome Statute and the ICC .... 43 2.4. Conclusion ...................................................................................................................... 48 Chapter Three: The Rise oF Incommensurability: Representations oF ConFlict-Related Sexual Violence Through a Feminist Lens ...................................................................................... 50 3.1. The Reproduction of Gendered Binaries .............................................................................. 51 3.2. Bearing Witness and the Recognition of Trauma ................................................................. 57 3.3. Monolithic Narratives and the Silencing of Social Relations ................................................ 63 3.4. The Turn to Criminalisation and The Fight to End Impunity: Refocusing the Feminist Lens . 71 3.5. Conclusion ........................................................................................................................... 75 Chapter Four: The Force oF Law in the Field oF Transitional Justice .................................... 77 4.1. The Symbolic Violence of Gender in the Practice of International Criminal Law ............ 78 4.2. The Symbolic Power of International Criminal Law in the Field of Transitional Justice .. 88 4.3. Transitional Justice for Whom? The Centrality of Legalism and its Consequences for Victim-Survivors of Conflict-Related Sexual Violence ................................................................. 92 4.4. Conclusion ...................................................................................................................
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