DEVELOPMENT OF GLOBAL PROHIBITION REGIMES: PILLAGE AND RAPE IN WAR A DISSERTATION SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF THE UNIVERSITY OF MINNESOTA BY TUBA INAL IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY ADVISER: KATHRYN SIKKINK JULY 2008 © Tuba Inal 2008 Acknowledgements I would like to take this opportunity to thank the most important people in my life; without their support, encouragement and guidance, this dissertation would not have been possible. I am extremely lucky to have Professor Kathryn Sikkink as my adviser not only because her knowledge and vision shed light on my research or because she spent so much of her time to read and comment on my drafts but also because she personally supported me through the hardest struggles of my life. For that I am grateful. I would also like to thank Professor Mary Dietz for her invaluable mentorship. Every time my brain got numb in the dullness of the dissertation writing process, she lighted up light bulbs in my mind. I am thankful to Professor Sally Kenney for believing in me through the ups and downs of the last eleven years. Without her encouragement and guidance I would not go into graduate school, I would not be interested in women’s movements and I would not know how to write about them hence this dissertation would not be written. I would like to thank Professor Colin Kahl for his valuable comments and fruitful discussions. Many thanks to Professor Fionnuala Ní Aoláin for her invaluable comments on the legal aspects of my work. I also would like to thank the members of the dissertation writing group at the University of Minnesota who read and commented on every chapter of this dissertation. So much has happened during the four years that I spent writing this dissertation and many thanks to my husband, Hakan Inal for bearing with me through them. I also thank my baby, Alim Ediz Inal for being the joy of my life. I dedicate this dissertation to my parents, Sule and Latif Cilingiroglu and my sister Rana Oral who have always had my back. The writing of this dissertation was supported by a Peace Scholar award from the United States Institute of Peace. The views expressed in this dissertation are those of the author and do not necessarily reflect the views of the United States Institute of Peace. The fieldwork in Geneva and Bern for this dissertation was supported by a Doctoral Research Fellowship from MacArthur Interdisciplinary Program on Global Change, Sustainability and Justice. i To my family. ii Abstract Although rape and pillage in war had been so closely related and so similarly justified, there is a 100-year gap between the prohibition of pillage (with The Hague Conventions of 1899, 1907) and the prohibition of rape (with the Rome Statute of 1998) by modern international law. The question is given that women had historically been considered the property of men, why did the prohibition regime that regulated pillage of property not include “pillage” of women? By addressing this chronological discrepancy in the development of these two prohibition regimes, this project seeks to explain two related theoretical questions: The first one is how does change happen in international relations; in particular why do states make laws binding themselves to change the ways war is conducted? The second question is what is the role of “gender” as a category in this process of change? I argue that three conditions are necessary for the emergence of a global prohibition regime: states must believe that they can comply with the prohibition because non-compliance is costly. Secondly, a normative context conducive to the idea that the particular practice is abnormal/undesirable as well as a normative shock to show this undesirability hence give the final push for the normative change are necessary. Thirdly, state and/or non-state actors actively propagating these ideas to promote the creation of a particular regime should exist. The temporal difference between the emergence of the regimes against pillage and rape reveals the role of gender in this process. By looking at the writing of The Hague Conventions (1899, 1907), the Geneva Conventions (1949), the Additional Protocols (1977) and the Rome Statute (1998), I illustrate that until the 1990s, states did not believe that they could prevent rape in war as opposed to pillage because of the gender ideology that framed rape as an inevitable byproduct of male sexuality. Plus, the exclusion of women from politics like the international law-making process meant that actors to promote change could not be effective. Hence, a normative context and a normative shock to make the prohibition of rape in war possible could not develop. iii Table of Contents Chapter 1: Introduction 1 Chapter 2: The Prohibition of Pillage in War 37 Chapter 3: The (Non-) Prohibition of Rape in War: 74 The Hague Conventions (1899, 1907) Chapter 4: The Prohibition of Rape in War: 113 First Steps- The Geneva Conventions (1949) and the Additional Protocols (1977) Chapter 5: The Prohibition of Rape in War: 161 The Success- The Rome Statute (1998) Chapter 6: Conclusions 204 Appendices 224 Bibliography 242 iv List of Tables Table 1. Emergence of Prohibition Regimes for Pillage and Rape in War 8 Table 2. The Participation of Women in the Diplomatic Conferences 19 v List of Figures Figure 1. Civilians Convention, Text Adopted by the Working Party- 125 Corrigendum, 8 July 1949. vi Chapter I Introduction One of the important questions in international relations theory is “why and how change happens (if it happens at all)?” Especially the central form of international relations, the core of security realm, i.e. the conduct of war is critical in this respect. According to the mainstream theories of international relations, particularly realism, in an anarchical world where the main actors in international relations, states, are primarily concerned about survival, war, as the ultimate untouchable resort of states, is one area where we should be deeply pessimistic about change. Then why do states make laws binding themselves to change the ways war is conducted? How is it that a practice, a weapon considered perfectly normal in war comes to be perceived abnormal and becomes the subject of a prohibition regime? In order to answer this question I explore when and why states prohibited two closely associated practices in war, namely pillage and rape. The question about these two prohibitions is, given that women had historically been considered the property of men,1 why did the prohibition regime that regulated pillage of property not include “pillage” of women, i.e. why did the prohibition regime against rape develop almost a hundred years later than pillage? Although rape and loot continued to go hand in hand as bonuses for the soldiers for centuries,2 why were both eventually prohibited and why was one prohibited before the other? Feminist international relations scholars have long argued that gender ideologies and the marginalization of women within political institutions are at the root of the perpetuation of certain structures in international relations whether it is the lack of change or the direction of change. The historical discrepancy between the regime changes on rape and pillage, therefore, brings out a second question: How can this historical 1 Askin (1997), pp.20-21. She gives the example of John of Salisbury, for instance, who attempted to regulate the conduct of justifiable wars in 1159 and considered “acts of theft and rapine (which is defined as ‘plunder, forcibly seizing another’s property’ by American Heritage Dictionary)- property crimes” together; p.24. Also see Hirschon (1984), Hecker (1971), Porter (1986), Brownmiller (1975), Engels (1972). 2 Askin (1997), p.27; Enloe (1994), p.220. 1 discrepancy help us understand the impact of gender on “change” in international relations? By explaining the specific questions about the development of the prohibition regimes against pillage and rape in war, I will address these two related theoretical questions: how does change happen in international relations and what is the role of “gender” as a category in this process of change? I argue that for a prohibition regime to emerge there has to be certain material factors, ideational factors and agents at work. While the material factors alone cannot explain the regime changes, they need to be taken into consideration since states do make calculations (over the cost-benefit structure) when they create and sign on to international laws. In this respect the costs and benefits of continuing or discontinuing certain practices in war should be examined to get a better picture. I look at two types of ideational factors. The first is the ideas about the practice (including the normative context with core norms and the normative shocks) and the second is the belief, on the part of states, in the preventability of that particular practice. The agents (the norm entrepreneurs both within and outside the state apparatus) who were active in the promotion and creation of these prohibition regimes constitute the third focal point. I will suggest gender, both as a socially constructed ideology and as a barrier to exclude women from institutions like international law-making process as the key to solve the puzzle of why the prohibition regime against rape emerged almost 100 years later than the regime against pillage. This chapter lays out the research question and design in three sections. The first section is about theoretical foundations of the research questions and the key concepts that I use to ask and answer them. The second section is a chapter overview in which I look at the two cases, pillage and rape in war, briefly from a historical as well as a theoretical perspective exploring the changes in the practice and later prohibition of pillage and rape.