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Judging Sex in War for Whom the Bell Tolls by Ernest Hemingway Review By: Karen Engle Michigan Law Review, Vol Judging Sex in War For Whom the Bell Tolls by Ernest Hemingway Review by: Karen Engle Michigan Law Review, Vol. 106, No. 6, 2008 Survey of Books Related to the Law (Apr., 2008), pp. 941-961 Published by: The Michigan Law Review Association Stable URL: http://www.jstor.org/stable/40041601 . Accessed: 09/08/2012 10:25 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The Michigan Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Michigan Law Review. http://www.jstor.org JUDGING SEX IN WAR Karen Engle* For Whom the Bell Tolls. By ErnestHemingway. New York: Charles ScribnerSons. Scribner1996 ed. Pp. 471. Cloth,$30; paper,$15. Whatdoes it mean- rape? WhenI said the wordfor thefirst time aloud, . it sentshivers down myspine. Now I can thinkit and writeit withan untremblinghand, say it out loud to get used to hearingit said. It sounds likethe absolute worst, the end ofeverything - but it's not. - Anonymous, A Womanin Berlin,19451 Generally,it bothersme whensomeone says raped women.... [RJaped women- thathurts a person, to be markedas a raped woman,as if you had no othercharacteristic, as ifthat were your sole identity. - JudgeNusreta Sivac, in Calling the Ghosts, 19962 She said that nothing is done to oneself that one does not accept .... - Maria, in For Whomthe Bell Tolls,19403 Introduction Rape is oftensaid to constitutea fateworse than death. It has long been deployedas an instrumentof war and outlawedby internationalhumanitar- ian law as a serious- sometimeseven capital- crime.While disagreement exists over the meaningof rape and the proofthat should be requiredto convictan individualof the crime,today the view thatrape is harmfulto women enjoys wide concurrence.Advocates for greaterlegal protection againstrape oftenargue that rape bringsshame upon rapedwomen as well * Cecil D. RedfordProfessor in Law, Universityof Texas School of Law; Director,Ber- nardand Audre Rapoport Center for Human Rights and Justice at theUniversity of Texas Schoolof Law. For theircomments on earlierdrafts of thisReview, I am gratefulto HelenaAlviar, Neville Hoad, RachelHolmes, Patricia Visseur-Sellers, and JudsonWood, as well as to participantsat the SexualAbuse and Exploitation of Women in Violent Conflict conference at theNetherlands Defence Academyand at the Conferenceon Gender,Globalization, and Governanceat the Universityof Texas. I am also gratefulto JanetHalley and NanciKlein for many provocative and influentialdis- cussionson theissues discussed in thisReview and to MatthewDunlap for his research assistance. 1. Anonymous,A Womanin Berlin: Eight Weeks in the Conquered City 63 (Philip Boehmtrans., Metropolitan Books 2005) (1953) (diaryentry from May 1, 1945). 2. Calling the Ghosts: A Story About Rape, War and Women(Women Make Movies 1996). 3. P. 73. The novelwas firstpublished in 1940,but it is setin 1937. 941 942 Michigan Law Review [Vol. 106:941 as upon theircommunities. Shame thus adds to rape's power as a war weapon. Sexual violencehas not,however, been deployedas an instrument in everywar. In thissense it is neitheruniversal nor inevitable,as political scientistElisabeth Jean Wood has recentlydemonstrated.4 If wartime rape is notinevitable, I would arguethat neither is the shameoften seen to accom- panyit. In this Review, I use For Whomthe Bell Tolls, ErnestHemingway's novel of the Spanish Civil War,and othernarratives that consider sexual violencein war to demonstratethat women's roles in warextend far beyond thatof victim.By showinghow differentcharacters and agentsin thestories offerpossibilities for reimagining the harmof rape, I encouragefeminists and humanitariansto questionthe assumptionthat women who have been rapedin wartimeare destroyed.By seeingrape as a fateworse than death, at least in partbecause of the harmof shamethey assume it brings,feminists and humanitariansoften exacerbate the very shame theyhope to relieve. Particularlywhen made hypervisiblein the contextof mass rape,5wartime rape risksbecoming the exclusiveidentifying element for women who are membersof thegroup primarily subjected to it. Though rape has long been considereda crime,the past fifteenyears have broughtrenewed attempts to definewartime rape as an international crime and to increasethe enforcementof its prohibition.These attempts, largelybut not exclusivelyspearheaded by Westernfeminists, have been alignedwith the development of new internationalmechanisms for the adju- dicationof war crimes and crimes against humanity,including tribunals such as the InternationalCriminal Tribunal for the FormerYugoslavia ("ICTY"). I have writtenelsewhere about the judicial treatmentof rape by the ICTY and have arguedthat its jurisprudence- perhapsunwittingly and at the urgingof manyfeminists - has functionedto limitthe narrativesabout women in war, denyingmuch of women's sexual, political,and military agency.6During and afterthe conflict in Bosnia and Herzegovina,for exam- ple, manyfeminists tended to portrayall women (but especiallyBosnian Muslimwomen) as potentialsexual victimsand to denythe extent to which womenparticipated in thewar militarilyand politically.All men (butespe- cially Serbian men) were seen as potentialsexual perpetrators,and the possibilityof consensualsex betweenthose on opposite sides of the war seemedinconceivable. In a seriesof whatare generallyconsidered progres- sive decisions,the ICTY foundrape to be a war crimeand in one case a 4. ElisabethJean Wood, Variationin Sexual Violenceduring War, 34 Pol. & Soc'y 307 (2006). 5. See Doris E. Buss, The RwandaTribunal and theMaking of EthnicRape (June2007) (unpublishedmanuscript, on filewith author). 6. KarenEngle, Feminism and Its (Discontents: Criminalizing Wartime Rape in Bosnia and Herzegovina,99 Am.J. Int'l L. 778 (2005). April2008] JudgingSex in War 943 crimeagainst humanity. Yet these decisionsserved to reproducemany as- sumptionsabout women's (lack of) agency.Through its rules regarding evidenceof consentand its equationof rape withtorture, the ICTY essen- tiallycreated a jurisprudencein whichmuch of the sex betweenopposing sides in thewar was made criminal. For Whomthe Bell Tolls offersa lens throughwhich to view narratives about sex and war thatare less essentializedthan those that have generally appearedin theICTY's decisions.Hemingway offers an accountof warthat is unusuallyopen to theambivalences of killing,the value and threatof sex to battle,and themeaning of lifeand deathand one's sense of one's mission in war. I use Hemingway'snovel bothas a way to identifythe suppression of certaintypes of narrativesin the ICTY's decisions and to suggestnew contoursto some of the storiesthat in factemerged in ICTY testimony.I neitherwant to equate all sexual relationsthat occur in war8nor suggest that literary(fictional and nonfictional)narratives are necessarilymore powerful thanlegal narratives.Rather, I hope to convincelegal activiststo consider the need forthe admissibilityof nuancedaccounts of sex and war and to discouragethem from assuming that suppression of such storiesis necessary to a systemof justice. I. Hemingways Historical Context Over thethree years between 1936 and 1939, fascistrebel forces, even- tuallysupported by Italy and Germany,brought down the Second Spanish Republic.This militaryvictory marked the beginningof Franco's dictator- ship. The Spanish Civil War attractedthe interestand participationof men and womenfrom both inside and outsideSpain by literallyproviding a bat- tlegroundfor those who wanted to fightfor various shades of fascism, antifascism,Marxism, and Communism.A numberof womenparticipated in thewar, serving as nurses,militia fighters, and politicaland philanthropic supporters.The firstBritish volunteer to be killedin battle,for example, was Felicia Browne,a Communistartist in Spain at the outsetof the war who foughtin a militiaunit.9 One of theleading Spanish Communists at thetime was Dolores IbarruriGomez, known as La Pasionara ("thepassion flower"). Ibarruridelivered what became a well-knownrallying cry for the Republic 7. Prosecutorv. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T,Judgment, \ 436 (Feb. 22, 2001); Prosecutorv. Furund'ija, Case No. IT-95-17/1-T,Judgment, \ 172 (Dec. 10, 1998). 8. For a descriptionof the ways and extent to which sexual violence against women has oftenvaried duringwar, see Wood, supra note 4. 9. Angela Jackson, The Clarion Call: Women and the Spanish Civil War, Lecture at the Belfast Instituteof Furtherand Higher Education in celebrationof InternationalWomen's Day (Mar. 8, 2006) (transcriptavailable at http://www.geocities.com/irelandscw/misc-IWDLecture.htm(last visited Nov. 16, 2007)) (discussing British women's involvementin the war). Gerda Taro, the first female photographerto die on the frontlines - crushed by a tank in 1937- captured a number of stunningimages of militiawomen.These and other photographsby Taro have recentlybeen exhib- ited at the InternationalCenter of Photographyin New York. See Gerda Taro (Irme Schaber et al., eds. 2007). 944 Michigan Law Review [Vol.106:941 duringa radio addressin July1936: "It is betterto die on yourfeet
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