The Cost of Women War Criminals’ Gendered Defenses

 

Izabela Stefjia and Jessica Trisko Darden, Women as War Criminals:

Gender, Agency, and Justice

(Stanford Briefs/Stanford University Press, 2020)

Most people, female as well as male, think of war crimes as the ignominious reserve of the male of the human species.  But in Women as War Criminals: Gender, Agency, and Justice, Izabela Stefjia and Jessica Trisko Darden, professors at Tulane and Virginia Commonwealth  University, respectively, contend that the gender “violence gap” in war crimes – the difference between the rate at which men and women commit violent acts – is “not as wide as is often thought, in part because women’s historical participation in wartime violence has willfully been ignored” (p.122).  Women war criminals, the authors contend, have gone unnamed or been underestimated, all part of an attempt to “preserve archetypal images of women as victims and men as perpetrators” (p.122; the authors cite Wendy Lower’s seminal work,  Hitler’s Furies: German Women in the Nazi Killing Fields, a nuanced study of women who joined the Nazi cause and in surprising numbers abetted willingly and enthusiastically the Holocaust, reviewed here in 2016).

While no single document defines war crimes, the 1899 and 1907 Hague Conventions, the 1949 Geneva Convention, and the 2002 Rome Statute of the International Criminal Court all identify and prohibit behaviors in the conduct of international and domestic conflicts that transgress internationally accepted norms, including torture, forced displacement and genocide.  Women as War Criminals revolves around four women charged with war crimes.  The four cases illustrate in different ways how gendered stereotypes can distort the outcome in proceedings to address those crimes, and how specific social and political contexts influence the construction of gendered arguments.

Stefjia and Trisko Darden bring to their work a perspective that could be described as both feminist and prosecutorial.  Violence by women, they argue, should be treated when proven as a prosecutor would treat it: an “autonomous choice clearly indicative of the human capacity for violence” (p.9).  The four cases are intended to demonstrate how gendered arguments in legal proceedings almost invariably deny or lessen women’s agency, often resulting in women being treated more leniently and escaping full accountability for their crimes.  Women who are “willing to cater to gender stereotypes through compliance, obedience, and apology are more likely to evade the full weight of their crimes” (p.126), the authors write.  However, context is critical in assessing women accused of war crimes.  In some contexts, gendered arguments can result in women being treated more harshly than men for similar offenses.  Focusing on women as war criminals, the authors add, does not “diminish the important and well-established fact that women are among the greatest victims of armed conflict” (p.121-22).

The first two of the four cases involve women accused of war crimes during the 1990s: Biljana Plavšić, charged with participation in the ethnic cleansing of Bosnian Muslims in the former Yugoslavia; and Pauline Nyiramasuhuk, indicted as an architect of the genocide against ethnic Tutus in Rwanda.  Each was a high-level official in her government and both were well into their adult years when they were implicated in war crimes.  Their cases, tried before recently established United Nations international tribunals, the International Criminal Court for the Former Yugoslavia (ICTY) and the International Criminal Court for Rwanda (ICTR), reflect the optimism of the 1990s that such tribunals could assign responsibility for war crimes in an unbiased fashion and thereby ameliorate the post-conflict political conditions in the two countries.

The last two cases involve women who found themselves engaged on opposite sides of the 21st century American-led “global war on terror” in the Middle East: Lynette England and Hoda Muthana.  Both were 20 when they entered conflict, decades younger than Plavšić and Nyiramasuhuk, and both were at or near the bottom of their respective organizations.  Both, moreover, became pregnant by male co-perpetrators and gave birth while in service to their organizations.

England was the US Army soldier famously photographed in 2004 abusing suspected terrorists captured in Iraq.  She faced a military court-marital in the United States.  Muthana was an American-born Muslim woman who traveled to Syria to join the Islamic State in Iraq and Syria (ISIS) during the 21st century’s second decade.   While with ISIS, she allegedly incited violent acts against civilians, including urging the killing of Americans and the assassination of then-President Barack Obama.  Muthana married three times during her ISIS tenure, earning her the media moniker of “ISIS bride.”  Her first two husbands died in conflict.

Despite apparent similarities between England and Muthana, and between Plavšić and Nyiramasuhuk, each woman’s case is significantly different from the other three.  If there is a common denominator among the four, it lies in the readiness of all to downplay their own agency by arguing in their defense that they had been manipulated by males and predominantly male institutions.  These gendered defenses, the authors contend, disguise the “noteworthy ideological commitment to the cause they took up.”  All four believed, “with conviction, that they were fighting for the right side” (p.123).   Until we recognize that women can be as violent as men, capable of committing such heinous crimes as torture, rape, enslavement, mass murder, ethnic cleansing and genocide, the authors suggest, “we cannot expect their equal treatment under the law or in society” (p.131).

* * *

Biljana Plavšić was an accomplished agricultural scientist who held a PhD and had been a Fulbright scholar.  In 1992, she became co-president, along with the notorious war criminal Radovan Karadžić,  of Republika Srpska, the Serbian entity created within the larger state of Bosnia and Herzegovina.  She was the only woman among 16 individuals indicted by the ICTY on war crimes charges involving the ethnic cleansing of non-Serbs.  Unlike the 15 males, Plavšić surrendered voluntarily and did not use the tribunal theatrically, either to ridicule it as the “ultimate enemy of their people” or to “express extreme nationalist narratives” (p.18), as did several of her male co-defendants.  She was originally indicted on nine counts, but eight, including genocide, were dropped in exchange for a guilty plea to one count of persecution on political, racial and religious grounds.

At her sentencing, Plavšić’s lawyers presented their client as the compliant “Mother of the Serb nation.”  Her lawyers seemed to be “seeking to prove that Plavšić was an obedient and virtuous woman” (p.27).  She regretted publicly the role she had played in heinous war crimes.  She too was a victim, she argued, “not of The Hague [or] the international community but of the political elite in Republika Srpska” and its “rogue leadership” (p.28) which she left.

Portraying Plavšić as a woman who was duped by her male peers proved to be an effective defense, as she was given a modest sentence, 11 years in prison minus 245 days spent in pre-trial detention.  She was released in October 2009 for good behavior, after serving about two-thirds of her sentence.  Many men considerably lower in the hierarchy and facing less serious charges received longer prison terms.  But rather than being duped by her Republika Srpska peers, Plavšić might better be seen as the woman who duped the ICTY and the international community.

While in prison, Plavšić wrote a scorching two-volume political memoir in Serbian, never translated into other major European languages, in which she all but admitted that her defense at the ICTY had been an act – that she fully supported the aims of Bosnia’s Serbian nationalists, even if she didn’t admit explicitly to participation in the specific war crimes of which she was accused.  Her memoir dismissed Serbian atrocities as a “fabrication;” portrayed NATO as the enemy of the Serbs; and contended that the United States sought to eradicate Serbia.  Diverging drastically from the image Plavšić sought to create at the ICTY, the memoir  demonstrated “disrespect and disregard for international criminal law and displayed extreme nationalism and racism” (p.38).   The ICTY, the authors note woefully, clearly “did not manage to convert a key female perpetrator into a reconciliatory figure through leniency and a reduced sentence” (p.42).

* * *

The Rwandan genocide of ethnic Tutsis in 1994, one of the most infamous episodes of mass violence and war crimes in modern history, was organized by a small group from the Hutu ethnic group that had been excluded from and disagreed with a power sharing agreement executed in 1990 between Hutus and Tutsis, Rwanda’s two major ethnic groups.  Three quarters of Rwanda’s Tutsi population were killed in the genocide, along with others who either “looked Tutsi” or were more moderate Hutus.

Pauline Nyiramasuhuko, the Rwandan Minister of Family and Women’s Development, was one of the key inner circle members of the government which planned the massacre of Tutsis and opposition Hutus.  Nyiramasuhuko was tried at the ICTR in a group of six, with five men, all considered to be at the top of the criminal pyramid.  Like the five men, she was accused of crimes against humanity that included aiding and abetting in the slaughter of Tutsis.  She allegedly encouraged men, including her son, to commit rape of Tutsi women.

At Nyiramasuhuko’s trial, her lawyers cast her as an “unaware, uninformed, innocent victim of male leaders,” suggesting that she was a “passive participant” (p..62).  They sought to normalize her image by “portraying her as a pious and devoted mother” (p.46).  But for her victims and the accusers, Nyiramasuhuko was “especially guilty and vicious because she [was] a woman and a mother” (p.59).  That she was a mother made her participation worse for her victims and accusers, the authors sardonically observe, “as if somehow being a father and a perpetrator is not a common characteristic of male genocidaires” (p.54).

The ICTR didn’t buy gendered arguments from either side.  The court was “not open to the argument that Nyiramasuhuko was a woman duped by genocidal men” (p.62).  It convicted her of genocide, conspiracy to commit genocide, violence to life, and outrages against personal dignity, along with the crimes against humanity of extermination, persecution and rape.  She became both the “only woman tried and convicted by an international court for the crime of genocide” and the “only woman to be tried and convicted by an international criminal trial for rape as a crime against humanity” (p.49), thereby “shattering the image of men being exclusive perpetrators of rape” (p.55).  The ICTR gave Nyiramasuhuko and her son life sentences, with her sentence reduced in 2015 to 47 years.

The ICTR’s rejection of gender-related arguments cast the court as an “objective legal institution, interested only in the facts” (p.64).  But the authors nonetheless characterize the court’s avoidance of gender as a missed opportunity to probe more deeply into how masculinity and femininity in the Rwandan context affected the horrific violence.  Treating Nyiramasuhuko’s case as no different from that of her co-accused males, the authors contend, resulted in the court fitting her into what they characterize as the “violent ‘African savage’ stereotype” (p.70).  The ICTR case against Nyiramasuhuko was thus “influenced by ingrained biases about how African actors behave in conflicts” (p.46).

“Relying exclusively on gender to understand female war criminals diminishes their social, political, and material motives,” the authors conclude in their summary of Nyiramasuhuko’s case.  But removing gender entirely, as the ICTR did,“denies the gendered context in which the crimes took place” (p.65).

* * *

Lynette England gained notoriety in the spring of 2004, when renowned investigative reporter Seymour Hersh reported in the New Yorker magazine on torture and extensive prisoner abuse at Abu Ghraib, the Iraqi prison that was once home to Saddam Hussein’s torturers and became, as the authors put it, “synonymous with the excesses of America’s War on Terror” (p.71).  Among the photos accompanying Hersh’s article was one of England in a t-shirt and fatigues, “holding what appeared to be a leash wrapped around the neck of a naked man” (p.72).

England, who grew up in Appalachia, had been diagnosed with a learning disability as a child.  While in high school, she signed up for the U.S. Army Reserves.  After graduation, she married her boyfriend and mobilized with her reserve unit for deployment.  Shortly after her arrival in Iraq, England, still legally married, met Charles Graner.  Contrary to Army regulations, England and Graner began a sexual relationship which resulted in England’s pregnancy.  She gave birth to her son, Carter, about six months after the abuse scandal had broken.

After a first court-marital, in which the military judge refused to accept her guilty plea, England’s second court-martial generated far more media attention than those of the males who were more deeply involved in abuse of Iraqi prisoners.  In that proceeding, England’s defense team “intentionally used her gender and status as a mother to minimize her role in the abuse by depicting her as sexually and emotionally exploited by an older, higher ranked man” (p.73-74).  England was portrayed as an “uncivilized, promiscuous Hillbilly-turned-Torturer” (p.79), at the bottom of both the American social hierarchy and the military hierarchy – “incapable of making good decisions as evidenced by her divorce, pregnancy, and participation in torture” (p.80).  As a so-called “Hillbilly,” England’s social status was “seen by some observers as enforcing her culpability” (p.81).

For institutional as much as strategic reasons, England’s defense team did not seek to question the military’s role in creating conditions conducive to torture and perhaps even in directing soldiers to commit abusive acts.  The overall objective of the Abu Ghraib courts-martial , the authors contend, was to “deflect blame away from the Army and toward the individual perpetrators rather than establishing a broader system of accountability” (p.88).  The prosecution too, while recognizing England’s agency, “failed to consider the broader social and institutional environment that the abuse occurred in” (p.88).

England was found guilty on 7 of 8 counts and sentenced to three years in military prison.  The male soldiers’ sentences varied based on their cooperation with the investigation.  Graner received the stiffest sentence as the ringleader of the abuse.  There were a few soldiers higher up in the chain of command who had their career advancement blocked, but most escaped punishment.  The lesson to be derived from England’s court martial, the authors conclude, is that when women soldiers face military justice, they will be judged for “failing not only as soldiers, but as women” (p.94).

* * *

Hoda Muthana was born in New Jersey in 1994 to immigrant parents from Yemen.  Her father was a Yemeni diplomat who chose to remain in the United States after his diplomatic tour ended.  After graduation from high school, Muthana enrolled in business school at the University of Alabama.  In 2014, she left university to join ISIS in Syria, where she became one of its public spokespersons.  On social media, she took the name of Umm Jihad, Mother Jihad.

Early in her tenure with ISIS, Muthana married a 23-year-old man from Australia, of Middle Eastern background.  Her husband was killed in battle less than three months after their marriage and, after a period of mourning, she married a 19-year-old Tunisian who too was killed in combat, when Muthana was 7 months pregnant.  She gave birth to a son, Adam, and remarried still another time, but little detail is known about her third husband.

Muthana fled ISIS-controlled territory in mid-December 2018.  Stressing her youth and  her status as a mother, she described herself as having been “brainwashed,” “traumatized, and “manipulated” by ISIS (p.105).  In January 2019, Muthana surrendered to opposition Kurdish forces and was placed in a holding camp.  As of the authors’ writing, she and her son lived in a tent, along with about 4,400 other women and children affiliated with ISIS.  She expressed publicly a desire to return to the United States to face potential criminal charges for her actions in Syria.  But that path seems to be legally foreclosed.

In 2016, the State Department sought to strip Muthana of her of US citizenship based on a revised understanding of her father’s diplomatic status.  He was still subject to diplomatic immunity when she was born, the Department argued.  Muthana’s father sued in federal district court to challenge that decision, with the case centered around what his daughter had done for ISIS.  The district court affirmed the State Department’s decision, thereby denying Muthana American citizenship.  Last month, the Supreme Court turned down the request to review the district court decision, and it is unclear whether Muthana will ever be called to account in a legal forum.

The authors manifest little sympathy for Muthana’s claims of brainwashing and manipulation while with ISIS, but would plainly like to see those claims and the accusations of terrorist acts attributed to her subject to the scrutiny of a legal proceeding.  Yet she still warrants study as an example of the gendered stereotyping baked into the term “ISIS bride.”  The term attaches a woman to a man’s agenda, they contend, thereby acknowledging women’s agency “only within the framework of marriage” and downplaying the “very real engagement of these women with ISIS’s ideology” (p.102).

There is no evidence that Muthana joined ISIS because she was “persuaded to by a man,” or that she did so for the “primary purpose of getting married” (p.102), the authors argue.  And  there is ample evidence of her strong ideological convictions: she viewed her actions in Syria as in line with God’s laws, in which the founding of a Muslim state or caliphate is an obligation of every Muslim, regardless of gender race, or nationality.  These ideological convictions were wholly absent in media reporting about Muthana and those of other so-called ISIS brides.  That the women of ISIS, and not the men, are able to press claims of youth, manipulation and victimization reflects the “deeply gendered bias in both media portrayals and the legal treatment of ISIS members” (p.108).

* * *

The four cases, disparate as they may be, reveal women war criminals to be like their male counterparts,  Stefjia and Trisko Darden write,  “political actors willing to act on their convictions and use their trials and notoriety to further their messages” (p.123). Women implicated in war crimes, moreover, are uncomfortably similar to other women across the globe in at least one sense – they too are “committed to making a mark and having a voice in a man’s world” (p.123).

Thomas H. Peebles

Bordeaux, France

February 1, 2022

 

 

2 Comments

Filed under Gender Issues, Rule of Law

2 responses to “The Cost of Women War Criminals’ Gendered Defenses

  1. David Gross

    This seems like an interesting book, Tom. I suppose any competent defense attorney should use whatever defense works best, even if it perpetuates a dangerous preconception that women don’t really commit war crimes.

    • Thanks, Dave. I had a paragraph in earlier drafts of the review to that effect. Any defense attorney would be remiss in her professional duties if she did not consider using gendered defenses as part of her representation of a woman client in a war crimes case. The authors’ rejoinder would probably be to agree (reluctantly) and go on to say that it is up to prosecutors and judges to refute and reject such defenses.

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