Do queer lives matter in international criminal justice? Queer ghosts and the International Criminal Tribunal for the former Yugoslavia
By: Caitlin Biddolph (she/her/hers)
Queer people (i.e., those with non-normative gender identities, sexualities, and sex characteristics) rarely feature in dominant stories told about violent conflict. Their experiences of violence, survival, joy, and resistance are frequently written out of dominant stories of war, and they are rarely given the space to challenge these narratives. How then, are queer bodies represented in institutional accounts of conflict, if at all? And why are queer lives rarely seen as mattering in these representations of war, peace, and justice?
In my recent IFJP article, taking international criminal justice as my focus, I argue that queer lives and experiences are erased from these discourses, and that such erasure depends on and reinforces the cisheteronormative and binary foundations of international law. Using the International Criminal Tribunal for the former Yugoslavia (‘ICTY’ or ‘the Tribunal’) as a case study, I analyse how queer bodies are made absent or silenced by the legal discourses and practices of the Tribunal. The ICTY is an international criminal justice mechanism established in 1993 by the United Nations Security Council, and over the course of its 24-year mandate, the Tribunal investigated and prosecuted crimes of genocide, crimes against humanity, war crimes, and grave violations of the Geneva Conventions that were committed in the former Yugoslav territories during the 1990s conflict. In my article, I find that the ICTY overwhelmingly excludes queer stories and experiences from its institutional accounting of violence in the former Yugoslavia, a conclusion that is not unsurprising, given the ‘queer blind-spots’ that animate broader discussions of conflict and atrocity prevention. Inspired by Laura McLeod’s resurfacing of ‘missing’ women in institutional accounts of the Bosnian peace process, I apply a queer hauntological approach to trace where queer bodies might linger in the silences and absences of the Tribunal’s representation of violence. Such an exercise involves scrutinising the appearance of absence, and how queer experiences and stories haunt the dominant discourse of international criminal justice.
So how do queer bodies surface at the ICTY? Firstly, I analyse the erasure of queer lives from the ICTY’s Statute, its foundational document that details the Tribunal’s mandate, jurisdiction, and various operational functions. By being attentive to where and how queer bodies manifest in these documents, I find that the Statute and the international humanitarian laws it details are devoid of queer-inclusive terminology or any explicit reference to queer people. Moreover, a closer reading of the crime of genocide (as delineated in the Statute) reveals that cisheteronormative assumptions about group reproduction and futurity underpin this crime. These examples illustrate how the ICTY as an international criminal justice mechanism depends on and reproduces the binary, cisheteronormative legal subject as the default category for addressing violence, and thus such a practice denies queer forms of living.
Secondly, I trace the ways that queer bodies manifest in descriptions of ‘homosexual(izing)’ violence in the court proceedings. Graphic testimonies and evidence presented in the courtroom reveal the harrowing experiences of victims and survivors subjected to sexual violence, and these crimes are important to recognise. But the commission of these acts by the perpetrators, and its retelling by ICTY officials, relies on a cisheteronormative default, whereby queer bodies and queerness only exist in relation to what is ‘abject’, ‘abnormal’, and ‘perverse’.
Finally, queer bodies haunt the ICTY’s construction of the binary, cisheteronormative legal subject. For example, the ICTY tends to map certain forms of violence to a gender binary, stabilising cisheteronormative men and women as both victims and perpetrators of violence. While it is important that the Tribunal acknowledged these crimes – and it did not always cleave to traditional notions of women as the only victims of sexual violence – queer bodies only exist in the ways that they haunt in their absence.
In this article, I turn to the work of Kvir Arhiv, a grassroots collective in Bosnia and Herzegovina (BiH) that collects and shares the stories of queer people in BiH during the war and beyond. It is an archive that allows queer voice and visibility and challenges the erasure and denial of queer lives in ICTY discourses. Reading Kvir Arhiv’s efforts alongside the Tribunal’s excision of queer experiences reveals that legal institutions and international criminal justice are often inhospitable sites for queer people, and that queerness is often unintelligible within the binary, cisheteronormative frames that constitute the law. But the valuing of queer lives by Kvir Arhiv and the queer hauntological approach I adopt in the article demonstrate the necessity of seeing queer lives as those that matter. The insights from my analysis of the ICTY paint a sobering picture – that queer lives do not matter in international criminal justice. But such a conclusion encourages both scholars and activists to center queer lives, even if it means looking beyond and away from the legal institutions that deny them.
Read the full article here: Haunting justice: queer bodies, ghosts, and the International Criminal Tribunal for the former Yugoslavia
This article was named the winner of the 2022 Enloe Award.
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Caitlin Biddolph is a Postdoctoral Research Fellow in Gender and Global Governance in the School of Social and Political Sciences at the University of Sydney, Australia. Her primary research focuses on queering global governance, international law, and transitional justice. Her doctoral research explored discourses and logics of gender, sexuality, civilization, and violence at the International Criminal Tribunal for the former Yugoslavia. She is currently researching the global governance of transitional justice through queer decolonial perspectives. She has recently published articles in Millennium: Journal of International Studies, Griffith Law Review, and the Australian Journal of Human Rights.