Haunting justice: queer bodies, ghosts, and the International Criminal Tribunal for the former Yugoslavia

Abstract

This article was named the winner of the 2022 Enloe Award. The committee commented:

  Using a queer hauntological approach to read queer bodies in the International Criminal Tribunal for the former Yugoslavia in the seemingly innocuous language of judges, legal counsels, and witnesses, the author illuminates the ways in which queer lives are made absent in international law and in experiences of war, peace, and justice. By rendering queer lives as “ghosts,” the author shows how the “straight, binary, and cisgender subject,” be it victim or perpetrator, is maintained in international criminal justice. Going beyond critique by centering a queer archive created by queer people about their experiences of the war, the article stood out to the committee as an important contribution to international law and beyond. By rendering queer lives “intelligible and grievable and as lives that matter,” it continues Cynthia Enloe’s legacy of finding sex and gender where it has been hidden. Ultimately, the author does not call for the inclusion or assimilation of queer experiences into liberal international criminal justice discourses, which co-opt and empty radical politics. Successfully showing how “haunting” represents a radical call for “alternative worlds,” the article provides an original challenge to move beyond mere inclusion. The committee commends the author for their careful scholarship and deep theorization.

ABSTRACT

International criminal justice involves stories of war and violence. These stories establish survivors, perpetrators, and scenes of trauma, offering representations of embodied experiences of violation. All bodies are subject to violence, but not all bodies are seen – or heard – in international criminal justice. In this article, I argue that queer bodies – that is, those with non-normative sexual and gender practices and identities, such as lesbian, gay, bisexual, trans, queer, intersex, and asexual (LGBTQIA+) people – are largely missing from international criminal justice discourses. While queer bodies are frequently targets of violence, their stories are excised from the findings and prosecution of crimes by these mechanisms. Embracing a queer hauntological approach, I focus on the International Criminal Tribunal for the former Yugoslavia (ICTY) and argue that queer bodies figure in ghostly ways. I explore how queer bodies haunt ICTY discourses and argue that queer ghosts can disrupt cisheteronormative representations of justice. The article deconstructs the juridical assumption that all violent and violated bodies are stable, straight, and cisgender and proposes that queer ghosts can challenge this legal subjectivity. I conclude that queer bodies and stories are written out of ICTY discourses, but in their ghostliness, in their haunting, there always already exists the possibility of disruption.

KEYWORDS:

• Queer
• haunting
• International Criminal Tribunal for the former Yugoslavia
• international law
• LGBTQIA+

Introduction

In July 2022, the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity published his thematic report to the United Nations General Assembly (UNGA) on the dynamics between sexual orientation, gender identity, and armed conflict. The report “call[s] for greater awareness of how gender and sexual orientation and gender identity dynamics operate” in conflict and post-conflict contexts (UNGA 2022, 2). It provides recommendations to address violence and discrimination in these settings, including through “international and domestic accountability mechanisms” and “truth-seeking and justice institutions” (UNGA 2022, 22–23). This is a significant step for the United Nations (UN) in recognizing the experiences of queer persons during armed conflict. For as long as wars have occurred, queer bodies – that is, those with non-normative sexual and gender practices and identities – have been subjected to both targeted and non-discriminatory violence.

Transitional justice processes are frequently initiated to address atrocities and realize justice. While some mechanisms, such as truth commissions, have begun to recognize queer experiences in conflict (Bueno-Hansen 2018; Fobear 2014; Maier 2020), the international criminal justice system has largely erased queer voices from its processes.¹ In this article, I scrutinize this exclusion and argue that queer bodies are frequently missing from international criminal justice discourses. This erasure occurs because of, and reproduces, the cisheteronormative violence of international law (IL), whereby bodies that conform to international legal frameworks are those that (are seen to) embody a straight, cisgender, and binary human subjectivity. I use the International Criminal Tribunal for the former Yugoslavia (ICTY or “the Tribunal”) as a case study to trace the absence of queer bodies in international criminal justice and consider what their invisibility can reveal about the “accepted” gendered subjects of IL. I ask: how do queer bodies figure in ICTY discourses? What can a queer hauntological reading reveal about the effects of these discourses? And how might queer ghosts disrupt cisheteronormative visions of international criminal justice? By conceptualizing queer bodies as ghostly presences, I center possibilities for queer disruption, seeing ghosts as disturbing the legal assumption that all violent and violated bodies are stable, straight, and cisgender.

By “ghosts,” I refer to those bodies, dead or alive, that are present in their absence. At the ICTY, queer ghosts demand justice for their stories that go unrepresented within the cisheteronormative foundations and legal language of the Tribunal.² They demand recognition, safety, peace, and community – to be seen and heard as lives that matter. Reading queer bodies as ghosts at/of the ICTY challenges the violence of IL and amplifies queer experiences of war, peace, and justice. I use the language of (making visible) queer bodies and (hearing) queer voices in this article to trace the entangled (but not interchangeable) ways in which queer lives are variously recognized. The ICTY fails to do either, and the resulting absences and silences resonate as ghostly traces. In the article’s conclusion, I contrast this with the work of Kvir Arhiv, a collection of queer Bosnian stories that both renders visible queer experiences and amplifies queer oral histories.

There are multiple ways to describe people who do not conform to normative genders and sexualities, such as “lesbian, gay, bisexual, transgender, queer, intersex, and asexual (LGBTQIA+)”; “sexual and gender minorities”; “diverse sexual orientations and gender identities”; or “gender-diverse communities and gender-variant individuals.” I use the term “queer” to describe various people, orientations, and practices of gender and sexuality that do not conform to binary, cisheteronormative norms. “Queer” cannot be made to “signify monolithically” (Sedgwick 1993, 8) or permanently define all bodies that express non-normative sexualities and genders. There is an ambivalence to the term “queer,” but it is one that expands ways of seeing and embodying complex subjectivities. As a straight, cisgender woman, my invocation of “queer” is one of contestation, and my discussion is an act of violence (because writing on/about the bodies of others is violent) but also one of resistance (to subvert the cisheteronormative assumptions that infuse our social worlds). Moreover, the terms “queer” and “LGBTQIA+” “have a distinctly Western origin and may not be universally understood in non-Western contexts” (Eichert 2021, 162–163; see also Axelson 2016, 281; Duffy 2021, 1055; Picq and Thiel 2015, 5–6; Simm 2020, 376). While these terms are meaningful for many people and communities, they may not reflect the lived fluidity of gender and sexuality. I am therefore cognizant of the contestations over using “queer” in this article to denote certain bodies and practices, but I invoke it to resist static, homogenizing identity formations, as a term open to the diverse ways in which people live. There is a politics to defining who and what is queer, including how queer persons identify and are identified in the former Yugoslavia. In the face of homophobic, nationalist violence, explicitly identifying as queer is complicated; (in)visibility is frequently a matter of life and death. It is thus unsurprising that ICTY discourses render queer bodies absent when (attempts at) invisibility served to protect queer persons from targeted violence during the conflict. My hauntological reading of queer bodies at the ICTY illuminates the effects of such invisibility and the ghostly traces that linger in what is left unsaid.

I begin the article by exploring the absence/presence of queer bodies in international relations (IR) and IL, drawing on queer scholarship that problematizes the erasure of queer experiences in conflict. I then introduce my queer hauntological approach to read queer bodies as ghosts at/of the ICTY, tracing their absences and how they challenge the cisheteronormative assumptions of international criminal justice. Next, I provide an overview of the ICTY and the former Yugoslav context, focusing on the experiences of queer bodies during the conflicts in the former Yugoslavia. I introduce Kvir Arhiv as a “disruptive archive” (MacManus 2020a, 19) that demonstrates how queer bodies and voices can be seen and heard, offering an alternative space for queer stories beyond the law. I then analyze three sites in which a queer hauntological approach can trace queer ghosts at/of the ICTY: in the ICTY Statute’s definition of crimes; in representations of “homosexual(izing)”³ violence in the court transcripts; and in the reproduction of the cisheterosexual legal subject as the default. In each, while queer bodies appear absent, they linger in ghostly presences, reminding us that those who are made invisible haunt the justice process and what it means to remember violence. I conclude by discussing some of the implications of queer ghosts at/of the ICTY for IL more broadly, returning to Kvir Arhiv as a space that offers queer voice and visibility. Tracing queer ghosts within international criminal justice can both disrupt the cisheteronormative violence of IL and allow ways of recognizing queer experiences in/through and beyond law.

Making queer bodies (in)visible in sites of international relations and international law

Queer scholarship across IR and IL has exposed the erasure of queer lives in peace, conflict, IL, and transitional justice. IR scholars engaging queer approaches have critiqued the systematic and widespread absence of queer bodies in literature on peace and security, including studies investigating experiences of conflict (Hagen 2016; Loken and Hagen 2022), atrocity prevention (Gifkins et al. 2022), humanitarian intervention (Vernon 2022), and genocide (Nellans 2020; Waites 2018), as well as critical security studies (Shepherd and Sjoberg 2012; Stoffel 2018). These are not merely “queer blind-spots” (Gifkins et al. 2022, 19), but exclusions facilitated by the normalization of the straight, cisgender, and binary human in IR theory and practice. This erasure has significant effects for queer bodies across war–peace continuums (Otto 2020, 28; Wilkinson 2021, 90), including “establish[ing] a dangerous precedent where homophobic and transphobic violence is not deemed worthy of attention” (Gifkins et al. 2022, 14). The violence of erasure speaks to what Alexander Stoffel (2018, 48) identifies as “the failure to apprehend [queer persons] as intelligible subjects or liveable lives” (see also Luciano and Chen 2015, 186).⁴ The alarmingly low reporting of queer experiences in conflict, humanitarian responses, and transitional justice persists because queer lives are rendered both invisible and unintelligible (Stoffel 2018, 51). It is not only queer experiences of violence that are erased, but queer joy, hope, “cultures and resistance,” too (Gifkins et al. 2022, 4).

In response, scholars have identified examples of queer recognition, with UN organs such as the UNGA and the UN Security Council (UNSC) recognizing anti-queer violence in Iraq, Myanmar, and Syria (Bejzyk 2017, 385; Rossouw 2020, 767; UNGA 2022, 10–11). This is important, but such recognition of queer suffering often sits within, rather than challenges, the cisheteronormative foundations of the UN (Hagen 2016, 316). The inclusion of queer voices within this international sphere is conditional, deployed in ways that service militarist agendas (Hamzić 2018, 88–89; Vernon 2022, 13) and fail to “challenge heteropatriarchal norms that continue to position [queer lives] as less worthy of a secure existence” (Wilkinson 2021, 91).

Scholars engaging queer approaches have similarly exposed the cisheterosexual, essentialist, and binary subject of IL. These critiques show how the “cisgender matrix” (Duffy 2021, 1041) excludes queer perspectives in international humanitarian law (IHL) (Arvidsson 2021), international human rights law (Duffy 2021; Simm 2020), international criminal law (ICL) (Axelson 2016; Biddolph 2022; Eichert 2021; Grey 2019), and transitional justice (Bueno-Hansen 2018; Fobear 2014; McQuaid 2020). While there have been some exceptions to this silencing, such as in Latin American truth commissions and courts (Bueno-Hansen 2018; Fobear 2014), at the Extraordinary Chambers in the Courts of Cambodia (ECCC) (Elander 2018; Grey 2019), and at the UNSC, the UNGA, and the Human Rights Council (Hamzić 2018; Kapur 2018; Paige 2018; Suhr 2022), these developments should be regarded with caution. Indeed, the ECCC’s inclusion of a trans woman’s testimony was an exception to the predominant erasure of “gender-nonconforming people,” and the woman in question was consistently misgendered by the court (Grey 2019, 480). When queer lives are included, they are subject to the “regulatory” violence (Kapur 2018, 142) and “dehumaniz[ing]” classifications of IL (Duffy 2021, 1043).

Even in the face of IL’s violence, many scholars and activists argue that queer inclusion is essential and provides the conditions for “living a safe and secure life in the present” (Fobear 2014, 54). By identifying the silences at/of the ICTY and tracing how queer bodies figure in ghostly, absent/present ways, I speak to both (im)possibilities: of disrupting the cisheteronormative violence of IL and of materializing queer experiences within and beyond these sites.

A queer hauntological reading

A hauntological approach to the ICTY traces the ghostly presence/absence of queer bodies in international criminal justice. It follows the specters that inhabit the Tribunal’s legal proceedings, even as their presence is ghostly rather than corporealized. The concept of the ghost can be traced to literary and social theory, where scholars such as Jacques Derrida (1994) and Avery Gordon (1997) are familiar names in hauntological scholarship. Gordon’s (1997, 8) theorizing of the ghost as “a seething presence” anchors my own and others’ hauntological engagement with ghosts, a term that I use in this spectral capacity. Queer ghosts at the ICTY may be dead, the victims of crimes committed during the conflict, but they are also living, albeit rendered invisible in the Tribunal’s legal record of violence. The ghost, then, is both living and dead, but it also exceeds this binary. It is a reminder and an insistence of (in)justice.

As with hauntologists studying sites of global politics, my queer hauntological reading amplifies the non-binary, disruptive power of ghosts. Characterized as existing “in the interstices of the visible and the invisible” (Gordon 1997, 24), as “simultaneously present and absent” (Clark 2018, 612), ghosts disorder binaries. Like queer approaches, “the ghostly points to the inherent instability of binaries” (Clark 2018, 607; see also McLeod 2019, 674), including those of “life/death [and] masculine/feminine” (Clark 2018, 606; 2019, 64). Ghosts are queer; they are disruptive (Auchter 2014, 31), disturbing (McLeod 2019, 675), and inhabit not the either/or but the both/and (Weber 2016).

With this disruptive spectrality, ghosts are also demanding. They call for justice and “demand that we take responsibility for them” (Lawther 2021, 8). They insist that they be taken seriously, that their lives and deaths are seen as mattering. Laura McLeod (2019, 669) understands ghosts as “figures we do not initially see,” but, to paraphrase, manifest through shadowy, omissive, and lingering traces. These ghostly presences constitute the focus of my hauntological reading of the ICTY. My approach looks for (apparent) silences and absences, finding in them demands for seeing queer lives as lives that matter.

Guided by these ghostly figures, I engage in a queer hauntological reading that takes queer bodies seriously, centering an ethics of alterity and disruption. A “hauntological ethics” (Shildrick 2020, 178) asks scholars to “learn to speak with and listen to spectres,” which involves seeing ghosts as worthy and grievable (Auchter 2014, 3, 21). Queer ghosts at/of the ICTY are rendered invisible in a system that reads bodies as binary and cisheterosexual. This invisibilizing of queer bodies echoes the broader erasure of queer stories in IL and during the Yugoslav conflicts, even as visibility and silence are complicated dynamics that queer people navigate daily. I deploy a hauntological ethics to expose how queer lives are made not to matter in IL, not by making “ghosts visible and intelligible, not to force them to speak, but rather to interrogate the very notion of the speaking, visible, intelligible political subject” (Auchter 2014, 3). I embrace queer bodies as ghosts at/of the ICTY, rather than demand that they materialize within exclusionary legal frames. As such, a hauntological reading of the ICTY and an appreciation of the “ghostly … allows us to see alternative ways of being” (McLeod 2019, 675; see also Freccero 2013, 342), both within and beyond international criminal justice. Because ghosts reside on the margins, and in the borderlands, resisting binary ontologies, a hauntological approach demands sitting with and “proceeding from those points of discomfort” (Clark 2018, 608).

I apply this queer hauntological approach to the ICTY through an analysis of selected legal documents, including court transcripts, trial judgments, and the ICTY Statute.⁵ For a site in which queer bodies are rendered absent/invisible, the task of my hauntological reading is to challenge the dominant cisheteronormative discourses of the ICTY and to trace specters where they appear absent but haunt the telling and documentation of war. I remain attentive to the ambiguities of silence and invisibility, including the politics of actively choosing silence in spaces that are hostile to queer visibility, but also to the institutional erasure of queer stories. My hauntological approach recognizes both kinds of invisibilities, including the potential for both agential and violent effects. This method thus entails reading the ICTY documents with an attention to the unseen but felt presence of queerness, where cisheteronormative representations of violence rely on the absence of queer bodies. It involves asking after queer ghosts, scrutinizing how and why they are excised from legal discourses. The excision of queer bodies at/by the ICTY might remove their obvious presence, but such cuts leave traces, and it is these that I explore in my analysis.

I identify such absences and silences by analyzing the discursive effects of law, including how the criminal elements in the ICTY Statute and court transcripts rely on a binary, cisheterosexual legal subject, thereby erasing non-normative and queer bodies from view. Silences and absences are revealed by the traces that they leave. Even where queer bodies appear absent, such as in the definition of genocide, they manifest in the unspoken. In McLeod’s (2019, 673) work on “missing” women in Western accounts of the Bosnian peace process, she deploys a hauntological approach to “show how … depictions of masculinities work to render women as absent – almost missing – from the text, and presumably from the peace process.” In doing so, she does not claim that women are actually missing from these sites; rather, in these dominant masculine representations, a hauntological method senses the disruptive presence of those voices written out of these processes (see also MacManus 2020a, 2020b). There is just as much meaning to be gleaned from who and what is silenced and rendered invisible as from who and what is explicitly present. My hauntological approach is one of possibilities (for example, unearthing the politics of absenting certain bodies and disrupting binary, “normal” legal practices) and limits (for example, sensing ghosts but still finding oppressive silences). In what follows, I introduce the ICTY’s mandate and explore queer experiences in the former Yugoslavia before tracing queer ghosts at/of the ICTY.

Background: the ICTY and queer lives in the former Yugoslavia

In 1993, the UNSC established the ICTY in response to the conflicts and atrocities in the former Yugoslavia. Its jurisdiction covered crimes that had taken place since 1991 in Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. As the first tribunal established in the late twentieth century, the creation of the ICTY became emblematic of the modern international justice project, paving the way for successive tribunals and courts. Its establishment coincided with a broader gender justice movement, one that pushed for the recognition of sexual violence against both women and men by the ICTY. The Tribunal was tasked with investigating and prosecuting crimes against humanity, war crimes, crimes of genocide, and grave breaches of the Geneva Conventions. Over its 24-year mandate, the ICTY indicted 161 individuals, heard from at least 4,650 witnesses, and produced 2.5 million pages of transcripts (ICTY n.d.). During this time, evidence collected by international investigators was presented relating to various atrocities committed, including killings, torture, forced transfers, forced imprisonment, and sexual violence.

With at least 130,000 people killed and approximately four million people displaced during the conflicts (International Centre for Transitional Justice 2022), it should seem obvious that queer lives were affected by the violence. However, one must also consider the queerphobic legal and socio-political context that meant that many queer persons (in the former Yugoslavia and globally) chose silence and invisibility to avoid discrimination and punishment. It is thus unsurprising that there have been no empirical investigations mapping queer experiences during the conflicts (Nellans 2020, 55), and that the ICTY remained silent on queer experiences, even as queer activism constituted a vibrant but risky form of resistance. However, LGBTQIA+ people were significantly affected by and subject to violence during this time (Mladjenovic 2001, 382), and invisibility must be seen as both an agential and a constrained choice, in a context in which their non-conforming gender identity and/or sexuality threatened the cisheterosexual norm.

Many queer Yugoslavs were able to leave the former Yugoslavia (Mladjenovic 2001, 382),⁶ but for those who remained, everyday homophobia was common, with one person narrating their experience of being called a “dirty lesbian” in the street, in an environment where “gay men were being harassed in their parks, [and] Roma people were being spat on” (Mladjenovic 2001, 387–388).⁷ This targeted violence was encouraged by ethnonationalist political leaders across the region who “adopted staunchly anti-queer stances” (Nellans 2020, 58; see also Pavlović 1999). The demonization of ethnic Others (such as Bosnian Muslims by Serbs) also frequently followed homophobic scripts (Moss 2012, 353; Zarkov 2007, 158), with this intersection of gender, sexuality, and ethnicity similarly evidenced in the witness testimonies at the ICTY. In the face of queerphobia, the ICTY’s erasure of LGBTQIA+ people is echoed in the forced silencing and invisibilizing of (violence against) queer bodies. Indeed, the Tribunal’s scant references to queer experiences recount how gay military men were “forced to retire” because of their homosexuality (Prosecutor v. Miroslav Kvočka et al. 2000) and gay detainees were targets of violence (Prosecutor v. Jadranko Prlić 2007).

It is also important to recognize queer activists in the former Yugoslavia who have “condemn[ed] homophobic violence … , nationalism, militarism, and machismo” and embodied queer forms of living and being (Bilić and Dioli 2016, 109). Embracing “Queeroslavia” means being “radical, inclusive, connecting to all kinds of politics and being creative about how we live in this world” (Bilić and Dioli 2016, 119, 111). More recently, the Association Okvir⁸ created Kvir Arhiv to document LGBTQIA+ “personal stories and memories related to war, gender, sexuality and security … documenting stories of relationships, communality, solidarity and resistance to war and ethno-national politics and practices in war and post-war BiH [Bosnia and Herzegovina] and region” (Kvir Arhiv n.d.). It established this project because queer “stories are excluded from the official narratives, completely invisible to the general public and LGBTQIA+ community themselves” (Kvir Arhiv n.d., emphasis added). Stories are collected across Bosnia and Herzegovina and told through video documentary, audio, and written testimony. Participants have the choice to be identified or remain anonymous, so that choosing silence or visibility is an agential practice, carefully weighed against the risks of being out and queer in the post-Yugoslav context. In contrast to the ICTY – which could be similarly understood as an archive of war testimonies – Kvir Arhiv does not erase queer experiences but amplifies them. The choice of anonymity in this context does not silence, but rather offers a safe and dignified way for LGBTQIA+ Bosnians to share their stories against a backdrop of institutional silence. I return to discussions of Kvir Arhiv in the concluding reflections of this article.

The official narratives told at/by the ICTY are ones that invisibilize queer experiences, which has violent effects for those queer people who survived or perished during the conflicts in the former Yugoslavia. Even as silence and invisibility remain both agential and constrained choices for queer people in the face of oppression, by erasing their experiences – of suffering and discrimination, but also of joy, hope, and community – sites such as the ICTY fail to recognize queer lives as liveable. A queer hauntological reading of the ICTY aims to destabilize these erasures, to see queer lives as lives that matter.

Queer bodies and ghosts at/of the ICTY

My hauntological reading attests to the invisible, the absent, and “what is felt/known but not seen” (Clark 2018, 609; 2019, 71). At the ICTY, tracing queer bodies is about looking for ghosts, precisely because LGBTQIA+ persons are rendered invisible in the Tribunal’s documents.⁹ My goal is to conjure queer ghosts where their existence is all but erased from ICTY discourses. I sense queer bodies as specters and notice how they haunt in the absence of explicit references to queer lives within these documents and by the judges, legal counsel, and witnesses. I explore how queer bodies figure in ICTY discourses through the gender-neutral and cisheteronormative codification of crimes within the ICTY Statute, through discourses on “homosexual(izing)” violence, and through the reification of the binary, cisheterosexual legal subject.

Haunting crimes within the ICTY Statute

The ICTY Statute is the Tribunal’s foundational document. Adopted by the UNSC in 1993 through Resolution 827, it has multiple functions, including defining the ICTY’s jurisdiction, organization, and operation and delineating which crimes can be prosecuted. As with other international criminal courts and tribunals, the ICTY’s mandate is drawn directly from IHL (see the “Background” section). These definitions are used in the investigation, prosecution, and judgment of individuals and inform determinations of innocence or guilt. The definitions of crimes in the Statute leave little to be imagined beyond what is written in the document. It is arguably quite difficult to ascertain how queer bodies might appear within these legal definitions, which are not only devoid of reference to sexuality but are also gender neutral, if not gender blind. This is unsurprising, given that IHL and ICL have yet to explicitly provide protections on the basis of non-normative gender identity and sexual orientation (Rossouw 2020; Suhr 2022). However, the lack of queer-inclusive terminology need not preclude ICL from charging individuals responsible for violence against queer persons, whether such violence was explicitly targeted or incidental (Suhr 2022). Indeed, a UNSC document issued soon after the ICTY’s creation noted that “violent crimes of a homosexual nature are not explicitly mentioned in international humanitarian law” but that protections would nevertheless apply “on the basis of equality and non-discrimination” (UNSC 1994, 75). My hauntological reading of these definitions considers how queer lives linger in between the words and the definitions, their spectral traces marked by their absence from the Statute.

For example, queer ghosts haunt the crime of genocide. Drawn directly from the Genocide Convention, the definition included in the ICTY Statute reaffirms that national, ethnical, racial, or religious groups are those that may be targeted for destruction and are recognized as such under law (ICTY 2009, 5–6). Notwithstanding how the absence of gender, sexuality, disability, and other social identities and communities as groups that can be targeted haunt this definition, I am drawn to the cisheteronormative assumptions underpinning this crime. As Matthew Waites (2018, 66) argues, the definition “was founded with implied application to groups that can and should reproduce and multiply themselves in a manner understood heteronormatively as both natural and good.” While Waites’ and my own argument here is not to discount the importance of ensuring the survival and flourishing of national, ethnical, racial and religious groups, the cisheteronormative “reproductive futurism” of the genocide definition “makes queer deaths seem less important” or “obscure[s] queer life” (Nellans 2020, 63, 49). Lily Nellans (2020, 64) argues that this happens because “queer people and others … are perceived to be non-reproductive.” Even though queer life and kinship can and do emerge through reproductive futurisms (Waites 2018, 66),¹⁰ the genocide definition erases violence against queer bodies that occurs in the present (Nellans 2020, 63) and makes invisible “queer culture, social identities and collectivities” (Waites 2018, 57). Within the ICTY Statute, the crime of genocide replays these legal violences, reinforcing the straight, cisgender, binary, and biologically reproducing legal subject. Queer bodies are excised from definitions of crimes codified in the Statute, but their absence leaves demands: to challenge the cisheteronormative foundations of IL and whose lives come to matter within these frames.

Haunting “homosexual(izing)” violence

A queer hauntological reading also unearths the queer ghosts that haunt discourses about “homosexual(izing)” violence in the court transcripts. Here I draw on witness testimonies of violence committed in prison camps across Bosnia that constructed victims as homosexual. These representations of “homosexual(izing)” violence are frequently assumed to be committed against straight, cisgender bodies, so that queer bodies figure as “aberrant” specters that haunt the cisheteromasculinity of war and justice.

Prison camps were established across Bosnia by Bosnian Serbs, Bosnian Croats, and Bosnian Muslims during the conflicts. These camps were sites of gendered and sexualized violence that worked to produce enemy men (ethnic Others) as homosexual, through being “exposed to” and “forced into homosexual relations” (Prosecutor v. Radovan Karadzić 2011). These practices of violence depended on cisheterosexual subjectivities, elevating the straight, masculine cisheterosexual man above homosexual, feminine, and trans bodies. Mock executions often reinforced these assumptions. For example, a guard pushed the barrel of a gun into the mouth of a detainee and “forced [him] … to kneel down and bark like a dog” before saying “‘Oh, you want to bite me, don’t you?’” (Prosecutor v. Duško Tadić 1996). This act has homoerotic connotations (it mimics fellatio), coupled with the suggestive taunt by the guard, who, despite instigating this violence, was assumed to be heterosexual (Lambevski 1999, 404). Forcing detainees to drink each other’s urine (Prosecutor v. Zdravko Mucić et al. 1997a) was another violence made possible through the guards’ perception of homoerotic practices, the suggestion being that drinking urine imitates the swallowing of semen in oral sex. Queer bodies are found in spectral traces in the retelling of these examples of “homosexual(izing)” violence at the ICTY. There is never any question about the “actual” sexuality of the victim-survivors; they are always already assumed to be straight, cisheterosexual men subjected to violence intended to “homosexualize” and denigrate them. Queer bodies are instrumentalized, dehumanized, and figured only in relation to what is “abject,” “abnormal,” and “perverse.”¹¹ My hauntological reading of these examples allows me to trace these “homosexual(izing)” violences and to conjure queer ghosts as those that expose the cisheteronormative assumptions that IL reproduces.

In another example, a witness recounts an incident in which homosexuality was invoked as a slur against the enemy Other:

[H]e would say “Who started the war?” We were all quiet and he said “Karadzic,” and we had to repeat after him “Karadzic.” He says “Who is the best man in the world?” and he says “Alija” and we have to repeat it after him. He says “Who is homosexual?” and there is somebody called Siljivo who is a shepherd, and we would say “Siljivo,” and Siljivo will say “I will fuck your Chetnik mothers,” and it went on like that. (Prosecutor v. Zdravko Mucić et al. 1997c)¹²

The homophobic slur reinforces cisheterosexual subjectivity and acts of “homosexual(izing)” violence. In Prosecutor v. Blagoje Simić et al. (2001), calling a detainee homosexual “warranted” targeted beating. Elsewhere, the court transcripts reflect the suggestion by perpetrators that detainees are ethnically and sexually Other in statements such as “Fuck Ustasha mother, if you want to kick him, God knows what you want to do with us”¹³ and “When you’re beating a Muslim, what would you do to a Serb?” (Prosecutor v. Radoslav Brdanin 2003a, 2003b). The unspoken yet present homophobic discourses might not appear obvious, but are made particularly evident when read alongside testimony from Prosecutor v. Zdravko Mucić et al. (1997b), in which the court heard of two brothers forced to engage in fellatio, a violence that rests on cisheteronormative assumptions that script homosexuality and incest as perverse (see also Zarkov 2007, 161). Testifying to the courtroom, one of the survivors relayed what the perpetrator had said to him in front of all of the detainees: “See what the Serbian brothers and Četniks are doing. That’s what they would do to me too” (Prosecutor v. Zdravko Mucić et al. 1997b). The denigration of non-normative gender and sexual identities and practices by the perpetrators is informed by notions of, and constructs queer bodies as, subjects of humiliation and incestual, homophobic taboo (Drumond 2018, 159).

The judges and prosecutors rightly condemn forced fellatio as an act of sexual violence and torture, but in their adjudication of these crimes they also repeat the cisheteronormative and homophobic discourses of the perpetrators. In one line of questioning, the prosecutor asks the witness to recount what occurred when a perpetrator wrapped a fuse around his naked body, as well as the instance of forced fellatio, about which the prosecutor asks: “Could you please now describe this other incident about oral sex in detail, please, without being embarrassed” (Prosecutor v. Zdravko Mucić et al. 1997b). While the ICTY’s investigation of these crimes serves important recognition functions, the prosecutor’s embarrassment around asking about these crimes reproduces rigid sexual and gender categories. Such a reassurance by the prosecutor to the witness could reflect the sense of shame that all victim-survivors (including women) might feel in recounting sexual violence, including heterosexual rape. However, this explicit invocation of embarrassment by the prosecutor is not one that I have found in other court proceedings across the selected cases. This could be an isolated example in which the prosecutor showed consideration for the witness’ dignity in narrating these crimes, but traces of shame related to forced homosexual practices, and between brothers no less, haunt the line of questioning. Indeed, in a different ICTY case outside of my selected cases, a witness tells of a “well-known … homosexual” and how “the military policemen would often – to get their kicks, they would make him do all sorts of things with this man Trebinjac” (Prosecutor v. Jadranko Prlić et al. 2007). In response, the defense counsel says: “This might be something that could be handled in private session given the gentleman’s – I mean – given the content of what – I just think out of respect for the individual” (Prosecutor v. Jadranko Prlić et al. 2007). The counsel and judges read these instances of violence as evidence of the perpetrators’ criminality and guilt, but by invoking logics of shame and embarrassment over “homosexual(izing)” violence, they nevertheless reinforce the same cisheteronormative discourses of violence that they seek to denounce.

The invocation of queer bodies at/by the ICTY in these examples reflects the ongoing maintenance of the straight, binary, and cisgender subject of international criminal justice. Queer ghosts lurk within these testimonies and legal discourses, challenging cisheteronormative assumptions about gender and sexuality, as well as whose bodies matter within IL.

Haunting the binary, cisheterosexual legal subject

A final and related way in which I trace queer figures and their spectral presence at the ICTY is by exposing how the construction of certain (straight, cisgender) subjects as victims erases the experiences of queer lives as lives that matter. Throughout the ICTY documents, witnesses provide evidence of their victimization within the camps. The Tribunal is limited to the evidence produced during the investigation and prosecution of cases, so it is understandable that queer bodies are absented by the ICTY, if, for LGBTQIA+ persons, not attracting attention to their queerness prevented targeted violence against them in the camps. However, international criminal justice mechanisms are not passive translators of evidence but reproduce and contribute to gendered logics of war. The assumption, then, that victims (and perpetrators) are binary and cisheterosexual excises queer bodies and their experiences from the Tribunal’s mandate, even as it leaves traces of what might have been possible had these stories been recognized.

For example, the ICTY importantly recognizes that women were overwhelmingly subjected to sexual violence, in addition to finding that men were also raped and sexually assaulted, a legal development that has chipped away at some of the binary understandings of conflict-related sexual violence. One indictment recognizes that crimes of sexual violence and beatings were committed against detainees, without reference to gender identity (Prosecutor v. Radoslav Brdanin 2001, para. 42; see also para. 55). Elsewhere, however, crimes are delineated by gender: “Male detainees were interrogated and beaten. Detainees were beaten in front of other detainees. Female detainees were raped” (Prosecutor v. Radoslav Brdanin 2001, para. 42; see also para. 55; Prosecutor v. Radoslav Brdanin 2004, para. 115). In the same indictment, it is noted that “non-combatant Bosnian Muslims were raped by unidentifiable soldiers” (Prosecutor v. Radoslav Brdanin 2001, para. 55), a statement that appears gender neutral yet nevertheless suggests, informed by gendered norms of soldiering and combat (Kinsella 2004), that non-combatants were mostly women and soldiers predominantly men. Thus, while gender binaries were (re)produced in the commission of violence in the camps by the perpetrators, they are also repeated in the Tribunal’s official records. The stabilizing of (straight, cisgender) men and women as legal subjects by the ICTY erases any possibility of queer lives as subject to violence and as agents or recipients of justice. The exclusion of LGBTQIA+ experiences is a violence that normalizes straight, cisgender bodies as the only bodies legible within and subject to international criminal justice, so that “‘other’ genders/sexes are even more ‘relegated’ or rendered invisible” (Zalewski 2018, 35). Transphobic and homophobic violence are thus also excised from the investigatory mandate of the Tribunal.

This is an absence compounded by the lack of evidence collected about violence against LGBTQIA+ people during the conflicts, one that also reflects the strategic silences and invisibilities that queer people are frequently forced to choose when the alternative could mean violence and death. However, the silence of queer persons is echoed in the ICTY’s silencing of queer experiences, and this haunts the justice-seeking project of IL generally. Viewing queer bodies as ghosts means exposing how their lives are rendered invisible, as well as seeing in their haunting a demand for a response, to regard their lives as intelligible and grievable and as lives that matter. A hauntological ethic instills this demand, but it also reveals how queer ghosts disrupt cisheteronormative binaries.

Conclusion

Queer lives figure in ICTY discourses as ghostly presences, rendered illegible within the cisheteronormative frames of international criminal justice, but my reading also positions queer ghosts as a challenge to this binary and cisheteronormative construction of legal subjects at/by the ICTY, exposing the violence of these legal arrangements. As my article has suggested, scholars and practitioners must take seriously calls for queer inclusion within sites of IL, not least because such provisions provide avenues of recognition and protection for LGBTQIA+ persons in peace and conflict. Odette Mazel (2022, 11, 13) offers an alternative to narratives of “co-optation and assimilation,” proposing instead to “read LGBTQIA+ peoples’ pursuit of legal reform … as queer jurisprudence,” with law potentially representing a vehicle for “transformative social and legal change.”

However, while queer inclusion is important and provides the recognition and protection called for by queer activists, such inclusion cannot on its own (if ever) dismantle the violent cisheteronormative foundations of international criminal justice. Ghosts demand that as scholars, activists, and practitioners we sit with discomfort (Clark 2018, 608), and that we recognize law’s violence and how queer ghosts can destabilize it, alongside demands for queer jurisprudence.

My analysis in this article has primarily revealed the violent, exclusionary practices that assume the straight, cisgender, and binary legal subject as the default. However, there are also costs when we try to include queerness and queer lives within these frames. Ratna Kapur (2018, 131–132) argues that there is a risk of compromising or losing our “queer radicality” through the “assimilative and normative gravitational pull” of IL. There are also risks around hypervisibility and legal victimization, whereby “the gender-variant person … is construct[ed] … solely through reference to the hardships they particularly suffer … [and] seen as a liminal, marginalised, figure” (Duffy 2021, 1058). This point is not to undermine the importance of recognizing anti-queer violence, but to remind us of the reductive, classificatory practices of IL. Queer bodies in this sense are no longer invisible under law, but their multi-faceted lives, including experiences of hope, joy, and community, remain ghostly. Instead, we might heed the call to reject IL entirely, “to abandon law’s violence (and, with it, the law as such) … in our search for a less violent future” (Hamzić 2018, 90, emphasis in original).

Hauntological approaches ask us to trace ghosts but not by making them visible and legible within the exclusionary structures that render them ghostly, invisible, and ungrievable in the first place (Auchter 2014, 25; see also Kumarakulasingam 2014, 62). Tracing ghosts at/of the ICTY allows us to explore (im)possibilities for queer inclusion within international criminal justice, even as the demand for inclusion brushes up against counter-calls for disrupting IL’s violence. To be sure, the ICTY has delivered justice by offering recognition of atrocities for victims and survivors, but it could not accomplish the kind of justice that is victim centered, addresses structural insecurities, and sees/hears all stories of conflict. IL will always be limited, and the queer ghosts that haunt the ICTY show that justice must be cultivated in other places, in alternative registers.

Kvir Arhiv is a small but important example of what this might look like, as are contemporary queer activist collectives in the region. Describing their motivations for creating Kvir Arhiv, the creators “asked two questions: How did [LGBTQIA+] persons survive the war? How did [LGBTQIA+] persons resist against the war during wartime?” (Kvir Arhiv n.d.). Their initiative amplifies queer voices in BiH, spanning war–peace continuums and entangled experiences of trauma, violence, love, and resistance. Kvir Arhiv offers responses that diverge from the ICTY’s legal grammars. It embodies a “disruptive archive,” where in both content and form “activist-produced texts offer an alternative feminist human rights vocabulary and theories of justice to convey the legacy of trauma and gendered political violence” (MacManus 2020a, 19, 29). As such, Kvir Arhiv allows LGBTQIA+ Bosnians to tell their stories, to be visible as well as heard. The oral history form disrupts the legal discourses of the ICTY and their erasure of queer bodies. Kvir Arhiv’s stories of war and injustice extend across the war–peace continuums, and they speak of love, joy, and hope amid queerphobic violence. While Kvir Arhiv does not contain discussion of the ICTY, its valuing of queer lives makes stark the ghostly silences and excisions at/of the Tribunal. Kvir Arhiv speaks in a disruptive, queer manner, one unfettered by legal forms and celebratory of queer life. It is a language that empowers queer people to tell their stories their way; they are not, as in IL, erased or made to “appear only as object-victims to be saved but not as speaking subjects” (Kumarakulasingam 2014, 63). The language of the Tribunal is depoliticizing and dehumanizing, and it seeks a retributive justice that cannot make sense of queer lives within its dominant cisheteronormative frames. By contrast, Kvir Arhiv provides a “textual space … [to] archive their narratives of trauma” and hope (MacManus 2020a, 59) and shows the possibilities that come with centering queer voices.

The work of Kvir Arhiv finds space for queer bodies beyond IL, crafting alternative, queerer worlds. This activism and commitment to seeing queer lives as intelligible, as grievable, and as mattering contrasts with the ICTY, a site in which queer bodies are present as spectral traces, rather than as materialized, speaking legal subjects. My hauntological reading of the Tribunal has sought to identify queer bodies at/of the ICTY. Instead, I have found that queer lives in this site are spectral, and in their haunting capacity, they disrupt the cisheteronormative and binary frames of war and justice. The ghostly method in this article recognizes queer bodies as liveable and grievable, even as their stories of violence, silence, and resistance are excised from ICTY discourses. Such a hauntological exercise encourages both scholars and activists working within the former Yugoslavia and beyond to center queer lives – even if (and perhaps especially when) they are assumed absent – within discourses of war and justice.

Queer contributions from IR and IL have revealed the insecurities faced by LGBTQIA+ persons, but also scrutinized the lack of scholarly and policy attention to queer lives. They have emphasized the need to include queer voices in peace, security, and justice processes, but at the same time to acknowledge that inclusion might risk co-optation and the perpetuation of cisheteronormative agendas. My analysis has aimed to challenge law’s violence, centering the disruptive, non-binary, and demanding figure of the ghost. A hauntological approach is a method for seeking out alternative worlds. Queer lives are excised from the ICTY, but they linger as ghostly presences, as bodies who exceed the binary, cisgender, and straight imagining of humanity, finding ways for queer inclusion and refusal. Ghosts demand justice, and this can take place through calls for queer jurisprudence (Mazel 2022, 15), for reforming law to include LGBTQIA+ persons, and through calls for law’s dismantling, for exposing its (cisheteronormative) violence and cultivating alternative spaces to be and flourish. Queer ghosts inhabit and haunt this contradiction, not only seeking out reformed or alternative visions of international criminal justice, but demanding that queer lives are felt, known, and seen, as lives that matter.

Acknowledgments

A draft of this article was presented at the International Feminist Journal of Politics (IFJP) Hybrid Conference in July 2022. I thank Laura Shepherd for reading a draft and providing insightful feedback on this work, and the two anonymous reviewers and the editorial team at IFJP, especially Natália Maria Félix de Souza and Ben Woolhead, for their encouragement and engagement with the article. My sincere thanks also to the Enloe Award committee members for their valuable comments on, and support for, this article.

Disclosure statement

No potential conflict of interest was reported by the author.

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Caitlin Biddolph

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.

Notes

1 The Extraordinary Chambers in the Courts of Cambodia (ECCC) is an exception, though its efforts are not unproblematic (Grey 2019). The International Criminal Court (ICC) is also slowly making headway in recognizing sexual and gender minorities (Suhr 2022).

2 A former ICTY legal intern (in a personal communication) advised me that there were lawyers working at the ICTY who were trying to get crimes against LGBTQIA+ people on the Tribunal’s docket. Queer victims and witnesses wanted to testify, but were forced to withdraw given the high risks and high visibility of testifying, and the inadequate witness protection program in place. This reflects the cisheteronormativity of an international criminal justice system that fails to achieve justice for queer victims and survivors.

3 I use quotation marks around “homosexual(izing)” to reflect an uneasiness with the term, including how violence that aims to render individuals homosexual deploys homophobic logics of queerness as inferior and perverse.

4 Stoffel’s work draws on Judith Butler’s (2004, 2009) concepts of grievability and liveable lives (see also Auchter 2014; Hamzić 2018).

5 The analysis in this article is drawn from a larger research project focusing on five ICTY cases (265 documents), exploring violence committed in camps across Bosnia and consisting of gendered and sexualized discourses: Prosecutor v. Duško Tadić, Prosecutor v. Zdravko Mucić et al., Prosecutor v. Miroslav Kvočka et al., Prosecutor v. Radoslav Brdanin, and Prosecutor v. Rasim Delić. All of the documents are in English and available from the ICTY’s public online records (https://www.icty.org/; http://icr.icty.org/). The documents and examples in this article were selected for analysis because they demonstrate the excision (thereby leaving a trace) of queer bodies at the ICTY.

6 LGBTQIA+ people left the region because of the wars and the risk/experiences of targeted violence against them (Gould and Moe 2015, 276–278).

7 Logics of race, religion, and ethnicity are entangled with gendered and sexual(ized) experiences of violence in the Yugoslav context. For this article, I center the erasure of queer persons from the ICTY, but this should not preclude an awareness of the racist discourses and logics of ethnonationalism across war–peace continuums in the former Yugoslavia and at the ICTY (see for example Baker 2018; El-Tayeb 2011; Todorova 2018).

8 Association Okvir projects receive international funding, including from the United States and European governments and transnational LGBTQIA+ civil society and human rights organizations (Association Okvir 2021).

9 Queer bodies are not explicitly discussed at the ICTY (other than a few exceptions noted in the article). However, it is likely that there are witnesses, victim-survivors, and perpetrators who do/do not conform to cisheteronormative identities, expressions, and practices.

10 See for example José Muñoz’s (2009) critique of the concept of reproductive futurism as ignoring queer of color experiences (see also Rao 2020, 17).

11 See Prosecutor v. Vojislav Šešelj (2008), where homosexuality is invoked as perverse with respect to a policeman who forced a detainee to kiss a photograph of Serb World War II General Draža Mihajlović. The policeman remarked: “Draža is not a homosexual. Why are you kissing him on the lips?”

12 Prosecutor v. Zdravko Mucić et al. investigated crimes committed by Bosnian Croats and Bosnian Muslims against Bosnian Serbs. Radovan Karadžić was the president of Republika Srpska and charged with crimes of genocide, crimes against humanity, and war crimes against the non-Serb population. Alija Izetbegović was the president of the newly independent BiH during the conflicts. Chetnik/Četnik is a commonly used slur referring to Serb people. Its origins can be traced to the Serb nationalist guerrilla movement in World War II, which fought against the Nazis and their collaborators (the Croat Ustasha), but also committed atrocities of their own against Muslim and Croat populations. During the conflict of the 1990s, Chetnik referred to Serb armed forces that had the goal of creating a “Greater Serbia” throughout Yugoslavia.

13 Ustasha was an ethnic slur for Croats used during the conflicts, originating from the Nazi-allied fascist Ustasha forces in World War II, which committed atrocities against Serb and Muslim populations.