Since the end of the Cold War, feminist scholars and activists have successfully made the prosecution of sexual violence crimes a priority in the international criminal law (‘ICL’) agenda. A specific narrative about the ‘failure’ of the postwar trials to adequately address sex crimes recurs throughout these feminists’ work. They argue that not only was rape not a priority in the prosecutions of Germany and Japan, but mass Allied rapes also went unpunished. The Soviet rapes of German women during the fall of the Reich are often presented as canonical. This paper demonstrates how this feminist ‘failure narrative’ (‘FFN’) played a key role in justifying ICL reform projects. Even where feminists disagreed about policy recommendations, the FFN provided a historical reference point for a shared understanding of a common problem. Secondly, through the lens of Berlin 1945, I critique the FFN’s role in the development of modern ICL.
The FFN was important to feminists and others working on the post-1990 tribunals in part because it gave historical teeth to what they all took for granted: that prosecutions should focus on jus in bello (law in war) violations rather than on the jus ad bellum (law of war) considerations that had preoccupied – and, they argued, hamstringed – Nuremberg. In light of critical feminist histories of women’s experience of Soviet rape, I argue that many women actively participated in the production of national narratives of victimization that would have been incompatible with foregrounding rape at the postwar trials. The FFN depoliticizes the consequences of the modern in bello approach to ICL, and should be resisted.