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Author’s Response: The Politics of Gender Justice at the ICC: Legacies and Legitimacy

Published on December 22, 2016        Author: 

I am immensely grateful to the EJIL:Talk! Editors for sponsoring this discussion and to Mark Drumbl, Patricia Viseur Sellers and Valerie Oosterveld for their thoughtful and detailed responses to my book The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. It is a true honour for me to have had these three esteemed international law experts carefully read and comment on my work. Their eloquent responses captured aspects of my argument better than I ever could, and I thank them for helping me to think more clearly about how the different facets of the book speak to various audiences, and the work that still needs to be done in understanding gender and other intersecting injustices under ICL.

I was heartened that both Patricia and Valerie responded favourably to my positioning as a ‘critical friend’ of the ICC, and the ICL feminist legal project more broadly. Immersing myself in the critical feminist law literature in recent years, I quickly realised many of its core critiques are similar to those of some feminist political scientists and sociologists who regard feminist engagement with ‘the state’ as a dangerous project, likely only to lead to co-option and shoring up a patriarchal institution (see my analysis of these debates here). While not dismissing the limitations, compromises, challenges, and indeed losses that can come with engagement with any aspect of the law – including ICL – I have also felt some unease with arguments that recommend rejecting the feminist legal project in its entirety. This comes from my deep pragmatic impulse. If gender justice advocates withdraw from engagement with powerful institutions – be they courts, state bureaucracies, or legislatures – these institutions won’t stop regulating our lives. Read the rest of this entry…

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Gender Justice and International Criminal Law: Peeking and Peering Beyond Stereotypes. Book Discussion

Published on December 21, 2016        Author: 

Louise Chappell unpacks how gender justice advocacy at the International Criminal Court contests the gendered legacies of international criminal law. Deploying a feminist institutionalist framework, Chappell provides an anatomy of these advocacy efforts in the establishment of the Rome Statute regime as well as in the ICC’s actual operations. Chappell offers a detailed road-map of gender at the ICC, and does so through a powerful (and seamless) synthesis of qualitative, quantitative, and expository methodologies. In short: her superb book is a must-read.

Chappell unfurls how gender advocacy nested within the ICC. The ICC, assuredly, is not an island. Concerns about gender justice animate the work of other international courts and tribunals. Both concurrently and previously to the ICC, these other tribunals advanced goals of equal representation in international institutions and criminalized acts of gender- and sexual-based violence. The ICTY, for example, confirmed in Furundžija that rape and other forms of sexual violence in armed conflict are war crimes. It also ruled that rape and sexual violence could constitute the actus reus of torture. The ICTR held in Akayesu that rape can constitute genocide as an act integral to the destruction of a group.  Furthermore, as Darryl Robinson and Gillian MacNeill note, in addition to defining rape the two ad hoc tribunals also ‘recognized many other forms of sexual and gender based violence, including sexual slavery, enforced prostitution, enforced sterilization, sexual mutilation, and public humiliation of a sexual nature.’ The ad hoc tribunals also developed procedural rules of evidence that promoted gender justice by protecting witnesses who came forward to testify. Finally, the Special Court for Sierra Leone merits mention. Its ground-breaking work on sexual slavery and forced marriage as an ‘other inhumane act’ has informed the proceedings currently underway at the ICC against the LRA’s Dominic Ongwen.

Gender justice at the ICC cannot be disentangled from gender justice in the enforcement of international criminal law generally. Read the rest of this entry…

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Gender Justice Legacies at the ICC. Book Discussion

Published on December 20, 2016        Author: 

Louise Chappell’s The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is a wonderfully-written account of the recent history of the International Criminal Court’s (ICC’s) role in promoting gender-inclusive justice. Her book demonstrates deep thinking and cogent analysis. It brings together three strands of political and legal theory – gender justice, feminist institutionalism, and the legitimacy of international organizations – to provide a unique analytical perspective on the mandate of the ICC and its implementation of the gender-related provisions in the Rome Statute. Ultimately, her interdisciplinary analysis provides a convincing analysis of gender-related developments within the Rome Statute and within the ICC.

Adopting a definition of gender justice from social theorist Nancy Fraser (p. 5), Chappell approaches the term from three directions: redistribution; identity recognition; and representation. Quoting Fraser, Chappell explains that redistribution focuses on addressing women’s exploitation, deprivation and marginalization (p. 6). Recognition involves instilling institutional patterns that express equal respect and opportunity for women and men (p. 6). Representation is focused on creating new rules and structures of inclusion, often through procedural means (p. 6).

Throughout the book, Chappell approaches her analysis from the point of view of “critical friendship”. Chappell and Mackay define critical friends as those who offer “sympathetic critique and make contextual judgment. They celebrate the ‘small wins’ that feminist insiders may make against the odds, and expose the gendered obstacles and power asymmetries that blunt reformist potential” (p. 9). Read the rest of this entry…

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Beyond a Recitation of Sexual Violence Provisions: A Mature Social Science Evaluation of the ICC. Book Discussion

Published on December 20, 2016        Author: 

Louise Chappell has penned a significant book – The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy.  Far removed from a recitation of expanded sexual violence provisions within the Rome Statute, or a reiteration of the constricted definition of gender, Chappell sharply defies how to tally whether the International Criminal Court has delivered upon a gender justice mandate that is inextricable from its very institutional legitimacy.  The book tenaciously grapples with Nancy Fraser’s tripartite model of gender justice that necessitates redistribution, recognition and representation in order to generate a transformative justice that can address transnational injustices in a post-Westphalian context.   The author applies a decidedly feminist institutionalism to examine the Court, an innovative judicial mechanism that has inherited legacies from the law and from other international tribunals and courts.  Starting with the vaulted design of the Rome Statute, the book explores the formal and informal functioning of the rules and of the Court as well as the nested or international spatial context in which the ICC operates.

Importantly, throughout this exploration, Chappell identifies as a critical friend, but not an identical twin of the “feminist international legal project” nor is she an adept of the linear triumphalist approach to transitional justice.  She refrains from any attempts to embody an androcentric reasonable person stance. The author acknowledges that the book under-develops the impact of inter-sectional fault lines other than gender, in its “captured” state.  It also consigns the gender jurisprudence to being synonymous with female-related sexual assault cases. Notwithstanding, through the deployment of finely honed theoretical frameworks emerge measured, human-centered and keen observations of the Court’s initial decade as a supra-national provider of gender justice. Two eminent themes that Chappell unwraps, legitimacy of female presence at international judicial mechanisms and ramifications of the Women’s Caucus’ negotiation of the Rome Statute and, another sub silentio theme, the verve of a complex feminist critique of the ICC, merit sustained public attention.  Read the rest of this entry…

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The Politics of Gender Justice at the ICC: Legacies and Legitimacy

Published on December 19, 2016        Author: 

book-4The Rome Statute of the International Criminal Court provides the most advanced articulation ever of gender justice under international law. In designing this aspect of the Rome Statute, states were influenced by the Women’s Caucus for Gender Justice, a dynamic international feminist advocacy network who used the creation of the Court as an opportunity to challenge the existing gender biases of the law and ensure the (mostly negative) lessons from the existing tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were not repeated at the ICC.

The pioneering gender justice mandate of the Rome Statute has three core elements. The first element relates to recognition of a range of sexual and gender crimes commonly, but not exclusively, experienced by women in conflict settings that had never before been treated with equal gravity to other war crimes or crimes against humanity. The second element relates to the provision for fair representation of women on the bench, and of experts in sexual and gender based violence across all the organs of the Court. The third element relates to redistribution through the ICC’s innovative reparations and assistance mandate, and administered via the Trust Fund for Victims. Another unique aspect of the Statute – and one that has its own underlying gender dimensions – is the complementarity framework, ensuring that states maintain jurisdiction over international crimes unless they demonstrate an inability or unwillingness to do so.

With these provisions, states parties established a potentially ground-breaking Court, capable of overturning some of embedded gender legacies of the law. The question raised in The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is how well in its early years has the ICC reached this potential? And, where the Court has missed the mark, what injury has it caused to its legitimacy with its key gender justice constituency? Read the rest of this entry…

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South Africa’s Withdrawal: A Lesson Learned?

Published on December 6, 2016        Author: 

In October 2016, South Africa formally notified the United Nations Secretary-General of its withdrawal from the Rome Statute (‘RS’) pursuant to article 127(1) thereof. In its reasons for so doing, the fact that it was placed under ‘conflicting international law obligations’ during President Al-Bashir’s visit to the country was particularly relevant. The importance of distinguishing ‘well-founded concerns’ from other reasons for withdrawal has been subsequently noted; this helps draw the appropriate lessons therefrom. In a previous post, it was argued that there is no such conflict. However, varying views on the matter should be duly considered, particularly since the cause, consequences or mere existence of conflicting obligations may constitute a well-founded concern. This will ensure that the focus remains on resolving the relevant issues. Consequently, the present contribution offers a divergent conclusion.

The Court’s Request for Arrest and Surrender: Conflicting Obligations(?)

Sudan is not a party to the RS, but the International Criminal Court (‘ICC’ or ‘the Court’) has jurisdiction over crimes allegedly committed therein by virtue of article 13(b) and the referral of the situation in Sudan by the Security Council (‘SC’) (SC Res 1593). An investigation and the issuance of two arrest warrants for President Al-Bashir in 2009 and 2010 followed (see here and here), each accompanied by a request to states parties for his arrest and surrender (see here and here). However, many states parties considered their compliance with the Court’s requests – as required by article 89(1) of the Rome Statute – problematic.

As a non-party, all states are obliged under customary international law to refrain from arresting Al-Bashir by virtue of his immunities ratione personae (South Africa was also allegedly obliged to do so as a result of other international law obligations, but these need not be discussed for present purposes). State parties have waived their officials’ immunities insofar as these otherwise ‘bar the Court from exercising its jurisdiction over such a person’ (article 27(2)), but the RS cannot bind non-party states. Thus, although this has at times been questioned, article 98(1) seems applicable: Read the rest of this entry…

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Negotiating Justice at the ASP: From Crisis to Constructive Dialogue

Published on November 29, 2016        Author: 

During the past two weeks, the world came together in The Hague for the Assembly of States Parties (ASP), the annual diplomatic meeting on the International Criminal Court (ICC). It was clear that this session would be crucial for the ICC’s future and its place in the geopolitical constellation. The weeks before had thrown the Court in somewhat of an existential crisis: Burundi, South Africa and Gambia announced their withdrawal from the ICC. Several other states, such as Uganda and the Philippines, announced that they might leave too. Russia withdrew their signature from the ICC a day after the Court called the Crimea situation an international armed conflict and occupation. And US mobilization against the ICC is anticipated following the Court’s announcement that it may soon open full investigation into Afghanistan, including US conduct. Not surprisingly therefore, the main theme of this year’s ASP was (African) critique, cooperation and complementarity (i.e. the relationship between national prosecutions and the ICC as a court of last resort). However, observers of this year’s ASP also noticed a remarkable turn of attitude, language, tone and body language by representatives of the ICC and most state delegations. Like Darryl Robinson pointed out in his post, the discussion on the critique of the ICC during this ASP session could be described as “groundbreaking” – open, respecting and mature – while “constructive”, “dialogue” and “common ground” became this year’s sound-bites.

How the ICC and the project of international criminal justice will affect and be affected by this shifting geopolitical landscape remains to be seen. However, more than merely a technocratic meeting between states on the management and budget of the institution, the ASP functions as an annual diplomatic ritual where stakeholders reconstitute and renegotiate the ICC, and the international criminal justice field more broadly. It is a site of continuous (re)negotiation and political proxy battles on the law and politics, practice and development of international criminal justice. As such, the ASP offers an ethnographic prism for understanding how consensus and contestation in global deliberation processes forms part of the identity project of international criminal justice.

Lost amid polarization

This year was decidedly different from previous years, when polarization grew increasingly tense. Read the rest of this entry…

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Africa and the ICC: Shattered Taboos, and the Status Quo

Published on November 23, 2016        Author: 

The withdrawals of South Africa, Burundi and the Gambia from the International Criminal Court have generated much discussion in the past few weeks. After shock and despondency, commentary has shifted to new and creative ways of dealing with the ICC’s ‘Africa problem’. Some of these proposals are truly original, for instance Ambassador Scheffer’s suggestion that African states should target non-African states to balance the ICC’s case docket, while others strike a more measured (Mark Kersten here) but ultimately hopeful (Darryl Robinson here and here) tone about the prospects of salvaging the international criminal justice project. As far as I can tell, only one commentator engages head on with the full spectrum of critiques and problems that the ICC faces, making Tor Krever’s conclusion that “little has changed” particularly noteworthy. In this post, I want to suggest that the conflict between the ICC and African states has poisoned the debate in subtle and imperceptible ways that raise troubling questions about the future of the international criminal justice project.

The Shifting Debate

The debate about the ICC’s role in Africa has certainly shifted in the past few weeks. At the ongoing Assembly of States Parties (ASP) in The Hague, civil society representatives are, for the first time, voicing formerly taboo opinions, like the suggestion that Al-Bashir may benefit from immunity under customary international law. To be sure, civil society groups are not endorsing this legalistic argument, which has long been put forward by prominent scholars of international law (see here, here and here), but it is certainly a revolution of sorts when NGOs acknowledge that the African Union (AU)’s denunciation of the ICC’s conflicting case law on Head of State immunity is more than just Machiavellian politicking aimed at shielding dictators.

Whatever the merits of the AU and South Africa’s legalistic position on Bashir’s immunity, it is hard to deny that a major shift may be afoot when the ICC’s President rushes to welcome the justice minister of South Africa, which just repudiated its membership of the Court, in a last-ditch attempt to accommodate his government’s concerns and, hopefully, find a way out of ‘the impasse’.

This is not to suggest that the ICC should not engage in diplomacy. If there is a way to change South Africa’s withdrawal decision, then the Court’s representatives should certainly try. However, in the rush to stem the prospect of diminished membership, the ICC must not lose sight of the bigger picture and the ideals on which it is premised. The real danger is that the ICC vs. Africa quagmire has already irreversibly changed the debate, with negative long-term consequences for the Court and its supporters. Read the rest of this entry…

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Feeling a Way Forward for International Justice – ICC, Africa and the World

Published on November 22, 2016        Author: 

As we all know, 2016 has seen, on many fronts, a surge of isolationism and nativism, as well as a tendency toward polarization and “post-factual” rhetoric. Against this global backdrop, there were reasons to expect dramatic confrontations at the ongoing session of the International Criminal Court’s (ICC) Assembly of States Parties (ASP). In recent years, discontent with the ICC has been growing, particularly among African states, culminating in three prominent withdrawals (on which see my previous post). If badly handled, the situation could lead to further withdrawals and setbacks for international criminal law.

The ASP has instead offered a promising glimmer of light in the gloom of 2016. On Friday 18 November the ASP held an “open bureau meeting” on the ICC-Africa relationship. The maturity of the discussion renewed my hope in the possibility of respectful listening, open-mindedness, sincere engagement and meaningful change.

Rather than drawing battle lines, delegations from all latitudes generally reached out in a very open and reflective manner. The sensationalist, oversimplified criticisms that are common in media and even academic commentary made little appearance. Instead, delegations generally advanced grounded, focused concerns and possible solutions.

For a great many states, the current impasse was a wakeup call. Instead of reacting to all concerns as attempts to undermine the Statute and the rule of law, delegations showed a sincere readiness for real conversations about the future of international justice. International justice must be inclusive justice. African states helped shape the Rome Statute system and will continue to do so. International justice must also be living and organic, adapting to experience. As the Ugandan delegate explained, a legislature can revise a rule based on experience and changed conditions, which is not necessarily to disrespect the original rule.

The discussion was at times moving. Some delegates at the podium shared heartfelt thoughts, their feelings of connectedness to other states parties, and even the personal tragedies that led them to support international criminal justice. Read the rest of this entry…

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Russia’s Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the ICC

Published on November 21, 2016        Author: 

On 16 November 2016, the president of the Russian Federation issued bylaw № 361-rp “On the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court”.

It follows from paragraph 1 of the bylaw that the Ministry of Justice of the Russian Federation, after consultations with a number of State organs, including the Supreme Court, the Prosecutor-General’s Office and others, suggested to:

dispatch a notification to the Secretary-General of the United Nations about the Russian Federation’s intention not to become a party to the Rome Statute of the International Criminal Court, which was adopted by a Diplomatic Conference of Plenipotentiaries under the auspice of the UN in the city of Rome, on 17 July 1998, and which was signed on behalf of the Russian Federation on 13 September 2000.

As Russia’s Ministry of Foreign Affairs (MFA) explained in an official statement on the same day, the most immediate effect of bylaw № 361-rp would be the withdrawal of Russia’s signature of 13 September 2000 from, and not proceeding to the ratification of, the Rome Statute in accordance with its Article 126. Officially, the MFA criticised the ICC for its alleged lack of efficiency and independence, biased attitude and high cost:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Read the rest of this entry…

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