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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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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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