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

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. However, in the absence of feminists holding them to account, such institutions may well do a much worse job of addressing gender injustices manifested through misrecognition, misrepresentation and maldistribution. To my mind, walking away from the feminist legal project (or indeed the political or bureaucratic one) is in my view a backward step. I think the more difficult path is to enter the fray, to persist in seeking out institutional ‘soft spots’, to push for and build on incremental changes – that in themselves can be transformative – and to attempt to hold the line when the next inevitable wave of resistance and backlash occurs.

As Patricia and Valerie highlighted in their comments, it is important not to see feminist engagement with the law in dichotomous win/loss terms, including as Valerie rightly points, in relation to the definition of gender in the Rome Statute. Whereas many feminist critics have criticized the definition as a comprehensive failure for gender justice advocates, Patricia rightly notes that I do not deem the outcome as fatal. Instead, as Patricia explains, I draw upon Valerie’s “subtly voiced” notion of ““constructed ambiguities” that exist even in the face of a less than salient win or a terse compromise”. Constructive ambiguities, as Valerie’s work has shown, and as I point out in the book, can cut both ways. At the ICC, these ambiguities have helped in developing a gendered understanding of representation and of reparations and assistance through the Trust Fund for Victims. However, as yet they have done little to improve gender recognition, including through an interpretation of the definition of gender agreed to at Rome, or as Valerie points out, a range of other crimes, including forced marriage or gender persecution. Moreover, the extent to which these ambiguities have been exploited in ways that improve gender justice has largely been dependent on the presence or absence of focused and forceful gender justice advocates –including, it should be noted, Patricia and Valerie themselves, Judge Odio Benito, Prosecutor Bensouda, Brigid Inder, and key organisations such as the Women’s Caucus followed by the Women’s Initiatives for Gender Justice – operating within and outside the ICC. In it has mattered to the achievement of gender just outcomes that there have been feminist voices in and around the ICC in its early years.

These concepts of critical friendship and constructive ambiguity help me to address Mark’s question: “Why is it, then [given its retributive focus], that advocates for gender equality invest greatly in the prosecutorialism of an international penal institution?” With this and his subsequent questions, Mark makes important points, which requires more detailed responses than I can provide here, but I will give three brief reactions. First, I think we need to remember that a prosecutorial strategy is not the sole or even primary focus of feminist action in seeking conflict and post-conflict justice. Gender justice strategies are multi-pronged, with feminists strongly invested in seeking justice through transitional justice mechanisms (see Ni Aolain, Haynes and Cahn for examples), as well as in peace processes and in conflict prevention, as the exhaustive efforts around the Women Peace and Security agenda demonstrate.

Second, I think Mark is right in intimating that feminists have engaged with international criminal law as a pragmatic response to the development of international tribunals including the ICC, and  as I discuss in the book, speaks to the ‘nestedness’ of the Court in the broader system of international relations. As the Court was coming into being, feminists were organising across international legal venues, including the ad hoc tribunals and more broadly through the UN Beijing Platform for Action. As Valerie has argued elsewhere, with the ICC: ‘we came to the conclusion that the train is in the station, the train is leaving the station, if we do not jump on the train right now, what is going to be the outcome?’ For those active in the international feminist community at the time, engagement with the Court was risky, but for many not engaging was riskier.

Third, it seems a reasonable proposition that victims of all crimes, including sexual and gender-based violence, should have access to access to all available accountability venues, including retributive processes given they are and are likely to remain an ongoing feature of the international and national legal landscape.  As ICTY Prosecutors Serge Brammertz and Michelle Jarvis demonstrate in their excellent edited collection on prosecutions for conflict related sexual violence, through trial and error, international tribunals are gradually learning how to contextualize conflict related sexual violence and to appreciate how it is integral rather than incidental to other acts of violence. With this deeper understanding comes a better chance of successful prosecutions for SGBV, resulting in the end of impunity for perpetrators and better recognition of the harms suffered by victims. In a more perfect world, we might also see the expressive power of prosecutions, and their ability to deter the commission of these sexual and gender-based violent acts in future conflict. Even so, such an approach will only ever be one strategy among many for seeking to prevent and seek justice for conflict-related sexual and gender related violence, and, ultimately, to understand and undo the gendered foundations of the law.

My final response relates to the issue raised by all three commentators about the approach to gender taken in The Politics of Gender Justice at the International Criminal Court. I agree with Patricia’s comment that ‘the book under-develops the impact of inter-sectional fault lines other than gender’; my reading of gender was a relatively narrow one, and was focused on the effect of gender legacies primarily on women. I explain in the book that I think this approach to gender is an important first step, but I agree that as a result, the book doesn’t capture how these legacies also affect men – including through privilege and through the enactment of different gender biases on male victims of sexual violence for instance. Nor does it address how gender intersects with other identities, including sexuality or race. As Mark points out, my book also doesn’t speak directly to the issue of female perpetrators. As this is a matter yet to come before the ICC, there wasn’t an opportunity to provide a detailed discussion, but with the possibility of a case coming before the Court against former First Lady of Côte d’Ivoire, Simone Gbagbo, it could become a very salient concern in future. (As a side note, I look forward with great anticipation for the imminent release of Laura Sjoberg’s new book on this topic, Women as Wartime Rapists).

With a potentially transformative mandate, the ICC has an important role in the broader matrix of international justice and accountability to ‘surface’ gender biased assumptions of the law and to end impunity for sexual and gender-based crimes. The ICC is still a very new institution, just entering its adolescence. As we receive news of key African states, including South Africa and Burundi, indicating their intention to withdraw from the Rome Statute, we can only hope that the Court survives into adulthood to advance both gender justice, and in Mark’s terms, ‘other fault-lines of gruesome injustice’.