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

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. 

Fraser’s just goal of positive representation and its corollary injustice, misrepresentation, according to Chappell, is central to comprehending the politics of gender justice at the ICC. The presence of professional females, especially judges, at international courts and tribunals has been written about by authors, such as Askin, who correlated the gender composition of a judicial bench to the gender-attentive jurisprudence it rendered, especially in regard to sexual violence holdings.  Misrepresentation, Chappell observes, is often harbored in the incessant inquiry into the legitimacy of the female voice, whether as a victim, a prosecutor, an expert or as a judge. Another facet of misrepresentation is disparaging the impartiality of female judges, such as encountered by Judge Odio Benito at the ICTY and the ICC.  Chappell aptly applies the insights of Anne Phillips who posits that an androcentric paradigm of impartiality logically leads to questioning not only “who” is represented on the bench, but the “legitimacy” of their views.  Misrepresentation is not an illusion.  It was manifest in the inane wrangling about the impartial and speculative value of gender expertise, that stifled the expert testimony of Binaifer Norowjee in Bemba. Although not used as an example by Chappell, but noteworthy, Judge Mumba’s impartiality in Furundzija, was assailed because she previously sat on the Commission for the Status of Women.  Ironically, the Furundzija appeals chamber, in dismissing that appellate ground, handed down the international law standard of judicial impartiality based upon a factual scenario that challenged, as biased, the feminist expertise of a female judge.  Today, the legitimacy of ICC, as shown in the detailed annex of ‘The Politics of Gender Justice’, depends in part upon the proven gender expertise of its judges. Yet, as Chappell cautions, vigilance for misrepresentation remains warranted.  Often, sex, meaning males or females judges, is substituted for gender expertise.

This book offers thoughtful insight into the pivotal contribution that the Women’s Caucus exerted on the drafting of the Rome Statute. Finally, the Women’s Caucus and its likeminded allies, in the post-Westphalian era, are saluted for having urged a transformative structural change upon international justice, by advocating for big ideas and insisting upon formal gender-attentive rules. Whereas the statutes of the ICTY and ICTR, formulated by the UN Office of the Legal Advisor, were reliant upon the ability of customary law to adjudicate gender crimes, the Rome Statute, could claim that gender justice formed part of its teleological objective.  Moreover, instead of the drafting process being a staid story, ‘The Politics of Gender Justice’ reveals its static nature by juxtaposing the strategic wins and failures of the Women’s Caucus drafting positions with the ICC’s mixed ability to deliver gender justice.  The politics of drafting treaties frequently lead to compromises perceived as losses.  However, not all losses are deemed fatal.  Chappell adheres to Oosterveld’s subtly voiced notion of “constructed ambiguities” that exist even in the face of a less than salient win or a terse compromise such as occurred with the definition of gender under the Rome Statute.

Certain drafting outcomes are only revealed in practice.  The Women’s Caucus proposed “dual track” to address sexual violence under both explicit sex-based provisions such as rape, and implicit provisions, such as torture, failed to be accepted by the Bemba trial or appellate chambers.  Moreover, the less than successful drafting proposals of the Women’s Caucus and the practice of the Court converge and are astutely discussed in the richly delineated section devoted to gender complementarity and the preliminary examination stage of cases at the ICC.  Chappell distills how a state’s criminal codes could lack provisions for substantive sexual crimes or for the corresponding procedural rules that assure gender justice at the national level. Nonetheless, such a situation would not necessarily trigger the ICC jurisdictional or admissibility safeguards.   Linking such gaps to the unsuccessful endeavors of the Women’s Caucus during the PrepComs reinforces a main tenet of the book, namely that the gender politics of the design or drafting of the Rome Statute inures consequences at specific time-bound operational stages of the ICC existence. Ultimately, Chappell is hopefully cautious.  She suggests that the ICC’s gender complementarity lacuna might prompt national gender justice constituencies to build gender accountability into their national criminal codes and consequently comply with the spirit of the ICC’s non-admissibility standards.

The book’s final chapter recognizes that the constant incremental steps instituted by Prosecutor Fatou Bensouda, such as specified policies for gender, preliminary examinations as well as her fervent public gender positive comments and her call to increase the enrollment of more African female lawyers on the list, augurs well for the ICC to render transformative gender justice. The book does not incorporate the more recent successful adjudication of the sexual assault charges, based on command responsibility, in the Bemba case or the confirmation of charges sexual violence charges for child soldiers in the Ntganda case.  Nor, according to Chappell, are significant cases victories to act as a panacea that detracts from implementing a multi-layered institutional project to achieve gender competence at the ICC. She likewise warns the gender justice communities against erroneous expectations, such as hailing the Lubanga trial chamber’s grant of reparations for sexual violence in the absence of having charged sex-based crimes.   In her opinion, mission creep diverts energy and could degrade the fragile gender legitimacy tentatively attained. Moreover she sees the fashioning of any consequential gender legitimacy as a collective responsibility to be born by the prosecution, the judiciary and constituent communities.  She avers that in its third decade, the Assembly of State Parties politically must commit to instituting a positive gender legacy at the ICC replete with securing optimum financing to execute the daily work of gender policies, such as recruitment of staff, appointment of in-house experts and deployment of resources to sexual assault victims.

The Politics of Gender Justice at the ICC’s evinces a mature social scientist approach to evaluating the ICC.  Her methodologically crafted gender lens situates the evolution of international criminal law’s gender politics. Although she characterizes the ICC’s current legitimacy as fragile, ultimately, Chappell envisions the ICC as able and willing to deliver a transformative gender justice legacy. Chappell advances that transformative gender justice occurs through a nuanced approach.  She values small consequential steps toward strengthening the gender mandate of the Rome Statute.  Steps and acts should remain subject to critical reflection, reform, or re-envisioning and resist complacency.  The Politics of Gender Justice at the ICC find compatible company in 2016 with releases of Prosecuting Conflict-Related Sexual Violence at the ICTY, an institutional review by the Prosecutor and practicing attorneys at the ICTY and the African Legal Aid’s book, The International Criminal Court and Africa. In the 2026 version of The Gender Politics of the ICC: Legacies and Legitimacy, the meaningful incorporation of intersections of gender such as ethnic, race, geographical region, religion, non-binary gender, age, disabilities, sexual orientation should inform and attune the gender justice examination.

Chappell has re-enforced, in sub silentio, by her convincing arguments, the audacity and necessity of a complex feminist critique of the ICC. It should become an analytical norm that complements the routine feminist assessment of the gender jurisprudence and that defies the international law critics who routinely omit gender, much less gender politics, as a critical criteria.

[The views and opinions expressed in this post are those of the author alone and should not be attributed to any other source]

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