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

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. Building on developments from outside its institutional parameters, the ICC also has actuated broader understandings of sexual and gender-based violence prosecuted within its jurisdictional remit. The 2016 Bemba trial judgment, for example, condemns sexual crimes committed against men and boys.

Gender justice initiatives at the ICC remain entwined with other advocacy movements. Notable in this regard is the push for children’s rights. The pairing of women’s rights with children’s rights – while perhaps seeming somewhat odd – does reflect the historical association, in Diane Marie Amann’s words (cited by Chappell),  of ‘women and children as bystanders, beings not fully conscious of the world around them’ within the Groatian Weltanschauung.

Chappell excels at setting out how gender advocacy experienced success – at times groundbreaking, but often mixed – at the ICC. As Serge Brammertz and Michelle Jarvis demonstrate in their recent edited volume, accountability for sexual violence still remains a work-in-progress. Nonetheless, gender has assumed a rightfully crucial place. To borrow conceptually from Christine Schwöbel-Patel, gender justice now infuses the aesthetics of international criminal law.  For Chappell:

[T]he ICC’s gender justice constituency […] is an important audience given the influential role it played during Rome Statute negotiations and throughout the early years of its implementation. For the ICC to lose the support of this constituency because of poor performance would create a serious legitimacy crisis.

Chappell catalyzes gender justice as ‘the yardstick by which the performance of the ICC is to be measured’ (5).

This move raises a number of interesting questions. The ICC is a criminal court. Its goal, first and foremost, is to determine the guilt or innocence of a very small number of accused in accordance with agreed-upon rules of due process. The primary outputs of a criminal court are convictions and sentences. It is hoped that by punishing offenders deontological goals of retribution, consequentialist goals of deterrence, and expressive goals of the value of law will be promoted. Yet criminal courts are punitive, repressive, and coercive institutions that are seen by many activists as accoutrements to exploitative hierarchies and endemic discrimination within the neo-liberal state. In fact, at the domestic level, human right activists tend to be wary of criminal courts and frequently preoccupy themselves with the rights of the defense. Why is it, then, that advocates for gender equality invest greatly in the prosecutorialism of an international penal institution? Is it because the ICC was coming into existence – regardless –  so it’s best to make it the best it can be; or because it is felt that criminal courts are a first-best place to achieve goals of dignity, empowerment, and equality for women? If the latter, then, should criminal courts and jailhouses serve more of a role in domestic rights enforcement? If the former, then, does investing so much in the ICC divert from other strategies and institutions that could promote equality?

Relatedly: Why is it that gender justice has succeeded in infusing the mandate of the ICC to a richer extent than other fault-lines of gruesome injustice, such as (dis)ability, sexual orientation, colonialism, indigeneity, socio-economic disenfranchisement, racism, environmental welfare, and corporate responsibility?  It is only very recently, for example, that the ICC Prosecutor has begun to talk seriously about environmental justice and corporate land-grabs, not to mention cultural crimes.

Chappel’s book focuses on women as witnesses to the violence of others, women as victims of the violence of others, and on women who investigate, prosecute, judge, administer reparations, and otherwise serve within international criminal justice institutions.

But what about women who perpetrate violence, including genocide, crimes against humanity, and war crimes?

Here, essentialisms, taboos, and stereotype abound.

A handful of women have faced international prosecution. Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development, is one prominent example. I have elsewhere argued that, while ICTR judges manicured a cardboard perspective that detached her from her sex and gender, media reports and litigation strategies cooked crude tropes. She, along with her sympathizers, relied upon her status as a woman, mother, and grandmother to ridicule the charges against her as absurd, implausible, or farcical: how could a maternal figure commit genocide, in particular exhort the mass rape of other women including by her own son? Nyiramasuhuko’s critics invoked her gender in the most punitive sense by insisting that her violence was all the worse, and her character all the more depraved, because she was a woman, mother, and grandmother: the fact that she committed these crimes rendered her more deviantly deserving of recrimination and punishment than a man.

Media curry caricatures to sensationalize and spectacularize. Hence, similar dynamics infect other discussions of women perpetrators, both today and historically. Animalistic language often arises. Irma Greise, a female SS guard convicted in the British military trial at Belsen, was lampooned in the media as the ‘beautiful beast’. Greise – twenty-two years old at the time – was executed by hanging on 13 December 1945.

Francisco de Goya y Lucientes also deploys the term ‘beast’ in his series Desastres de la Guerra (‘The Disasters of War’), created between 1810 and 1820 yet published only after his death. The eighty-two etchings and aquatints depict scenes of Spaniards fighting against Napoleon’s forces who had invaded Spain in 1808.  Goya did not laud heroism in his work. He laid bare war’s destructive effects. Even more so than Peter Paul Rubens, whose work regales the cover of Chapell’s book, Goya saw nothing but horror in war; and, again unlike Rubens, Goya portrayed women – civilian women, at the lowest ebb of power – as attackers, defenders, and assaulters. Goya titled his print depicting Spanish women fighting to protect themselves and their children from French soldiers ‘And they are like wild beasts’ (Y son fieras). For Goya, as for the journalists who derided Greise, women thereby became feral and rabid. Here it is in all its grimness, Plate 5 from the series:

With some exceptions – here and here and here, for instance – relatively little is known about women perpetrators of international crimes. It is important to learn more.  Without learning more, and without decoupling these conversations from salacious tropes of wild women or pitiful tropes of distressed women, the etiology of mass atrocity will remain poorly understood, along with the role of masculinities and femininities in the metastasis of collective violence.