Gender Justice Legacies at the ICC. Book Discussion

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). This situates Chappell in a middle position between those who strongly critique the involvement with, and decisions taken by, feminist actors in the creation and implementation of international criminal courts and tribunals (such as Halley) and those who champion these same institutions. I see much value in this position of “critical friendship”. It allows Chappell to examine the ICC in the realistic and temporal context within which the Rome Statute was negotiated, and to recognize the confines of the Statute’s implementation and the Court’s operation. At the same time, the position of critical friendship permits Chappell to identify where inroads made at each of these stages can lead to incremental change in favour of gender-sensitive forms of criminal justice.

In this post, I wish to focus on two issues that were raised in Chappell’s book, but not developed in detail. First, I wish to comment upon the legacy surrounding the definition of the term “gender” adopted during the Rome Statute negotiations. That definition states, in article 7(3): “The term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Chappell examines the negotiations in some detail in chapter 2. As she discusses, and as I have described here and here, the negotiations on the term “gender” were contentious and polarized between states supportive of a multidimensional understanding of gender and conservative states wishing to restrict the term to mean biological sex. The negotiations resulted in the adoption of a definition that recognized that gender is socially-constructed, while at the same time remaining opaque on how that social construction is to interact with the phrase “two sexes, male and female”. This is an example of a diplomatic move, referred to as resort to contructive ambiguity, used in many treaty negotiations to seemingly bring contrasting views together for agreement. As I have described, “each side gained vague language that can simultaneously mean different things to different people. They also both lost some certainty, in that the actual interpretation was left to the Prosecutor and, ultimately, the judges of the ICC”.

Chappell underscores that this “emergence of an imperfect blueprint” shaped the future path of the ICC (p. 47). While Chappell only hints at this, in my view the legacy of the contentious negotiations created initial uncertainty among ICC staff and officials as to the meaning of gender in the ICC context. This made them reluctant to use the term in contexts in which it might be challenged by defence counsel. Indeed, one senior ICC official confided to me years ago that many were unsure what to make of the definition, if it meant more than “women”. Chappell comments on this conflation of “gender” with “women” as a misrecognition (using Fraser’s definition) (p. 90). She could have gone further to argue here, as she does elsewhere, that, in an effort to avoid an exploration of article 7(3), those within the ICC turned to “remembering the old” and “forgetting the new” for many years (p. 127). In other words, they largely preferred stay in the safe confines of conflating “gender” and “women” than to press beyond into the realm of socially-constructed norms of maleness and femaleness. As Chappell notes, the exception was the Trust Fund for Victims, which was an early adopter of a sociological understanding of gender in its programming (p. 152).

In 2010, the Office of the Prosecutor finally appeared ready to confront article 7(3) by charging Callixte Mbarushimana with, inter alia, the crime against humanity of gender-based persecution. However, that opportunity to explain the meaning of gender to the Court was cut short by the dismissal of the case at the Confirmation of Charges stage. Chappell labels this as another example of misrecognition (p. 122). This failure seemed to put a chill on further persecution charges based on gender.

This apparent reluctance to tackle the complexities of gender changed, however, with the release by the ICC’s Office of the Prosecutor of its 2014 Policy Paper on Sexual and Gender-Based Crimes. Chappell situates the issuance of this Policy Paper in the framework of recognition, arguing that it is an example of “revisability” – in this case, of the Office of the Prosecutor recognizing its initial missteps and redirecting its future path (p. 124-6). I agree with her that this is an example of revision and redirection within the Office of the Prosecutor, and would add that this is particularly so with respect to the article 7(3) definition. I consider the Policy Paper’s discussion of the definition of the term “gender” to be both confirmatory and revolutionary in its understanding of the wide-ranging impact of socially-constructed gender norms.

The Policy Paper reiterates the official definition of gender stated in article 7(3) of the Rome Statute, and interprets that definition as “acknowledging the social construction of gender, and the accompanying roles, behaviours, activities and attributes assigned to women and men, and to girls and boys” (p. 3). The Office of the Prosecutor also defines the terms “gender-based crimes” and “gender perspective” in a manner to acknowledge the deep influence of gendered norms on both. The term “gender-based crimes” is described as crimes “committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender” (p. 3). The Office of the Prosecutor explains “gender perspective” as “an understanding of the differences in status, power, roles and needs between males and females, and the impact of gender on people’s opportunities and interactions” (p. 6). While this Policy Paper cannot bind the Court, it takes a groundbreaking step toward a nuanced and fulsome recognition of gender norms. Consequently, Chappell would undoubtedly acknowledge that this is a significant step away from misrecognition, as she does for other aspects of the Policy Paper (p. 124-6).

The second theme I wish to explore in relation to Chappell’s book relates to a violation sometimes referred to as forced marriage (or conjugal slavery). Chappell skillfully explains the negotiations around the inclusion of a number of sexual and gender-based violations in the Rome Statute as crimes against humanity and war crimes, and indicates that the inclusion of these violations is a form of recognition (p. 92-97). One gender legacy she does not explore in this section relates to forced marriage, but it demonstrates the “spatial nest” (p. 93) in which the Rome Statute negotiations occurred. At the time of the Rome Statute negotiations, there was no legal recognition of forced marriage as a violation separate from any of the recognized sexual and gender-based violations under international criminal law, particularly rape and sexual slavery. Commentators at the time referred to forced marriage as a form of sexual slavery (e.g. this 1996 Human Rights Watch report). Thus, states did not include forced marriage as a separately-named violation in the Rome Statute.

The Special Court for Sierra Leone later examined forced marriage in detail and indicated that it is not solely a sexual violation: in the context of Sierra Leone, it was a violation encompassing highly gendered forms of forced labour such as forced cooking, cleaning, portering, child-bearing and child-rearing, as well as sexual slavery (see here and here for my commentary on these cases). In other words, the Special Court identified forced marriage as a gender-based crime. Despite this evolution in the understanding of forced marriage within international criminal law, and perhaps because of the lack of certainty over the exact parameters of the crime, the ICC’s Prosecutor was reluctant to stray beyond the legacy of the 1998 understanding of forced marriage as sexual slavery. This is reflected in the Katanga case, in which forced marriage in the conflict in the Democratic Republic of Congo was labelled as sexual slavery (E.g. in para. 431 of the 2008 Decision on the Confirmation of Charges). This reluctance is also evident in the Policy Paper on Sexual and Gender-Based Crimes, which does not engage with forced marriage, but does discuss sexual slavery. However, in another example of the Prosecutor’s willingness to alter her strategies around gender-based crimes, which Chappell terms “revisability”, the Prosecutor charged forced marriage (under the crime against humanity of ‘other inhumane acts’) in the Ongwen case, and this characterization was upheld in the Decision on the Confirmation of Charges at, inter alia, paras 87-95. Such revisability is key to reinforcing the expressive function of international criminal law, particularly in recognizing the gendered nature of specific crimes.

In sum, Chappell’s book represents a significant and noteworthy contribition to the literature on the ICC specifically and gender justice more generally. Clearly, there is still work to be done to examine – and sometimes undo – negative gender legacies within the ICC and other sites of interpretation in international criminal law. In my view, Chappell’s volume should be read by all those interested in the ICC, whether practitioners or academics, and not just the sub-group of those interested in gender issues within international criminal law.