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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

Published on April 18, 2018        Author:  and
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On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice Read the rest of this entry…

 

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

Published on December 21, 2016        Author: 
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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. Read the rest of this entry…

 
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Gender Justice Legacies at the ICC. Book Discussion

Published on December 20, 2016        Author: 
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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). Read the rest of this entry…

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

Published on December 20, 2016        Author: 
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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.  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: 
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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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