Gendered Harms and their Interface with International Criminal Law

Abstract

G e n d e r e d H a r m s a n d t h e i r I n t e r f a c e w i t h I n t e r n a t i o n a l C r i m i n a l L a w NORMS, CHALLENGES AND DOMESTICATION † FIONNUALA NÍ AOLÁ INMany feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. While acknowledging law's ineffectiveness in fundamentally reordering social relations, a number of scholars and policy makers believe that it is an institution that can be used to make substantive gains for women. The agreement by states on the establishment of an International Criminal Court (ICC), combined with a Statute that augments international legal prohibitions on violence against women, has given traction to optimistic views on international criminal law's capacity to proactively address female specific harms. Moreover, there is confidence that transformative international legal norms will, in turn, enable and support domestic law's capacity to advance accountability for violence against women. In that context, this article considers the potential for proactive and gender-centered complementarity under the ICC system. Based on a systematic review of a wide range of domestic legislation enacted by States Parties following signature and ratification of the ICC Statute, the analysis considers the significance and ramifications of domestic legal changes for the operation of the ICC complementarity system. Detailed consideration is given to ways in which the ICC complementarity regime might be operationalized to ensure a gendered understanding of the "unwilling and unable" standard contained in Article 17 of the ICC † Parts of this article have been previously presented at the Institute of Advanced Studies

‘But what about men?’ Gender disquiet in international criminal justice

“…Sceptics are a broad church ranging from scholars of radical feminism and Third World Approaches to International Law (TWAIL) to ‘sex-positive’ scholars. Radical feminists are sceptical of criminal law’s potential to advance feminism by which they mean the liberation of women from patriarchy (Ní Aoláin, 2014; Snider, 1998). They argue that law continues to be steeped in patriarchal norms which efface gender inequality and often render women less visible.…”

The representation of women in the judicial branch: Eighteen Latin American High Courts in Comparative Perspective

“…Regarding the presence of women in the judicial branch, the research mainly focuses on the analysis of the dimensions related to descriptive or substantive representation. On the one hand, some researches study how do international courts decide on cases about women's rights (Bensouda, 2014;Durbach and Chappell, 2014;Grey, 2014;Ní Aoláin, 2014). On the other hand, there are researches in which the use of gender-neutral language is analyzed as a topic for analysis in judicial decisions (Oosterverld, 2014;Koomen, 2014;Kenney, 2010;Maveety, 2010).…”

“…Additionally, the study of the presence of women in high courts is interesting because unlike other arenas of political decision-making, the institutional mechanisms of positive or reverse discrimination are practically nonexistent (Bensouda, 2014;Durbach y Chappell, 2014;Grey, 2014;Ní Aoláin, 2014;Scribner y Lambert, 2010;Hoekstra, 2010). In fact, Htun and Piscopo (2014) have shown that while legislatures have made considerable progress in establishing quota laws, there are no proposals of this type in the judicial arena.…”

Law, Gender, and Development: Potent Hauntings

“…Authors have hereby highlighted law's co-constitutive role in the social, economic, and political relations central to (mal)development, such that law 7 E. g. see, from very different perspectives, Charlesworth and Chinkin (2000), Conaghan (2014), Davies (2013), Engle Merry (2006), Musembi (2013), Manji (2010). 8 On trafficking see especially Bernstein (2012) and Kotisworan (2014); on violence see especially Ni Aoláin (2014) and Tapia Tapia (2018); on rape and international criminal law see Buss (2011), Halley (2008), Nikolic-Ristanovic (2005). 9 E. g. Engle (2005), Engle Merry (2006), Musembi (2013).…”

“…Another of my hopes is that legally-curious feminist development critics can move past what Fionnuala Ni Aoláin, in her account of the growing attention to international criminal law within campaigns to end Violence against Women, calls the "lost in translation" critique (Aoláin 2014). In this, rather than theorise or critically analyse the demand for more law within GAD, development scholars and/or practitioners end up noting the implementation gap between law and practice, and trying to reduce it, with 'law plus' measures that leave law itself, and its role within uneven development and gender inequality, uninterrogated.…”