Chapter 1 - International Law and Domestic Gender Justice, or Why Case Studies Matter

Summary

INTRODUCTION

Gender and transitional justice is increasingly recognisable as a field in its own right, with work aimed at mapping the field, edited volumes capturing the diversity of the field, and increasing clarity around common questions that motivate the field. While the field now incorporates a wide diversity of disciplinary perspectives, gender and transitional justice has traditionally had a close and mutually-influencing relationship with feminist perspectives on international criminal law (ICL). The antecedents of what we now recognise as the field of gender and transitional justice lie firmly within the feminist approaches to ICL that emerged in the 1990s. That period marked the consolidation of a defined body of ICL, articulated in the statutes and jurisprudence of the ad hoc criminal tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY), and achieving codification in the Rome Statute of the International Criminal Court. Feminist international lawyers were significant in influencing this area of law, attempting to secure legal recognition and prohibition of gender-specific harms experienced by women in situations of violent conflict, and critiquing ICL's shortcomings in this regard. It is from this analysis of ICL by feminist international lawyers that we can identify the antecedents of many of the most persistent and substantial contemporary gender critiques of transitional justice, such as the absence of women, the elision of gendered harms, and the damaging preoccupation of transitional justice with public harms and the ‘primary’ conflict. As gender and transitional justice has consolidated as a field involving multiple disciplinary perspectives, it has moved further from its origins in ICL. Feminist perspectives on ICL have, in turn, moved further from a concern with the impact of ICL norms on domestic cases of transition.

In this chapter, I review more recent feminist scholarship in ICL, identifying a strong critical-reflective thrust to this scholarship, and mapping out a four-way typology of the feminist critiques made in this scholarship (Part 1). I contrast this critical-reflective scholarship with early feminist interventions into ICL, which were motivated, at least in part, by a desire to secure positive norm transfer from ICL to domestic criminal law in the legal treatment of harms against women (Part 2).