Feminist Methods in International Law Author(s): Hilary Charlesworth Source: The American Journal of International Law, Vol.

93, No. 2 (Apr., 1999), pp. 379-394 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2997996 . Accessed: 06/02/2014 09:52
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of International Law.

http://www.jstor.org

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

379

theoriesspelling see value in both positions.Scholarsare developingmore sophisticated and litigants judges, lawyers, out the conditionsunder whichnationaland international other actors can cooperate to expand the influenceof supranationallaw, and under willacquiesce.103 whichstatesand other "legislators"
V. CONCLUSION

Yet it is not the bare rules area of study. regimeis a richand fascinating The atrocities it of the Geneva Conventionsor the proceduresof the ICTY thatcreate thisfascination; is the political conflictplayed out in theircreation and design, the struggleto imbue to use them to modifyundesirable behavior. As this them with meaning, the effort makes clear, manyintellectualapproaches can shed lighton such complex symposium creation) has a particularly social phenomena. Yet IR theory(a rich and multifaceted to make,forit has been developed-and is evolving-to illumicontribution important natejust thiskind of issue. IR is not a "legal method"in the narrowsense. Coupled with though,it can be the cornerstonefor a deeper the studyof law and legal institutions, governance. of international understanding
KENNETH W. ABBOTT*

FEMINIST METHODS

IN INTERNATIONAL LAW

voice. On as the feminist in thissymposium I have mixed feelingsabout participating to broaden the standard editors'attempt the one hand, I wantto supportthe symposium in thisundertaklegal methodologiesbyincludingfeminism categoriesof international ing. On the otherhand, I am conscious of the limitsof myanalysisand itsunrepreseneducation and prorace, class, sexuality, of mynationality, tativeness-theparticularity law. I clearlycannot speak forall fessionshapes myoutlook and ideas on international I also hope that legal system. in and observers of the international women participants fledged as a fully and willqualify as a feminist one dayI willstop being positionedalways feminism are also more generalbecause presenting Myreservations lawyer. international maygive a falsesense of its nature.The as one of seven rivalmethodologicaltraditions encouraged a certaincompetitiveeditors'memorandumto the participants symposium than others?"I cannot answer this ness: we were asked, "Whyis your method better to anyof the othermethods alternatives ready methodsas question.I do not see feminist and dialogue conversations emphasize methods Feminist in thissymposium. represented lead to neat will not truth.' They triumphant of a single, ratherthan the production "nonlaw." and "law" of categories very the challenging they are because "legal" answers law's of international bases limited the question to and expose seek methods Feminist and insiston the importanceof gender relationsas and impartiality claim to objectivity a categoryof analysis.The term "gender" here refersto the social constructionof and "masculinity"-the betweenwomen and men and ideas of "femininity" differences excess culturalbaggage associatedwithbiological sex.
103 R. Daniel Kelemen & Heiner Schulz, The Garrett, See,e.g.,Helfer & Slaughter,supranote 40; Geoffrey in theEuropeanUnion,52 INT'L ORG. 149 and Legal Integration NationalGovernments, of Justice, EuropeanCourt 52 INT'L ORG. at 177. Court ofJustice, European the (1998); WalterMattli& Anne-MarieSlaughter,Revisiting * Visiting School ofLaw; ElizabethFroehlingHornerProfessor at Berkeley ofCalifornia University Professor, Beth School of Law. Thanks to David Caron,JamesMorrow, University of Law and Commerce,Northwestern Simmonsand Duncan Snidal forvaluable comments. 1 SeeJ. 41 INT'L and IR Theorists, Feminists between Engagements Troubled Don't Understand: Just Ann Tickner,You STUD.Q. 611, 628 (1997).

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

380

THE AMERICAN JOURNAL OF INTERNATIONALLAW

[Vol. 93:379

The philosopher Elizabeth Grosz has pointed out that feminist theorizingtypically requires an unarticulatedbalance between two goals. Feministanalysisis at once a ofprivileged and historically reactionto the "overwhelming dominantknowlmasculinity to the imbalances resultingfrom the male edges, acting as a kind of counterweight monopoly of the production and reception of knowledges"and a response to the The dual commitments of feminist politicalgoals of feminist struggles.2 methodsare in demands "intellectual complex and uneasycoexistence.The first rigor," investigating the hidden gender of the traditionalcanon. The second requires dedication to political change. The tensionbetweenthe two leads to criticism of feminist theorists both from the masculine academyforlack of disinterested scholarshipand objectiveanalysisand from feministactivists for co-option by patriarchalforces through participationin male-structured debates.3 For example, Feministmethodologieschallenge manyaccepted scholarly traditions. to attainan objectivetruth a politicalagenda ratherthan strive theymayclearlyreflect on a neutralbasis and theymayappear personal ratherthan detached. For thisreason, are regularly or mad. Theyare the feminist seen as unscholarly, methodologies disruptive women writers used techniques of outsidersand strangers. just as nineteenth-century madness to symbolizeescape from limited and enclosed lives,4so twentieth-century feministscholars have developed dissonant methods to shake the complacent and bounded disciplines in whichthey work. Atthesame time,mostfeminists are constrained Ifwe wantto achieve change,we mustlearn and use the language bytheirenvironment. and methodsof the dominantorder. Feminist methods also encourage reflectionon the production of knowledge by feminists.5 What system of social and culturalrelationsis involvedin writing thispaper? On whateconomic and institutional supportdoes itdepend? I have thefreedomto speak because I earn myliving in a university in a "developed"country and have time working I have been around forlong enough not to have to be concernedthat to think and write. about feminism will threatenmy tenure or promotionin the academy. I can writing engage in academic workbecause I share the care of mychildrenand household witha I benefit froma particular supportive partner.More generally, conjunctionof economic on whichtheopportunity and politicalcircumstances forfeminist theorizing depends. As Rey Chow has pointed out: Feminism... belongs to a juncture in timewhen the Westernthought'sefforts at are still,relatively itself overcoming speaking,supportedbya high level of material intellectual if well-being, freedom,and personal mobility.... Even thoughit often, not always, speaks the language of oppressionand victimization, Westernfeminism owes its supportto the existenceof otherpopulationswho continue to experience at territorial dailyexclusionsofvariouskinds,manyofwhichare performed borders. It is the clear demarcationof such borderswhichallowsus the comfort and security in which to theorizethe notion of "exclusion"itself.6 In writing about feminist on the law concerninghuman rightsabuses in perspectives I am consciousthatI am able to do so precisely armed conflict, because I am not at daily
2

(Beverley Skeggs ed., 1995). 6Rey Chow, Violence in the Other Chinaas Crisis, and Woman, inTHIRD WORLD WOMEN AND THE Spectacle, Countyy: POLITICS OF FEMINISM 81, 98 (Chandra Talpade Mohanty, Ann Russo & Lourdes Torres eds., 1991).

NINETEENTH-CENTURY LITERARY IMAGINATION (1979). 5 See,e.g.,FEMINIST CULTURAL THEORY: PROCESS AND PRODUCTION

332 (Sneja Gunew ed., 1990). 3 Id. 4 See SANDRA M. GILBERT & SUSAN GUBAR, THE MADWOMAN IN THE ATmIc: THE WOMAN WRITER AND THE

SeeElizabeth Grosz,A Noteon Essentialism and Difference, in FEMINIST

KNOWLEDGE: CRITIQUE AND CONSTRUCT

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

381

"madness" in internationallaw is only risk of these harms. In other words,feminist possible because our livesare neitherdisorientednor mad. Here, I want to describe two feministmethods that can illuminate the study of international law and then consider the questions theymightraise in the particular These forhuman rights violationsin internalarmed conflict. contextof accountability scholtheories.Withinfeminist techniquescan be used across the spectrumof feminist into fixedcategoriessuch as "liberal," to pigeonhole theorists arshipthereis a tendency "cultural,""radical," "postmodern"and "postcolonial." But when confrontedwith a concrete issue, no single theoreticalapproach or method seems adequate. A range of to excavatethe issues.In thissense,feminist feminist theoriesand methodsare necessary explorationscan be likened to an archaeological dig.7 There are various layers of tools and practices,procedures, symbolsand assumptionsto uncover and different between at each level.An obvioussignof powerdifferentials techniquesmaybe relevant Beneath this legal institutions. womenand men is the absence ofwomenin international Digging makes women invisible. law,whichgenerally is the vocabulary of international law can be further neutralprinciplesand rules of international down,manyapparently seen as operatingdifferently withrespectto women and men. Another,deeper, layerof the excavationrevealsthe gendered and sexed natureof the basic concepts of interna"order"and "conflict." "security," tional law; forexample, "states," to clear the site of the obvious Broad theoreticalbrushes may be required initially refined methods to unpack and examine debris of sexist practices and increasingly hidden assumptions.Use of a range of techniques,however,can lead to charges of I thinkthat thisimpurity is inevitablein the methodologicaland theoreticalimpurity. of international law require "situFeministinvestigations analysisof complex situations. ated judgment" ratherthan an overarching theoryto work out the most appropriate technique at any time.8
I. FEMINIST METHODOLOGIES

Searching forSilences of a disciplineis that A methodology sometimesemployedto question the objectivity of detectingitssilences.All systems of knowledgedepend on deeming certainissues as law maybe In thissense, the silencesof international irrelevant or of littlesignificance. structures. as important as its positiverules and rhetorical Permeatingall stages of the excavationof international law is the silence of women. This phenomenon does not law and that emerge as a simplegap or hollow thatweakensthe edificeof international work.It is ratheran integralpartof the mightbe remediedbysome rapid construction structure of the international legal order,a criticalelement of its stability. absent fromthe international Women are not completely legal order:forexample, a specialized area of women's human rightslaw has been developed and there is some law.But,byand large, ofwomenin otherareas ofinternational specific acknowledgment limited whenwomen enterintofocusat all in international law,theyare viewedin a very in need ofprotection. or potentialmothers, oftenas victims, as mothers, way, particularly Even the Platform forActionadopted bythe FourthWorldConferenceon Women held
2 (1990). 63 S. CAL. L. REv.1699, 1718-19 (1990). Donna Haraway and the Feminist, SeeMargaret Radin, ThePragmatist thatcan on methodology to advocate "shared conversations" has used a similarterm,"situatedknowledges," Knowledges: Donna H-araway, Situated lead to betteraccountsof theworldthanprovidedbya singleperspective. 14 FEMINIST STUD. 575, 580 ofPartialAccounts ofthe Perspective, and the Privilege TheScience Question in Feminism (1988).
7See NGAIRE NAFFINE, LAW AND THE SEXES
8

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

382

THE AMERICAN JOURNAL OF INTERNATIONALLAW

[Vol. 93:379

in Beijing in 1995 endorses thiscircumscribed idea of womanhood. Debate in Beijing "balanced and non-stereotyped" about whatmightconstitute images of women resulted in a paragraphreferring to women's experiencesas includingthe "balancing [of] work as mothers,as professionals, as managers and as entrepreand family responsibilities, neurs."9Dianne Otto has noted thatthislistof women's major lifeexperiences"neatly forwomenwhichare approvedby the Platform: encapsulatesthe dominantpossibilities the traditional role of motherremainscentral, but is now augmentedbythe additionof a role in the freemarketeconomy."'l Manyaspectsof manywomen's livesare obscured in thisaccount. One technique for identifying and decoding the silences in international law is paying attention to the way that various dichotomies are used in its structure. Internationallegal discourse restson a series of distinctions; forexample, objective/ subjective, legal/political, logic/emotion, order/anarchy,mind/body, culture/nature, action/passivity, public/private, protector/protected,independence/dependence. Feministscholarshave drawnattentionto the gendered coding of these binary "male" characteristicsand the second "feoppositions-the firstterm signifying male."" Like manyother systems of knowledge,internationallaw typically values the firstterms more greatlythan their complements. Carol Cohn has writtenof her ana"participantobservation"studyof North American defense and securityaffairs lyststhat "[c] ertain ideas, concerns, interests,information, feelings,and meanings are marked in national security discourse as feminine,and are devalued."'2 For this to say and difficult to hear. They seem illegitimate, reason, they are both difficult embarrassingand irrelevant.'3In a similarway,the symbolicsystemand culture of internationallaw is permeated with gendered values, which in turn reinforcemore general stereotypesof women and men. The operationof public/private distinctions in international law providesan example of the waythatthe disciplinecan factorout the realitiesof women's livesand build its on a limitedbase. One such distinction is the line drawnbetweenthe "public" objectivity and the stateand the "private" worldof politics, worldof home, hearthand government of torturein the ConventionagainstTorturerequires the family. Thus, the definition involvement of a public (governmental)official.14 On this account, sexual violence an abuse of human rights againstwomen constitutes onlyifit can be connectedwiththe public realm;forexample,ifa woman is raped bya person holdinga public positionfor some type of public end. The Declaration on the Elimination of Violence against in 1993,15 makesviolence againstwomen an Women, adopted by the GeneralAssembly issue of international concernbut refrains fromcategorizing violence againstwomen as issue in its operativeprovisions. a human rights The failureto create a nexus between violence againstwomen and human rights was due to a fear thatthismightdilute the traditionalnotion of human rights.It was said that the idea of human rightsabuses
9 Beijing Platform forAction,UN Doc. A/CONF.177/20 & Add.1, Ann. II, para. 245(b) (1995), reprinted in 35 ILM 401, 457 (1996). 10Dianne Otto, Holdingup Half theSky, ButforWhose Benefit? A Critical Analysis ofthe Fourth World Conference on Women, 6 AUSTL. FEMINIST L.J.7, 21 (1996). 11E.g., Carol Cohn, War,Wimps and Women: Gender and Thinking Talking War,in GENDERING WAR TALK 227, 231 (MiriamCooke & Angela Woollacotteds., 1993). 12 Id. 13 Id. 14 ConventionagainstTortureand Other Cruel, Inhuman or Degrading Treatment or Punishment, opened forsignature Dec. 10, 1984, Art.1, 1465 UNTS 85. 15 GA Res. 48/104 (Feb. 23, 1994), reprinted in 33 ILM 1049 (1994).

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

383

required direct state involvementand that extending the concept to cover private canon as a whole.16 behaviorwould reduce the statusof the human rights distinctionin internationalhuman rightslaw is not a This type of public/private Its consequences are gendered because in all societies neutralor objectivequalification. and women are associated men dominatethe public sphere of politicsand government is to blot out the experiencesof Its effect withthe privatesphere of home and family. law. manywomen and to silence theirvoices in international Traveling World law is how to respond to in international A second methodologicalissue forfeminists and univerlaw assertsa generality the manydifferences among women. International community made up of incongruousin an international sality thatcan appear strikingly linguistic religious, and manymore cultural, nationalities almosttwohundred different on the EliminaConvention ethnic the commitments of the abstract and groups.Thus, varying in greatly againstWomen willbe translated tion of All Formsof Discrimination ofmore thatdo not allowwomento vote,to systems from politicalsystems circumstances, among women in subtlediscrimination. The occasional nod in the directionof diversity remains at a verygeneral level; for example, the use of internationalinstruments women" and "ThirdWorld women." These monolithic such as "Western classifications of wealth,education,workand progress, a lot of baggage: assumptions categoriescarry on illiteracy and overpopulation, on the one hand, and of poverty, oppressivetraditions, the other.'7In reality, as Chandra Mohantyhas pointed out, "[w]omen are constituted between class, culture,religionand other as women throughthe complex interaction They are not 'women'-a coherent groupand frameworks. ideological institutions 8 or policy."' solelyon the basis of a particulareconomic system explorationsin an international Various methods have been proposed for feminist context.For example, Isabelle Gunninghas describeda technique of "worldtraveling" that requires "multicultural dialogue and a shared search for areas of overlap,shared concerns and values."'9 Particularly in the discussionof human rightsissues in other to be clear about lawyers, first, international cultures,Gunninghas counseled feminist their own historicalcontext;second, to understandhow.the women involvedin the of the to recognizethe complexities human rights situationmightsee them;and third, should In turn,Rosi Braidottihas argued thatfeminists contextof the otherwomen.20 This technique use "multipleliteracies"in engaging the global range of feminisms.21 froma variety of of styles, in a variety requires "being able to engage in conversation in Braidotti has advisedfeminists languages."22 angles,ifpossiblein different disciplinary the international arena to "relinquishthe dream of a common language" and to accept thatwe can achieve only"temporary politicalconsensuson specificissues."23 Anotherstrategy forfeminists withinternationalissues has been suggested working by Mohanty. She has developed the idea of an "imagined community"(firstelaboin International Worlds Public/Private Distinctions Law, in PUBLIC AND PRIVATE: Apart: SeeHilaryCharlesworth, 243, 256-59 (MargaretThornton ed., 1995). 17 SeeChandraMohanty, FEMINIST REv.61 (1988). Scholarship and Colonial Discourses, Under Western Eyes: Feminist 18Id. at 74. 19Isabelle Gunning,Arrogant Genital and Multicultural Feminism: TheCase ofFemale World-Travelling Perception, Subjects ofInternational Surgeries, 23 COLUM. HUM.RTS.L. REv.189, 191 (1991-92). Seealso Karen Engle, Female ExoticOther Female, 26 NEw ENG. L. REv. 1509 (1992). Law: Human Rights and the 20 Gunning,supranote 19, at 191. 21 15 WOMEN'S STUD. Reflections onInternational Feminism, Nomad, and the Migrant: Rosi Braidotti, TheExile,the INT'L F. 7, 9 (1992). 22 Id. at 10. 23 Id.
16

FEMINIST LEGAL DEBATES

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

384

THE AMERICAN JOURNAL OF INTERNATIONAL

LAW

[Vol. 93:379

rated by Benedict Anderson)24 in the context of problems of writingabout Third in a general, but worthwhile, World feminisms way.For Mohanty,the epithet "imagined" is used in contrastto existingboundaries-of nation, color, sexuality,and so on-to indicate the potential for collaborative endeavor across them; the term refersto the possibilityof a "horizontal comradeship" across existing "community" hierarchies.An imagined communityof feministinterestsdoes not implyhomogeneity,a single set of feministconcerns, but rather a strategic,political alliance.25 Mohanty has written:"it is not color or sex which constructsthe ground for these struggles.Rather it is the waywe thinkabout race, class, and gender-the political links we choose to make among and between struggles."26 How can these various responses to diversity among women in the international be reflectedin internationallegal analysis?I think that they suggest a community feminist international mustbe awareof the limits numberof relatedmoves.First, lawyers of constructing universal of theirexperience,thatis,wary principleson the basis of their about own lives.Second, the techniqueof askingquestionsand challengingassumptions international law may be more valuable than generatinggrand theories of women's mustrecognizethe role of racismand economic oppression.Third,international lawyers exploitationin the positionof mostof the world'swomen.27 They should attendto the of dominationwhichintersect to locate women differently fluidstructures at "multiple, historical ratherthan invoke"a notion of universal particular conjunctures"28 patriarchy This requiresan appreoperatingin a transhistorical wayto subordinateall women."29 of systems and intersections of oppression.Donna Harawayhas wryly ciationof theforms of thistask:"It has seemed very observedon the difficulty rareforfeminist to hold theory hues of authors, race, sex/genderand class analytically together-all the bestintentions, in prefacesnotwithstanding."3O and remarks Some feminists have argued thata more complex understanding of oppressionindia purelygendered or women-centered cates thatin some circumstances maynot analysis be appropriate.Chow has describedher response to the question "how should we read what is going on in China in termsof gender?" posed afterthe Tiananmen Square massacrein 1989, as "We do not, because at the momentof shock Chinese people are degendered and become simply'Chinese.' "31 She has argued thatusing a single anato "read" a politicalcrisisis both inaccurateand presumptuous: lytical category The problem is not how we should read what is going on in China in termsof whatdo the eventsin China tell us about gender as a category, gender,but rather: where especiallyas it relatesto the so-calledThirdWorld?Whatare gender's limits, does it work,and where does it not work?32 the notion of "women"used in liberalfeminism Chow has criticized as "pinned down to sexualized aspect of thatcategory, the narrowly as 'women' versus'men' only."33 At the
24

25 26

FEMINISM, supranote 6, at 1, 4.

BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE SPREAD OF NATIONALISM (1983). Chandra Mohanty,Introduction: Cartographies of Struggle, in THIRD WORLD WOMEN AND THE POLITICS

OF

Id. 27 SeeGrosz,supranote 2. 28 Mohanty, supranote 25, at 13. 29 M. Jacqui Alexander & Chandra Mohanty, Genealogies, Legacies,Movements, in FEMINIST GENEALOGIES, COLONIAL LEGACIES, DEMOCRATIC FUTURES at xiii, xix (M. Jacqui Alexander & Chandra Mohantyeds., 1997). 30 DONNA HARAWAY, SIMLANS, CYBORGS AND WOMEN: THE REINVENTION OF NATURE 129 (1991). 31 Chow, supranote 6, at 82. Compare Zalewski'sresponse to a similarquestion in MarysiaZalewski,Well, What Is the Feminist on Bosnia?71 INT'L AFF.339 (1995). Perspective 32 Chow, supranote 6, at 82. 33 Id. at 83.

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

385

same time,she has acknowledgedthat,outside the immediacy of a politicalcrisis, ideas about gender and sexualitycan be useful challenges to the authority of traditional schemes of knowledge.34
II. INDIVIDUAL ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES IN INTERNAL CONFLICTS

How might a feminist international lawyer approach thespecific questionofindividual accountability forhuman rights abuses in armed conflict? There is considerableempirical evidence thatwomenare affected in waysthatmen are not.35 byarmed conflict The of warfare savagery seems closelylinked to a wildformof male sexuality, a typeof "toxic testosterone" in Michael Ignatieff's words,36 and women and girlsare the mostobvious objects of thisviolence. Rape has been understoodas one of the spoils of the victor, also to humiliatethevanquished.Globally, serving womenform only2 percentofregular army personnel,but as civilians they suffer fromarmed conflict.37 disproportionately For example, women and childrenconstitute the majority of the victims in African conflict zones.38In northern Uganda, younggirlshave been abducted to become the "wives" of commanders in the Lord's ResistanceArmy, which is fighting PresidentMusuveni's government forces.39 In refugeecamps,women tend to be responsibleforthe collection of food,fuel and water,requiringthemto venturefromthe relative of the camps safety and thus to risk rape, tortureand death fromrebels, government soldiers and land mines.40 Women's lowersocial statusalso disadvantages themin the "relief"operations conductedduringand after armedconflict. For example,in Somalia relief agenciesoften consult "household heads" when makingdecisions about the distribution of food and medicines,and these are usuallyregardedas the men.41 In Uganda women survivors of decades of conflict claim thatreproductive health has not been adequatelyattendedto in reliefwork.42 Violence againstwomen has been describedmore generally as "among the most serious and pervasive human rights abuses that the international community [now] confront[s]."4 Nongovernmental organizationshave chronicled,in particular, massiveviolence againstwomen duringarmed conflict in Bosnia and Rwanda and the failure of their governments, internationaldonors, humanitarianorganizations,and reconstruction and development agencies to respondto women'sneeds in the "postwar" period.44 Whetherand how individuals should be held criminally accountableforhuman rights abuses in internalconflicts has increasingly exercisedinternational These queslawyers. tionshave been promptedbythefactthatthemajorovertmanifestation of tensionin the international has shifted community fromwarsbetweenstatesto armed conflicts within states. Whatdirections do feminist foranalyzing international law methodologies suggest in this area? On one level, the acknowledgment of women's lives and the use of the of the ad hoc Tribunalsforthe former vocabularyof gender in the statutes Yugoslavia and forRwanda and the international criminalcourt (ICC) mightsuggestthatfeminist
34 Id. at 88.

slavery and slavery-likepractices during armed conflict, UN Doc. E/CN.4/Sub.2/1998/13

35 See, e.g., Special Rapporteur on Contemporary Forms of Slavery, Final Report on Systematic rape, sexual 36 MICHAEL IGNATIEFF, THE WARRIOR'S HONOR: ETHNIC WAR AND THE MODERN CONSCIENCE 37 UNITED NATIONS DEVELOPMENT PROGRAMME, HuMAN DEVELOPMENT REPORT 45 (1995).
38

(1998). 127 (1998).

author).
40

SeeInternational Federation of Women Lawyers (FIDA), Statement, Uganda (Oct. 16, 1998) (on file with

39 Id.

41 42 43 44

Id. Id. Id.

HuMAN RIGHTS WATCH, WORLD REPORT 1998, at 391 (1998). HUMAN RIGHTS WATCH, supra note 43. See generally

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

386

THE AMERICAN JOURNAL OF INTERNATIONALLAW

[Vol. 93:379

effect on the law. On anotherlevel,it appears thateven has had a progressive activism a system based on men's lives. the "new"international criminallaw remainsprimarily drawn a distinctionbetween the principles of Internationallaw has traditionally conductthatapplyin timesofarmedconflict individual (international humanitarian law, has led IHL) and those thatoperate in peacetime (human rights law). This dichotomy Froma feminist thedistinction to manyanomaliesand inconsistencies.45 has perspective, to factor allowed IHL, withitsbasis in codes of warriors' out issues thatdo not honor,46 relate to the warriorcaste. For example, the guardian of IHL, the International Committeeof the Red Cross (ICRC), was able to consider the Taliban's exclusion of as completely outside its mandate. Ignatieff women fromanyworkplacein Afghanistan constraints of the ICRC in thissituation:"Its legitimacy has described the self-imposed and warlords: iftheyinsistthatwomenbe keptout withwarriors depends on itsworking has nothingto say of sight,it has no choice but to go along."48The honor of warriors about the oppressionofwomen.Human rights law,whilemore expansivein itscoverage than IHL, has, as indicatedabove, provideda more limitedresponse to the harmsthat men. International face comparedwiththoseconfronting criminal womengenerally law, is an amalgam of IHL and human rights the topic of thissymposium, law.In manyways, it has combined the gendered blind spots of both traditions. I want to pose questions about threeinterrelated aspects of the "concretesituation" editors.Whatis the natureof international put to us bythe symposium legal knowledge in this context?What knowledge is privilegedand what knowledge is silenced and devalued?49 Human Rights Abuses The category of "human rights abuses" is a contestedone froma feminist perspective. of the understanding of human rights in international law generally has shown Analysis that the definition of human rightsis limitedand androcentric.50 The limitations of human rights law withrespectto women are intensified in the contextof IHL. Take, for example, the way that it deals with rape and sexual assault. Article27 of the Fourth Geneva Conventionplaces statesunder an obligationto protectwomen in international armed conflict "againstanyattackon theirhonour,in particular againstrape, enforced or any form of indecent assault."' The provisionassumes that women prostitution, should be protected from sexual crimes because they implicate a woman's honor, the notionof women as men's property, ratherthanbecause theyconstitute reinforcing violence. This proprietary image is underlinedby the use of the language of protection ratherthanprohibition of theviolence.52 AdditionalProtocolI replacesthe reference to a woman'shonor withthe notionthatwomenshould "be theobject of special respect,"53 thatwomen's role in childbearingis the source of special status.Significantly, implying the provisions on rape are not specifically included in the category of gravebreaches of
Seegenerally StevenR. Ratner,TheSchizophrenias ofInternational Criminal Law, 33 TEX.INT'L L.J.237 (1998). This termis used by IGNATIEFF, supranote 36. 47 For a feminist analysis of international humanitarian lawgenerally, seeJudithGardam, Women and the Law ofArmed Why theSilence? 46 INT'L & COMP.L.Q. 55 (1997). Conflict: 48 IGNATIEFF, supranote 36, at 146. 49 Cohn, supranote 11, at 231.
4 46
50

1994). 51 ConventionRelativeto the Protection of CivilianPersons in Time of War,Aug. 12, 1949,Art.27, 6 UST 3516, 75 UNTS 287. 52 Gardam, supranote 47, at 73-74. 53 Protocol Additional to the Geneva Conventionsof 12 August 1949, and Relating to the Protectionof Victimsof International ArmedConflicts, June 8, 1977, Art.76, 1125 UNTS 3.

See generally, e.g., HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca Cook ed.,

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

387

international humanitarianlaw.54In the context of noninternational armed conflict, common Article 3 of the Geneva Conventions does not specifically refer to sexual violence, generallyprohibiting violence to life and the person, cruel treatment and torture, and humiliating and degradingtreatment. IHL, then,treatsrape and sexual assaultas an attackon (the warrior's)honor or on thesanctity ofmotherhoodand not explicitly as of thesame orderas gravebreachessuch as compellinga prisonerof war to servein enemyforces.The statutes of the twoad hoc Tribunalsand the ICC, by contrast, provide much fullerresponses to sexual violence, constructing it, depending on the circumstances, as potentially a crime of genocide, a crimeagainsthumanity and a warcrime.This recognition was the resultof considerable workand lobbying bywomen's organizations, but itslimitations should be noted. In the statutes of theYugoslavTribunaland theICC at least,all threecategoriesofinternational crimesare concerned onlywithacts forming part of a widespread,systematic or largescale attack.Thus, the "new" international criminallaw engages sexual violence only when it is an aspect of the destruction of a community. An example of this characteristic was the invitationto the prosecution by a trial chamberof theYugoslavTribunal,whenreviewing indictments againstRadovanKaradzic and Ratko Mladic, to consider broadening the characterization of the notion of genocide. It stated that "[t]he systematic rape of women .. . is in some cases intended to transmit a new ethnicidentity to the child.In othercases humiliation and terror serveto dismemberthe group."55 This commentsuggests thatthe primary problemwithrape is eitherits effect on the ethnic identity of the child born as a resultof the rape or the demoralizingeffect on the group as a whole. This understanding of rape perpetuatesa view of women as culturalobjects or bodies on which and throughwhichwar can be case by the Rwanda Tribunal that rape waged. The decision in the 1998 Akayesu constituted an act of genocide if committed a particular withthe intentionto destroy group56also restson thislimitedimage of women. The emphasison the harmto theTutsipeople as a whole is, of course,requiredbythe international definitionof genocide, and the Akayesu decision on this point57simply illustrates the inability of the law to properlyname what is at stake: rape is wrong,not because it is a crimeofviolenceagainstwomenand a manifestation of male dominance, but because it is an assaulton a community national definedonlybyitsracial,religious, or ethniccomposition.58 In thisaccount,theviolationof a woman'sbodyis secondaryto the humiliationof the group. In this sense, international criminallaw incorporatesa it operatesin the public realmof the collectivity, problematic distinction: public/private leaving the privatesphere of the individual untouched. Because the notion of the has community implicatedhere is one defined by the men withinit, the distinction gendered consequences. Another public/private distinctionincorporated (albeit unevenly) in international criminal law-via human rightslaw-is that between the acts of state and nonstate
54 Some juristsargue, however, thatthe prohibition on rape is implicitly included in thiscategory. See,e.g., Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL424, 426-27 (1993). 55 Prosecutor v. Karadzii and Mladic,Reviewofthe Indictment Pursuantto Rule 61 of theRules ofProcedure in 108 ILR 85 and Evidence, Nos. IT-95-5-R61 and IT-95-18-R61, paras. 94-95 (July11, 1996), reprinted (1998). 56 Prosecutor v. Akayesu, Judgement, No. 96-4-T (Sept. 2, 1998) <www.un.org/ictr>. 57 The Rwanda Tribunal also foundAkayesu throughhis guilty of war crimesand crimesagainsthumanity encouragementof individualacts of sexual violence. 58 Convention on the Preventionand Punishmentof the Crime of Genocide, Dec. 9, 1948, Art. II, 78 UNTS 277.

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

388

THE AMERICAN JOURNAL OF INTERNATIONAL

LAW

[Vol. 93:379

actors.59Such a dichotomyhas gendered aspects when mapped onto the realityof the ICC statute definestorture more broadlythan violenceagainstwomen.Significantly, of public any referenceto the involvement the Conventionagainst Torture,omitting thatsome sortof distinction based on however, officials.60 StevenRatnerhas suggested, is useful as a criterionto sort out those actions against human involvement "official" thatshould engender state and individualinternational criminalresponsibility dignity and those (such as common assault) thatshould not.61The problem,froma feminist or regulated/nonregulated, distincis not the drawingof public/private, perspective, of gender inequality throughthe use of such tionsas such,but ratherthe reinforcement to theactual operationofboundarydrawing We need, then,to payattention distinctions. itends up affecting women'sand men's livesdifferently. in international lawand whether law is certainrapes as public in international For example, the consequence of defining to make privaterapes seem somehow less serious. The distinctionis made, not by referenceto women's experiences, but by the implicationsfor the male-dominated public sphere.62 A different type of silence that mightbe identifiedin the legal protectionof the human rightsof women in armed conflictis the almost exclusive focus on sexual methodsuggestthatthisemphasis violence.63 Insights generatedbythe "worldtraveling" the particularly obscures many other human rightsissues in timesof armed conflict, protectionof economic, social and culturalrightsof women. Conflictexacerbates the We know, forexample,of the globally unequal positionofwomenand men in manyways. distinctive burdens placed on women throughfood and medical shortagescaused by frommalnutrition, often conflict.64 When food is scarce,more women than men suffer because of culturalnormsthatrequire men and boys to eat beforewomen and girls.65 failsto reach women,as men are Humanitarian relief forthevictims of conflict regularly for its distribution.66 Economic sanctionsimposed before, typically givenresponsibility who are have had particular impacton women and girls, duringor afterarmed conflict the the effect of these practices among poor.67 Although disproportionately represented fallsheavily on women,theyare not understoodbyinternational law to be human rights abuses thatwould engage eitherstateor individualresponsibility.
Internal Conflict

and voices are privilegedor silenced in the distinction What interests betweeninterconflictsthat is the basis of the "concrete situation" national and noninternational devisedby the editors? The Geneva Conventions, AdditionalProtocolII and the statute of the international criminal courtregulatenoninternational in a more circumconflicts
SeeRatner,supranote 45, at 253. Rome Statuteof the International CriminalCourt, July17, 1998,Art.7(2) (e), UN Doc. A/CONF.183/9*, reprinted in 37 ILM 999 (1998) [hereinafter ICC statute].The statute, however,appears to regard rape and sexual violence as distinct fromtorture.SeeArt.7 (1) (g). 61 Ratner,supranote 45, at 254. 62 Simon Chesterman, NverAgain... and Again:Law, Order, and the Gender ofWarCrimes in Bosniaand Beyond, 22 YALEJ. INT'L L. 299, 336 (1997). 63 SeeJudithGardam & HilaryCharlesworth, TheNeed forNewDirections in the Protection of Women in Armed Conflict, 21 HuM. RTs. Q (forthcoming Aug. 1999). 64 Seegenerally Final Reportof the Investigative Missioninto the Treatmentof MuslimWomen in the Former Yugoslavia,UN Doc. S/25240 (1993). 65 See United Nations High Commissionerfor Refugees,UNHCRGuidelines on the Protectionof Refugee Women, UN Doc. E/SCP/67 (1991). 66 Id. at 49. 67 Sarah Zaidi, War,Sanctions, and Humanitarian Assistance: The Case ofIraq 1990-1993, 1 MED. & GLOBAL SURVIVAL 147, 153 (1994). SeealsoCommittee on Economic,Social and CulturalRights, General CommentNo. 8, UN Doc. E/C.12/1997/8.
59
60

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

389

is thatstates spectwaythaninternational conflicts.68 The explanationforthisdistinction by force, are reluctantto give international statusto those challengingtheirauthority jurisdiction. The category of preferring to classify themas criminals subjectto domestic noninternational conflicts regulatedby IHL is a verylimitedone, excluding"situations of internal disturbances and tensions, such as riots, isolatedand sporadicactsofviolence dichotomyhas a genor other acts of a similarnature."69 The international/internal in combatants dered dimensionbecause it underpinsa detailed legal regimeprotecting internationalconflicts, almost invariably men, and a more general regime offering considerablyweaker (and more contentious) protection to the civilian population, almostall women.Fromtheperspective encompassing of thosecaughtup in theconflict, the international/internal dichotomy makes littlesense, as abuses of human rightsdo not change characteraccording to thiscriterion. On a broaderlevel,thedichotomy and internal conflict distracts betweeninternational attention fromthe close relationship practicesand internalconbetweeninternational For example,Anne Orfordhas drawnattention of international flict. to the involvement she has shownhow the institutions in the creationof "internal" tension.70 In particular, activities of internationaleconomic institutions contributedto the terrible"internal" conflictin the former Yugoslaviaand has concluded that "the failureto consider the of international thatthe causes of the crisismightbe related to the activities possibility institutions or the influenceof international law has meant that.., the causes of the conflict[were seen as] 'ethnic' or 'nationalist.',71 The distinction, then,is a construct thatobscuresboth the human suffering conflict. createdby,and the causes of,"internal" The distinction betweeninternational and internalconflicts has to some extentbeen of the categoriesof de-emphasizedin international criminallaw throughthe definition and through the inclusionof some human rights genocide and crimesagainsthumanity norms-for example, the prohibitionon torture-that operate in times of war and and war crimesas defined peace.72 However,the categoriesof crimesagainsthumanity or (a "widespread in the ICC statute stillassume the existenceof some typeof hostilities attack"on civiliansin the case of crimesagainsthumanity and the planned systematic large-scalecommissionof crimesin the case of war crimes). The notionsof conflict and attacks are themselves and controversial. When contingent do theybegin and end? For manywomen,violence is not reduced withthe cessationof forwomen and and ostensibletimesof peace maybe fullof conflict military hostilities, violations. For example,Cynthia Enloe has describedthe produce serioushuman rights social structures bases wherewomenmaybe abducted surrounding manyforeign military or become prostitutes and forced into prostitution in order to survive.73 Thus, in Honduras womenlivingon the fringes of United Statesbases have become caughtup in a web of coercive and economic pressuresto satisfy the military's expectationof the sexual servicesof local women.74 Women's experience of violence and sexual abuse at
Seegenerally Ratner,supranote 45. ICC statute, supranote 60, Art.8(2) (d). In the case ofviolations of humanitarian law apartfromcommon Article 3 to the Geneva Conventions, the statute adds thatitsprovisions applyonlyto "armedconflicts thattake place in the territory of a State when there is protractedarmed conflictbetween governmental authorities and organized armed groups or betweensuch groups."Id., Art.8(2) (f). 70 Anne Orford, Locating the International: and Monetary after theColdWar, 38 HARV.INT'L Military Intementions L.J.443 (1997). 71 Id. at 479-80. 72 However, Article 5 of the Statuteof theYugoslavTribunal,in Reportof the Secretary-General pursuantto in 32 ILM paragraph2 of Security Council resolution808 (1993), UN Doc. S/25704, annex (1993), reprinted in international to thosecommitted or internalarmed conflict. 1192 (1993), confinescrimesagainsthumanity
68 69 73

CYNTHIA ENLOE, THE MORNING AFTER: SEXUAL POLITICS AT THE END OF THE COLD WAR 118-20 74 Id.

(1993).

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

390

JOURNALOF INTERNATIONALLAW THE AMERICAN

[Vol. 93:379

the hands of United Nations peacekeepers in Mozambique, Cambodia and Bosnia75is another example of the unrealityof the conflict/peacedichotomy:in this context the "peacekeepers" are the source of conflictand violence. Yet another example is on women of economic sanctionsimposed as a result harmfuleffects the particularly The negotiation of the Dayton Peace Accords shows how the of armed conflict.76 achievementof "peace" may be at the expense of the recognitionof, and compensaby the most vulnerable groups.77The failure of the Dayton tion for, harm suffered of, or provide any assistance to, the Bosnian the treatment acknowledge Accords to has perpetuatedtheir duringthe conflict abused and sexually raped who were women
suffering.78

Accountability Individual raised by the editors' "concretesituation" The notion of "individual"accountability is Individual criminalaccountability with (civil) state responsibility. implies a contrast deterrentto as a higher,and more effective, lawyers regarded by most international because of the riskthat the responsible human rightsabuses than state responsibility, In this state may choose not to impose any punishmenton the actual perpetrator.79 for level individualaccountability sense, it mightbe argued that at the international women would be a valuable method to reduce these human rightsabuses affecting the international sphere is regarded as more hospitable to wrongs.In,manycountries, if any,should be used to What criterion, women's claims than national legal systems. from thatgenerateindividualaccountability of human rights thoseviolations distinguish for every criminal responsibility those that do not? While we may not wish to allocate not effectively it is criticalthatthe principleof accountability breach of human rights, above, may discussed of official The criterion conduct, gendered differences. reinforce well have thiseffect. have had mixed viewson the appropriatereactionto crimesagainstwomen Feminists of criminal Althoughtheyhave oftenbeen skepticalof systems in nationallegal systems. application of existinglaw and called for have supportedstrict justice, manyfeminists At the same time,theyhave strongpenalties in the case of violence againstwomen.80 in of violence.8' Involvement pointed to the need to compensate and supportvictims may bring about further criminallegal processes,whethernational or international, traumain the person who was the object of violence.82Moreover,pursuingindividual the causes of a problem. us frominvestigating alone can distract criminalaccountability relations Focus on individualacts of violence againstwomen mayobscure the structural betweentheways of powerand dominationthatmake thempossible and the continuity is rape in armed conflict women are treatedin "peacetime"and in timesof "conflict":
75 SeeAnne Orford,ThePolitics 17 MICH. J. INT'L L. 373 (1996). Security, ofCollective
76

Seesupranote 67.

78 Id. at 66-68. 79E.g., Ratner,supranote 45, at 240. 80 and thelaw, in FEMINIST PERSPECTIVES IN CRIMINOLOGY feminism againstwomen: SeeSusan Edwards, Violence 145, 146-48 (Loraine Gelsthorpe& Allison Morriseds., 1990). 81 Law, 5 EUR. J. INT'L L. 326, 337 in International See ChristineChinkin,Rape and SexualAbuseof Women the Violence Gender-Based Before Prosecution Rules ofRape and Other the forthe Green et al., Affecting (1994); Jennifer 5 HASTINGS WOMEN'S LJ. and Critique, A Feminist Proposal Yugoslavia: the Former Tribunalfor Criminal International 171 (1994). of rape as witnesses beforetheYugoslavTribunal, 82 For a debate over the appropriatetreatment of victims Anonymity 91 AJIL75 (1997); Monroe Leigh, Witness Anonymity, and Witness M. Chinkin, Due Process see Christine Rape of andAdjudication Prosecution Problems of 91 AJILat 80. SeealsoKate Fitzgerald, with Due Process, Is Inconsistent Intemnational Law, 8 EUR. J. INT'L L. 638 (1997). under SexualAssaults and Other

77 SeeUstiniaDolgopol, A Feminist PeaceAccords, 19 ADELAIDE L. REv. 59 (1997). ofthe Dayton Appraisal

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

391

made possible by the prevalence of rape in times of peace. Such a focus will not necessarily providean incentiveto remedyhuman rights abuses thatare the productof a systematic failure to create the conditions necessaryto guarantee the securityof women.83Internationaltrialsof individualsfor human rightsabuses during armed conflict servea range of social functions, includingretribution, deterrenceand absolution throughcatharsis.84 The ideal ofjustice animatingthem is closelyconnected, as Simon Chestermanhas shown,to a particularunderstanding of peace and order obtained throughmilitary means.85The trialsallow a returnto the "order"of the status quo, but thispublic order is dependentboth on the acceptability ofviolence and on the dominationof women in the privatedomain. Schemes of accountability for human rights violationsare not confinedto criminal For example, the "truth responsibility. commissions" establishedin a numberof states, includingUganda, Chile, El Salvador and South Africa, were designed to establishthe factsabout patterns of human rights violations, without necessarily leading to individual criminalprosecutions.The rationaleof these investigatory mechanismswas thatknowledge of the truth would itself promotesocial healing and reconciliation.86 The nonadversarial natureof these proceedingsmightappear to be consistent withsome feminist scholars' reservations about criminalproceedingsand supportfor alternative formsof is mixed. Their effecdisputeresolution.The experience of the commissions, however, tiveness in promoting reconciliation has been dependent on politicalsupportand broad termsof reference.87 Issues of gender have thusfar not been seen as relevantto their mandates. The notionof stateresponsibility has recently been developed in waysthatencompass gendered harm.For example,in Mejia Egocheaga v. Peru the Inter-American Commission on Human Rightsheld Peru accountable for the rape of a woman, Raquel Mejia, by Peruviansecurity forcesas an aspectof thecampaignagainstcivilians suspectedofhaving connectionswith insurgents. The Commissionobserved that there were no effective remedieswithinPeru to pursue claims againstthe security forces.It stated: Current international law establishes thatsexual assaultcommitted bymembersof whether as a resultof the deliberatepracticepromotedby the state security forces, or as a result of failure by the state to prevent the occurrence of this crime, constitutes a violationof the victim'shuman rights, especiallythe rightto physical and mentalintegrity.88 The value of this principle is its recognitionof internationalresponsibility for an to respond to crimesagainstwomen. When is a national inadequate national structure legal systemconsidered deficientin this context?Internationallaw appears able to as inadequate because it allowed no action against the recognize the Peruviansystem forces.It is less readyto respond to the significant structural security problemsin most legal systems, whichmayoffer formallegal remediesforgendered harmsbut in practice fail to deliver justice to women.89
83 See Celina Romany,StateResponsibility A Feminist Distinction in GoesPrivate: Critique of thePublic/Private International Human Rights Law, in HUMAN RIGHTS OF WOMEN, supranote 50, at 85, 85-86. 84 SeeChesterman, supranote 62, at 311-17. 85 Id. at 319. 86 16 HuM. RTs. Q. 597, 604 SeePriscillaHayner,Fifteen Truth Commissions-1974 to1994: A Comparative Study, (1994). 87 Id. at 635-50. 88 Case 10.970, Report5/96 (Mar. 1, 1996), reprinted in 1 BUTTERWORTHS HUM. RTS. CASES 229 (1996). 89 See,e.g.,AUSTRALIAN LAW REFORM COMMISSION, EQUALITY BEFORE THE LAW (1994).

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

392

THE AMERICAN JOURNAL OF INTERNATIONAL

LAW

[Vol. 93:379

III.

CONCLUSIONS

methods compare to the other methodologies presented in this How do feminist In principle,all the methodsare capable of some response to the situation symposium? international have drawnon each of of womenworldwide and, indeed, feminist lawyers these methods, from positivismto critical legal studies, in their attemptsto make internationallaw more useful to women. However,unlike these other methods,my assertsthe importanceof gender as an issue in international account of feminism law: it and "masculinity" are incorporatedinto internaargues that ideas about "femininity" the globally tional legal rules and structures, silencingwomen's voices and reinforcing observeddominationof women bymen. None of the othermethodologiesrepresented here displaysany concern withgender or, indeed, withthe position of women as an internationalissue. The situationof over half the world's population is not seen as to defineuniversally relevantto attempts applicable principles. methodsand manyof the othercontributions is Anotherdistinction betweenfeminist in international law. For example, Bruno in the way theyview the idea of objectivity forthe enlightenedpositivists, Simma and Andreas Paulus, writing emphasize the need to put aside his or her subjective forthe international and to strive for lawyer preferences impartiality. They insist that the very "professionalethics of a lawyerrequires the impartialmediation of attitudes,ideologies or conflicts."90 Mary Ellen O'Connell's Dunoffand Joel Trachtman'sstateaccount of international legal process and Jeffrey stressthe centrality of objectivity to ment of the law and economics approach similarly Feminist methodsquestion the possibility of objectivity in the international legal system. a system thateffectively excludes women'svoices.They are skepticalabout the construction of the neutraland impartial formale perspecstandards, seeing themas synonyms tives.Skepticism about the hunt for the objectiveis, of course, shared by manycritical aloof fromexaminingthe implications thinkers, but theyhave remained curiously for gender politics,or indeed for the situationof other marginalizedgroups. Like Martti feminists of international Koskenniemi, pay attentionto the binarystructures law, but also have a gendered dimension,reflecting and soliditheyargue thatthese structures of subordination based on sex. fying systems Some feministmethods overlap with those described in other contributions. For example,the New Haven approach describedbySiegfried Wiessnerand AndrewWillard of the observer's at first givesprominenceto the clarification standpoint, sightsimilarto concernwiththe politicsof identity. the feminist However,froma feminist perspective, the New Haven School is interested in onlya very narrowunderstanding of standpoint, to the sex of the observer failingto attribute anysignificance and the genderedworldof law. If law is a "human artifact," is it not relevant international thatitsmakersare almost invariably men? The New Haven commitment to a worldpublic order of human dignity also fails to consider the gendered dimensions of the notions of order and human of theorderpromotedand whatmodel ofhumanity Whatare theunderpinnings dignity. is being relied on? Anotherset of methodsthathave had some resonance forfeminist international are those of international relations.It is striking thatnone of the lawyers literature law and international discussingthe potentialbridgesbetween international has paid any relations,including Kenneth Abbott's contributionto this symposium, attentionto the significant influenceof the richfeminist IR literature on international
90 Bruno Simma & Andreas L. Paulus, TheResponsibility ofIndividuals forHuman Rights Abusesin Internal A Positivist View, 93 AJIL 302, 316 (1999). Conflicts:

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

1999]

SYMPOSIUM ON METHOD

393

legal scholars,and vice versa. The lack of interestin this connection underlineshow eccentricand marginalfeminists appear in the twodisciplines.9' The editorsof thissymposium asked us to consider how "our" method's analysisof international law would assista decision makerin appraisingthe lawfulness of conduct and constructing law-basedoptions for the future.The feminist methods that I have outlined indicate the need for a radical shiftin perspectivein international law. My versionof a feminist analysissuggeststhatinternational law rules on accountability for human rights abuses in internalconflicts tend to privilegea certainset of experiences and filter out manyissues thattouch women's lives in particular. Is thereany point in changingthe law? Some feminist theorists mightdismissreform of the law as a worthwhile strategy, arguing that this may give undue prominence to law as a site of social change. Theymaypointout thatsome womenwillgain morefrom international law than others.In any event,it maybe argued, even ifwe get the principlesright,there is no guarantee that the practicewill change. Feministsmightpoint to the greatervalue of politicalcampaignsor media coverage in reducingthe oppression of women.92 These arguments, whilepowerful, do not acknowledgethatinternational law has a symbolic, as well as a regulative, function. Claims based on international law can carry an emotional and moral legitimacy thatcan have considerablepoliticalforce.93 Is the reconception of internationallaw for which I have argued a practical and efficacious In a reviewof a collectionof papers on feminism in international strategy? law,94Koskenniemihas cautioned against the enthusiasmfor radical change in our discipline: We can reconceiveinternational law everynow and then,but not all the time.Our immediatefears and hopes do not necessarily match to produce the good society.... At some point, we need distance from those fears and hopes-if not objective distance, then at least a partial,consensual, formaldistance. That law makesthisdistancepossible onlyfora moment) is not a defectof law,but 9if always its mostimmediatebenefit. Koskenniemiseems to be advocatingacceptance of the framework of international law fromuntrammeled and politics. because, flawedas it is, it is some protection subjectivity is thatinternational law does not provideeven a "partial, Myargument here,bycontrast, It is intertwined witha gendered subjecconsensual,formaldistance"fromsubjectivity. and reinforces a system of male symbols. tivity Feminist methodshelp us understandwomen's subordination in waysthatare much than those offered of How can the twogoals deeper bythe legal concept discrimination. for of feminism, activism come together and theorizing, in the contextof accountability human rightsviolationsin internal armed conflict?Ensuring equal participationof women in the institutions of international criminallaw is an important first step.96But thisalone will not ensure a change of perspective. As Cohn has pointed out: the presence of women thatwould make a difference. [I]t is not simply Instead,it is the commitment and ability to develop,explore,rethink and revaluethosewaysof
9' See Tickner, suPra note 1. 92 ANDTHE POWEROF LAw (1989). Eg., CAROL SMART,FEMINISM
93 94

See RichardBilder,Rethinking Human Rights 1969 Wis. L. REV.171. Law: SomeBasic Questions, REALITY: WOMEN AND INTERNATIONAL LAw (Dorinda Dallmeyer ed., 1993). 95 Martti Koskenniemi, Book Review, 89 AJIL227, 230 (1995). 96 In a significant move,the ICC statute, supranote 60, Art.36(8) (a) (iii), calls on statespartiesto take into account the need for "[a] fairrepresentation of female and male judges." It also requires statespartiesto consider the inclusionofjudges withlegal expertisein violence againstwomen. Id., Art.36(8) (b).
RECONCEMNG

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions

394

THE AMERICAN JOURNAL OF INTERNATIONALLAW

[Vol. 93:394

For thatto thinking thatget silenced and devalued thatwould make a difference. happen, men, too, would have to be centralparticipants.97 International lawyersrequire a much richer understanding of gender than the definitionprovided in the ICC statute,which elides the notion of gender and sex.98 It does not recognize thatgender is a constructedand contingentset of assumptions about female and male roles and that many of the definingdichotomies of international criminal law, such as order/disorder,public/private,international/internal, have a gendered dimension. They should appreciate the way that notions of femininityand masculinityare used in conflict and how such constructionsvalidate "normal" roles for women and men. Rape and sexual assault should be analyzed in internationallaw as crimes against women, rather than offensesagainst their communities.Internationallegal recognitionof persecution based on gender as a crime of challenging the narrowconception of the against humanityoffersthe possibility internasocial order protected by internationalcriminallaw.99Most fundamentally, need to understand the waythatour discipline has legitimatedthe use tional lawyers of violence by accepting it as an inevitable aspect of internationalrelations and the implicationsthat this has for our daily lives.
HiLARY CHARLESWORTH*

THE LAW AND ECONOMICS OF HUMANITARIAN LAW VIOLATIONS IN INTERNALCONFLICT

INTRODUCTION

for human rightsatrocitiescommittedin The problem of criminal responsibility internalconflict providesan appropriatevehicle forexaminingvarioustheoretical and law.The issuesraised include the following: methodologicalapproaches to international forsuch acts? How Does international law provideforindividualcriminalresponsibility be prevented? or bestcan theseatrocities Should international law addressthesematters are theybetterleftto domesticlaw? Whydoes international legal doctrinedistinguish violationscommitted in international conflictand the identical betweenhuman rights in internalconflict? acts committed and scholarshave had troubleanswerInternational lawmakers, judges, practitioners ing questions like these because of a shortage of useful theory.Law and economics (L&E) is richin usefultheory: it has constructed and refineda bodyof rationalist theory that can generate refutablehypotheses, and it suggestsmethodologiesbywhich those it exaltsempiricism hypotheses maybe tested.Whilelaw and economicsis richin theory, we are criticalof a law and economics thathas (in whichit is surprisingly poor). In fact, been willing to prescribe In thisnecessarily immodestly solelyon the basisoftheory. brief because our essay,we do not reach positiveconclusions or normativeprescriptions
Cohn, supranote 11, at 239. ICC statute, supranote 60, Art.7(3). 99 Id., Art.7(1). SeeRhonda Copelon, Surfacing Re-Engraving Crimes AgainstWomen in Humanitarian Gender: Law, 5 HASTINGS WOMEN's L.J.243, 261-64 (1994). * Professor National and Directorof the CentreforInternational and Public Law, Faculty of Law, Australian University; Scholar-in-residence, Frances Lewis Center, Washingtonand Lee School of Law, spring 1999. Thanks toJane Stratton and Angela Wilson forexcellentresearchassistanceand to Deborah Cass, Christine Chinkin, JudithGardam,Charles Guest,RobertMcCorquodale, Anne Orford,Dianne Otto and Ann Tickner fortheirveryhelpfulcomments.
97
98

This content downloaded from 123.63.6.201 on Thu, 6 Feb 2014 09:52:48 AM All use subject to JSTOR Terms and Conditions