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Feminist Methods in International Law

Published online by Cambridge University Press:  27 February 2017

Hilary Charlesworth
Hilary Charlesworth*
Affiliation:
Australian National University, Frances Lewis Center, Washington and Lee School of Law
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Extract

I have mixed feelings about participating in this symposium as the feminist voice. On the one hand, I want to support the symposium editors’ attempt to broaden the standard categories of international legal methodologies by including feminism in this undertaking. On the other hand, I am conscious of the limits of my analysis and its unrepresentativeness—the particularity of my nationality, race, class, sexuality, education and profession shapes my outlook and ideas on international law. I clearly cannot speak for all women participants in and observers of the international legal system. I also hope that one day I will stop being positioned always as a feminist and will qualify as a fully fledged international lawyer. My reservations are also more general because presenting feminism as one of seven rival methodological traditions may give a false sense of its nature. The symposium editors’ memorandum to the participants encouraged a certain competitiveness: we were asked, “Why is your method better than others?” I cannot answer this question. I do not see feminist methods as ready alternatives to any of the other methods represented in this symposium. Feminist methods emphasize conversations and dialogue rather than the production of a single, triumphant truth.1 They will not lead to neat “legal” answers because they are challenging the very categories of “law” and “nonlaw.” Feminist methods seek to expose and question the limited bases of international law’s claim to objectivity and impartiality and insist on the importance of gender relations as a category of analysis. The term “gender” here refers to the social construction of differences between women and men and ideas of “femininity” and “masculinity”—the excess cultural baggage associated with biological sex.

Type
Symposium on Method in International Law
Information
American Journal of International Law , Volume 93 , Issue 2 , April 1999 , pp. 379 - 394
Copyright
Copyright © American Society of International Law 1999

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References

1 See J. Ann Tickner, You Just Don’t Understand: Troubled Engagements between Feminists and IR Theorists, 41 Int’l Stud. Q. 611, 628 (1997).

2 See Elizabeth Grosz, A Note on Essentialism and Difference, in Feminist Knowledge: Critique and Construct 332 (Sneja Gunew ed., 1990).

3 Id.

4 See Sandra M. Gilbert & Susan Gubar, The Madwoman in the Attic: The Woman Writer and the Nineteenth-Century Literary Imagination (1979).

5 See, e.g., Feminist Cultural Theory: Process and Production (Beverley Skeggs ed., 1995).

6 Rey Chow, Violence in the Other Country: China as Crisis, Spectacle, and Woman, in Third World Women and the Politics of Feminism 81, 98 (Chandra Talpade Mohanty, Ann Russo & Lourdes Torres eds., 1991).

7 See Ngaire Naffine, Law and the Sexes 2 (1990).

8 See Margaret Radin, The Pragmatist and the Feminist, 63 S. Cal. L. Rev. 1699, 1718–19 (1990). Donna Haraway has used a similar term, “situated knowledges,” to advocate “shared conversations” on methodology that can lead to better accounts of the world than provided by a single perspective. Donna Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Accounts of the Perspective, 14 Feminist Stud. 575, 580 (1988).

9 Beijing Platform for Action, UN Doc. A/CONF.177/20 & Add.1, Ann. II, para. 245(b) (1995), reprinted in 35 ILM 401, 457 (1996).

10 Dianne Otto, Holding up Half the Sky, But for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women, 6 Austl. Feminist L.J. 7, 21 (1996).

11 E.g., Carol Cohn, War, Wimps and Women: Talking Gender and Thinking War, in Gendering War Talk 227, 231 (Miriam Cooke & Angela Woollacott eds., 1993).

12 Id.

13 Id.

14 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, Art. 1, 1465 UNTS 85.

15 GA Res. 48/104 (Feb. 23, 1994), reprinted in 33 ILM 1049 (1994).

16 See Hilary Charlesworth, Worlds Apart: Public/Private Distinctions in International Law, in Public and Private: Feminist Legal Debates 243, 256–59 (Margaret Thornton ed., 1995).

17 See Chandra Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, Feminist Rev. 61 (1988).

18 Id. at 74.

19 Isabelle Gunning, Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 Colum. Hum. Rts. L. Rev. 189, 191 (1991–92). See also Karen Engle, Female Subjects of International Law: Human Rights and the Exotic Other Female, 26 New Eng. L. Rev. 1509 (1992).

20 Gunning, supra note 19, at 191.

21 Rosi Braidotti, The Exile, the Nomad, and the Migrant: Reflections on International Feminism, 15 Women’s Stud. Int’l F. 7, 9 (1992).

22 Id. at 10.

23 Id.

24 Benedict Anderson, Imagined Communities: Reflections on the Spread of Nationalism (1983).

25 Chandra Mohanty, Introduction: Cartographies of Struggle, in. Third World Women and the Politics of Feminism, supra note 6, at 1, 4.

26 Id.

27 See Grosz, supra note 2.

28 Mohanty, supra note 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 Mohanty eds., 1997).

30 Donna Haraway, Simians, Cyborgs and Women: The Reinvention of Nature 129 (1991).

31 Chow, supra note 6, at 82. Compare Zalewski’s response to a similar question in Marysia Zalewski, Well, What Is the Feminist Perspective on Bosnia? 71 Int’l Aff. 339 (1995).

32 Chow, supra note 6, at 82.

33 Id. at 83.

34 Id. at 88.

35 See, e.g., Special Rapporteur on Contemporary Forms of Slavery, Final Report on Systematic rape, sexual slavery and slavery-like practices during armed conflict, UN Doc. E/CN.4/Sub.2/1998/13 (1998).

36 Michael Ignatieff, The Warrior’s Honor: Ethnic War and the Modern Conscience 127 (1998).

37 United Nations Development Programme, Human Development Report 45 (1995).

38 See International Federation of Women Lawyers (FIDA), Statement, Uganda (Oct. 16, 1998) (on file with author).

39 Id.

40 Id.

41 Id.

42 Id.

43 Human Rights Watch, World Report 1998, at 391 (1998).

44 See generally Human Rights Watch, supra note 43.

45 See generally Steven R. Ratner, The Schizophrenias of International Criminal Law, 33 Tex. Int’l L.J. 237 (1998).

46 This term is used by Ignatieff, supra note 36.

47 For a feminist analysis of international humanitarian law generally, see Judith Gardam, Women and the Law of Armed Conflict: Why the Silence? 46 Int’l & Comp. L.Q. 55 (1997).

48 Ignatieff, supra note 36, at 146.

49 Gohn, supra note 11, at 231.

50 See generally, e.g., Human Rights of Women: National and International Perspectives (Rebecca Cook ed., 1994).

51 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 27, 6 LIST 3516, 75 UNTS 287.

52 Gardam, supra note 47, at 73–74.

53 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, Art. 76, 1125 UNTS 3.

54 Some jurists argue, however, that the prohibition on rape is implicitly included in this category. See, e.g., Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424, 426–27 (1993).

55 Prosecutor v. Karadžić and Mladić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Nos. IT-95-5-R61 and IT-95-18-R61, paras. 94–95 (July 11, 1996), reprinted in 108 ILR 85 (1998).

56 Prosecutor v. Akayesu, Judgement, No. 96-4-T (Sept. 2, 1998) <http://www.un.org/ictr>.

57 The Rwanda Tribunal also found Akayesu guilty of war crimes and crimes against humanity through his encouragement of individual acts of sexual violence.

58 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. II, 78 UNTS 277.

59 See Ratner, supra note 45, at 253.

60 Rome Statute of the International Criminal Court, July 17, 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 from torture. See Art. 7(1) (g).

61 Ratner, supra note 45, at 254.

62 Simon Chesterman, Never Again … and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond, 22 Yale J. Int’l L. 299, 336 (1997).

63 See Judith Gardam & Hilary Charlesworth, The Need for New Directions in the Protection of Women in Armed Conflict, 21 Hum. Rts. Q (forthcoming Aug. 1999).

64 See generally Final Report of the Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia, UN Doc. S/25240 (1993).

See United Nations High Commissioner for Refugees, UNHCR Guidelines on the Protection of Refugee Women, UN Doc. E/SCP/67 (1991).

66 Id. at 49.

67 Sarah Zaidi, War, Sanctions, and Humanitarian Assistance: The Case of Iraq 1990–1993, 1 Med. & Global Survival 147,153 (1994). See also Committee on Economic, Social and Cultural Rights, General Comment No. 8, UN Doc. E/C.12/1997/8.

68 See generally Ratner, supra note 45.

69 ICC statute, supra note 60, Art. 8 (2) (d). In the case of violations of humanitarian law apart from common Article 3 to the Geneva Conventions, the statute adds that its provisions apply only to “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.” Id., Art. 8(2)(f).

70 Anne Orford, Locating the International: Military and Monetary Interventions after the Cold War, 38 Harv. Int’l L.J. 443 (1997).

71 Id. at 479–80.

72 However, Article 5 of the Statute of the Yugoslav Tribunal, in Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993), confines crimes against humanity to those committed in international or internal armed conflict.

73 Cynthia Enloe, The Morning After: Sexual Politics at the End of the Cold War 118–20 (1993).

74 Id.

75 See Anne Orford, The Politics of Collective Security, 17 MICH. J. Int’l L. 373 (1996).

76 See supra note 67.

77 See Ustinia Dolgopol, A Feminist Appraisal of the Dayton Peace Accords, 19 Adelaide L. Rev. 59 (1997).

78 Id. at 66–68.

79 E.g., Ratner, supra note 45, at 240.

80 See Susan Edwards, Violence against women: feminism and the law, in Feminist Perspectives in Criminology 145, 146–48 (Loraine Gelsthorpe & Allison Morris eds., 1990).

81 See Christine Chinkin, Rape and Sexual Abuse of Women in International Law, 5 Eur. J. Int’l L. 326, 337 (1994); Jennifer Green etal., Affecting the Rules for the Prosecution ofRapeand Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 Hastings Women’s L.J. 171 (1994).

82 For a debate over the appropriate treatment of victims of rape as witnesses before the Yugoslav Tribunal, see Christine M. Chinkin, Due Process and Witness Anonymity, 91 AJIL 75 (1997); Monroe Leigh, Witness Anonymity Is Inconsistent with Due Process, 91 AJIL at 80. See also Kate Fitzgerald, Problems of Prosecution and Adjudication of Rape and Other Sexual Assaults under International Law, 8 Eur. J. Int’l L. 638 (1997).

83 See Celina Romany, State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law, in Human Rights of Women, supra note 50, at 85, 85–86.

84 See Chesterman, supra note 62, at 311–17.

85 Id. at 319.

86 See Priscilla Hayner, Fifteen Truth Commissions—1974 to 1994: A Comparative Study, 16 Hum. Rts. Q. 597, 604 (1994).

87 Id. at 635–50.

88 Case 10.970, Report 5/96 (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).

90 Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AJIL 302, 316 (1999).

91 See Tickner, supra note 1.

92 E.g., Carol Smart, Feminism and the Power of Law (1989).

93 See Richard Bilder, Rethinking Human Rights Law: Some Basic Questions, 1969 Wis. L. Rev. 171.

94 Reconceiving Reality: Women and International Law (Dorinda Dallmeyer ed., 1993).

95 Martti Koskenniemi, Book Review, 89 AJIL 227, 230 (1995).

96 In a significant move, the ICC statute, supra note 60, Art. 36(8) (a) (iii), calls on states parties to take into account the need for “[a] fair representation of female and male judges.” It also requires states parties to consider the inclusion of judges with legal expertise in violence against women. Id., Art. 36(8) (b).

97 Cohn, supra note 11, at 239.

98 ICC statute, supra note 60, Art. 7(3).

99 Id., Art. 7(1). See Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, 5 Hastings Women’s L.J. 243, 261–64 (1994).