Many scholars and activists have argued that the International Criminal Court (ICC) holds potential for advancing the rights of women and girls, leading to extensive feminist engagement with and investment in the Court. As the ICC enters its second decade of existence, this article offers a reflection on both the possibilities and the challenges facing feminists. Can the international criminal law really offer a site for enhancing the rights of women? And if so, how? To explore these questions I focus on the interaction between feminist activism and international criminal law institutions in relation to crimes of sexual and gender-based violence. I argue that some of the feminist strategies deployed to get sexual violence onto the international agenda have resulted in perverse outcomes. This should lead us to greater critical reflection regarding how international law conceives of sexual violence and direct our future engagements with international legal institutions. In particular feminist activists and scholars need to move away from focusing on the number of prosecutions towards challenging the international criminal law to characterise the nature of the harm in accordance with a recognition of sexual rights.
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In using the term ‘feminist’ I recognize that this is an umbrella, which covers a very diverse and sometimes conflicting range of social, ideological and political positions. In the context of this article I use the term to describe the various coalitions of activists and scholars who have identified as representing a ‘feminist’ position in relation to ICL. These include such groups as the Women’s Caucus for Gender Justice (now the Women’s Initiative), the Coalition for Women’s Human Rights in Conflict Situations, the Special Rapporteurs on Violence Against Women and Systematic Rape, Sexual Slavery and Slavery-like Practices, as well as individual feminist legal scholars, including myself.
For a full discussion of the relevant jurisprudence see Grewal (2012a).
For further development of this argument see Grewal (2010).
While both Binaifer Nowrojee and Valerie Oosterveld express concern about the possible risks associated with reinforcing patriarchal gender stereotypes around marriage (Nowrojee 2005, 102; Oosterveld 2009, 87), they are nonetheless positive about the decision by the SCSL to continue with the prosecution.
Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao, SCSL-04-15-T (the RUF case); Prosecutor v Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, SCSL 04-16-T (the AFRC case); Prosecutor v Charles Ghankay Taylor, SCSL 03-01-T (the Taylor case). Available at: http://www.scsldocs.org/documents. Accessed 1 June 2015.
Her Honour is a member of the Commonwealth Reference Group for the Promotion of the Rights of Women and the Girl Child and has worked actively on promoting women’s rights in her judicial capacity in Papua New Guinea.
AFRC case, SCSL-04-16-T, Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (Forced Marriage), 20 June 2007, para. 49. Available at: http://www.scsldocs.org/documents/view/5315-5315. Accessed 1 June 2015.
For more on this see Grewal (2016).
Prosecutor v Lubanga, ICC-01/04-01/06, judgment, 14 March 2012, para. 36. Available at: http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf. Accessed 1 June 2015.
Prosecutor v Lubanga, ICC-01/04-01/06, Separate and dissenting opinion of Judge Odio Benito, 14 March 2012, para. 21. Available at: http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf. Accessed 1 June 2015.
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I acknowledge that this is but one strategy amongst a vast array of activities engaged in by the Women’s Caucus/Initiative. It is beyond the scope of this article to conduct a thorough analysis of the other activities of the organization and I limit my critique accordingly.
For example Kiggundu (2007) describes the ways in which women’s rights activists in Uganda have been using the ICC prosecutions as a means of introducing debate regarding the inadequacies of domestic responses to sexual violence. A similar process was initiated in Sierra Leone, which led to the passing of what are now known as the ‘Gender Acts’: The Domestic Violence Act, The Devolution of Estates Act and The Registration of Customary Marriage and Divorce Act in 2007 and The Sexual Offences Act in 2012.
Apart from the now well-known Security Council Resolution 1325 (2000), there have been a suite of Resolutions focused on women, girls and sexual violence in armed conflict: Security Council Resolution 1820 (2008), 1888 (2009), 1889 (2009) and 1960 (2010).
Prosecutor v Kunarac, IT-96-23-T and IT-96-23/1-T, Feb. 22, 2001. Available at: http://www.icty.org/case/kunarac/4. Accessed 1 June 2015.
And indeed this is the position Amnesty International (2011) has taken in a recent report.
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Grewal, K.K. International Criminal Law as a Site for Enhancing Women’s Rights? Challenges, Possibilities, Strategies. Fem Leg Stud 23, 149–165 (2015). https://doi.org/10.1007/s10691-015-9286-4