The Tapestry—the longest piece of embroidery on record—tells in detail how William the Conqueror contested the coronation of Harold upon the death of King Edward the Confessor. After arriving in England, William's troops pillaged the locals in preparation for battle. Among other atrocities that we would today designate as war crimes, they burned a home, sending this mother and her child fleeing.
This image of women impacted by war serves as inspiration for a new piece I have just posted on SSRN. The article is entitled “The Grass That Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?" after an African proverb:
When elephants fight the grass gets hurt.
The article analyzes the outcome of the International Criminal Court Review Conference in Kampala with an eye toward
- the rarely considered gender aspects of the crime of aggression,
- whether or not the provisions adopted represent an advancement for women, and
- how aspects of feminist theory might interpret the new regime.
It also remains to be seen whether the codification of the crime of aggression will serve any deterrent purpose whatsoever when governmental leaders contemplate using force—offensively or defensively—in their international relations, especially in situations that do not implicate exigent sovereign threats. To the extent that the new provisions do exert a restraining effect, the expansive way in which the crime has been defined may end up chilling those uses of force that are protective and thus more discretionary, such as uses of force employed pursuant to the nascent doctrine of responsibility to protect. The crime may thus result in more ex post prosecutions at the expense of ex ante efforts at preventing and repressing violence. Whether this over-deterrence argument should be raised on behalf of women, however, requires an acceptance of the legitimacy, if not lawfulness, of humanitarian intervention with or without Security Council approval and a coming to terms with a certain valorization of militarism and its inherent masculinities—a perspective that is alien to much feminist thinking.
The International Criminal Court has yet to demonstrate that it can fulfill its current mandate. Operationalizing the crime of aggression without allocating additional resources to enable the Court to prosecute this controversial, largely unprecedented, and qualitatively different crime may distract the Court from responding more effectively to the “atrocity crimes” that now finally address gender-based violence more directly. The crime may also encourage the Court to focus on leaders in capital cities rather than the warlords next door, whom victims more directly associate with atrocities and without whose prosecution it may be impossible to achieve complete justice for women. Given the potential to reach top political leaders, the crime may be also subject to abuse. The amendments approved in Kampala will eventually permit states parties to refer each other to the ICC as alleged violators of the prohibition against aggression. Misuse of this referral authority could render the Court little more than just another forum for states to manipulate and exploit in order to advance their interests. Such an outcome would politicize and de-legitimate the Court.
At this early stage in the life of the Court and in the absence of any concrete experience investigating or prosecuting the new crime of aggression, these bases for criticism and praise are inherently speculative. Applying a feminist perspective to the codification of the crime of aggression yields no easy conclusions. Rather, reasoning through the central question of whether the codification of the crime in the ICC Statute will be good for women produces a dizzying spiral of dialectical reasoning. And so, as a feminist, I approach the crime with a profound ambivalence.
I welcome your comments on the paper...