Friday, October 29, 2010

Questioning hierarchies of harm

Many IntLawGrrls have gathered this morning to honor Judge Patricia Wald at our roundtable on "Women and International Criminal Law." I'll be participating in the first panel, entitled The Limits of International Criminal Law, and look forward to receiving comments on my paper, "Questioning Hierarchies of Harm: Women, Forced Migration, and International Criminal Law." It's available in full here; here's a preview of some of the ideas therein:
From the Akayesu case to the Revolutionary United Front decision, international criminal law has made great strides in addressing harm perpetrated against women in wartime. Though these doctrinal developments are laudable, the gendered structure of international criminal law diverts attention away from other significant harms that women endure as a result of armed conflict. In particular, international criminal law’s hierarchy of harm is deeply problematic. This hierarchy elevates crimes committed as part of a plan or pattern across political groups – for example, by members of one group against members of a second group on the other side of a political conflict, whether during war or otherwise – over equally serious forms of harm perpetrated randomly, often within political groups – for example, by men against women on the same side of a conflict. This approach is problematic because female forced migrants suffer serious harms that do not fall clearly within the framework of international criminal law. These harms include rape, sexual assault, and other forms of physical violence that are not part of a master criminal plan but are rather private and opportunistic harms enabled by situations of displacement.
Refugees and internally displaced women suffer extensive violence at the hands of husbands, boyfriends, family members, neighbors, aid workers, peacekeepers, and strangers, none of whom is acting at the behest of a state or militia or fulfilling an organizational master plan. Is the Rome Statute of the International Criminal Court applicable to these crimes? While the language of the statute does not provide an obvious basis for prosecuting opportunistic crimes against female forced migrants, international refugee law offers a potential avenue for interpreting international criminal law to cover such crimes. Even so, the fit is imperfect – perhaps unsurprisingly given that the law was created to address very different crimes. Beyond the limitations of international criminal law, a vacuum of accountability exists on several levels in situations of forced displacement. Female forced migrants cannot rely on their own governments, their host governments, and often even international humanitarian organizations to protect them against opportunistic violence.
Should international criminal law step into the void? One might argue that the purpose of international criminal law is to provide accountability for conflict-related harms that would not otherwise be addressed. From that perspective, redress for the myriad forms of violence suffered by female forced migrants – harms that usually fall outside of any legal accountability mechanisms – seems an important component of that goal. Similarly, if the central aim of international criminal law is to account for crimes of such severity that they can be considered to be harms against all humankind, violence against women in situations of displacement is so prevalent and destructive that its prosecution should be viewed as a significant component of this goal. Such a step would require quite serious reconstruction of international criminal law, namely expansion of its scope and restructuring of its focus.
It may be that a structure designed specifically to prevent and account for opportunistic violence against female forced migrants would be better equipped to perform that task. Criminal accountability might be better performed in national legal systems or informal justice systems created within camp environments. There are also solutions other than criminal accountability, such as human rights law, that might be more appropriate in addressing such harms. In the meantime, until a solution is found that places these “private” crimes on equal footing with “public” attacks currently prohibited by international criminal law, the serious and frequent harms suffered by forcibly displaced women will continue to be overlooked, relegated to the bottom of the hierarchy of harms.


Vladislava Stoyanova said...

I read your posting with great interest (as i do with all the information posted in this blog). I would like to comment on the following sentence: "There are also solutions other than criminal accountability, such as human rights law, that might be more appropriate in addressing such harms." I wonder how do you make this distinction between accountability under national criminal law and human rights protection. In particular, what i know from the rich jurisprudence of the ECtHR under, for example Article 3, is that one of the positive obligations of states under human rights law is to adopt and implement criminal law provision penalizing practices by which one person harms another person. Accordingly, holding the perpetrator criminally responsible is a way for a state to fulfill its human rights obligations, in particular the obligation not only to respect but also to ensure human rights.
Thank you.

Jaya Ramji-Nogales said...

That's a great point, Vladi; thanks for your comment. You're absolutely right that criminal accountability may be one route to fulfilling human rights obligations. In my post, I was drawing a distinction between criminal remedies and other approaches to accountability mechanisms under human rights law that might be more restorative or rehabilitative. My view is that the approach should depend on the preferences of the victims, and one situation of grave harm might benefit from several forms of accountability, criminal and otherwise.

Unknown said...

I see this differently, people create leaders and suffer then on. the criminal activities can only be stopped when people are made aware of the political dramas. From Hitler the scenario was same. i really don't see there would be a change in criminal accountability. Hierarchy Structure