Tuesday, June 14, 2011

Why gender case studies matter

(Delighted to welcome back IntLawGrrls alumna Catherine O'Rourke, who contributes this guest post)

Why do feminists target international law as a site of potential gains for women?
This is a question with which I grapple in "International Law and Domestic Gender Justice: Why Case Studies Matter," my contribution to Feminist Perspectives on Transitional Justice (Intersentia, forthcoming 2011), a collection edited by Professor Martha Albertson Fineman, Robert W. Woodruff Professor of Law at Emory University in Atlanta, and Dr. Estelle Zinsstag, Director of the Africa Justice Project at the Oxford War Crimes Centre. (prior IntLawGrrls post)
I argue that feminist scholarship in international law has lost sight of one of the major initial motivations for targeting the international legal realm: namely, to secure positive norm transfer from the international law to domestic legal processes. I focus in particular on the impact of international criminal law (ICL) on domestic processes of transitional justice.
In the chapter, I review more recent feminist scholarship in ICL, identifying a distinct critical-reflective thrust to this scholarship. I offer a four-way typology of contemporary feminist critiques:
► ICL as legally deficient;
► ICL as sexualizing and infantilizing women;
► ICL as silencing individual women and more radical feminist critiques; and
► Feminist engagement with ICL as hegemonic and imperialist.
I observe that the antecedents of gender analysis in transitional justice lie firmly within feminist scholarship in ICL. However, as gender and transitional justice has consolidated as its own independent and multi-disciplinary area of scholarship, it has moved further and further from its origins in ICL. Feminist scholarship in ICL has, in turn, moved further from a concern with the impact of ICL norms on domestic cases of transition.
I draw on scholarship regarding transnational human rights networks, and early feminist ICL scholarship, to re-assert the importance of examining the domestic impact of ICL norms in any feminist evaluation of those norms. Applying this approach, the latter part of the chapter documents the transition to democracy in Chile, and the impact of ICL norms on the participation of women, and the treatment of harms against women, in the long-running efforts to deliver truth, justice, and reparations to victims of the Pinochet regime. (The Chilean case is particularly appropriate for study because the transition was marked by two distinct phases of transitional justice. The first phase coincided with the transition in early 1990s, and hence before the most significant feminist-informed developments in ICL. The second phase occurred in the past decade, and hence after those developments in ICL.) (map credit)
I apply the four-pronged feminist critique of ICL to the Chilean case to determine whether in its domestic impact in Chile, ICL was legally deficient, sexualizing and infantilizing of women, silencing of women and feminist critiques, or hegemonic and imperialist. I find that although the domestic impact of ICL norms in Chile was mixed, it was very largely positive, and offers grounds for more optimistic assessment of feminist-informed developments in ICL.
In the Chilean case study, I very deliberately take on the governance feminism thesis of Harvard Law Professor Janet Halley (left). (photo credit)
I support and adopt the distributive cost-benefit analysis that Halley proposes for all feminist campaigns in law, in which feminists recognize the potentially negative consequences of their advocacy on other disadvantaged groups. Adopting this same cost-benefit analysis, I find that feminist-informed developments in international law operated in Chile to positively re-distribute discursive resources away from a recalcitrant state and deeply reticent Chilean public, to empower local actors seeking justice for the past, in particular those seeking to shine a light on gender-specific forms of torture experienced by women under the Pinochet regime. Thus, although I adopt the governance feminism thesis and methodology, I nevertheless draw a positive conclusion about feminist advocacy in ICL.
In my conclusion, I suggest that the methodological approach adopted in the chapter (i.e. applying the four-pronged feminist critique of ICL to domestic cases of transitional justice) offers a path to more meaningful evaluation of the impact of the past decade and a half of feminist-informed developments in ICL.

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