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Feminist Legacies

Part of: International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate

Published online by Cambridge University Press:  20 January 2017

Karen Engle
Karen Engle*
Affiliation:
University of Texas School of Law
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In February 2013, Navi Pillay, then UN High Commissioner for Human Rights, gave a speech to the General Assembly reflecting on the twenty years that had passed since the Vienna World Conference on Human Rights. She discussed three principal achievements of the Vienna Declaration and Programmeof Action, two of which were “its role in advancing women’s rights” and “its impact on the fight against impunity.” With regard to the first, she discussed the success of the “Women’s Rights are Human Rights” slogan at the conference and the institutional gains it spawned around violence against women(VAW). As for the second, she noted that “[p]erhaps most significantly, just one month after the establishment of the first ad hoc tribunal since Nuremberg [the ICTY], the Declaration nudged the International Law Commission to continue its work on a permanent international criminal court.” Although Pillay did not connect those two achievements—the recognition of women’s human rights and a new focus on impunity alongside international criminal responses to combat it—they were in fact intertwined.

Type
Symposium on the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate
Information
AJIL Unbound , Volume 110 , 2016 , pp. 220 - 226
Copyright
Copyright © American Society of International Law 2016

References

1 Navi Pillay, Opening Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights at the 22nd Session of the Human Rights Council (Feb. 25, 2013).

The third achievement she listed was “its swiftly realized recommendation to create … the Office of the High Commissioner for Human Rights.” Id.

2 Michael J. Matheson & David Scheffer, The Creation of the Tribunals, 110 AJIL 173(2016).

3 For an argument that feminist method has failed to affect international law, even though “[s]ome international institutions have to some extent absorbed the vocabulary of women and gender,” see Hilary Charlesworth, Talking to Ourselves? Feminist Scholarship in International Law, in Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? 17, 23 (Sari Kouvo & Zoe Pearson eds., 2011). When feminists downplay their successes in international criminal law, they mostly focus on low numbers of indictments or prosecutions for rape and sexual violence, at least compared to other crimes, thereby pointing to a lack of political will. At the same time, however, they rarely criticize the reasoning found in judgments that pronounce or uphold convictions.

4 Tamar Lewin, The Balkans Rapes: A Legal Test for the Outraged, N.Y.Times (Jan. 16, 1993).

5 Dianna Marder, Bosnian War Puts Focus On Use Of Rape As A Weapon: The Violence Has Precedent. The Attention Does Not, Philly.Com (Feb. 14, 1993).

6 Julie Mertus, When Adding Women Matters: Women’s Participation in the International Criminal Tribunal for the Former Yugoslavia, 38 Seton Hall L.Rev.1297, 1300 (2008) (quoting her telephone interview with Bunch, February 2004).

7 Darryl Robinson & Gillian MacNeil, The Tribunals and the Renaissance of International Criminal Law: Three Themes, 110 AJIL 191, 201 (2016).

8 There are many debates as to when the first prosecution of rape as a war crime occurred, ranging from 1385 (Richard II) and 1474 (Peter von Hagenbach) to 1863 (under the Lieber Code) and 1946 (in the Tokyo Tribunals). For all but the 1474 date, see Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424, 425-26 (1993).

9 See, e.g., Kelly D. Askin, A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003, 11 Hum.Rts.Brief , no. 3, 16, 16 (2004); Mertus, supra note 6, at 1316.

10 Rhonda Copelon, Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law, 46 MCGILL L.J.217, 229 (2000).

11 Charlotte Bunch, How Women’s Rights Became Recognized as Human Rights, in The Unfinished Revolution: Voices From the Global Fight for Women’s Rights 29, 30 (Minky Worden ed., 2012).

12 World Conference on Human Rights,Vienna Declaration and Programme of Actionpara. 38, UN Doc. A/CONF.157/23 (June 25, 1993).

13 On some of the diplomatic maneuvering that resulted in the Bosnia declaration, see John Shattuck, Freedom on Fire: Human Rights Wars and America’s Response (2003), 127-28.

14 UN Secretary-General, Report of the World Conference on Human Rights 47, UN Doc. A/CONF.157/24 (Part I) (Oct. 13,1993).

15 Id. at 48, 49.

16 Aya Gruber, The Feminist War on Crime, 92 IOWA L.Rev.741, 749-751 (2007).

17 Dianne L. Martin, Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies, 36 OSGOODE Hall L.J.151, 166 (1998). For consideration and critique of feminist criminal law reform strategies in the United States, seeAya Gruber, Rape, Feminism and the War on Crime, 80 Wash. L. Rev. 581 (2009); Martin, Retribution Revisited, at 168.

18 See Karen Engle, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100 Cornell L.Rev.1069, 1074-1079 (2015).

19 A path-breaking case in this regard was Velásquez-Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (Jul. 29, 1988).

20 To this day, Velásquez-Rodríguezand its progeny are cited by those who argue for state responsibility for VAW. See, for example, Rashida Manjoo, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo para. 15, UN Doc. A/HRC/26/38 (May 28, 2014).

21 Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law, 30 Mich. J. Int’l L. 1, 101-20 (2008).

22 Id. at 2-3. (“[T]manifest consensus view was an updated radical feminism, strongly committed to a structuralistunderstanding of male domination and female subordination. There was some tension on a few issues between structuralist and liberal-individualist feminists…but it was muted by the coalitional style adopted by feminists and compromised usually in thedirection of structuralist rule choices.”)

23 Id. at 6.

24 See, e.g., SC Res. 1820 (Jun. 19, 2008); SC Res. 1888 (Sept. 30, 2009); SC Res. 1960 (Dec. 16, 2010); SC Res. 2106 (Jun. 24, 2013).

25 The G8 meeting led to the adoption of a declaration by the represented ministers. See The United Kingdom Foreign and Com-monwealth Office, Declaration on Preventing Sexual Violence in Conflict (Apr. 11, 2013).

26 Marko Milanović, The Impact of the ICTY on the Former Yugoslavia: An Anticipatory Postmortem, 110 AJIL 233, 235 (2016).

27 Karen Engle, Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, 99 AJIL 778 (2005).

28 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, para. 731 (Sept. 2, 1998).

29 UN Action Against Sexual Violence in Conflict, Analytical and Conceptual Framing of Conflict-Related Sexual Violence 3 (Nov. 8, 2011).