The Domestication of International Criminal Law: A Feminist Perspective

Posted on Actualizado enn

Many feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. In recent work, published with the University of Minnesota’s Legal Research Paper Series on SSRN entitled Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication I explore the extent and consequences of state ratification of the International Criminal Court statute for the legal regulation of sex-based harms at the domestic level.  The article provides a comprehensive review of all subsequent domestic legislation addressing violence against women in all ratifying member states.

Statistically we learn some interesting things from the survey.  At time of writing, of the 122 states studied for my analysis only 27 have not introduced any subsequent domestic legislation that address violence against women.  The vast majority of states reviewed have produced multiple pieces of national legislation addressing a range of harms including violence against women, domestic violence, marital rape, sexual harassment, trafficking, stalking, female genital mutilation, early marriage, and trafficking.  Many have produced multiple and sequential changes to their laws addressing violence against women, in what appears to be a progressively expanding practice of regulatory enthusiasm.

Only deeper country-specific and comparative analysis will yield data on the faithfulness of the translation from the international criminal law norms, or indeed progressive/expansive development beyond the state agreed content of the International Criminal Law statute.  Even with those caveats, there is no doubt that that we see an expanded acceleration of normative enlargement on the international plane, and that such pace is having trickle-down legislative effect at the national level. I urge feminist critical-reflection on how international criminal law could usefully re-direct analysis to the question of positive norm transfer between ICL and domestic norm expansion on violence against women.

While much has been made of the broader compliance consequences of the ICC, much less attention has been paid to the gendered implications of ICC ratification for states, and in particular how ratification affects domestic regulation of sex crimes and sexual harms.  Two elements are flagged by my analysis.  The first is evidence of significant modifications to domestic laws related to sexual violence, trafficking, stalking, and domestic violence in states that have ratified the International Criminal Court statute. In this I wonder about connecting the international incentives for states to comply with their treaty obligations as being more ‘effective’ in producing norms that directly regulate (through criminalization) the sex-based harms experienced by women than decade-long and painstakingly slow feminist advocacy through national legislatures and local political processes.

By ‘effective’ here I do not mean efficiency of the rules in application but simply to the intensity and density of the norm production process. In parallel, I speculate that the translation of abstract international legal norms may not be entirely straightforward.  By this I mean, that while some states may practice a form of constitutional fidelity to the language of the ICC Statute others may produce normative loss in translation as they journey to domestic legal form.  This process mirrors the translation effects that Sally Engle Merry has illustrated by demonstrating the challenges of domesticating human rights norms pertaining to gender equality into local vernaculars.  In short, we should not necessarily presume positive outcomes for women from norm transplant.

I also address the, as yet, untapped potential of the ICC complementarity regime to advance or substantially limit accountability for sex-based harms.  Inherent in the legal mandate of complementarity is the capacity for “proactive complementarity” whereby the Court’s assistance and encouragement to states undertaking domestic prosecutions might have an overall and positive influence on the successful prosecution of sex-crimes at the domestic level. I speculate that the density of domestic norm production post ICC ratifications points to the work being advanced ‘in the shadows’ by the process of treaty compliance.  My obvious caveats include the acknowledgement that domestic legal changes may well have been long in the making and that it may be merely coincidental in some cases that ratification and domestic reform can be linked.

Moreover, I note that a number of my country cases show a time lag. There is clearly a gap between ratification and domestic legal reform in a number of states, underscoring the point about other internal processes that produce norm proliferation.  But, at the very least I want to suggest that ratification of the ICC creates an opportunity (and arguably a requirement of conformity in terms of treaty compliance) to remedy contradictory domestic norms.  This compliance requirement moment is an important one for legal change, particularly as regards violence against women in that it may create an external capacity to press for reform, when there is domestic legal and political hostility to self-prompted legislative action. A separate matter that I start to explore in the article is to what degree the norm production produces wholly positive outcomes for women, and substantially addresses the conditions conducive to the production of systematic violence in the first place.

Source: International Law Grrls

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