Understanding Intimate Partner Violence in Conflict and Post-Conflict Settings.

In a recent article Monica McWilliams and I take a close look at the complexity of violence against women in conflicted and post conflict societies.  Entitled “There is a War Going on You Know” and forthcoming in the Transitional Justice Review, the article draws on substantive empirical data gathered in Northern Ireland during the recent conflict.  We argue that despite the universality of intimate partner violence and its recognition as a human rights violation, much less is known about the dynamics, as well as the specific forms and regulation of this violence in conflict and post-conflict settings.  It is evident that much legal and political consideration has been given to sexual violence occurring during armed conflict, and especially to rape, but we assert that this concentration on high-profile and extraordinary violence has diverted attention from the regular violence that women routinely experience in conflicted societies.   The lack of attention to data-collection, and the failure to adequately disaggregate conflict-related sexual violence from ‘routine’ intimate violence obscures the relationship between various categories of gender-based violence and the ways in which certain forms and practices of violence reinforce and sustain others.  We conclude by arguing that deeper understanding of intimate partner and domestic violence, and its connection to conflict-related sexual violence, is also central to advancing sustained legal accountability for gender-based violence in a manner that might transform the continual impunity for a wide range of gender-based harms.

Based on our data, the following conclusions are drawn:

* Women who are the partners and family members of serving members of the police or military have a heightened risk of severe intimate violence, because of the access of ‘their’ men to legally held small arms.

* Police forces operating in situations of armed conflict consistently underplay the seriousness of intimate violence.  Reports of interviews consistently bear of the responsive refrain that “as there is a war going on”, and that as a result police resources and energy are best spent combatting terrorism.

* Non-state actors specifically paramilitary organisations,  particularly those operating in ethno-national conflicts, develop their own regulatory and administrative mechanisms to address intimate violence.  These mechanisms mirror the patriarchies and bias found in state responses.

* In ethno-national conflict settings, women victims of intimate violence are under multiple pressures not to report domestic violence as it may being unwanted police attention and military presence into their broader communities.  Women reporting domestic violence experienced a highly militerized form of community policing, often including the presence of police and army personnel, whose actions create further alienation from and stigma for them within their communities of reference.

We hope that greater empirical attention to the patterns and forms of intimate violence in conflict settings will avoid the current scholarly and policy trend to lump all forms of violence against women into one undistinguished basket.  Moreover, our hope is that greater attention to the complexity of state and non-state interactions will reveal the great convergence of patriarchal practices that cross-over other ideological and political differences in these settings.  Finally, there is a need to displace and disrupt the dominant narratives that attend only to harms of a sexual nature, specifically rape in conflict and post-conflict settings and pay much greater attention to the fullness of gender-based harms experienced by women and men in such conflict arenas.

Fionnuala Ni Aolain & Monica Mc Williams

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The Domestication of International Criminal Law: A Feminist Perspective

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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.

New Degree Program on Gender, Conflict and Human Rights

An unusual new degree program at the Transitional Justice Institute is worth a mention.  The Master’s degree in Gender, Conflict and Human Rights  is taught in the post-conflict setting of Northern Ireland, by a specialized faculty at the Transitional Justice Institute, many of whom are deeply involved in advancing women’s rights issues in post-conflict societies around the world.

The program will be delivered at the Jordanstown campus on a full-time (one year) or part-time (two+ years) basis.  The programme will enable you to develop skills highly relevant to legal practice, and to gender policy, research and advocacy roles. Successful completion may also open up a range of further study and research options. Modules include: Gender and Human Rights; Gender and Transition; Dissertation Research Methods; Foundations in International Human Rights Law or Foundations of Transitional Justice; Policing and Human Rights; Memory, Transition and Conflict; Political Violence, ‘Wars on Terror’ and the Law; International Criminal Justice; Critical Perspectives on Human Rights. Entry Conditions: Applications are invited from graduates in Law (or a related discipline with relevant experience) who have attained or are about to attain a second class honours classification. Further information on acceptable equivalent qualifications is available at www.ulster.ac.uk/prospectus

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