The Domestication of International Criminal Law: A Feminist Perspective


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.

First-ever Global Arms Trade Treaty!

International law has firmer rules for the trade of commodities like bananas and electronics than it does conventional arms.

Abigail Nehring for Think Africa Press.

A key step to remedy this situation was taken today, April 2, 2013, when the United Nations overwhelmingly approved the 1st– ever global Arms Trade Treaty. The Arms Trade Treaty (ATT) aims to regulate the $70 billion business in conventional arms and keep weapons out of the hands of human rights abusers.

155 countries voted in support. Iran, Syria, and North Korea were the only countries to vote “no”. 22 other countries abstained.

Supporters included the United States, which voted “yes” despite the opposition of the National Rifle Association (NRA). The NRA has pledged to fight against the treaty’s ratification by the U.S. Senate. As the world’s number one arms exporter, U.S. support for the treaty is particularly important.

Other major arms-exporting countries  –  Russia, China , Russia, and India (ranked 2nd, 5th, and 13th respectively in arms exports) were among the 22 abstaining countries. They could, however, be persuaded to eventually sign the treaty. It is reported that some delegates, understandably, expressed concern about the effectiveness of an arms trade treaty not subscribed to by the major arms exporters.

Importance for African, Caribbean & Other Vulnerable States

Countries in Africa and the Caribbean have robustly supported and lobbied for the ATT. The international trade in arms was estimated to be worth around 100 billion US dollars in 2012 and growing fast. The unregulated trade in arms disproportionately affects the vulnerable in the small, open islands of the Caribbean and the fragile states in Africa.

Child SoldierThe CBS News Magazine, “60 Minutes” has for the last twelve years followed the journey of the Lost Boys of Sudan, the collective name given to over 20,000 young boys displaced as a result of war and the death of their parents. Thousands of young boys and girls have been “recruited” at gunpoint to become child soldiers in countries like Chad and the Democratic Republic of Congo. Illegal guns easily end up in the hands of Somalian pirates who take hostage ships and their crew. And everywhere, it is the women and girls who get raped, at gunpoint.

The Treaty

The ATT creates common standards and rules to improve the control by states of the flow of arms. It regulates all conventional arms within the following categories: battle tanks, armored combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. The treaty also contains a prohibition on the transfer of arms which would be used in the commission of genocide, crimes against humanity and certain war crimes. It institutes an annual reporting system as well as regular meetings between heads of states to monitor implementation.

The treaty will enter into force 90 days after ratified by the 50th signatory.

Protection (from rape) or Freedom (to have sex)?

The debate in India surrounding  reforms to the sexual violence laws are a reflection of the changing mores in Indian society.   With economic liberalization in 1991, a strong middle class with access to new goods, movies, and ideas has emerged.   As a result of the mass protests in the aftermath of the brutal gang rape and death of Jyoti Singh Pandey, the President signed an Ordinance reforming the sexual violence laws on February 3, 2013. (The Ordinance took some provisions from an amendment to the Indian penal code that was pending in Parliament prior to the gang rape and adopted some provisions suggested by the Verma Committee report, but rejected other important provisions from that committee.  The Verma Committee was formed by the government after international and national attention focused on the issue of gender-based violence).  Article 123 of the Indian Constitution permits the President to put into place laws that have the weight of an act of Parliament when Parliament is in recess.  But the Ordinance expires on April 4 unless Parliament adopts it or an amended version of it.  The real deadline they are racing against is March 22 because Parliament is in recess again after that.

Key areas of disagreement such as the marital rape exemption and the availability of the death penalty in some cases of rape remain.  Yesterday The New York Times India blog highlighted one issue of debate — whether the age of consent for purposes of the statutory rape provision should be 18 or 16. The Ordinance placed the age at 18 but prior to that it was 16. The new bill that is being considered seems to have lowered the age of consent to 16.

It is some prominent feminist lawyers that have argued in favor of lowering the age of consent.  Indira Jaising points out that “[i]t is quite normal for people to have sexual relations at 16 or 17 years of age. . . . How can we make illegal what is normal?”  Additionally, Flavia Agnes pointed out in an article that appeared in Asian Age on December 23, 2012 that “one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes.”  Thus, if the age of consent was increased, it would give parents more opportunities to mis-use the law. Continue reading