Feminist Reflections on the Use of Force
Heathcote, Gina, Proceedings of the Annual Meeting-American Society of International Law
In an era when the laws on the use of force are being reappraised, placing the laws on the use of force forward for normative assessment is a vital aspect of the quest for a just world through law. Likewise, appreciation of women's perspectives, feminist knowledge, and the impact of conflict on women and girls must be threaded into law for any endeavor to label itself a program for a just world.
Despite the acknowledged relationship between law and gender, when it comes to the laws on the use of force, two persistent silences remain. First, although there is a handful of insightful and relevant feminist works on the use of force, there is an overall absence of feminist analysis of the laws on force. This silence extends from the application and interpretation of the laws on the use of force through to the normative qualities laws on force espouse. (1) Second, outside of feminist scholarship, there is a complete absence of international legal discussion on the role of gender in the laws on the use of force and the role of the laws on the use of force in the construction of gender.
Consequently, force and gender remain distinct categories of international legal inquiry. The incongruence of this analytical and practical segregation is emphasized in Goldstein's study of war and gender. (2) Goldstein finds war to be a culturally diverse matter, with a range of forms and modes across the globe. Likewise, Goldstein finds the performance and meaning of gender varies across cultures. Only when war is considered in terms of its construction of gender and when gender is considered in terms of its influence on wars do we find cross-cultural consistency. (3) Militaries and military force require, and reproduce, gendered discourses. Yet international laws that distinguish between prohibited and justified military force are silent on gender, as are their key commentators. At the present, even feminist scholarship lacks robust engagement or dialogues on gender and force. The feminist project of reflecting on and engaging with the international laws on the use of force is the locus of the rest of this paper.
First, the normative value of an inherent right of states to self-defense--despite the acknowledged application inadequacies--is perceived as a sacred element of the international order. Yet, if we shift to national incarnations of the right to self-defense, under criminal law defenses, sustained feminist critique is now acknowledged as challenging the construction of self-defense within Western liberal legal systems. (4) What role might feminist understandings of the inadequacies of interpersonal self-defense laws play in approaching the inadequacies of international self-defense? (5) Challenges by feminist jurisprudence to self-defense laws can be used to demonstrate the poverty of an analogous right to self-defense for states and to challenge the self-evidence of the right. …