Rape in Conflict, Rape in Peace: Questioning the Revolutionary Potential of International Criminal Justice for Women's Human Rights
Grewal, Kiran, The Australian Feminist Law Journal
The starting point for this article comes from my own attempts to reconceptualise expectations I had of the international criminal justice project and its ability to deliver genuine positive change to the lives of women both during and after conflict. Working in the area of human rights, I have been involved in various discussions regarding the utility of developments in international justice to the broader women's rights agenda. In 2004 Amnesty International - as part of its Stop Violence Against Women global campaign - issued the campaigning tool, 'Stop Violence Against Women: How to use International Criminal Law to Campaign for Gender-Sensitive Law Reform' and I, along with many other feminist human rights activists and scholars, was committed to the belief that there could be a 'trickle down' effect if we could ensure the International Criminal Court (ICC) promoted progressive definitions and procedures for genderbased violence. As a result, many of the criticisms I make within this paper of those who have asserted the benefits of international criminal justice to women's rights advocacy are as much levelled at myself as others working within this framework.
In fact the question of what exactly international criminal law (ICL) contributes both to societies that have experienced atrocities and to advancing human rights more generally is one of increasing significance as we enter the first decade with a permanent international criminal court. The development of ICL has been fraught with difficulty: between concerns regarding its political legitimacy and the reluctance of various nation-states to endorse its development (most notably the particularly aggressive campaign launched against the ICC by the Bush administration through the promotion of bilateral immunity agreements to limit its jurisdiction), it has had a slow and not-so-steady history. Yet human rights advocates have tended to support its development, arguing that it will give the international human rights framework the 'teeth' it has often been considered to lack. In particular, the positive role international prosecutions can play in recognising and punishing crimes committed against women has become almost an accepted wisdom within much international human rights scholarship and activism.
In this article I seek to challenge this accepted wisdom by asking what purpose such prosecutions serve. Through looking at how crimes of sexual violence have been defined and prosecuted I argue that much of the optimism expressed by proponents of human rights has proven to be misplaced. Moreover, I suggest that it is not simply a matter of 'making the system better' as many feminist legal scholars have demanded. Prosecutions under ICL have required the creation of a distinction between the situation of women in times of war and times of 'peace'. As a result the definition and prosecution of international crimes of sexual and gender-based violence have frequently relied on establishing a certain specificity or peculiarity in terms of the context within which the crimes occurred.
The problem that emerges with this approach is how these prosecutions can then be seen to interact with the broader human rights campaign to improve the lives of women in all situations. How can the claims of human rights advocates regarding the utility of these prosecutions in establishing 'best practice' or international standards of gender competency that can filter down to national law reform be reconciled with the fact that the decisions (and decision makers) themselves are seeking to distinguish between the national and the international character of such crimes? Furthermore, how is the nature of the distinction between national and international crimes against women understood and how does this impact on the utility of ICL to the women's rights as human rights campaign?
2.0 INTERNATIONAL CRIMINAL LAW: TRANSNATIONALISING JUSTICE
As a body of law, international criminal law is relatively new. …