‘But what about men?’ Gender disquiet in international criminal justice
| Author | Leila Ullrich |
| DOI | 10.1177/1362480619887164 |
| Published date | 01 May 2021 |
| Date | 01 May 2021 |
| Subject Matter | Articles |
887164TCR0010.1177/1362480619887164Theoretical CriminologyUllrich
research-article2019
Article
Theoretical Criminology
2021, Vol. 25(2) 209 –227
‘But what about men?’ Gender
© The Author(s) 2019
Article reuse guidelines:
disquiet in international
sagepub.com/journals-permissions
https://doi.org/10.1177/1362480619887164
DOI: 10.1177/1362480619887164
journals.sagepub.com/home/tcr
criminal justice
Leila Ullrich
Queen Mary University of London, UK
Abstract
This article explores the everyday remaking of patriarchy in international criminal
justice. Drawing on 63 interviews at the International Criminal Court in The Hague and
in Uganda, it argues that a gender backlash has been fomenting in international criminal
justice, as practitioners express their disquiet about the ‘ubiquitous gender discourse’.
They claim that the Court’s ‘gender agenda’ is in no small part driven from ‘outside’
and lament that it neglects the rape of men. The article traces how patriarchal norms
are refashioned in international criminal justice by playing into legal sensibilities that see
procedure rather than substantive change as the essence of (criminal) law. Ultimately,
the article shows how attempts to foreground victims of Sexual and Gender-Based
Violence in international criminal justice first failed to include men, and now, in a belated
effort to rectify their omission, construct their competitive victimhood in ways that
reinforce rather than challenge patriarchal norms.
Keywords
Feminist criminology, feminist theory, gender and crime, international criminal justice,
international criminal law, international law, patriarchy, rape
Introduction
‘The ICC is at the forefront of gender justice’, Tiina Intelmann, former President of the
International Criminal Court’s (ICC) Assembly of States Parties, proclaimed in 2013.
At the heart of this claim are multiple gender-sensitive provisions in the Court’s Statute,
Corresponding author:
Leila Ullrich, Lecturer in Law and British Academy Postdoctoral Fellow, School of Law, Queen Mary
University of London, Mile End Road, London, E1 4NS, UK.
Email: l.ullrich@qmul.ac.uk
210
Theoretical Criminology 25(2)
especially the codification of sexual and gender-based violence (SGBV) as distinct war
crimes and crimes against humanity. In addition, the ICC’s Prosecutor published a pol-
icy paper on sexual and gender-based crimes (SGBC) in 2014 that recognized these
crimes as among the gravest of the Rome Statute and elevated their prosecution to a key
strategic goal (ICC Office of the Prosecutor, 2014: 5). The Prosecutor justified this
focus, arguing that ‘gender crimes are prominent in our prosecutions because they are
regrettably prominent in conflict and situations where we have investigated. These are
serious crimes that must be addressed—and we hope, deterred—through the force of
the law’ (Bensouda, 2018).
Feminist scholars and activists are less confident about international criminal law’s
role in achieving gender justice (O’Rourke, 2013: 7; Otto, 2009). While ‘reformists’ see
the international criminalization of SGBV as an effective tool for protecting women,
‘sceptics’ fear that it compromises the larger feminist project (Halley, 2008; Nesiah,
2011). The latter are split between those who see patriarchy as inscribed in law and there-
fore consider changing it through law pointless and those who dread the carceral over-
reach and gender essentialism of ‘governance feminism’ (Halley et al., 2018). Yet, in
focusing on the normative question of whether law is a force for good or not, the empiri-
cal question, namely what exactly happens when critical sociological concepts such as
gender are incorporated into legal institutions, has been neglected. This article addresses
this question, examining the sociological implications of ‘doing gender’ through interna-
tional criminal law.
The article first lays out the ICC’s gender-related provisions and situates them in the
ideological battles that surrounded the Court’s formation and in the broader feminist lit-
erature on SGBV and international criminal law. It then examines more carefully the
discursive representation of gender and SGBV at the ICC in The Hague and in Northern
Uganda. It argues that a gender backlash has been fomenting in international criminal
justice as practitioners express their disquiet about the ‘ubiquitous gender discourse’.
Drawing on critical race, feminist and sociological theory, the article will show how
gender is recuperated1 in international criminal justice through a ‘legal strategy’ that
entails two discursive moves. First, the Court’s discourse rhetorically externalizes gen-
der issues—gender justice is understood both as an agenda largely driven from outside
and primarily relevant elsewhere—namely in the conflict-ridden countries falling under
the Court’s jurisdiction. Externalization helps the Court to constitute itself as a neutral
arbiter of the law—removed from the gender struggles that informed the law’s forma-
tion—but also safeguarding ‘proper law’ from these more recent gender intrusions.
Second, a new discourse has emerged in international criminal justice which argues
that ‘gender’ as currently conceived neglects or even discriminates against men (Halley,
2006; RLP, 2014). Through the figure of the male victim of SGBV, men (unlike women)
are depicted as triple victims: first of sexual violence, second of the violation of ‘their
masculinity’ (as gender identity) and third of masculinity itself (as gender role). Yet, the
notion that male victims are wronged by SGBV because it ‘emasculates’ and ‘feminizes’
them is problematic not only because it normalizes the rape of women, but also because it
legitimizes men’s superior status in society. Male power is first personalized (‘masculinity
is his personal identity’) and then structuralized (‘masculinity is what society imposed on
him’). In this way, the international criminal justice discourse obfuscates systemic gender
Ullrich
211
inequality and reproduces patriarchal assumptions. Ultimately, the article shows how
attempts to foreground victims of SGBV in international criminal justice first failed to
include men, and now, in a belated effort to rectify their omission, construct their competi-
tive victimhood in ways that reinforce rather than challenge patriarchal norms.
In other words, the article shares a sceptical appraisal of law’s feminist potential, but
contributes an understanding of how patriarchy is reproduced in everyday discourses and
practices in international criminal justice. Studying these strategies of recuperation is
important because gender injustice is not simply a historical hangover—a legacy that
slips back into contemporary institutions absentmindedly. Instead, it is present-day peo-
ple who often end up recuperating gender by reinventing patriarchal notions to fit mod-
ern, legal sensibilities. Rather than mystifying the law as an eternal patriarchal force or
dismissing patriarchy as gender essentialism, we need to understand the discursive and
institutional moves that prune the Court’s law of gender’s transformative ambitions.
In developing this argument, the article draws on fieldwork at the ICC in The Hague
and in Uganda in 2013–2014 and follow-up interviews conducted in The Hague in 2018.
During an internship at the Court between October 2013 and March 2014, I conducted
27 formal and four informal interviews with the Court’s practitioners using snowball
sampling. Overall, I interviewed five ICC judges, 12 Registry staff members, three
employees of the Office of the Prosecutor, one of the Presidency, two of the Chambers,
two defence counsel, six victims’ lawyers and seven civil society representatives. In
Uganda, I interviewed over 25 local ICC staff members, intermediaries and civil society
representatives from June to September 2014. Uganda is one of the countries in which
the Court is active (‘a situation country’) and has been a key site of academic debate and
advocacy on SGBV in conflict and in peace time against both women and men (Porter,
2017; Schulz, 2018).2 I interpreted my data through an iterative, inductive approach
where concepts and analytical themes emerge from the data and are then mapped across
interview transcripts, legal filings, policy documents, practitioners’ speeches and the
academic literature (Corbin and Strauss, 1998).
The Rome Statute, feminism and international criminal law
For the first time in international criminal law, the Rome Statute (1998), the Court’s
founding document, explicitly recognizes SGBC as separate war crimes and crimes
against humanity. It specifically enumerates ‘rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization and other grave forms of sexual violence’ as
international crimes (Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi)). ‘Gender’ is further
included as a ground for the crime of persecution (Article 7(1)(h)). Gender provisions
also made inroads into the Court’s procedures and institutional make-up. Article 68(1)
establishes the Court’s responsibility to protect victims and witnesses, taking into account
all relevant factors including gender. The Court’s institutional make-up shall be charac-
terized by a ‘fair representation of female and male judges’, a provision that equally
applies to the Prosecutor’s Office and the Registry (Articles 36(8)(a)(iii), 44(2)). Article
42(9) further requires the Prosecutor to appoint advisers with legal expertise on SGBV.
...
To continue reading
Request your trial