Feminist legal analysis is a type of critical legal analysis that spotlights and seeks to subvert discriminatory uses of power and hierarchies rooted in gender and sex in the shaping of law and institutions. In the international context, it typically involves deconstruction of international law's norms and institutions, by asking the “woman question,” consciousness raising, and highlighting the gendered impacts of silences and false binaries, among other methods.Footnote 1 It also includes reconstruction—or reimagining what a world without gender or sex discrimination would look like—as well as advocacy in its favor.Footnote 2
While advocacy dates back long before then, the first scholarly articulation of feminist approaches to international law in a mainstream international law journal is the 1991 article by Hilary Charlesworth, Christine Chinkin, and Shelley Wright in the American Journal of International Law.Footnote 3 Yet in 2011, Hilary Charlesworth argued in a book chapter provocatively titled “Talking to Ourselves? Feminist Scholarship in International Law,” that feminist scholarship remains as “an optional extra, a decorative frill on the edge of the discipline.”Footnote 4
This panel, entitled “How Feminist Is International Law?,” aimed to consider and evaluate the extent to which feminist approaches to international law have—and have not—affected the theory, practice, norms, and institutions of international law. Panelists explored the extent to which feminist approaches have made an impact, and where international law remains generally impervious to feminist approaches and why. More specifically, panelists were asked to point out areas of progress and hurdles in promoting a broad range of feminist goals, and to seek to identify concrete suggestions for the development of international law in line with varying feminist approaches to international law.
Although one could ask these questions of any subfield of international law, or of any institution in international law, the panel explored these topics in relation to the panelists’ areas of expertise, including international criminal law, security and terrorism, migration and refugee law, and gender discrimination as a peremptory norm. Their remarks follow.
In a book chapter I co-authored with Rachel López,Footnote 1 we explore the extent to which international criminal law promotes the key feminist objective of promoting women's rights. Unlike some other areas of international law, international criminal law has benefited from the sustained engagement of feminist scholars and activists. Feminists were deeply engaged in negotiating the Statute of the International Criminal Court (ICC), have served as judges and prosecutors at the ICC and other international criminal courts, and have participated in a robust literature critiquing the work of those institutions. Unsurprisingly, therefore, a variety of perspectives exist on the extent to which international criminal law promotes feminist values. In examining these perspectives, we identify two broad camps of feminist engagement with international criminal law: redemptive and rejectionist.Footnote 2 The first seeks to reform international criminal law to better align with feminist goals, while the latter views the enterprise as flawed beyond redemption. Surfacing insights from these perspectives enables us to chart a middle path for future feminist engagement with international criminal law—one that we hope can better promote women's rights.
Like all international law, international criminal law remains a site of discrimination against women. In our patriarchal world, all law is fundamentally shaped by disproportionately male perspectives. Nonetheless, feminists have played a significant role in developing international criminal law in recent decades, helping to build its substantive norms and institutions. Not surprisingly then, much of the feminist scholarship in the field has been redemptive—it has sought to transform the norms and practices of the field in ways that better promote women's rights. Perhaps most notably, feminist scholars and practitioners have engaged in a sustained and effective campaign to ensure the criminalization and prosecution of sexual and gender-based violence at the international level. They have lobbied for inclusion of such crimes in international instruments such as the Rome Statute of the ICC and advocated for prosecutorial policies and practices that enable convictions while protecting victims and witnesses from additional harm. Their efforts have ensured that women are equally represented among the judges of the ICC, and that the Office of the Prosecutor has the benefit of expert advice on issues related to sexual and gender-based crimes. Most recently, feminist scholars and advocates contributed to the development of an ICC prosecutorial policy on gender persecution as a crime against humanity.Footnote 3 This important effort aims to ensure an inclusive and intersectional approach to the investigation and prosecution of such crimes.
Such redemptive feminist efforts implicitly rest on a belief that criminal law is an appropriate—perhaps the most appropriate—response to at least some harms that gravely and disproportionately affect women. This belief in turn depends on the conviction that criminal punishment is an effective tool of harm prevention or accomplishes other socially beneficial objectives such as providing a sense of justice to victims or contributing to a historical record. Additionally, by investing significant resources in redeeming international criminal law, these feminists signal their support for the globalization of criminal punishment as a tool for promoting women's rights. While acknowledging the primary role of national courts in preventing and punishing crimes affecting women, they assert the importance of international law to fill the accountability void left by ineffective and unavailable national systems.
Rejectionist feminist scholars, on the other hand, disagree with most or all these assertions. In their view, the international criminal legal enterprise is so fundamentally flawed that it cannot serve as an effective tool for promoting women's rights. Indeed, many rejectionists believe that international criminal law engages with gender in ways that harm women, including by undercutting their agency and perpetuating harmful gendered stereotypes. For instance, Vasuki Nesiah writes that international criminal law depicts women's victimhood in ways that emphasize their fragility and de-center their agency.Footnote 4 Others argue that the regime systematically essentializes women as peaceful and vulnerable, entrenching dominant misogynist worldviews.Footnote 5 Relatedly, international criminal law often portrays men, particularly Black men, as monstrous aggressors, perpetuating other gendered and racialized stigmas and erasing men's experiences of sexual violence.Footnote 6
Rejectionist feminists also critique what some have identified as international criminal law's “hyperfocus on sexual violence,” which fails to capture the full range of harms women experience in armed conflict and dictatorial regimes.Footnote 7 Janet Halley has also argued against what she calls “governance feminism” whereby feminist agendas, including those related to the prevention of sexual violence, become bureaucratized in ways that water down the more expansive and far-reaching demands of women's rights movements.Footnote 8 More broadly, some contend that international criminal law's singular focus on individual accountability obscures or even eclipses the essential role of systemic causes of violence against women, especially in the Global South, such as north-south extractive capitalism and structural racism.
Some feminist rejectionism in international criminal law mirrors parallel rejection of carceralism generally. Feminist criticisms of the carceral state include assertions that it reinforces patriarchal power structures and re-traumatizes victims. Anti-carceral feminists argue that detention in violent and rights-abusive prisons reinforces toxic masculinity and reproduces cycles of trauma and violence.
Taken together, the rejectionist and redemptive feminist critiques provide at least one shared response to the question of how feminist is international criminal law: there is much room for improvement. Such improvement will require additional sustained feminist engagement. We are not yet prepared, like some rejectionists, to abandon the enterprise entirely. Flawed as it is, it has the potential to make positive contributions to women's lives, and to the world at large, at least in some circumstances. Ultimately, we endorse a middle path that seeks to both reform international criminal law and reduce its prominence as a response to harms against women.
While at a minimum it is important to continue to hone international criminal law's doctrines and policies to ensure adequate focus on crimes that especially affect women, making international criminal law more feminist will require a more pluralistic approach to post-conflict and transitional justice. Global justice efforts should more deeply engage with the variety of justice preferences of women who have suffered harm, rather than assuming all victims of serious crimes privilege punitive responses. In some contexts, modalities focused on healing and reconciliation may better align with women's priorities in post-conflict and rights-repressive societies. Additional resources should therefore be devoted to ascertaining the preferences of those directly affected by conflict, especially women and other marginalized populations.
This approach resonates with the views of at least some redemptive and rejectionist feminists engaged with international criminal law. Many supporters of international criminal law agree that its current prominence as a response to human rights violations requires reconsideration; and rejectionists do not always advocate complete abolition of the international criminal law regime. Instead, many recognize that criminal legal approaches can be appropriate in some circumstances, particularly when they stand a reasonable chance of yielding preventive dividends while avoiding additional harm to victims. Our hope therefore is to galvanize the considerable intellectual power and creativity of feminists engaged with international criminal law to both promote productive reform, and reconceptualize the role of international criminal law as a response to serious human rights violations.
Counterterrorism as a set of global norms, practices, and institutions has expanded and consolidated steadily over the past two decades. Counterterrorism is ascendent both normatively and institutionally.Footnote 1 Counterterrorism law and practice distinctly affect the lives of women and girls across the globe as a regulatory matter. As a direct consequence, the value and status of the lives of particular women are negatively affected, especially those made most vulnerable in the maelstrom of armed conflict and systemic violence at the national level.Footnote 2
My key question, in line with the focus of this panel, is what impact feminist approaches have on the law and practice of counterterrorism. In short, that influence is limited. I identify two key metrics to explore this position. The first is to use the metric of representation, namely the presence and influence of women in the field of counterterrorism. I acknowledge that this is an imperfect substitute for feminist influence and presence, but a sizeable representation for women in the field of counterterrorism is a marker of the potential for influence, and for a minimum capacity to “ask the women question” in areas which are presumed neutral, but are in fact highly masculine or misogynistic in their practice.Footnote 3 The second metric is to assess the foundational normative and institutional under-pinning of the field, and to expose the essential ways in which core feminist values of gender equality, social transformation and justice are entirely (and deliberately) absent from the counterterrorism field.
I. The “Who Is Who” of Global Counterterrorism
The production and implementation of counterterrorism law, policy, and practice is highly gendered.Footnote 4 Women have historically struggled to achieve due and adequate representation in the security sectors that inform and dominate counterterrorism lawmaking and enforcement (the police, the military, prison personnel, and the intelligence services).Footnote 5 Nationally, elite security spaces remain dominated by affluent men lacking ethnic, religious, and cultural diversity. While some progress is demonstrated in ensuring greater access for women to security sector careers through gender parity strategies, senior and decision-making roles in those arenas remain overwhelmingly closed and inaccessible to women. There is no evidence of a “tipping point” in the influence of women on elite counterterrorism arenas, and one sees little in the way of gender mainstreaming in the production of global law and policy in response to security threats, terrorism, and conflict.
Counterterrorism institutions and policymakers not only suffer from an acute “diversity crisis” along gender and race lines, especially at the highest levels of decision making, but also function within institutionalized cultures of discrimination, misogyny, and gender bias that perpetuate gender inequality and cultures of impunity, while rewarding a very particular set of traditionally “masculine” traits and behaviors, including technocratic knowledge, justification of the use of force, decisiveness over moral considerations, and masculinist protection narratives.Footnote 6 The broader gap of representation, particularly in the elite security arenas that dominate international lawmaking, was keenly identified by Hilary Charlesworth, Christine Chinkin, and Shelley Wright over two decades ago, and remains true today.Footnote 7 Since 2001, in a post-9/11 world as counterterrorism has moved into the center of the “maintenance of peace and security” on the UN Security Council, state positioning on non-state armed groups, designation of terrorists, “foreign terrorist fighters,” and the lingua franca of terrorism actors has enabled a particular kind of masculinity to emerge. This is a specific and active hegemonic masculinity that manifests in muscular, militaristic, and kinetic ways focused on the identification and management of threats often co-related to the actions or ideologies of religiously and ethnically “others,” overwhelmingly Muslim or Islamic-identified men. This creates a complex reality for improving gender parity in such spaces, hindering institutions from responding to crises effectively and serving all communities equally, and leads to agency-stripping of women on the ground and a failure to appreciate women as experts in their own right.
It should be acknowledged that having certain women as architects and decisionmakers in counterterrorism and military establishments promoting and regulating counterterrorism at home and abroad is not unproblematic.Footnote 8 The addition of women into such institutions, particularly similarly situated elite women, does not necessarily better equip them to mainstream a gender perspective or protect the rights of diverse women. I underscore the complexity of that space and caution against attention to gender parity alone as a marker of progress on non-discrimination. Regrettably, some women claim to function as feminist voices within those security frameworks while instrumentalizing and appropriating a securitized version of the women and peace and security agenda to advance the masculinist narrow aims of countering terrorism or securitized countering violent extremism.Footnote 9 Fundamentally, international security regimes may have conceded some decorative and symbolic value to women, but in practice little has changed in the short- to medium-term in the determination of what constitutes “threats” to peace and security and the corresponding legal action necessary to address them.Footnote 10
Change to the status quo is unlikely in the short or medium run. The presence of singular women in high-profile security contexts should not be mistaken for sustained and muscular influence on the substance of norm-production and institutional culture in these spaces. As feminist institutionalist scholars have long reminded us,Footnote 11 institutions (particularly informal institutions) deeply shape political life, and the absence of women or other marginalized groups from global security arenas has significant consequences for the law, policy, and practice that emanates from them.
II. Foundations of the Counterterrorism Field
If, as Jean d'Aspremont so aptly asserted,Footnote 12 international law is a field driven by crisis, then arguendo security and counterterrorism are on hyper drive. Crisis compulsions make mainstreaming equality a daunting undertaking. And because crisis management discourse defines survival as paramount, interventionism and managerialism overshadow other priorities and thus long-term structural or transformative change become luxuries or sidelines. It states the obvious, but constant crisis leads to self-debilitation, self-exhaustion, and self-depletion.
At the heart of the crisis management that is both constructed and revealed by counterterrorism is “threat assessment.” The multilateral system has seen an ever-expanding universe of threat assessment,Footnote 13 triggered by the events of 9/11, and first captured in UN Security Council Resolution 1375 (2001). What has emerged since then is the Security Council functioning as global legislatorFootnote 14 in an ever-expanding number of institutional forms, including but not limited to the UN Counter-Terrorism Committee, and a constant drumbeat of terrorism threats. The hollowness of the threat assessment lies in the lack of an agreed-upon definition of terrorism among states, as ever-increasing tools and obligations are mobilized to counter the threat “of terrorism,” despite lacking a definition for the core phenomena.Footnote 15 Such threat assessment is driven by narrow, kinetic, military thinking,Footnote 16 often divorced from the complex realities of what is motivating and sustaining messy conflicts on the ground, including acts of terrorism, but which are far more complex than that. They rarely engage with the conditions conducive to violence,Footnote 17 and ignore the broadest conceptions of human security, including the well-being and rights of women and girls which generally barely receive mention. More particularly the cost of abusive counterterrorism is rarely counted, including for example in countries like Afghanistan where decades of abusive counterterrorism practice laid the ground for the return of the Taliban and the conditions women experience today. How abusive counterterrorism is used against women human rights defenders, activists and civil society and how it affects women and girls scarcely merits mention as a free-standing threat in official “threat” assessment by UN entities and other multilateral bodies.
III. Conclusion
All this underscores that feminist discourses and influence play at the margins of counterterrorism. Counterterrorism practice, including the use of force in conflict sites such as Gaza, does not count the harm to women and girls in targeting and other operational management decisions.Footnote 18 Gender analysis is distinctly marginal in counterterrorism, from the illusion that there are no gendered intentions or effects in counterterrorism practice (from detention to counterterrorism financing restrictions) to the strategic co-option of certain women into high-profile policies like “preventing and countering violent extremism.” Feminists are a rare species in this terrain, a fact we should all worry about given the contemporary ascendency of counterterrorism institutions and norms and the concrete harms that follow for women and girls.
The unfortunate response to the titular question is, “not very.” This short essay begins by clarifying the definition of feminism on which it relies. It then examines two areas of international migration law—international refugee law and transnational criminal law—from a feminist lens, identifying profound structural flaws in both fields. The essay ends with suggestions for a path forward that draws from feminist theory.
Feminism is of course subject to many substantive definitions and includes many methods.Footnote 1 In terms of substance, my analysis seeks to ensure that law addresses gender in all of its nuance rather than relying on and perpetuating stereotypes. In terms of method, this essay relies on the old stalwart, “asking the woman question,”Footnote 2 which I interpret to mean asking both whether women's perspectives are represented in all of their diversity and identifying who is being left out of the conversation—i.e., whose perspective should be included because they are impacted by a particular legal framework.Footnote 3
On both of these metrics, international migration law does not fare well. The lesson for international law more broadly is that patriarchal structures are difficult to dismantle and do not function optimally for anyone except cisgender heterosexual men.
The starting point for international migration law is generally refugee law, which is the most well-developed and robust part of the field.Footnote 4 If we ask the woman question here, international refugee law does not stand up particularly well. Drafted in the wake of World War II to protect people fleeing Europe, the 1951 United Nations Convention Relating to the Status of Refugees emphasizes public harm over private harm.Footnote 5 The classic cisgender male political dissident fits neatly into its categories but women and non-binary folks fleeing harm at the hands of private actors, such as domestic violence, must construct their claims precariously to squeeze into the definition.
The Refugee Convention requires that those seeking protection establish a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. The final ground, particular social group, was created by the drafters in an era when there was such grave discrimination against LGBTQ+ folks that sexuality could not be included in an international treaty and gender identity was barely recognized.Footnote 6 More generally, many people fleeing serious harm fall outside the definition, which also tends to favor more educated and privileged applicants. People from lower socioeconomic classes fleeing climate change, gang violence, and other forms of harm generally fall outside of its protections.Footnote 7 As scholars such as Jane Freedman have documented, refugee adjudication processes are not designed with women and non-binary folks in mind.Footnote 8
The other area of international migration law with robust binding legal standards is transnational criminal law, namely the Palermo Protocols on Smuggling and Trafficking.Footnote 9 While it is important to acknowledge the violence and harm perpetrated by some smugglers, especially those working for cartels, the carceral approach to the facilitation of movement paints with an excessively broad brush. In terms of gender stereotypes, transnational criminal law furthers the depiction of brown men from the Global South as violent perpetrators of harm and criminalizes them for facilitating human mobility.Footnote 10 This focus on facilitation obscures the role of global structural inequality in pushing people to migrate and the role of exclusionary migration policies along with gaps in international migration law in preventing those people from moving lawfully. The rhetoric around trafficking is replete with stereotypes about saving sex trafficked women and girls while the labor trafficking of men is more often overlooked. In other words, this is not exactly a feminist approach.
If we step back to look at the field more broadly, international refugee law tells us that migrants can be offered protection if they are “victims,” but if they have agency, international migration law offers few protections and, in some cases, criminalizes them. There is obviously much more to say, but in short, international migration law has a long way to go to become feminist.
What would a feminist future for international migration law look like? It would require the creation of a legal framework that responds to the lived experiences of migrants rather than gendered stereotypes. In order to move in that direction, the structures of the law would need to incorporate or at the very least be responsive to voices of migrants themselves. Unfortunately, the current state of the law is very far from that feminist vision. Many humans on the move fall outside of the protection of international law, with very real human costs. That leaves me with the question of whether we can achieve a feminist future for international migration law within the existing legal framework, or as Audre Lorde would ask, “can we dismantle the master's house with the master's tools?”Footnote 11
