The gendered limits of traditional approaches to transitional justice

The terrain of transitional justice has evolved considerably since the post-Second World War II period when the prosecution and punishment of war criminals (mostly individual state/military actors on the defeated side) was established as the principal mode of pursuing post-war justice. As will be discussed below, even within this narrow purview, gender bias has ensured that war crimes against women did not enter the equation until very recently. At the same time, the nature of war and conflict has altered dramatically since the Second World War. Most conflicts are now internal rather than interstate, involve non-state as well as state parties, and are fought amidst civilians. In such divided societies, criminal prosecutions of individuals on one side or another may not be the best way to underpin the transition to ‘peace’. Instead, ‘justice operates pragmatically. . .when it functions to facilitate the workings of the political sphere by absolving the need for absolute accountability’ (Ní Aoláin and Turner, Reference Ní aoláin and Turner2007, p. 3). The core problematic for most engaged in the field of transitional justice, therefore, has become one of balancing the normative imperatives of justice against the pragmatic requirements of peace and reconciliation (Bell, Campbell and Ní Aoláin, Reference Bell, Campbell and Ní Aoláin2004, p. 14).

This balancing act usually entails a shift away from formal retributive to informal restorative models of justice. The latter are generally oriented toward ‘resolving the original conflict, integrating all affected parties, healing the pain of victims through apologies and restitution, and preventing wrongdoing through community-building measures’ (Anderlini, Pampele and Conway, nd). While, there is now a well-developed feminist critique of traditional approaches to post-conflict criminal justice (Askin, Reference Askin1997; Ní Aoláin, Reference Ní aoláin1997), very little attention has been paid to the gendered impact of alternative transitional justice processes and mechanisms. On the surface, because they appear to be non-adversarial, holistic, and inclusive, informal approaches to transitional justice might seem more amenable to recognising women’s experiences and needs in conflict and transitional contexts. Recent research, however, indicates that this is not the case (Ní Aoláin and Turner, Reference Ní aoláin and Turner2007; ICTR, 2007; Ross, Reference Ross2003).

Examining the construction and operation of truth commissions in Chile and Guatemala, for example, Ní Aoláin and Turner expose the ways in which gendered discourses have operated in these contexts to exclude female subject positions (Ní Aoláin and Turner, Reference Ní aoláin and Turner2007). Other scholars note a similar outcome regarding the Truth and Reconciliation Commission (TRC) in South Africa, despite considerable efforts by women’s NGOs to ensure the comprehensive inclusion of women and gender perspectives in TRC hearings (Ross, Reference Ross2003; Grenfell, Reference Grenfell2004). In explaining such patterns, Ní Aoláin and Turner underline the gendered exclusions produced by the uncritical incorporation of traditional international human rights hierarchies into transitional justice practices. Hence, despite the Chilean and Guatemalan commissions both having broad mandates to effect social reconciliation and restitution, in practice they took a very narrow ‘civil and political rights’ view of the harms that needed to be addressed (Ní Aoláin and Turner, Reference Ní aoláin and Turner2007). In doing so, both processes closed off consideration of the forms and locations of women’s conflict-related harms, including, for example, domestic violence or conflict-induced impoverishment.

While, the gendered exclusions of different approaches to dealing with the past are important concerns, it is also vital from a gender perspective that the scope of transitional justice should not be confined to consideration of legal, institutional and procedural aspects of dealing with past abuses. Doing so, limits exploration of the potentially transformative role of the law during a highly formative moment of renewal in transitional societies, including the role of international human rights standards and related transnational solidarity links. Under such conditions, there are opportunities to revisit inequalities, not only in relation to the dominant fissures around which the conflict has ostensibly revolved, but also in relation to other patterns of discrimination and marginalisation, especially along lines of gender that are often rendered invisible in the wider conflict meta-narrative (Rooney, Reference Rooney2006; Bell, Campbell and Ní Aoláin, Reference Bell, Campbell and Ní Aoláin2004, p. 320).

Recognising the complexity and transformative potential of transitions, Bell, Campbell and Ní Aoláin (Reference Bell, Campbell and Ní Aoláin2004) have called for a multilayered transitional justice paradigm that investigates the interplay of law, politics and gender broadly defined. The present article builds on this model by considering the role of bottom-up, feminist engagement with international law in the political process of achieving gender justice in transitions.

Contesting gender bias in dominant discourses

Understanding and contesting gender bias in mainstream accounts of transitional justice builds on critiques of other gendered narratives that mediate understanding of war, conflict and the objectives of transition. If transitional justice is to take women seriously, the gender biases underpinning discourses of nationalism, war/peace/security, human rights, liberalism, and so on must also be called into question. This means asking with respect to each: whose experiences matter, in what ways, under what conditions, and with what concrete effects, especially for women? A commitment to achieving gender justice in transitions, for example, calls for an understanding of how patriarchy, militarism and nationalism (including different forms of racism) interact to produce gendered identities and experiences that are inimical to women’s human rights in both conflicts and transitions. This process also demands critical scrutiny of top-down, minimalist, liberal models of the ‘rule of law’, democracy, and human rights as the uncontested end-goals of transitions.

Feminist scholars have effectively demonstrated the ways in which war, conflict and the processes that surround them are deeply gendered and experienced differently by women and men (Enloe, Reference Enloe1990; Cockburn and Zarkov, Reference Cockburn and Dubravka2002). Simplistic binaries, however, that cast women solely as pacifist victims of war and men as its belligerent perpetrators fail to capture the complex ways in which gender structures how we represent, understand and experience war, conflict and the human rights abuses that arise therein (Bos, Reference Bos2006, p. 999). While war and security discourses are dominated by men and the logic of masculinity, women’s labour and bodies have always been integral to war-making in multifaceted ways – whether as combatants, ‘army wives’ and munitions factory workers (Enloe, Reference Enloe2000) or as wartime ‘booty’ (Copelon, Reference Copelon2000, p. 223). Exposing the myriad ways in which women are affected by and involved in conflicts is an important part of debunking the myth that war and security issues, including the orchestration of transitions ‘from war to peace’, are the ‘natural’ preserve of men.

Others have shown how nationalisms promote regressive visions of women’s roles in the ongoing construction of national or ethnic identity and how this produces particular patterns of violence against women, especially in times of conflict (Yuval-Davis, Reference yuval-davis1997; Lentin, Reference Lentin1998; Nikolic-Ristanovic, Reference Nikolic-ritanovic, Turpin and Lorentzen1998). Feminist commentators have also called into question gender biases in the war-peace dichotomy per se and highlighted instead the continuities that prevail for women in transitions from ‘conflict’ to ‘peace.’ For example, women can experience increased and new forms of domestic violence as a result of the general normalisation of violence during conflict situations (Kesic, 2003, p. 2). But equally, domestic violence can escalate following a conflict when soldiers rejoin civilian life and continue to be violent in the private sphere (ibid.). Such analyses challenge male-defined notions of ‘peace’ as the cessation of certain forms of violence (Ní Aoláin, Reference Ní aoláin2006) and underline instead the interrelation of all forms of violence; that is, the ‘continuum of violence running from bedroom, to boardroom, factory, stadium, classroom and battlefield’ (Cohn and Ruddick, Reference Cohn, Ruddick, Hashmi and Lee2004).

The above analyses are also linked to well-honed feminist critiques of the liberal rule of law and the public-private divide (Smart, Reference Smart1989; Pateman, Reference Pateman1988). Mainstream accounts of transitional justice generally accept top-down notions of the ‘rule of law’, formal equality, and minimal representative democracy, as the uncontested end-goals of transitions (Dyzenhaus, Reference Dyzenhaus2003, p. 165). It is well known, however, that even under such conditions, in established liberal democracies, women are marginalised in political life and gender inequalities in social, economic and cultural spheres persist (Young, Reference Young2000). In particular, the liberal public-private divide has meant that domestic abuse and sexual violence usually go unrecognised and unpunished. Further, gender equality in the liberal public sphere (i.e. equal access to political power) is directly impeded by gender inequalities in the private sphere (i.e. women’s disproportionate responsibility for childcare).

Such deep-seated inequalities invariably reassert themselves in transitions. Even when women are integrally involved in conflicts or play key roles in peace initiatives, they are routinely cut out of political power after peace agreements are put in place (Bell, Campbell and Ní Aoláin, Reference Bell, Campbell and Ní Aoláin2004, p. 320–1). In effect, therefore, models of transitional justice, which accept a traditional, territorially-bounded, liberal public-private divide and male-dominated public sphere as the outcomes of transition, fail to operationalise transitional justice as if women’s equality and human rights mattered. In doing so, they dissipate a valuable opportunity to frame transition as a process of bottom-up transformation underpinned by critically interpreted human rights norms.

The following sections II and III address the achievements and wider implications of specific advocacy initiatives by women’s movements to tackle the gender gaps and exclusions outlined here. Both exemplify engagement with international law as a site of contestation and potential transformation in the effort to foreground gender and women’s experiences in post-conflict contexts. The first focuses on efforts to remedy the previous exclusion of gender-based crimes from international humanitarian and criminal law while the second addresses obstacles to women’s full and equal participation in transitions from conflict to peace. As such, these initiatives reflect significant practical contributions and offer valuable insights vis-à-vis the challenge of achieving gender justice in transitional contexts and the role of transnational, bottom-up approaches to international law therein.

Wartime sexual violence

The increased vulnerability of women to rape and sexual violence has always been a feature of war (Chinkin, Reference Chinkin1994). There are well documented accounts of many thousands of women being raped during conflicts by both enemy and ‘friendly’ forces, for example, during World War II (Bos, Reference Bos2006), the 1971 Indo-Pakistani war (Menon and Bhasin, 1998), wars in the former Yugoslavia (HRW, 1993, p.163–5) and Rwanda (HRW/FIDH, 1996) as well as in internal conflicts in Peru, Liberia, east Timor (Chinkin, Reference Chinkin1994, p. 2). The impact of such sexual violence in women’s lives is profound. In addition to the immediate physical and emotional harm inflicted, the trauma produced can be prolonged and exacerbated if the violence also results in pregnancy or sexually transmitted disease (ibid., p. 5).

Despite the prevalence and gravity of different forms of violence against women in contexts of militarisation, war and conflict, these issues did not begin to receive serious international attention until the 1990s. A variety of factors contribute to the impunity of perpetrators of sexual violence and the failure to date to achieve justice with respect to gender-based war crimes. These include deeply-engrained perceptions that rape and other forms of sexual violence are unavoidable aspects of the breakdown in social order that accompanies war (Chinkin, Reference Chinkin1994, p. 4) as well as women’s own fears of social stigma and/or rejection by spouses, families and communities (Chinkin, Reference Chinkin1994, p. 5; Grenfell, Reference Grenfell2004, p. 533). Even if these kinds of barriers can be surmounted, intimidation of women who report abuses, legislation preventing the prosecution of war crimes, or amnesties under peace agreements can all militate against the prosecution of wartime rapes and sexual violence.

Shortly, I look in more detail at feminist efforts to mainstream gender in the ICC as a way of countering some of the obstacles noted here and address the persistent limitations of a criminal justice approach to achieving gender justice in post-conflict situations. To contextualise that discussion, the following subsection highlights entrenched gender biases in international humanitarian law vis-à-vis crimes against women, which the ICC women’s initiative directly challenged.

Gender-based crimes in international law

Prior to the 1990s, the treatment of wartime rape and sexual violence in international humanitarian law was very ambiguous. Article six of the Nuremberg Charter (1945) establishes the core concepts used in the prosecution of war criminals after World War II.Footnote ¹ It defines ‘war crimes’ as ‘violations of the laws or customs of war’ including ‘but not limited to, murder, ill-treatment or deportation to slave labour’ (my emphasis). Article six also defines the category of ‘crimes against humanity’, which is primarily concerned with violations against civilians within a wider context of conflict. It encompasses ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war’ and expressly outlaws ‘persecutions on political, racial or religious grounds’.

Notwithstanding the ‘not limited to’ caveat, the fact that rape and sexual violence were not explicitly listed as examples of ‘violations of the laws or customs of war’, or as forms of crimes against humanity, ensured that wartime rape and sexual violence did not feature in the Nuremberg trials (Copelon, Reference Copelon2000, p. 227) and received very limited attention in the International Military Tribunal for the Far East.Footnote ² Likewise, the failure to list gender-based persecution along side political, racial and religious persecution both reflected and reinforced the invisibility of women and gender-specific experiences not only in war and conflict situations and post-conflict justice processes, but in society more generally.

In the Geneva Conventions, patriarchal notions of the role of women in society also serve to understate the gravity of wartime sexual violence. This is evident in art. 27 of the Fourth Geneva Convention protecting civilians in international conflict, which asserts ‘women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault’ (my emphasis). Hence, sexual violence is recognised as a breach of social mores (i.e. damaging to a woman’s reputation or her value from the perspective of men) but not as an expressly prohibited war crime that demands prosecution.

In contrast, art. 3, common to all four Geneva Conventions, unambiguously prohibits other egregious acts against non-combatants including: murder of all kinds, violence to life and person, torture, the taking of hostages, and ‘outrages upon personal dignity, in particular humiliating and degrading treatment.’ Similarly, enforcement of the conventions relies on a requirement that states enact legislation and ensure punishment of ‘grave breaches’ of the conventions (art. 49). However, wartime rape and sexual violence are not explicitly enumerated in the list of grave breaches given in art. 50, which includes ‘willful killing, torture or inhuman treatment, [and]. . .wilfully causing great suffering or serious injury to body or health. . .’

Even though it is not difficult to see how rape and sexual violence could be interpreted as war crimes and/or crimes against humanity under the existing provisions, this did not begin to happen in a significant way until women’s movements mobilised around the issue in the 1990s. Ultimately, in the case of World War II, because the impact on women was not expressly included as part of the post-war justice agenda, violations against women were ignored. At the same time, gender bias permeated the processes established to prosecute World War II criminals. In particular, some have argued that the fact that wartime sexual violence was perpetrated with equal ferocity by all sides, and not only by German and Japanese militaries, created incentives to downplay the gravity and extent of violence against women during the war (Chinkin, Reference Chinkin1994, p. 9; Copelon, 2002, p. 222).

Another approach: feminist uses of popular tribunals

Notwithstanding the persistent difficulties around women’s participation in formal legal processes, the radical import of feminist initiatives to establish gender-sensitive legal practices in the ICC (and earlier in ad hoc criminal tribunals) should not be understated. These actions constitute an important practical critique of the gendered exercise of power in male-dominated international legal and political structures. Further, by relying on broad-based participation and solidarity from other women’s movements, undoubtedly, they have helped to extend advocacy networks, raise awareness, and enhance capacity among women’s NGOs towards further transformative engagement with the law. Furthermore, they established important legal principles and precedents that can be used by women’s movements to advance women’s human rights in safer ‘informal’ contexts.

For example, the increasing use of popular tribunals by women’s movements is indicative of evolving efforts to reconcile two fundamental concerns of women’s human rights advocates. The first is to counter the potential threat of re-victimisation of women victims of gender crimes in the context of formal, top-down, legal proceedings. The second is to affirm nonetheless a commitment to ‘objective’ values of fairness, transparency and accountability and to appropriate the legitimacy and authority of the law toward the advancement of meaningful equality and human rights for women. Popular tribunals are generally framed in terms of international human rights and/or humanitarian law. They simulate to one degree or another formal legal procedures and practices and often enlist the expertise and support of established legal practitioners and judges. In addition to the Vienna (1993) and Beijing (1995) tribunals of the global campaign for women’s human rights (Bunch and Reilly, Reference Bunch and Reilly1994; Reilly, Reference Reilly1996), more recent examples include the Tokyo Women’s International War Crimes Tribunal on Japanese Military Sexual Slavery (Chinkin Reference Chinkin2001) and the International Initiative for Justice in Gujarat 2002 (Cockburn, Reference Cockburn2007, p. 23).

The Tokyo Tribunal is a particularly striking example of the political impact of the wider campaign for gender justice in criminal tribunals. It was the culmination of several years of advocacy on behalf of 75 former ‘comfort women’ who were kidnapped into sexual slavery by the Japanese military during World War II (Chinkin Reference Chinkin2001). Many of the advocates involved in the tribunal had also been part of the ICC campaign. The former ‘comfort women’ came from China, East Timor, Indonesia, Malaysia, North and South of Korea, Philippines, Taiwan, as well as Japan. They were among approximately 200,000 women who were raped up to 40 times each day in what has been described as the ‘unprecedented industrialisation of sexual slavery’ (Copelon, Reference Copelon2000, p. 222).

The Tribunal was notable in replicating a high degree of legal formality, which has served to enhance its legitimacy and impact in the international community. The final judgmentFootnote ⁵ found Emperor Hirohito and several high-ranking members of the Japanese military, ‘guilty’ of crimes against humanity (Tokyo Tribunal Judgment, p. 204). It also found that the current Japanese government has a ‘duty to provide reparation’ in various forms (ibid., para. 1085). More recently, a climate of backlash and revisionism has seen the Japanese government row back from an earlier tentative acknowledgement of the harms suffered by the ‘comfort women’ (McNeill, Reference McNeill2007).

Under these conditions, because most of the victims are 80 years old or more, the Tokyo judgment is likely to be the final response they receive. As such, the significance of the formality employed throughout the proceedings is heightened as the judgment of a popular tribunal becomes de facto an ‘official’ judgment. This example of the Tokyo Tribunal exemplifies transformative, bottom-up, feminist engagement that innovatively negotiates the nexus between formal and informal uses of the law, within a framework of transnational solidarity, in the pursuit of justice for victims of wartime sexual violence. In this sense, it suggests a third approach to dealing with the past that can inform gender analyses of formal and informal transitional justice mechanisms and the relation between the two.

This section has focused primarily on questions of dealing with past abuses. Developing gender-sensitive formal and informal justice mechanisms to account for particular wartime crimes against women is a vital area of concern that requires sustained feminist analysis and advocacy. However, women’s experiences of conflict and transition are complex and a comprehensive vision of gender justice in such contexts cannot be achieved if we stop there. Recognising the need to shift the focus from women as victims of war to women as agents of change in transitions, another major transnational, feminist campaign emerged in the late 1990s. Using international law as a bottom-up tool, it sought the adoption and implementation of a Security Council resolution on women, peace and security. The following section explores the contribution of this initiative to the project to developing a more comprehensive account of gender justice in post-conflict transitions.

The Limits of SCR 1325

The difficulties implementing SCR 1325 are similar to those facing any liberal feminist equality agenda. On one level, SCR 1325 reflects a radical departure in the male-dominated context of ‘war and security’ law and policy at the UN Security Council. Its radical potential is stymied, however, by an overly narrow focus on women’s equal participation in public life. The full and equal participation of women in political decision making and policy design and implementation – in transitions or otherwise – requires positive measures to counter gender inequality across the board: economic, social, cultural, legal and political.

Speaking directly to the challenges of implementing SCR 1325 in Burundi, women’s rights activist, Schola HarushiyakiraFootnote ⁸ acknowledged unprecedented successes in the use of quotas to secure 30% representation of women in national representative bodies. However, she raised concerns about their absorption into mainstream political parties that have little interest in gender equality and the need for greater awareness among the elected female representatives of the issues affecting the majority of women on the ground. Perhaps most importantly, she named extreme poverty as the single biggest obstacle to broad-based civic and democratic participation by women.

Harushiyakira’s comments underline widespread doubts about whether women’s sustained and equal political participation in decision-making and post-conflict transformation is possible without a radical re-conceptualisation of the kinds of democratic institutions and processes that are needed to achieve justice for women in transitions (Chinkin and Parradine, Reference Chinkin and Kate2001; Chinkin and Charlesworth, Reference Chinkin and Hilary2006; Rooney, Reference Rooney2006). Equally, however, they highlight the interrelation of denials of human rights in women’s lives and the imperative of addressing gender-based social and economic inequalities as major obstacles to the achievement of women’s equal political participation in the transformation of transitional societies.

Further, the majority of conflicts take place in the ‘developing’ world (Abeysekera, Reference Abeysekera, Dam Truong, Wieringa and Chhachhi2006). Moreover, it is widely recognised that current patterns of globalisation exert a disproportionate, negative gender impact that disadvantages most women in the globalising economy (Streeten, Reference Paul2001; Molyneux and Razavi, Reference Molyneux and Shahra2006). From this perspective, the challenge of implementing SCR 1325 and achieving women’s empowerment in transitions is integrally linked to tackling deepening global inequalities fostered by neo-liberal globalisation.

Towards an integrated approach to justice, equality and human rights for women in transitions

Recognising the limitations of the remit of SCR 1325 and the failures to implement its provisions to date, sceptics will be tempted to discount the resolution as purely tokenistic. In contrast, I argue, the transformative potential of SCR 1325 relies upon it being understood as an interlocking piece in a growing body of international commitments to women’s human rights, gender equality and gender mainstreaming. Reflecting this perspective, Chinkin and Charlesworth map the main elements of this international legal framework, which underpins claims for gender equality and women’s human rights in transitions to peace (Chinkin and Charlesworth, Reference Chinkin and Hilary2006). In addition, to SCR 1325 and the gender-sensitive provisions of the ICC, they include in this framework, inter alia, the Vienna Declaration and Programme of Action (1993), the Beijing Platform for Action (1995), the Women’s Convention on the Elimination of All Forms of Discrimination against Women (1979) as well as the international bill of rights and the conventions on children’s rights and against racism.

The potential of international human rights standards to promote gender justice in transitional contexts is multifaceted. On one level, women’s groups and others can lobby at the local level for the incorporation of international norms of non-discrimination and sex-based equality can into emerging national legal systems, including customary and religious laws (ibid., 944). This is particularly important in assisting women’s movements, which in recent decades have been at the forefront of resisting resurgent traditionalism and new fundamentalisms (Shaheed, Reference Shaheed2001; Freedman, Reference Freedman1998).

More broadly, however, there is much undeveloped potential for women’s organisations to utilise the entire array of international human rights treaties in seeking gender justice in transitions. Given the traditional neglect of socio-economic rights in mainstream transitional justice and human rights paradigms, treaties like the Women’s Convention and the International Covenant on Economic, Social and Cultural Rights, which afford particular protection to the rights to health, decent conditions of work, social security, education and so on, have a particularly pivotal role to play in ensuring women’s human rights in transitions (Chinkin and Charlesworth, Reference Chinkin and Hilary2006, p. 946)

Tapping this potential, however, will require sustained engagement by women’s NGOs with the treaty-monitoring processes to hold governments accountable for the local implementation of global gender equality and women’s human rights standards. Beyond the possibilities of pursuing ‘legal’ strategies and bringing individual or group complaints under some treaties, all conventions require governments to participate in periodic reviews of their observance of the convention. These reviews create ‘political’ opportunities wherein women’s organisations and individual activists can legitimate their local claims and secure benchmarks that can be repeatedly invoked and revisited. As such, reviews of a government’s compliance with human rights standards are important civic/political processes in their own right. They afford women valuable opportunities for political engagement and negotiation with governments at the international level, which might not be available at state level. In addition, they foster transnational solidarity links with non-state and civil society actors who share a commitment to advancing women’s human rights.

Significantly, the Committee on the Elimination of Discrimination against Women is increasingly playing a lead role in monitoring implementation of SCR 1325. The Committee now requests governments to report on implementation of SCR 1325 as part of their overall compliance with CEDAW (UNIFEM, 2004b). In 2007, 13 of 36 countries up for review before the Committee are in conflict or post-conflict situations. In this context women’s organisations have very real opportunities to use their governments’ obligations under CEDAW to reinforce implementation of SCR 1325. Moreover, the existence of well-organised transnational NGO networks that have grown up around both instrumentsFootnote ⁹ maximise the potential of local groups strategically using these international standards in tandem to achieve ‘substantive and material justice for women’ in transitions (Bell and O’Rourke, Reference Bell and Catherine2007, p. 44)