The Law as a Sexist Institution Pt.II: International Law, Peace and Conflict
A recent blog, "Feminism and Structural Bias: The Law as a Sexist Institution", explored how legal definitions are directly shaped by the experiences of those who write them; that those who have written legal definitions in the UK have tended to be white men; and that, as a result, legal definitions can end up unfairly penalising anybody who is not a white man and does not interact with the world as a white man can. (If you’re interested, have a quick skim, and then come back to this blog...)
Sadly, these legal biases are not limited to any specific country and its law. Feminist legal theorists have for a long time argued that international law is similarly gendered, for two main reasons. Firstly because those who write and implement international law again have historically been white men, and continue to be a select group of individuals. Secondly because international law is designed to regulate interaction between nations, and therefore relies on gender roles that uphold the nation (think men as armed defenders of the nation, and women as the reproducers of those defenders). This is is clear in a number of areas of international law.
The Law on the Use of Force
The law on the use of force is encapsulated in Article 51 of the UN Charter. This article preserves the right of a country to act in self defence as a ‘reasonable’ reaction to a threat. However, Article 51’s argument has been likened by feminist legal theorists to the provocation excuses used in cases of domestic abuse, where an abuser argues their actions were justified as they were in reaction to the victim’s provocation. In other words, those writing the law hold a certain gendered understanding of what victimhood is - who victims are, how they act and what an effective and acceptable response to threat is. These understandings are therefore transposed onto international law and its legal subjects, such as nations or armies, or the legality of responding in certain ways to different threats.
Feminist legal theorist Gina Heathcote points out that the gendering of international law has three repercussions for women:
The state is constructed as ‘masculine’ and therefore devalues supposedly ‘feminine’ characteristics
Self-defence is mediated through a masculine state, and so the military and military force is understood as unequivocally rational and heroic
That the requirement for ‘reasonableness’ is gendered: it is difficult for international law to fully comprehend the effects it can have on women.
This also means that military intervention is gendered, and understood as an overwhelmingly ‘reasonable’ response to a variety of different international situations. Feminist legal theorist Hilary Charlesworth states that “the management of crisis is taken as a test of manhood. Intervention is action, coded as masculine and virtuous; hesitation is passive, coded as feminine”.
Women in Conflict
UN Women is a UN organisation “dedicated to gender equality and the empowerment of women”. It has worked in conjunction with the UN’s Security Council to produce a series of resolutions on ‘Women, Peace and Security’, addressing the “disproportionate and unique impact of armed conflict on women”. This is a crucial step forward, and is extremely important in addressing issues of gender on the international plane. However, these legal resolutions have been criticised by some for the way they approach women’s issues in times of conflict and peace. Let’s not forget that the men and women writing these resolutions tend not to have lived through periods of conflict. Women’s experiences in these types of resolutions can thus be homogenised: women’s differences are ignored, as the law understands gender in a very specific and binary way.
Ultimately, gender inequality in the law is just a reflection of gender inequality in society. To effectively challenge the issues women face in times of conflict, the law has to understand the issues that women face in times of peace. Moreover, conflict and peace, similar to gender, are seen as binary in the law: where one stops the other starts. In reality, gender, conflict and peace are all experienced as part of a continuum, and international law’s treatment of gender, peace and conflict does not always encompass this nuance.
Threats to international security are almost always gendered as masculine, whether they be perpetrators of terrorist attacks or war crimes, or leaders of corrupt governments. In reality, women can of course be just as complicit. This may seem like an odd qualification to make: why is it important, as a feminist, to recognise that women can also be bad? This question, although valid, misses the crucial point: the way we conceptualise threats to international security impacts the way we counter them.
For example, the most recent ‘Women, Peace and Security’ resolution no.2242 mentioned women in relation to terrorism for the first time. However, it did not recognise a woman’s capacity to be involved with terrorism herself. Instead, it focussed on women as a way to recognise, inform on and ultimately prevent the terrorism of their relevant men: their sons, brothers, husbands, fathers etc. This kind of focus means that we ignore the full spectrum of triggers for terrorism and extremist behaviour, and thus have reduced capacity to effectively counter terrorism and extremism.
This post is of course only a brief introduction to the issues around gender and international law. The argument is ultimately the same as my first blog on the law - that if we only have a select group of similar individuals writing it, the law will assume that everybody experiences the world in the same way. This will then have adverse effects for those who do not actually experience the world like that.
There is, though, an additional dimension to gender and international law. This concerns the concept of the nation - how gender roles play a part in how a nation constructs itself, and thus how international law must absorb those same gender roles. While international law is increasingly aware of the importance of including women in its approaches to conflict and peace (see UN Women), international law is not neutral, just as domestic law is not neutral. If we do not think carefully about the way gender can be infused into international legal processes, we may simply serve to further institutionalise harmful and limiting gender norms and binaries.
*** If you are interested in reading further about this subject, I recommend starting with Carol Cohn ‘Sex and Death in the Rational World of Defense Intellectuals’, or Hilary Charlesworth ‘International Law: A Discipline of Crisis’.
Article by Mairi Lubelska