Rise Up | Feminist Judgments in International Law: Using the Master’s Tool to Bring Down the Master’s House

The Rise Up series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work.

Feminist lawyering is a legal method based on the belief that the law has always been the most powerful tool of women’s oppression. It seeks to question the way legislation and policies are enacted, interpreted and applied by different actors of the legal system via a feminist lens. An essential component of feminist jurisprudence is to advocate for more gender-sensitivity in writing judgments. What does this mean?

1.Considering Lived Realities: Feminists believe that the existence of made-up concepts in the law such as “state sovereignty” or “the nation” diverts from the practical side of decisions, which should be taking into account one’s lived realities. It is argued that legal reasoning should be based on context analysis in order to take into account differences and personal experiences of various stakeholders of the cases.

2.The Private is the Political: In addition to this, the dichotomy between the “private” and the “public” spheres is also considered harmful by feminist legal scholars. It is considered the reason why so much gender-based oppression, such as gender-based violence, has stayed out of the scope of the law for a long time. Such oppression was often viewed as private and personal matters.

Feminist Judgments in International Law, edited by two renound lawyers and scholars, Loveday Hodson and Troy Lavers, seeks to address these concerns by re-writing famous judgments of International law, International Human Rights law and International Criminal law. Nishma Jethwa, Programme Director of our FemJustice Legal Centre had the opportunity to meet the team for their book launch in London and hear from their experience of researching for the project. We share her notes and insights here.

Proposing a Feminist Alternative to International Law Judgments  

It can be said that a judgment is, by itself, based on patriarchal foundations through its substance and structure. As such, Hodson and Lavers quickly realised how transformative scholars’ work can be when actually using these patriarchal tools – that is “using the master’s tools to bring down the master’s house”.

Playing the role of judges when issuing a decision, they worked collaboratively in sub-groups or “chambers”, which created an interesting think tank of dissenting opinions on the substance of the cases as well as the legal methods used. Indeed, a broad diversity of feminist perspectives (liberal feminism, queer informed feminism and so on) is clearly reflected in their final book.

Another innovative feature of this project was including a self-reflection, conducted at the end of the process, on the experience of the various legal-practitioners involved in the judgment writing itself. This task aimed to make them realise even their own gender biases and the constraints under which judges are often working.

The overall aim of the project was to get participants involved in interacting with the most famous judgments of international law such as the Lubanga case, the Lotus case, the AFRC (Armed Forces Revolutionary Council) case and the Sahin case. We explore some of the key learnings, as shared by the team, on these below.

The Lubanga Case: The War Crime of Child Recruitment in the Democratic Republic of Congo (DRC)

This decision, issued in 2012, condemned Thomas Lubanga Dyilo, founder and leader of the Union of Congolese Patriots, to 14 years imprisonment for “enlisting and conscripting of children under the age of 15 years into the Patriotic Force for the Liberation of Congo” between 2002 and 2003.

When reading the case, the team were struck by the focus on child soldiers only, essentially ignoring sexual and gender-based violence and silencing the use of rape as a tool of war as well as the lack of consideration of issues such as agency and consent to be enrolled in the militia. The Court also seemed to have been reinforcing stereotypes concerning the way in which children were used in warfare and often even oversimplified the facts. The team felt the need to address that and in their re-written judgment, went into details concerning the use of girls in the frontline and the sexual violation of boys which were both barely mentioned in the original judgment. A key learning was that, if as feminists, we are not afraid of the complicated lived experiences of these children, we must explore those in our judgements too, contrary to the Court which used facts in the way the law could process.

Participants shared that working on this case was a challenging process for several reasons. It was the very first case before the International Criminal Court and the scholars could only base their reasoning on the evidence the actual judges had at the time itself. The reality of the lack of knowledge, interest and experience of the ICC judges in applying a feminist perspective when working the law hit the researchers. It encouraged them to think about a way to equip these positions with the adequate tools in the future.

The Lotus Case: Collision of Ships on the High Seas 

This famous case involves the collision of a French vessel (the Lotus) and a Turkish vessel killing eight Turkish nationals on the high seas. Turkey claimed jurisdiction (the right to judge the matter domestically) and charged the French captain and the officer on watch with manslaughter. The case was brought before the Permanent Court of International Justice in 1927 as the French government rejected the Turkish jurisdiction. The Court gave reasons to Turkey based on International and customary law principles.

This case is an excellent example of how feminist jurisprudence can be relevant for cases which do not present any gender-related issue. The authors chose to reflect on this case together, as a collaborative process. They started to look at the questions of jurisdiction asked to the Court and gathered information from expert witnesses by organising an event in Durham to collect more testimonies. From there, they looked at the politics of the time of the case, which were completely silenced by the court in the original judgement. Indeed, it appears from the judgment that the whole issue of sovereignty was, in fact, surrounded  by colonial considerations. Indeed, France adopted a very superior attitude towards Turkey. It seems that the argument was to measure sovereignty according to how “civilised” the states claimed to be. Therefore, the aim of this project was to think about another model of sovereignty using the wider history of France and Turkey responding to a context-analysis reasoning. What is more, the judgement was re-written taking into account the personal experiences of the victims’ families too. They were the ones who originally brought the case before the Court and, according to the scholars, it is their request which should have been acknowledged first and foremost.

The AFRC Case: Sierra Leone Atrocities

The Armed Forces Revolutionary Council (AFRC) was an armed group who organised a Coup d’Etat in Sierra Leone in 1997. Together with the rebel movement of the Revolutionary United front (RUF), the forces started launching a series of attacks against the civilian population including summary executions, mutilations, destruction of villages, rapes, forced labor and the use of child soldiers. Alex Tamba Brima, Santigie Borbor Kanu and Brima Bazzy Kamara, the AFRC leaders, were judged in 2007 by the Special Court for Sierra Leone and sentenced to 45 and 50 years imprisonment for war crimes and crimes against humanity.

Many challenges arose when working on this case. The authors realised very soon that, as there is no such thing as one feminist interpretation of the law, they were proposing too many different approaches. Thus, they had to come up with “an inclusive compromise”. In addition to this substantial concern, the obligations to respect the original short format of the judgment and to put themselves in the position of the judges at the time, they were quite constrained. This is the reason why the scholars had to make choices regarding their focus and decided to look at issues such as forced marriage, rape and child soldiers. Indeed, they were immediately struck by the gross lack of gendered analysis in the original judgment even though many of the matters that arose did actually encompass a gendered dimension. More specifically, the team also tried to engage with the lack of gender-sensitivity in the language used in the original judgement to discuss rape and the role of third parties, for instance. Finally, they took into account the fact that it was the first case looking at forced marriage in the case of war and wanted to dig deeper into this issue while adopting a feminist lens.

The Sahin case: The Headscarf Case 

Leyla Sahin was a Turkish student who was being refused the right to sit exams and to go to lectures as she was wearing the Islamic headscarf in conformity to the Istanbul University’s circular. She brought her case before the European Court of Human Rights claiming that this regulation was violating her right to manifest her religion protected by Article 9 of the European Charter of Human Rights. The court did not rule in her favour arguing that the interference was legitimate in protecting the rights and freedom of others and public order.

Re-writing this famous judgment was very engaging for the authors as they structured it in different thematic areas and succeeded in covering them all. They are aware of the fact that, in a real-life case this could not have been feasible but this was an interesting way to advocate in favour of the fact that autonomy and freedom of expression are not conflicting with each other or with gender equality. What is more, they also worked on drafting the “devil’s advocate judgment” arguing that the wearing of the headscarf itself can be oppressive. The aim was to present an alternative feminist viewpoint to theirs in order to acknowledge the validity of other theories of feminism.

Re-writing Judgments of International Law: A Challenging Process 

In critically assessing the results of their research, Loveday Hodson and Troy Lavers recognised the Eurocentric approach of the project as most of the authors were white and European. This was not done intentionally and can be explained using the pre-existing network. Yet, it was discussed that, if another volume of the feminist justice judgments would be issued, the scholars would be keen to hear a broader diversity of voices and geographical range focussing more on specific tribunals.

In addition to that, they highlighted that re-writing international law judgments was a complicated and complex exercise which required caution. Many of the cases do not necessarily present a gender-related element and concern political power dynamics and issues between states (such as the Lotus case discussed above). The scholars felt restrained by the need to be taken seriously as it was the first time international law judgements were being rewritten using a feminist lens. If they were to be enrolled in another similar project, they mentioned that they would like to adopt a more activist approach.

This was also the first time that the broader Feminist Judgments Project, which started in Canada had been applied to international law judgments. A certain number of adjustments had to be considered as the authors rethought the methodology for an international context. The legal system was no longer Common Law but international law, so the topics were much more specific. They had to connect with international lawyers to address questions such as statehood and sovereignty. According to Rosemary Hunter, one of the founders of the Feminist Justice Project, the fact that such a project is replicable in such a variety of domestic jurisdictions as well as international ones highlight that gender justice is lacking at all levels.

To conclude, the domestic version of this project aims at being responsive to the local context and listening to local feminist understandings of where the problem lies. However, by nature of being international, this particular study engages with global perspectives as well as intersectionality which seems to have been a unique and challenging process.

The Feminist Justice Judgments: An Eye Opener about the Power of Feminism

The renewed legal scholars and activists delivered an extremely enriching and innovative project breaking the rules of traditional academic studies. They believe it came as a seminal moment in their journey as feminist scholars. Indeed, who they were as feminist evolved during the process of research and writing. They realised that, as they were building their conversations, the forms and sites of oppression changed and the authors had to adapt themselves to the newer struggles. Feminist lawyering is an evolving movement and this very dynamism is the attitude one should adopt in engaging with feminism.

Re-writing feminist judgments is an important component of the global feminist lawyering development. Even though it is about questioning the lack of gender-sensitivity in the way international law judgments are issued, the scholars reflected on the practicability of this method in real life. They came up with the solution of providing the next generation of legal practitioners with gender-sensitive training/s to challenge the patriarchal nature of the existing legal system.

This is precisely the objective of the FemJustice Legal Centre at One Future Collective – to find our more or get involved, visit http://onefuturecollective.org/femjustice-legal-centre/.

Nishma Jethwa is the Program Director and Maelle Noir is the Program Officer at the Feminist Justice Legal Center at One Future Collective.