Gendered Under-Enforcement in the Transitional Justice Context

Abstract:     
It is generally accepted that the gender dimensions of transition have, until relatively recently, been obscured in political, legal and policy analyses. This essay, building on previous work by the author, will add to the literature on gender and transition by focusing on the under-enforcement gap for women in post-conflict transitions. Drawing conceptually on Lawrence Sager’s seminal work on ‘under-enforced constitutional norms’ in the United States judicial context, the essay sets out a general theory of gendered under-enforcement. From this departure point, the essay will explore causality for gender under-enforcement by examining whether the phenomenon is unique to gender or whether it manifests in specific forms around gender. Second, the essay explores why there is persistence across jurisdictions and contexts to under-enforcement of transitional justice mechanisms and reforms related to gender. Third, the essay will identify the consistency in marginalization and transformative outcomes for women resulting from these under-enforcement patterns. All elements of the analysis will be animated by a framework of distinction between domestic and international under-enforcement, remaining attentive to the collusion that can occur between both. In so far as strategic differences arise between the enforcement priorities of international and domestic players that can operate to the benefit of women’s equality and rights in the transition process, these will be identified. The final part of the essay is normative in focus, seeking to assess the relationship of theory outlined to recent developments mainstreaming a gender perspective in the conflict and post-conflict environment, specifically through UN Security Council resolutions 1325 and 1820. To the extent that these developments constitute both de facto acknowledgement of under-enforcement while offering structural solutions to concrete gaps, they will be a site of practical application for the theoretical issues previously highlighted.

Keywords: gender, rule of law, transitional justice, equality, public/private, social change, conflict, repression

Working Paper Series