Gendered Under-Enforcement in the Transitional Justice Context

Abstract:     
The transitional justice field has been, throughout its relatively short development phase, de facto exclusionary to the issues and concerns of women. This is not to say that the broad issues that have dominated the field have not influenced women’s lives. Such core aspects of transitional justice’s domain as criminal accountability, restorative justice, reconciliation, amnesty, and lustration invariably affect women individually and as a group. There is increased recognition, however, that, in its broadest sense, the discourse and the practice of transitional justice has failed to take into account the unique needs and issues that women face in conflicted and repressive societies. Drawing on previous work with Rooney, this chapter further explores the gendered under-enforcement of change processes in transitional societies. In doing so, I acknowledge that the enforcement of women’s rights and interests across multiple societies and legal dimensions is unreliable and patchy. Catherine O’Rourke reminds us that ‘[t]he problem … is the limits of the legal imagination’, (O’Rourke, 2008: 274) and advancement on the issues that affect women’s social and legal status requires deep reflection on and subsequent action based upon the broader feminist critique of the limits of legalism and legal reform. With that context in mind, I focus attention on what happens to and for women in the transitional context. The transformative potential of political transition offers at least the possibility that women should do better from the deals struck, and that change might also implicate gendered change. The analysis draws conceptually on Lawrence Sager’s seminal work on ‘under-enforced constitutional norms’ in the United States judicial context, and sets out a general framework to understand gendered under-enforcement. From this departure point, the analysis explores causality for gender under-enforcement and explores how it manifests in specific forms. The essay investigates the ways in which under-enforcement is evident in transitional contexts and mechanisms, with particular reference to negotiation processes and the exclusion of women from the sites of political agreement. In addressing political agreements the work surveys the link between presence, representation and the substantive content of transitional agreements for women. In conclusion the chapter addresses the gendered consequences that flow from the consistent marginalization and the limitation on transformative gender outcomes resulting from under-enforcement.

Number of Pages in PDF File: 3

Keywords: Gender underenforcement

Accepted Paper Series