Gendered Harms and Their Interface with International Criminal Law: Norms, Challenges and Domestication
Fionnuala D. Ni Aolain
University of Minnesota Law School; University of Ulster - Transitional Justice Institute
April 9, 2013
Minnesota Legal Studies Research Paper No. 13-19
Many feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. While acknowledging that law is often ineffective in reordering social relations, a substantial number of scholars and policy makers still believe that it is an institution that can be used to make substantive gains for women. Recent innovations in the normative definitions of crime added to an-ever growing jurisprudence on sexual violence and gender based harms have given some buoyancy to optimistic views on international criminal law’s capacity to challenge gendered assumptions, to address specific harms experienced by women and to circle such additionality back to domestic law thereby tackling socially entrenched violence against women. Based on a systematic review of subsequent legislation enacted by states following ratification of the International Criminal Court Statute, this paper considers the ‘capture’ capacity of international criminal, and the extent to which any optimism around domestic legal capacity is warranted, and what pitfalls may following from a reliance on international criminal law to spearhead normative developments on addressing gender violence. The analysis catalogues the full range of regulation in ratifying states, and addresses the complexities of increased criminalization of sex-based harms against women. Generally much of the international criminal law scholarship has ignored domestic responses to its expanding mandate and this paper seeks to redress that gap in respect of sex-based harms.
Number of Pages in PDF File: 36
Keywords: Criminal Law, sexual violence, rape, International Criminal Court, law reform, comparative criminal law, feminist legal theoryworking papers series
Date posted: April 12, 2013
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