Gendered Under-Enforcement in the Transitional Justice Context
46 Pages Posted: 20 Aug 2009 Last revised: 1 May 2015
Date Written: August 19, 2009
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 explores how Sager’s conception of under-enforcement is a useful tool for understanding the ways in which women fail to benefit or gain substantially less than men from transitional processes. From this departure point, the essay will explore the forms and causality for gender under-enforcement. Second, the essay explores why there is persistence across jurisdictions and contexts to under-enforcement of mechanisms and reforms related to gender in transitional contexts. Third, the essay will identify consistent marginalization of and transformative outcomes for women resulting from these under-enforcement patterns. All elements of the analysis will be animated by a framework distinguishing 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 and can operate to the benefit of women’s equality and rights in the transition process, these will be identified.
Keywords: gender, rule of law, transitional justice, equality, public/private, social change, conflict, repression
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