Conflicting Institutions and the Search for Gender Justice at the International Criminal Court

Abstract

This article examines the mixed gender justice outcomes of the International Criminal Court’s (ICC) first case, The Prosecutor v. Thomas Lubanga Dyilo, and argues that they were influenced by competing institutions: older gender-biased norms of international law and new formal gender justice rules of the ICC’s Rome Statute. Using a feminist institutionalist framework, the article suggests that formal and informal institutions work together in multiple ways to produce different outcomes, and that in understanding the operation of informal institutions, it is as important to search for silences and inaction, as it is to identify articulation and action.

“New,” “Old,” and “Nested” Institutions and Gender Justice Outcomes: A View from the International Criminal Court

“…12 In her dissenting opinion, Odio Benito expressed similar views to the arguments advanced by the OPCV and the Women's Initiatives, strongly asserting victims' rights, specifically of girl soldier victims of sexual violence (ICC 2012b). While neither the views of the OPCV nor Judge Odio Benito altered the outcome of Lubanga's verdict , they nevertheless helped represent the certain experiences of these victims in proceedings (see Chappell 2014).…”

“…In its first six years in operation, the OPCV has contributed to challenging the gender legacies of international law. For instance, in its representations in the ICC's first trial concerning DRC warlord Thomas Lubanga, it sought to ensure that the experiences of girl soldier victims, many of whom had experienced sexual violence, were included in proceedings despite the prosecutor not including sexual violence in the charges (Chappell 2014; ICC 2011; SaCouto 2012). While these interventions were rejected both by Lubanga's defense counsel and the majority of judges (Sa Couto 2012, 345–46), these issues were taken up at the verdict and sentencing stage by self-identified feminist Judge Elizabeth Odio Benito (Odio Benito 2014).…”

Understanding Institutional Change from a Gender Perspective

“…New FI work has considered how we can analyse rules as gendered in ways influenced by institutionalism (Lowndes and Roberts 2013). Others are beginning to look at informal institutions -long recognised by gender scholars as significant in gender terms -drawing on the recent literature that explores systematically how the formal and informal can interact together both to subvert and uphold each other with varying gender outcomes (Mackay 2010, Chappell and Waylen 2013, Chappell 2014, Waylen 2014. FI has explored the possibilities for each of the main approaches associated with institutionalism (RCI, HI, SI and DI) to incorporate gender into its analyses.…”

Children Born of Sexual and Gender‐Based Violence in Conflict: The International Criminal Court, Ecological Environments and Human Development

“…Akesson and Denov, ) they have not yet explored the extent to which institutions of international criminal justice can be considered part of the ecological environment in which child development occurs. Although a number of judicial bodies have been established since the early 1990s, this article focuses on the ICC due to its legal framework having been commended for its attention to crimes against women and children (Amann, ; Chappell, ; Coomaraswamy, ) and for its ability to not only convict individuals for international crimes but also provide reparations to victims (Article 75, ICC Statute). The possibility of reparations is particularly important in light of the long‐term difficulties often experienced by children born of SGBV and the potential impact on their development (Carpenter, ; Neenan, 2018a).…”