Otto, D --- "The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade" [2009] UMelbLRS 7

Last Updated: 23 November 2009

THE EXILE OF INCLUSION: REFLECTIONS ON GENDER ISSUES IN INTERNATIONAL LAW OVER THE LAST DECADE

The Exile of Inclusion

DIANNE OTTO[*]

CONTENTS

I INTRODUCTION

‘But the Security Council is the most powerful body in the UN’, the Director of the International Women’s Tribune Centre in New York said, looking at me as though I was completely out of touch. ‘Its resolutions [on women] are surely binding’.
It was January 2009 and I was sitting in the crowded office of the International Women’s Tribune Centre (‘IWTC’)[1] in New York, its wide windows framing the United Nations Secretariat Building on the East River with its skirt of national flags, slowly absorbing the sense of accomplishment that was in the room. As I set about explaining the difference between resolutions of the Security Council that are adopted under Chapter VII of the Charter of the United Nations, and those that are not (only the former are legally binding), it soon became clear that the distinction did not really matter to anyone else in the room. The IWTC’s strategies to promote women’s equality and rights had followed the power that had been increasingly concentrated in the Security Council after the end of the Cold War[2] and, since September 11, had become unapologetically ‘hegemonic’.[3] In response to the strategic lobbying of the NGO Working Group on Women, Peace and Security (‘NGO Working Group’),[4] of which the IWTC is a key member, the Security Council had adopted two thematic resolutions that directly addressed women’s concerns — undoubtedly a significant achievement. The first, in 2000, urged, inter alia, the increased participation of women in conflict resolution and post-conflict peace-building.[5] The second, in 2008, condemned the use of sexual violence as a ‘tactic of war’ and as an impediment to the restoration of international peace and security.[6] The question that the discussion at the IWTC raised for me was what this entry of feminist ideas into the sphere of influence of the Security Council would mean for the long feminist struggle to utilise international law to promote and protect women’s rights and gender equality, and to secure peace. My insistence that it was important to acknowledge the non-binding character of the resolutions seemed unduly legalistic. Why was I championing the power of formal ‘law’ over that of ‘politics’? Was I engaging the ‘politics of expertise’ because it gave me, as an international lawyer, a privileged position in the debate? Is it possible to combine feminist activism with critical engagement in both law and feminism, or is the role of scholarly critical thinking to raise issues, rather than resolve them?[7]
In thinking through these questions, as I reflect on gender issues in international law over the last decade, I will treat these two Security Council resolutions as bookends to my discussion. They allow me to begin by describing the remarkable spread of feminist ideas throughout the UN system, into the most unlikely places, and they illustrate the productivity that can flow from the institutional embrace of ‘emancipatory’ ideas, in the form of institutional developments as well as inspiring local and global movements for change. At the same time, the Security Council resolutions illustrate a number of major problems for feminists, which have emerged from increased institutional incorporation. These problems include a pattern of selective engagement with feminist ideas as they are instrumentalised to serve institutional purposes; an across-the-board absence of strong accountability mechanisms, even as the outside pressure for accountability grows; and the tendency for protective stereotypes of women to normatively re-emerge following an initial flirtation with more active and autonomous representations. I return, in conclusion, to my discomfort about the IWTC claim that the Security Council resolutions on women are binding as international law. I decide that my uneasiness has more to do with lending feminist support to the hegemonic power of the increasingly emboldened Security Council, and a worry about what this means for the future of international law generally, and for feminist efforts to shape the law in particular.

II INCLUSION: THE INSTITUTIONAL SPREAD OF FEMINIST IDEAS

There can be little doubt that feminist ideas have spread throughout the UN system in the last decade, in the wake of official commitments to system-wide gender mainstreaming,[8] and not least because of the activism of NGOs like the IWTC. There has been a ‘quite noticeable installation of feminists and feminist ideas in actual legal-institutional power’ which Janet Halley and her colleagues conclude is sufficiently institutionalised to warrant being described as ‘Governance Feminism’.[9] I argue that the institutional reception and management of feminist ideas works to divest them of their emancipatory content, and therefore prefer to depict the result as ‘cooption’ rather than ‘governance feminism’, which implies the result is intentional. One example of institutional divestment of the liberatory potential of feminist ideas is the way that the terminology of ‘gender’ is used in the UN. Use of the term, from a feminist viewpoint, implies acceptance that differences between men and women, which have justified women’s inequality, are socially and culturally constructed (rather than biologically inherent).[10] However, in institutional practice, the term is understood as a synonym for women’s issues,[11] which significantly limits its progressive possibilities because the contestability of conceptions of femininity and masculinity, as well as their relationality, is ignored.[12] Stripped of its political content, the gender mainstreaming project is a long way from fundamentally challenging women’s inequality, let alone the gendered assumptions that underpin the discipline of international law.
Nevertheless, after many years of marginalisation in institutions devoted specifically to issues of concern to women,[13] there are now many signs that ‘women’s issues’ are in the process of becoming institutionally ‘mainstreamed’ in the UN, at least in the sense of integrating them into the existing systems.[14] I see the spread of feminist ideas as opening new spaces for feminist activism rather than shutting them down, although it is difficult to engage these new spaces without cooption. The General Assembly has repeatedly reaffirmed the importance of actively promoting gender mainstreaming throughout the UN system.[15] Likewise, the Commission on Human Rights (replaced in 2006 by the Human Rights Council) endorsed gender mainstreaming[16] and was quick to direct its Special Procedures to incorporate women’s human rights violations into their mandates.[17] The human rights treaty bodies have almost all adopted General Comments (authoritative interpretations), which mainstream women’s human rights into their treaty texts and inform their monitoring of states parties’ compliance.[18] The UN High Commissioner for Refugees (‘UNHCR’) has accepted that gender discrimination and/or violence may constitute ‘persecution’ for the purpose of refugee determination.[19] The UN Development Programme Bureau for Development Policy (‘UNDP’) has reaffirmed that gender equality is a specific development goal,[20] and most of the UN specialised agencies and funds, including the World Health Organization (‘WHO’),[21] the UN Population Fund (‘UNFPA’)[22] and the International Labour Organization (‘ILO’),[23] have adopted gender mainstreaming policies. Even the World Bank has realised that women are critical economic actors.[24]
Although the effects of ‘gender mainstreaming’ in the UN are uneven and precarious (and characteristically double-edged as I will discuss further in Part III), there is much for feminists to celebrate. On the positive side of the ledger, I would include, first, the efforts by way of the new gender-inclusive language to recognise women as full subjects of international law, enjoying autonomy and rights, thereby eliminating, or at least reducing in importance, the protective representations of women that have persisted despite the long history of feminist attempts to eradicate them.[25] Second, it is clear that initial institutional change, which creates new or more prominent spaces for feminist ideas, can provide a vantage point from which further potentially supportive institutional developments may be launched. And third, the formal institutional affirmation of women’s equality and rights can be a powerful organising tool for informal local and international women’s networks and movements, creating constituencies outside institutional control that are eager to act as a pressure on the UN system to influence its policies and practices and hold its organs and committees to account. The Security Council’s Resolution 1325 provides a good example of all three of these positive effects.
The adoption of Resolution 1325 by the Security Council in 2000 was a watershed. Although gender mainstreaming had been approved as a system-wide commitment several years earlier, the Security Council, dominated by the five post-WWII powers, was always an unlikely contender. After the Cold War ended, the newly-unified Security Council rapidly expanded its sphere of influence.[26] It gradually developed a kind of ‘social’ agenda through the adoption of thematic resolutions that addressed, initially, the need to protect civilians caught up in armed conflict and its aftermath,[27] and also children, particularly child soldiers.[28] This new agenda advanced a conservative gender script, which typecast women, along with children, as victims of armed conflict in need of protection. Frustrated with the flow of representations of women that defined them in terms of their violability, a coalition of women’s and human rights groups came together in early 2000 to form the NGO Working Group.[29] Their goal was to persuade the Security Council to adopt a resolution on women that would recognise their positive contributions to peace.[30] The NGO Working Group drafted the initial version of Resolution 1325[31] and then set about lobbying Security Council members, UN agencies, other NGOs and anyone else whom they thought might help.[32] For them, the final straw was the ‘comprehensive’ review of the Security Council’s peacekeeping operations, released in August 2000, which, despite the NGO Working Group’s input, made only two minor references to women.[33] They renewed their efforts and the result was Resolution 1325, hailed widely by feminists as a significant achievement.[34]
Resolution 1325 is the first time that the Security Council formally recognised that women may be something other than victims of armed conflict who need its protection. The Canadian Ambassador echoed the tenor of many of the official statements that were made in support of Resolution 1325, during the Security Council’s Open Debate that preceded its adoption, when he said:

We must address ourselves as well to the positive contribution that women —irrespective of their age, class, ethnicity, race or any other status — can and do make to conflict prevention and to post-conflict peace-building.[35]
This recalibration of the Security Council’s gender narrative, to shift from defining women solely in terms of their vulnerabilities to also embracing women as political actors, is reflected in the Preamble of Resolution 1325, which recognises the ‘importance’ of women’s ‘equal participation and full involvement’ in the realisation of international peace and security,[36] and in its first three substantive paragraphs, which cast women in active leadership roles by emphasising the need to increase their representation at all levels of decision-making related to conflict prevention, management and resolution.[37] Resolution 1325 goes on to invoke many other independent and self-sufficient representations of women: as peacekeeping personnel, including ‘military observers, civilian police, human rights and humanitarian workers’;[38] as participants in peace-building;[39] as peace advocates and implementers of peace agreements;[40] as bearers of human rights;[41] as refugees and ex-combatants;[42] as well as representing women as victims of armed conflict: having ‘special’ repatriation and resettlement needs;[43] needing protection as civilians during armed conflict;[44] and requiring ‘special’ measures to protect them from gendered violence.[45] The net effect disrupts the dominant script of women as the victims of armed conflict by acknowledging a diversity of women’s experience and giving prominence to the importance of women’s contributions to conflict resolution and sustainable peace. This shift from victim to valued contributor disturbs not only the traditional narrative of women’s weakness and vulnerability, and their need for (male/state/military) protection, but is also disruptive of the gendered ways of thinking that have served to legitimate armed conflict (as ‘manly’) and silence alternative ways of thinking (as feminine or ‘wimpish’).[46] Although this move can also be read as confirming gender stereotypes by invoking the idea of women as ‘natural’ peacemakers, at the very least it increases the potential for destabilising the traditional certainties of gender, which have helped to justify war and protective approaches to women. Therefore, Resolution 1325 opens new spaces for feminist efforts to realise the interdependent projects of peace and achieving women’s equality as fully human subjects of international law.
The second positive effect of gender mainstreaming, exemplified by Resolution 1325, is its prompting of institutional change. Backed by the political-institutional power of the Security Council, Resolution 1325 has had a snowball effect on institutional activity and development. In order to promote and coordinate the integration of gender perspectives into all the peace and security work of the UN bureaucracy, the Inter-Agency Network on Women and Gender Equality (‘IANWGE’) established a Task Force on Women, Peace and Security, which includes nearly all UN agencies and works in partnership with member states and NGOs. The Office for the Special Adviser on Gender Issues and the Advancement of Women (‘OSAGI’) and the UN Development Fund for Women (‘UNIFEM’) have been particularly active in promoting implementation of the Resolution. An intergovernmental group called the Friends of Women, Peace and Security has come together to support implementation, and the Department of Peacekeeping Operations (‘DPKO’) finally created the position of Gender Adviser in 2003, after a concerted lobbying campaign by NGOs. These developments also link to a larger project of strengthening the UN’s work on women by consolidating its four main women’s agencies, including OSAGI and UNIFEM,[47] into one, as proposed by the Secretary-General’s High-Level Panel on System-Wide Coherence in 2006,[48] and endorsed by many women’s NGOs.[49] In continuing discussions, the Security Council is identified as one of the UN bodies involved in developing commitments, norms and policy on gender equality and gender mainstreaming,[50] which would not have been possible without the adoption of Resolution 1325. The General Assembly seems likely to proceed towards the proposed consolidation, which would link the UN system’s normative and operational work aimed at achieving gender equality and women’s empowerment.[51] Thus, gender mainstreaming has led to a major reappraisal of the ‘gender architecture’ of the UN, which promises to consolidate and strengthen the UN’s work on women, creating further opportunities for feminist change.
However, perhaps the most remarkable outcome from the adoption of Resolution 1325 has been its productivity as a lever for continuing interaction between the previously disinterested Security Council and the NGO Working Group, and as a focus for feminist peace activists and human rights NGOs outside the UN. The importance of local and international women’s groups is explicitly recognised by Resolution 1325, which declares the Security Council’s ‘willingness’ to ensure that its missions consult with ‘local and international women’s groups’ in their efforts to ‘take into account gender considerations and the rights of women’.[52] Resolution 1325 also urges that a ‘gender perspective’ be adopted when negotiating and implementing peace agreements, including measures that support ‘local women’s peace initiatives’.[53] These commitments have enabled the NGO Working Group to leverage unprecedented contact with the Security Council, through annual Arria Formulas and thematic open debates marking the anniversary of the Resolution’s adoption, as well as occasional round tables and other opportunities for informal interaction. Far away from the Security Council’s Chambers and meeting rooms on the East River, the eagerness of local women’s groups, in the midst of armed conflict and post-conflict reconstruction, to embrace Resolution 1325 and the possibilities for women’s advancement that it offers, has been noteworthy. The NGO Working Group has worked tirelessly to ensure that local women’s and peace groups know about Resolution 1325, translating it into dozens of languages, running training workshops on how to use it, and producing a regular e-newsletter with updated developments and examples of best practice.[54] As in my discussion at the IWTC, Resolution 1325 has regularly been presented as a women’s ‘manifesto’ that is ‘binding’ on the Security Council.[55] Many creative women’s projects have based their rationale on Resolution 1325, such as building a women’s support network spanning Kosovo, Macedonia and Albania and establishing women’s community media in Melanesia.[56] Kofi Annan, as Secretary-General, bemoaned the system’s inability to ‘harness the energy and activism’ that many women exhibit in informal activities and ‘translat[e] that into their participation ... in formal activities’,[57] showing that all this activity has not gone unnoticed. However, I believe that activism outside the UN’s institutions is essential to counter the unintended effects of institutionalisation and needs to resist becoming fully ‘harnessed’ by the institution. Feminist goals are not served by misreading institutional inclusion as feminist activism.
In sum, there are some things to celebrate about the UN’s embrace of gender mainstreaming, as illustrated by the example of the Security Council’s efforts in Resolution 1325. They include renewed attempts to contest the tenacious protective stereotypes of women that have continued to pervade international law and its practices, despite clear obligations to ensure women’s equality with men, institutional developments that open many new spaces and opportunities for the pursuit of feminist goals within the UN, and a blossoming of grassroots and international women’s networks seeking to engage with the UN in their struggle to achieve women’s equality and international peace.

III A NEW FORM OF EXILE? ASSESSING THE COSTS OF INCREASED INSTITUTIONAL ENGAGEMENT

While gender mainstreaming has opened new opportunities for advancing the cause of women’s equality and empowerment, through both normative and institutional developments in the UN system, this has inevitably been at some cost to the emancipatory aspirations of feminist theory and practice. Indeed, Hilary Charlesworth disputes Halley’s claim that feminism is ‘running things’ in international law,[58] suggesting that it is important not to be ‘dazzled by the inclusive language’ that has spread through the UN system, and that it is necessary to ‘look below the surface’, where the new language has made little difference in practice.[59] Many others share Charlesworth’s concerns. The problem of feminist goals losing their substantive political content in the conversion to bureaucratic goals was identified by Sally Baden and Anne Marie Goetz, in the context of mainstreaming gender into development programs, which commenced well before the UN undertook its system-wide commitment.[60] Anne Gallagher, in an early assessment of gender mainstreaming in the UN human rights systems, found that ‘basic steps’ to ‘translate policies into practice are yet to be taken’.[61] Shahra Razavi and Carol Miller, in their examination of gender mainstreaming efforts in three international institutions — the ILO, World Bank and UNDP — found they all suffered from the lack of commitment of senior managers, poor resourcing, lack of expertise, marginalisation within the institution, and failure to translate into concrete action.[62] Sari Kouvo concluded, in 2004, that the adoption of gender mainstreaming language and policies have ‘become goals in and of themselves’ rather than a means to more effectively promote gender equality.[63] In 2005, she concluded that gender mainstreaming strategies, constantly underfunded and institutionally marginalised, ‘may prove to be politically ineffective as a means to achieve equality between men and women’.[64]
While these critiques are despairing about the emancipatory potential of gender mainstreaming in the UN system, none of the authors are ready to outright reject it as a feminist strategy. Charlesworth proposes new terminology and less bureaucracy,[65] and Kouvo suggests that the identification of so many constraints by institutional actors may yet prove to be a demonstration of serious commitment to gender mainstreaming.[66] It is this double-edged character of the effects of gender mainstreaming that interests me. The effects can be read as entrenching deeply conservative views about gender, while simultaneously they can sustain the hope that opportunities for radical change may lie within even the most bureaucratic application. Ironically, too much attention can actually be too little, as the negative side of the ledger shows. First, there is the problem of selective engagement with feminist ideas as institutions employ them to serve institutional agendas which may not bear any relation to feminist goals. Second, gender mainstreaming commitments and policies are adept at avoiding accountability mechanisms, which helps to explain why they have made little difference in practice. And third, despite mounting new challenges to stereotyped representations of women as vulnerable and dependent, as I have just argued, there are signs that protective representations are reasserting themselves, as the sexual harms suffered by women are given disproportionate attention. The Security Council’s efforts at gender mainstreaming also illustrate all three of these negative effects.
I turn first to the problem of the institutional capture of feminist ideas through selective engagement. While it is clear that ‘feminist’ ideas are today spread throughout the UN system, we need to ask whose purposes they serve.[67] For example, why did the Security Council adopt Resolution 1325, when it potentially takes its work into unchartered and stormy waters? My answer is that Resolution 1325, like the Security Council’s other thematic resolutions, was an attempt to arrest its flagging legitimacy at the end of the twentieth century by reassuring critics that its post-Cold War activism was not motivated solely by self-interest. Instead these resolutions are designed to show its commitment to the collective good, especially to those who are more likely to be adversely affected by contemporary armed conflict and the Security Council’s own interventions — namely civilians, children and, with Resolution 1325, women.[68] In support of this contention, it is significant that Resolution 1325 makes no reference to addressing the structural causes of women’s inequality, which would raise uncomfortable questions about the Security Council’s militarist approach to keeping the peace.[69] De-linking gender mainstreaming from the goal of gender equality is a very effective way to remove any feminist political content. Further, Resolution 1325’s single reference to conflict ‘prevention’ is in the context of increasing the representation of women in mechanisms aimed at prevention,[70] as if more women might do the trick. Perhaps Resolution 1325’s most instructive omission, when it comes to selectivity, is its failure to make any reference to general disarmament,[71] a long-standing goal of women’s peace movements. This leaves the Security Council’s ‘hard’ Chapter VII enforcement powers insulated from the (feminising) influence of Resolution 1325. So, the price of the Council’s endorsement of women’s participation in peacemaking and peace-building, and its increased accessibility to the NGO Working Group, is the silencing of feminist critiques of militarism and the failure to recognise the ‘inextricable’ link between gender equality and peace.[72] As Sheri Gibbings puts it, ‘[t]he route to peace and ending war in this approach was no longer a reduction in military spending but the integration of women and a gender perspective’.[73] The question for feminists is whether this price of admission is too high, or whether the special political significance that attaches to a Security Council resolution — described in a report commissioned by UNIFEM as giving a new ‘political legitimacy’ to women’s peace activism — was worth the price.[74]
Also absent from Resolution 1325 is any reference to accountability mechanisms to monitor its implementation, or to targets and benchmarks that could be used to measure progress. Although the NGO Working Group’s original draft envisaged that the Secretary-General would set up an expert panel to work with UN agencies and departments to implement Resolution 1325, this was missing from the final text.[75] Also omitted was a recommendation that the Security Council formally commit itself to further discussions with NGOs over the course of Resolution 1325’s implementation.[76] By Resolution 1325’s third anniversary in 2004, many of the official statements at the Open Debate expressed deep dissatisfaction with the pace of implementation.[77] In 2006, the Secretary-General reported that, since the adoption of Resolution 1325, only 55 of the Security Council’s 211 country-specific resolutions (26.07 per cent) made any reference to ‘women’ or ‘gender’.[78] Although a system-wide action plan for implementation was finally adopted in 2005,[79] of the 313 reports prepared for the Security Council by the Secretary-General between January 2004 and July 2008, only 16 per cent made multiple references to gender equality, while 61 per cent made no mention at all or only one mention of gender equality.[80] You only have to lightly scratch the surface to see that the policies are not translating into action. The Security Council’s failure to establish a Resolution 1325 monitoring mechanism is in contrast with its establishment of a mechanism to monitor the implementation of its resolutions on child soldiers,[81] which have the same non-binding status as Resolution 1325. The Security Council’s inaction on Resolution 1325 also compares badly with its proactive approach to ensuring implementation of its counter-terrorism resolutions by requiring annual reports from all UN member states and establishing the Counter-Terrorism Committee to review them,[82] although these are binding resolutions taken under Chapter VII.
The Security Council’s poor accountability record on gender mainstreaming is replicated across the entire UN system. In 2008, the Secretary-General reported that ‘gaps remain[ed] between policy and practice’ across the UN, including ‘weak monitoring, reporting and evaluation processes’, ‘underdeveloped accountability mechanisms’ and ‘inadequate financial resources’.[83] Without effective accountability mechanisms, the catalogue of institutional developments I have just described on the positive side of the ledger looks decidedly less impressive. It remains to be seen whether the gender architecture reform will fare any better. Until the policies translate into meaningful practice, women’s institutional inclusion is just a game of shadows.
In their efforts to extract some kind of responsibility from the Security Council for implementation of Resolution 1325, the NGO Working Group pressed the Council for a follow-up resolution. The Security Council resisted this pressure until 2008 when it adopted Resolution 1820,[84] which forms the other bookend to my discussion. Compared to Resolution 1325, the second resolution is very narrow in its scope and ambitions, focusing purely on addressing the problem of sexual violence that occurs during armed conflict, particularly when it is used as a ‘tactic of war’,[85] and in post-conflict situations. It marks a complete reversal of the Security Council’s earlier recalibration of its gender narrative in Resolution 1325, which emphasised women’s potential to make valuable contributions to conflict resolution and peace-building over their suffering as victims of war. In Resolution 1820, women are again defined primarily by their violability, and protective responses return with a vengeance. The language of ‘womenandchildren’ re-emerges,[86] the stereotype of women as, mostly, victims of war due to sexual violence is reinstated,[87] and the Security Council assumes its former role as their ‘protector’. Sexual violence is treated as a ‘fixed reality’ in women’s lives.[88] Only once, well into the Resolution in paragraph 12, are women represented as active participants in decision-making related to securing and maintaining international peace and security.[89]
‘[D]ebunking myths that fuel sexual violence’ is one of the immediate measures that Resolution 1820 suggests in order to protect civilians from sexual violence.[90] This is a very radical approach for the Security Council as it rejects the idea that sexual violence is a ‘natural’ expression of masculinity and accepts, instead, that social discourse makes it possible, which presents many opportunities for feminist change. However, Resolution 1820 itself perpetuates a number of myths. One is that sexual violence is ‘the worst’ harm, even worse than death, that can happen to women. In Resolution 1820, the horror of sexual harm even warrants ‘evacuation of women and children under imminent threat of sexual violence to safety’,[91] which gives sexual violence victims a privileged position in communities affected by armed conflict. This privilege is further reinforced by urging national institutions to provide victims with ‘sustainable assistance’[92] and regional bodies to consider ‘policies, activities and advocacy’ for their benefit.[93] Yet what about the woman facing imminent death from a non-sexual armed attack, or the man who is at risk of sexual violence, or the child who cannot be given the emergency medical treatment they need because the hospital has been destroyed? Where should they be placed in the evacuation queue? By asking these questions I do not mean to understate the harm that can be inflicted by sexual violence, but rather to demystify it and suggest dealing with the problem in a way that is empowering for women. As Sharon Marcus argues, ‘the apocalyptic tone’ that ‘often accompanies efforts to convey the horror and iniquity of rape ... often concurs with masculinist culture’ by implying that ‘rape can only be feared or legally repaired, not fought’.[94] Further, the assumption in Resolution 1820 that sexual violence is always perpetrated by men against women and children promotes homophobic mythologies and stigma, making it virtually impossible for male victims to speak out,[95] let alone join the queue of evacuees.
This brings me to another myth perpetuated by Resolution 1820, which is that women are helpless in the face of sexual violence and that it is futile to fight back. The solution to the problem of sexual violence, as promoted by the Resolution, is to stop men from engaging in it. To this end, Resolution 1820 suggests enforcing ‘military discipline’, ‘training troops’, and ‘vetting armed and security forces’ for any history of sexual abuse.[96] While all these things should happen, the prominence given to the need to change the behaviour of men serves to reinforce ideas about women’s sexual vulnerability. Especially in the context of armed conflict, this approach gives credence to the idea that men’s genitalia can be used as a ‘weapon’, against which women have no defence.[97] Exacerbating the problem is the failure of Resolution 1820 to identify women’s inequality as a cause of sexual violence. If included, it would reinforce the point that the gender script, which makes it possible to use sexual violence as a ‘tactic of war’, can be changed. In the absence of a commitment to gender equality, and despite its nod to debunking myths, Resolution 1820 is grounded in the old script of biological certainties, which accepts women’s inequality as natural and armed conflict as inevitable. The new language of ‘gender’ has not yet shifted the old moorings of biology.
Instead of employing helpless and sexualised representations of women in the context of addressing sexual violence, the Security Council could have remained faithful to the more liberating representations of women it embraced in Resolution 1325 by crediting women with agency in the face of sexual violence and questioning the inevitability of their powerlessness. This could have been achieved by suggesting measures that debunk those myths that sustain beliefs about women as objects of sexual violence, including the myth of women’s helplessness in the face of sexual aggression and the myths that lead to the stigmatisation and ostracism of those women who have survived sexual violence. The Security Council could have challenged myths by attesting to the capacity of sexually traumatised women to be agents of social change, rather than stating, as if it were a fact, that ‘violence, intimidation and discrimination ... erode women’s capacity and legitimacy to participate in post-conflict public life’.[98] Women’s agency, and their own capacity for violence, could also have been acknowledged by promoting measures that would support women to develop strategies they could employ in their own defence, such as training in self-defence and collective actions that challenge the power of the rapist and the stigma of victimhood. Such measures would tackle the causes of gendered violence by treating women as full and competent subjects of international law and policy, rather than reinforce the mythology that women are always victims who need to be rescued.
Thus Resolution 1820 itself, adopted by the Security Council as a follow-up to Resolution 1325, bears witness to all three of the problems that I have identified on the negative side of the gender mainstreaming ledger. First, the Security Council has retreated from the broad agenda of Resolution 1325 and has been highly selective about which of the issues it will follow up. In choosing to focus on sexual violence, the Security Council has reasserted its role as a protector of women, rather than as a supporter of women’s emancipation. This approach serves the institutional purposes of the Security Council by reinvigorating a narrative of gender that supports militarism and justifies the hegemonic use of power in a crisis, both deeply anti-feminist projects. Second, while Resolution 1820 does call for some accountability, by requiring the Secretary-General to report by June 2009 on its implementation in situations on the agenda of the Security Council,[99] the narrow focus of the accountability, on top of the retrogressive approach of Resolution 1820, simply serves to expose the general lack of political will to follow through in a way that will change the everyday realities of gender inequality. Third, as I have just argued, the second Resolution revitalises protective representations of vulnerable and sexualised women’s bodies that run counter to feminist goals of women’s emancipation.

IV CONCLUSION

The feminist project in international law is losing ground, even as many are celebrating its victories. This dawning realisation was what lay behind my discomfort in the discussion at the IWTC about the Security Council’s resolutions on women, and whether or not they are binding. I was not really concerned about the political strategy of calling a policy ‘the law’ when it is not, although there is always the risk that such a strategy credits law with too much power, undermining the power of women’s political agency. What was troubling me was the power and legitimacy that the strategy ascribes to the Security Council as a supporter of feminist goals and as a potential creator of general international law. It is a strategy that is reliant on hegemonic and imperial power to achieve feminist goals, and endorses ‘law-making’ by a completely unrepresentative body.
What is missing from the strategy, or at least as I was hearing it in the IWTC office that day, was a critical understanding of the Security Council and of the law as vehicles for the realisation of feminist goals. The unaccountability of the Security Council’s ‘great’ powers, and the proven unreliability of ‘law’ to serve the goals that feminist reformers hope for, especially in the legal regulation of sexual conduct, seemed forgotten. Perhaps it is true that activism and critique are irreconcilable; that the pragmatism of the activist is immobilised by the contingencies of the critical perspective. Indeed, a letter was sent to the Security Council from 71 Congolese NGOs urging it, as a matter of urgency, to adopt a special resolution that focussed on sexual violence because of its ‘catastrophic scale’ in the Democratic Republic of the Congo.[100] Does this letter put my arguments at odds with those of the authors, many of whom are victims of sexual violence themselves? Am I denying their agency? I think not, primarily because I believe our goals are the same and our differences are about how those goals might be achieved. It is these differences that emerge in the tensions between activism and critique that are feminism’s lifeblood. They are productive of new thinking and new activist strategies, which will always be necessary to counter the depoliticising effects of institutionalisation and the next ascendancy of protective representations of women, as the long history of feminist engagement with international law and institutions shows.
As feminist ideas make their way into legal texts and places of power, they can become the tools of powerful actors committed to maintaining the gendered status quo, at the same time as opening new possibilities for progressive change. The past decade of feminist engagement with international law highlights this paradox and the need to develop a deeper understanding of how to work with the possibilities and against the exile of institutional cooption. For this, we need both activism and critique.

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[*] Professor of Law, Melbourne Law School, The University of Melbourne.

[1] The International Women’s Tribune Centre is an international non-governmental organisation established in 1976, following the United Nations’ First World Conference on Women in Mexico City in 1975. It aims to increase women’s access to resources and information, and their ability to realise their rights, by supporting women’s organisations and community groups working to improve the lives of poor women in the global south. According to its website, the IWTC is ‘one of the largest of the women’s international networks’ with a constituency that ‘exceeds 25,000 in 150 countries, 94% in the Global South’. See further International Women’s Tribune Centre, International Women’s Tribune Centre <http://www.iwtc.org> at 19 May 2009.

[2] Martti Koskenniemi, ‘The Police in the Temple: Order, Justice and the UN: A Dialectical View’ (1995) 6 European Journal of International Law 325.

[3] Jose E Alvarez, ‘Hegemonic International Law Revisited’ (2003) 97 American Journal of International Law 873; Nico Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ (2005) 16 European Journal of International Law 369.

[4] The NGO Working Group on Women, Peace and Security was formed in 2000 by five NGOs: Women’s International League for Peace and Freedom; International Alert; Amnesty International; Women’s Commission for Refugee Women and Children; and the Hague Appeal for Peace. The IWTC joined soon after and today there are 15 NGOs in the coalition. See NGO Working Group on Women, Peace and Security, NGO Working Group on Women, Peace and Security <http://www.womenpeacesecurity.org/> at 19 May 2009.

[5] SC Res 1325, UN SCOR, 4213th mtg, UN Doc S/RES/1325 (31 October 2000) (‘Resolution 1325’).

[6] SC Res 1820, UN SCOR, 5916th mtg, UN Doc S/RES/1820 (19 June 2008) (‘Resolution 1820’).

[7] See further, Matthew Craven et al, ‘We Are Teachers of International Law’ (2004) 17 Leiden Journal of International Law 363.

[8] Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, UN Doc A/CONF.157/23 (12 July 1993) 18–19; Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995, UN GAOR, Annex 1, UN Doc A/CONF.177/20/Rev.1 (4–15 September 1995) calling for ‘mainstreaming a gender perspective ... so that, before decisions are taken, an analysis is made of the effects on women and men, respectively’: at [79], [105], [123], [141], [164], [189], [229].

[9] Janet Halley et al, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law and Gender 335, 340.

[10] See UN Secretary-General, Integrating the Gender Perspective into the Work of United Nations Human Rights Treaty Bodies: Report of the Secretary-General, UN Doc HRI/MC/1998/6 (3 September 1998) [16]:

The term ‘gender’ refers to the socially constructed roles of women and men that are ascribed to them on the basis of their sex, in public and in private life. The term ‘sex’ refers to the biological and physical characteristics of women and men ... Gender roles are learned and vary widely within and between cultures. As social constructs, they can change.

[11] Hilary Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’ (2005) 18 Harvard Human Rights Journal 1, 14.

[12] Sally Baden and Anne Marie Goetz, ‘Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing’ in Cecile Jackson and Ruth Pearson (eds), Feminist Visions of Development: Gender Analysis and Policy (1998) 19, 24–5.

[13] Andrew Byrnes, ‘Women, Feminism and International Human Rights Law — Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation? Some Current Issues’ [1988] AUYrBkIntLaw 10; (1992) 12 Australian Year Book of International Law 205; Laura Reanda, ‘Human Rights and Women’s Rights: The United Nations Approach’ (1981) 3(2) Human Rights Quarterly 11.

[14] The policy of gender mainstreaming does not seek to replace or supersede women-specific institutions or the need for policies and programs that are targeted at women, but to ensure that ‘women and men benefit equally’ from all policies and programs ‘and inequality is not perpetuated’: see Economic and Social Council, Report of the Economic and Social Council for 1997, UN GAOR, 52nd sess, Supp 3, UN Doc A/52/3/Rev.1/Add.1 (18 September 1997) 27.

[15] 2005 World Summit Outcome, GA Res 60/1, UN GAOR, 60th sess, 8th plen mtg, Agenda Items 46 and 120, Supp 49, UN Doc A/RES/60/1 (24 October 2005) [59]; Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, GA Res S-23/3, UN GAOR, 23rd special sess, 10th plen mtg, Annex, Agenda Item 10, UN Doc A/RES/S-23/3 (10 July 2000) [62].

[16] See, eg, Commission on Human Rights, Integration of the Human Rights of Women and the Gender Perspective, 59th sess, Agenda Item 12, UN Doc E/CN.4/2003/134 (23 April 2003).

[17] Commission on Human Rights, Human Rights and Thematic Procedures, UN Doc E/CN.4/RES/1995/87 (8 March 1995) [13].

[18] Committee on the Elimination of Racial Discrimination (‘CERD’), General Recommendation No 25: Gender Related Dimensions of Racial Discrimination, UN Doc A/55/18 (20 March 2000); Human Rights Committee, General Comment No 28: Equality of Rights between Men and Women (Article 3), UN Doc CCPR/C/21/Rev.1/Add.10 (29 March 2000); Committee on Economic, Social and Cultural Rights (‘CESCR’), General Comment No 16 (2005): The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art 3), UN Doc E/C.12/2005/4 (11 August 2005); Committee Against Torture (‘CAT’), General Comment No 2: Implementation of Article 2 by States Parties, UN Doc CAT/C/GC/2 (24 January 2008).

[19] UNHCR, Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2), UN Doc HCR/GIP/02/01 (7 May 2002).

[20] UNDP, Empowered and Equal: Gender Equality Strategy 2008–2011, (UNDP Report, 2008) <http://www.undp.org/women/docs/Gender-Equality-Strategy-2008 – 2011.pdf> at 19 May 2009.

[21] WHO, WHO Gender Policy: Integrating Gender Perspectives in the Work of WHO (WHO Report, 2002) <http://whqlibdoc.who.int/hq/2002/a78322.pdf> at 19 May 2009.

[22] UNFPA, Delivering on the Promise of Equality: UNFPA’s Strategic Framework on Gender Mainstreaming and Women’s Empowerment 2008–2011 (UNFPA Report, 2007) <http://www.unfpa.org/webdav/site/global/shared/documents/publications/2007/gender_report_2007.pdf> at 19 May 2009.

[23] ILO, ILO Action Plan on Gender Equality and Gender Mainstreaming (2001) <http://www.ilo.org/public/english/bureau/gender/newsite2002/about/action.htm> at 19 May 2009.

[24] Caroline O N Moser, Annika Tomqvist and Bernice van Bronkhorst, Mainstreaming Gender and Development in the World Bank: Progress and Recommendations (World Bank Report, 1998); World Bank, Engendering Development: Through Gender Equality in Rights, Resources and Voice (World Bank Policy Research Report, 2001).

[25] Dianne Otto, ‘Lost in Translation: Re-Scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford (ed), International Law and Its Others (2006) 318.

[26] Note (on the Summit Meeting of the Security Council to be Held on 31 January 1992), 47th sess, UN Doc S/23500 (31 January 1992), declaring that problems of an economic, social or ecological kind may become threats to international peace and security. For a critical analysis of the Security Council’s expanded interpretation of its Ch VII powers see Koskenniemi, above n 2.

[27] SC Res 1265, UN SCOR, 4046th mtg, UN Doc S/RES/1265 (17 September 1999); SC Res 1296, UN SCOR, 4130th mtg, UN Doc S/RES/1296 (19 April 2000); SC Res 1674, UN SCOR, 5430th mtg, UN Doc S/RES/1674 (28 April 2006); SC Res 1738, UN SCOR, 5613th mtg, UN Doc S/RES/1738 (23 December 2006); see also SC Res 1502, UN SCOR, 4814th mtg, UN Doc S/RES/1502 (26 August 2003).

[28] SC Res 1261, UN SCOR, 4037th mtg, UN Doc S/RES/1261 (30 August 1999); SC Res 1314, UN SCOR, 4185th mtg, UN Doc S/RES/1314 (11 August 2000); SC Res 1379, UN SCOR, 4423rd mtg, UN Doc S/RES/1379 (20 November 2001); SC Res 1460, UN SCOR, 4695th mtg, UN Doc S/RES/1460 (30 January 2003); SC Res 1539, UN SCOR, 4948th mtg, UN Doc S/RES/1539 (22 April 2004); SC Res 1612, UN SCOR, 5235th mtg, UN Doc S/RES/1612 (26 July 2005).

[29] See above n 4.

[30] Sheri Gibbings, Governing Women, Governing Security: Governmentality, Gender-Mainstreaming and Women’s Activism at the UN (MA Thesis, York University, 2004) 52.

[31] Carol Cohn, Helen Kinsella and Sheri Gibbings, ‘Women, Peace and Security: Resolution 1325’ (2004) 6 International Feminist Journal of Politics 130.

[32] Gibbings, above n 30, 56.

[33] Panel on United Nations Peace Operations, Report of the Panel on United Nations Peace Operations (‘Brahimi Report’), UN Doc A/55/305–S/2000/809 (21 August 2000) [96] (proposing the compilation of lists of candidates for leadership positions in peacekeeping operations contain ‘equitable gender distribution’); [272] (emphasising that UN peacekeeping personnel are obliged to display ‘particular sensitivity towards gender and cultural difference’).

[34] Jacqui True, ‘Mainstreaming Gender in Global Public Policy’ (2003) 5 International Feminist Journal of Politics 368, 373; Cohn, Kinsella and Gibbings, above n 31.

[35] UN SCOR, 55th sess, 4208th mtg, UN Doc S/PV.4208 (24 October 2000) 24 (Ambassador Paul Heinbecker).

[36] Resolution 1325, above n 5, preamble.

[37] Ibid [1]–[3].

[38] Ibid [4].

[39] Ibid [6].

[40] Ibid [8(b)].

[41] Ibid [6], [8(c)].

[42] Ibid [12], [13] respectively.

[43] Ibid [8(a)].

[44] Ibid [9].

[45] Ibid [10].

[46] Carol Cohn, ‘War, Wimps and Women: Talking Gender and Thinking War’ in Miriam Cooke and Angela Woollacott (eds), Gendering War Talk (1993) 227, 233–5.

[47] The other two women’s agencies are the Division for the Advancement of Women (‘DAW’) and the International Research and Training Institute for the Advancement of Women (‘INSTRAW’).

[48] High-Level Panel on United Nations System-Wide Coherence in the Areas of Development, Humanitarian Assistance and the Environment, Delivering as One: Report of the High-Level Panel on United Nations System-Wide Coherence in the Areas of Development, Humanitarian Assistance and the Environment, UN Doc A/61/583 (20 November 2006) [46]–[49].

[49] See Gender Equality Architecture Reform Campaign, GEAR UP: Building a United Nations That Really Works for All Women (2009) <http://gear.collectivex.com/main/summary> at 19 May 2009.

[50] Letter from Asha-Rose Migiro, Deputy Secretary-General, UN, to Srgjan Kerim, President of the General Assembly, UN, Institutional Options to Strengthen United Nations Work on Gender Equality and the Empowerment of Women, 23 July 2008, [7(b)], [7(g)], [10], [22].

[51] System-Wide Coherence, GA Res 62/277, UN GAOR, 62nd sess, 122nd plen mtg, Annex, Agenda Item 116, Supp 49, UN Doc A/RES/62/277 (7 October 2008).

[52] Resolution 1325, above n 5, [15].

[53] Ibid [8].

[54] For further information about all these efforts see PeaceWomen: Women’s International League for Peace and Freedom, PeaceWomen Project <http://www.peacewomen.org> at 19 May 2009.

[55] Cohn, Kinsella and Gibbings, above n 31, 132.

[56] Carol Cohn, ‘Feminist Peacemaking’ (2004) 21(5) The Women’s Review of Books 8, 9.

[57] UN Secretary-General, Women, Peace and Security: Study Submitted by the Secretary-General Pursuant to Security Council Resolution 1325 (2000) (2002) [212].

[58] Hilary Charlesworth, ‘Talking to Ourselves: Should International Lawyers Take a Break from Feminism?’ in Sari Kouvo and Zoe Pearson (eds), Between Resistance and Compliance? Feminist Perspectives on International Law in an Era of Anxiety and Terror (forthcoming), referring to Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (2006) 20.

[59] Charlesworth, ‘Talking to Ourselves’, above n 58. See also Charlesworth, ‘Not Waving but Drowning’, above n 11.

[60] Baden and Goetz, above n 12, 20–2.

[61] Anne Gallagher, ‘Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System’ (1997) 19 Human Rights Quarterly 283, 333.

[62] Shahra Razavi and Carol Miller, ‘Gender Mainstreaming: A Study of Efforts by the UNDP, the World Bank and the ILO to Institutionalize Gender Issues’ (Occasional Paper No 4, UN Research Institute for Social Development (‘UNRISD’)), Geneva, 1 August 1995) 67–9.

[63] Sari Kouvo, Making Just Rights? Mainstreaming Women’s Human Rights and a Gender Perspective (2004) 333.

[64] Sari Kouvo, ‘The United Nations and Gender Mainstreaming: Limits and Possibilities’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (2005) 237, 252.

[65] Charlesworth, ‘Not Waving but Drowning’, above n 11, 18.

[66] Kouvo, ‘The United Nations and Gender Mainstreaming’, above n 64, 252.

[67] See also Anne Orford, ‘Feminism, Imperialism and the Mission of International Law’ (2002) 71 Nordic Journal of International Law 275.

[68] I develop this analysis in: ‘The Security Council’s Alliance of “Gender Legitimacy”: The Symbolic Capital of Resolution 1325’ in Hilary Charlesworth and Jean-Marc Coicaud (eds), Fault Lines of International Legitimacy (forthcoming).

[69] Dianne Otto, ‘A Sign of “Weakness”? Disrupting Gender Certainties in the Implementation of Security Council Resolution 1325’ (2006) 13 Michigan Journal of Gender and Law 113, 122–3.

[70] Resolution 1325, above n 5, [1].

[71] Resolution 1325, above n 5, [13], does make one reference to the disarmament of former combatants in the process of demobilisation and reintegration, but this is not the same as general disarmament.

[72] Anwarul Karim Chowdhury, Security Council President, ‘Peace Inextricably Linked with Equality between Women and Men Says Security Council, in International Women’s Day Statement’ (Press Release, 8 March 2000).

[73] Gibbings, above n 30, 60.

[74] Elizabeth Rehn and Ellen Johnson Sirleaf, Women, War, Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace-Building (UNIFEM Report, Progress of the World’s Women Vol 1, 2002) 3 <http://www.unifem.org/resources/item_detail.php?ProductID=17> at 19 May 2009.

[75] Gibbings, above n 30, 57–8.

[76] Ibid 58.

[77] For a summary of the Open Debate on Women, Peace and Security, see PeaceWomen: Women’s International League for Peace and Freedom, Open Debate on Women, Peace and Security 29 October 2003 (2003) <http://www.peacewomen.org/un/SCOpenDebate2003/OpenDebate2003index.html> at 19 May 2009.

[78] UN Secretary-General, Report of the Secretary-General on Women, Peace and Security, UN Doc S/2006/770 (27 September 2006) [28].

[79] UN Secretary-General, Report of the Secretary-General on Women, Peace and Security, UN Doc S/2005/636 (10 October 2005) annex. This plan was updated for 2008–9: UN Secretary-General, Report of the Secretary-General on Women, Peace and Security, UN Doc S/2007/567 (12 September 2007).

[80] UN Secretary-General, Report of the Secretary-General on Women, Peace and Security, UN Doc S/2008/622 (25 September 2008) [90]. Twenty three per cent made ‘minimal’ references to gender equality.

[81] SC Res 1612, UN SCOR, 5235th mtg, UN Doc S/RES/1612 (26 July 2005).

[82] See SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/RES/1373 (28 September 2001); SC Res 1390, UN SCOR, 4452nd mtg, UN Doc S/RES/1390 (16 January 2002); SC Res 1453, UN SCOR, 4682nd mtg, UN Doc S/RES/1453 (24 December 2002).

[83] UN Secretary-General, Mainstreaming a Gender Perspective into All Policies and Programmes of the United Nations System: Report of the Secretary-General, UN Doc E/2008/53 (7 May 2008) [6].

[84] Resolution 1820, above n 6.

[85] Ibid [1].

[86] Ibid [3], [8]; ‘women and girls’ are referred to in [3], [5], [9], [10], [14], [15].

[87] Ibid. In 16 operative paragraphs, the language of ‘protection’ is used seven times. There is only one reference to rights, and that is in the Preamble.

[88] Sharon Marcus, ‘Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention’ in Judith Butler and Joan W Scott (eds), Feminists Theorize the Political (1992) 385, 387.

[89] There are also several references to consulting women from affected communities about how sexual violence should be addressed and what mechanisms should be developed for providing protection, which of course makes sense, but the limited subject matter disqualifies these references as valuing to women’s participation generally. See Resolution 1820, above n 6, [3], [10], [11].

[90] Ibid [3].

[91] Ibid.

[92] Ibid [13].

[93] Ibid [14].

[94] Marcus, above n 88, 387.

[95] Sandesh Sivakumaran, ‘Male/Male Rape and the “Taint” of Homosexuality’ (2005) 27 Human Rights Quarterly 1274.

[96] Resolution 1820, above n 6, [3].

[97] For further discussion of this point, see Marcus, above n 88, 394–5.

[98] Resolution 1820, above n 6, preamble.

[99] Ibid [15].

[100] Letter from a Coalition of 71 Congolese NGOs, Representing the Women of the Democratic Republic of the Congo, to the UN Security Council, Congolese Women Appeal to the UN Security Council to End Sexual Violence, 12 June 2008.