The International Criminal Court (ICC) is a milestone in the development of international law in many ways, but one dimension stands out: the gender sensitivity of its institutional design. The goal of Louise Chappell's book is to trace if, how, and to what degree the gender justice rules written into the Rome Statute, the treaty which established the ICC, have been implemented in the first twelve years of the court's existence, why implementation has been so uneven, and why it has, in many aspects, remained far below expectations. The empirical findings are presented in five chapters, starting with the gender-specific particularities of the Rome Statute, followed by chapters probing the representation, recognition, and redistribution of gender justice in ICC practice. The final content chapter deals with gender justice realization in the context of subsidiarity—that is, based on the division of labor between the court and its states parties. In a sobering way, this empirical sequence exposes a decreasing commitment toward gender justice principles.
The book employs a twofold conceptual framing that is both convincing and consistently applied. On the one hand, Chappell uses Nancy Fraser's concept of gender justice as a compass throughout the book. This concept envisions comprehensive social transformation toward gender equality through representation, recognition, and redistribution. Using this framework enables Chappell to test the reach of the ICC's gender justice principles, including its effect on those who are victims of gender-related crimes recognized in the Rome Statute. On the other hand, the book is written in a feminist institutionalist tradition, conceptualizing the ICC as a nested institution. Emphasis is placed on the power of “old” legacies, in particular the long tradition of gender blindness in international law, in the becoming of a “new” institution. This framework captures institutional complexity and makes clear that an institution's (in)ability to realize its mandate never depends on single individuals, even if the reader later learns about particular actors who actively block or enhance the implementation of the Rome Statute's gender justice goals. Also, Chappell connects the analysis of the court's institutional development with that of its legitimacy; she understands legitimacy as an ongoing process of judgment from external actors. While the court is comparatively powerful—it is categorized as a component of a “post-Westphalian” world order because it has some means to challenge state sovereignty—its future nevertheless depends on whether the international community considers it a worthy institution. Chappell explores the court's legitimacy primarily from the perspective of gender justice advocates, but it might have helped to address some of the other competing legitimacy claims as well to better understand the resistance to implementing gender justice claims.
The Rome Statute constitutes a promising departure, even if gender justice advocates also made a lot of compromises. One striking example is the narrow definition of gender in the text. Due to conservative opposition to the notion that gender is socially constructed and not biologically determined, article 7(3) of the Rome Statute states that “the term ‘gender’ refers to the two sexes, male and female, within the context of society.” However, some far-reaching gender justice principles could be inserted—for example, the representation of both sexes and of gender expertise on all levels of ICC staff, the representation of female victims, the recognition of sexual violence as a component of both war crimes and crimes against humanity, and the inclusion of victims of gender-based crimes into compensation schemes.
The implementation of representation principles has gone comparatively well: over the first 12 years of the ICC's existence, both women and judges with gender expertise have been represented at roughly a 50% level. Representation of female victims has been lower than that of male victims, but the ratio has become more balanced, also due to outreach activities of the court (76–77). However, representation of victims of sexual violence is extremely low, which can be attributed to insufficient commitment of the office of the prosecutor (OTP), but due to external pressure, there have been some improvements. As for recognition of gender justice, Chappell describes a process of gradual disappearance: the prosecution is hesitant to bring sexual violence charges forward, and the closer the charges move to the trial stage, the more likely they are withdrawn altogether (the pretrial chamber plays a crucial role in this process). The mindboggling result of this dynamic is that until 2014, “the ICC had failed to achieve a single conviction for sexual or gender-based violence” (106). For example, in the Lubanga case, where the charges were on conscription of child soldiers, the majority of the judges refused to frame the use of sexual violence against girl soldiers as “systematic,” partly because the evidence provided by the prosecutor was too weak. The one gender-sensitive judge (Odio Benito) who formulated a dissenting opinion in this case was harshly criticized for being biased. The stark deviations from the Rome Statute in ICC practice are so puzzling that it would have been helpful to elaborate on constructions of competing legitimacy claims in addition to elaborating on the gender-biased legacies of international law. What goal were the “gender justice blockers” pursuing? Chappell still finds some elements of learning, located in particular in the OTP. The fact that the court has now issued a verdict that includes sexual violence charges—against Jean-Pierre Bemba Gombo, ICC-01/05-01/08 (March 21, 2016)—further suggests that ICC actors have become more daring in their interpretation of the Rome Statute's gender justice principles.
In regard to gender-balanced redistribution, the Rome Statute is somewhat bifurcated. On the one hand, it goes beyond an ordinary court's focus on retributive justice; it aims to compensate victims, but it also provides for a system of disbursing more general “assistance” through the Trust Fund for Victims (TFV). On the other hand, the Statute provides no rules for reparations. These are being developed on a case-by-case basis, but in the one case under review, compensation for gender-based crimes was not included. A positive development in this field is that the TFV has, in its assistance mandate, taken a gender-inclusive perspective. However, the redistribution dimension is at its very early stages of development and suffers from a number of problems (e.g., selection of victims to be compensated). Chappell finds that the absence of explicit rules has made gender recognition even more difficult. This is also a problem in regard to complementarity: the Rome Statute is more inclusive regarding gender-based violence than most domestic legislation, and, hence, to leave a case in a state's jurisdiction will often mean that gender-based crimes are not going to be properly prosecuted. Yet, the Statute does not address this problem. Chappell is right to point to this important but neglected feature of the court. She suggests a stronger focus on states parties’ responsibilities under the Statute to make the ICC a more encompassing system.
I recommend this book highly to anybody interested in the critical analysis of international law and institutions. It is well written, bundles a lot of evidence, and structures it through a thoughtful framework. It makes feminist sense of the ICC. Without doubt, it will soon become a classic of ICC research. My only point of criticism is the book's rather narrow application of gender, perhaps following the lead of the object of research. If the broad purpose is to better understand “the consequences of war for women and girls and men and boys” (206), is it sufficient to focus on sexual violence, mostly endured by women? To be fair, male victims of sexual violence and female perpetrators of crimes are mentioned, but what about taking on “gender neutral” crimes—for example, displacement—and rethinking them in a gendered manner? What about queering the heteronormative assumptions inherent in international law? I hope that we as readers will witness such analytical expansion, as much as I hope that future decades of ICC development will be as superbly scrutinized as the first one.
