Feminism v. feminism: what is a feminist approach to transnational criminal law?

Author:Case, Mary Anne
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law

This panel, co-sponsored by the International Legal Theory and WILIG Interest Groups, was convened at 9:00 a.m., Friday, April 11, by its moderator, Madhavi Sunder of the University of California Davis School of Law, who introduced the panelists: Mary Anne Case of the University of Chicago Law School; Catherine O'Rourke of the University of Ulster School of Law; Ronald Slye of Seattle University School of Law; and Kay Warren of Brown University.* ([dagger])


By Madhavi Sunder ([double dagger])

The American Society of International Law (ASIL) has been engaged in an ongoing conversation on feminist interventions in international law. The focus of these conversations has been on two areas critical to feminist inquiry: power and difference. But feminist talk of power and difference today is distinct from that in the past. In particular, questions concerning power have flipped. As the legal scholar Janet Halley has observed, in the international arena, at least, feminists are no longer outsiders speaking truth to power. Today, feminists wield real, legal power themselves. Halley and others here at ASIL have urged that feminists come to grips with their own power and critically assess the effects--both beneficial and detrimental--that feminist legal interventions have had on real women and men on the ground.

But some of the contributions of this year's panelists seem, at least implicitly, to challenge this story of "governance feminism"--that is, feminism as all-powerful, particularly in the international arena. We hear of the cooptation of feminists in campaigns for legal reform in the area of human trafficking, where religious moralists and colonial impulses to "save" brown women from brown men obscure feminist goals. We hear the suggestion that we must move from our myopic focus on legal reform to address underlying social and cultural norms that more profoundly affect women's lives. Domestic violence laws, for example, are under-enforced because of prevailing notions of privacy surrounding the family home. Similarly, we learn that anti-trafficking laws do little to change the plight of women in a world of dramatically unequal social and economic relations. As Catherine O'Rourke concludes, "Legal change can be affected without significantly impacting the context from which the problem emerges."

Do these arguments disprove governance feminism? Or do they suggest exactly why we need to take a break from feminist lawmaking? Stated differently: is the problem with transnational criminal law reform that it is too feminist or not feminist enough?

Now let's talk about difference. The papers of Mary Anne Case and Ronald Slye invoke culture and race without expressly analyzing these issues. Ron suggests that processes of criminal adjudication are not neutral: far from it, they are perceived as masculine and feminine, Western and non-Western. Ron turns our preconceived gendered and cultured notions about testimony and adjudication on their head asking whether in fact the feminist value for women's autonomy may not be better served by pursuing "non-Western" styles of adjudication and testimony, such as recognizing the power of silence. What is the responsibility of feminism to probe these intersections?

Where Ron's paper implies cultural difference, Mary Anne's emphasizes sameness: she began with the intuition that Muslim prisoners of war were being debased in ways that focused on religion and race, but then changed her priors during the course of her study, where she found that the treatment of Muslim male prisoners was not very different from how the military treats its own officers through processes of hazing. "We were doing to them what was done to us," an officer in her study explains.

I laud Mary Anne's ability to be open to such a critical and disturbing finding--she is admittedly uncomfortable ending up on the side of the Bush Administration and Rush Limbaugh on this one, though she comes there not without a normative critique of the entire gendered process. But I want to focus on the erasing of race, religion, and culture here and ask whether there is a link to Mary Anne's concept of "feminist fundamentalism" (FF) as she has described it in other writing. As I understand it, FF says that just as some cultural and religious groups have gotten traction from claiming fealty to religious and cultural beliefs--and getting respect for these beliefs in international law--we ought to have a similar recognition for feminist commitment to core values of equality and freedom. Is this paper part of this feminist fundamentalist approach and, if so, is there a way in which an FF approach must necessarily reject intersectional analysis? Is such a fundamentalist approach possible in our postcolonial, war-inflicted world?

* The panel wishes to thank Courtney Brewer who served as reporter for this panel.

([dagger]) Ms. Warren did not submit remarks for the Proceedings.

([double dagger]) Professor, University of California, Davis, School of Law.


By Mary Anne Case *

Among the many disturbing reports emerging from a variety of venues at which the U.S. military has conducted interrogations of Islamic male detainees since September 2001 are those detailing exploitation of sexual and gender stereotypes and taboos as a central part of efforts to humiliate and degrade detainees. It appears from reports that female U.S. military personnel are often deliberately used in this process. For example, Army linguist Kayla Williams reports being told to say sexually humiliating things in Arabic to naked male prisoners; other female military personnel were allegedly instructed to degrade Muslim prisoners through forced cross-sex contact or exposure or through touching of prisoners with items apparently soaked in menstrual blood. Sometimes attempts seem to have been made to feminize the detainees themselves, for example, through use of women's underwear. Some similar practices have been reported in state prisons in the United States. My paper considers ways in which these practices do gender-based harm, not only to the men who are their alleged targets, but to the military women involved, voluntarily or not, in carrying them out, as well as to women generally. It compares the U.S. military exploitation of Islamic gender norms in interrogation with its attempted accommodation to those norms in the case of Martha McSally, the U.S. Air Force pilot whose constitutional complaint against being directed by the U.S. military to wear an abaya was resolved in her favor by the U.S. Congress. I argue that both the exploitation and the accommodation have at their root a subordination of women.

My analysis is structured around three quotations, two from interrogators, and one from a detainee. I had thought that a central focus of the paper would be the ways in which stereotypes about the "other," in particular about Arab Muslims, influenced abusive practices. But my most surprising finding was that precedents for all of the sexualized practices, and for a very high percentage of the non-sexualized abuse practices, could be found in what soldiers themselves experienced in military hazing. Abuse it...

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