Introduction
Chimamanda Ngozi Adichie’s Ted Talk, ‘We Should All Be Feminists’,Footnote 1 has garnered over 5 million views on YouTube. The simple argument she makes is that despite the vastness of the term ‘feminism’, at the root of it is the need to respect, accept, and include the diversity in how feminism presents itself, how it is constructed, and, most importantly, how it affects different women differently. Despite the provocative examples drawn from her positionality as a Nigerian, an African, a woman of Igbo descent, a writer, and the list goes on, what is still not clear in her narrative is which feminism Adichie is referring to, or whose feminist/feminism she is talking about. How will she ascribe or describe feminism based on one single identity or the intersection of the multiple identities she embodies?
When I was invited to write a chapter for this edited volume, my first reaction was whether I could speak for and on behalf of the millions of women standing at the multiple intersections socially constructed by societies and the temporal spaces we occupy. Many of these intersections predate the historical development of this feminist judging project, and many other intersections keep developing each day. In line with feminist praxis and academic reflexivity,Footnote 2 I examined my positionality as woman, Black, African, Ghanaian, Basare, lawyer, academic, mother, and many other identities I inhabit. Did my positionality as a Black woman make me an expert on intersectionality? If not, who had the right or the qualifications to speak or write on this concept of intersectionality?
Drawing on the works of an interdisciplinarity collection of Black feminist scholars, the concept of multiple and intersecting axes of oppression and exclusion has long informed the work of critical race scholars.Footnote 3 Taken up by Black feminist legal scholars,Footnote 4 the concept of intersectionality has travelled the colour and gender boundaries, as well as geographic boundaries, to gain global recognition and potency in explaining the lives, experiences, and complexities of minoritised people.Footnote 5
In writing this chapter, I decided to adopt a critical approach in evaluating the feminist judgment projects (FJP) that exist to date. Having surveyed details about their beginnings, methodologies, and epistemological approaches, I understand that what binds all these projects together is applying a feminist lens to reimagine these judgments if they had considered gender as a socially constructed variable and ordering principle in societies. Most importantly, the goal of these projects, as I understand them, is to engage in a judicial and ideological rewinding and recasting of what a gender-inclusive law-making process would look like in order to expand access to justice for women. In applying a feminist lens and paying attention to gendered constructs, would future judgments from international courts, and the International Criminal Court (ICC) specifically, be fair and equitable? Would judges, prosecutors, and staffers question the gendered nature of the tools, paradigms, codes, and law-making processes they apply to arrive at the decisions they make?
In exploring the idea of a feminist reimagination, we must begin from a place of a feminist recasting of the challenges, social hierarchies, barriers, constraints, and opportunities that give birth to, maintain, and advance the multiple discriminations, exclusions, and erasures some groups of people face in societies across the world. The feminist reimagination must be anchored in helping us understand and bring into conversation the normative (what the ‘feminine sensitive’ law ought to be) versus the empirical (what the ‘non-feminine-sensitive’ law is). The chapters in this book attempt to peel back the historical layers of time, precedent, judicial reasoning, and legal principles that were cast in a male-centric gaze. Born out of a highly patriarchal system of international lawFootnote 6 and a highly racist imperial system,Footnote 7 principles of international law and international justice have stood the test of time. These principles have endured because each time these cases made it to court as precedents (in common law jurisdictions), the masculine ethos upon which they were built re-emerge in one form or the other, thereby solidifying the magma of male-centred and male-biased judicial reasoning.
The current FJP is taking these pieces of gender-blind decisions and refashioning them as examples of feminist judicial decision-making. This time around, the magma is placed in the hands of individuals (academics, lawyers, activists, and so on) who are gender-aware, gender-conscious, and gender-sensitive. Their role as the new judicial goldsmiths is to turn this magma into something new – that is, a ‘decision’ that has all the contours, imagery, and marks of a feminist-informed and gender-inclusive work of art – a feminist-sensitive judgment.
Before I progress, I wish to position myself in relation to my reflection. I draw on liberatory academic praxisFootnote 8 in declaring that I speak from my positionality as a woman, a cisgender woman, a woman whose roots are in the continent of Africa, a highly educated woman (with a law degree and a doctorate). I also declare my positionality as a scholar whose works focus on Africa – a region too vast for me to claim to be an expert on all the forms and varieties of gender and feminist issues. I recognise that some claim to be ‘African’ experts, but I am opposed to this notion of a broad-brush representation of a continent of over a billion people and multiple cultures and lived experiences. With these declarations, I am making it clear that I do not stand as a voice that speaks on behalf of all women or gender issues explored in this book and beyond. As a feminist scholar, I practise my liberatory feminism through the lens of African feminism, postcolonial feminism, and feminist legal theory. I have acquired the training and skills to critically analyse and evaluate other forms of feminism, bodies of knowledge, and theories. I am approaching this chapter with the goal of reflecting from my positionality as an African feminist academic to question how best the communities of scholars, activists, lawyers, and others engaged in gender equality might approach the issue of intersectionality in international criminal law. I recognise that the original discussions of intersectionality by Black feminist scholars sought to decentre race and gender as the two main axes of oppression.Footnote 9
My understanding of the feminist judgment project is that it fixes its gaze on ‘feminist methods, tools, and theories’ as the defining feature of rewriting these judgments. Consequently, ‘feminism’ is used as a proxy to discuss how women and other marginalised groups are overlooked, erased, or treated unjustly through the judicial pens of some judges who made these earlier decisions. In the ensuing discussion, I explore the merits and demerits of applying an intersectional lens to the projects of feminist reimagination. In doing so, I briefly lay the cornerstones of the intersectionality framework as propounded by Black feminist scholars in the United States and popularised by the work of Black socio-legal scholar Kimberlè Crenshaw.Footnote 10
The next section of the chapter raises a series of questions for scholars to think about as the feminist judgment project grows in number and breadth of coverage by geography and legal issue area. It grapples with, and attempts to answer, the following questions: What does intersectionality mean? What does/doesn’t it bring to the law? The third section makes the connection between FJPs and intersectionality by posing and answering the question: How can the current project and other FJPs benefit from applying an intersectional lens to their judgment rewriting? It also weaves into the analyses of why the ICC needs to apply an intersectional lens in all its activities, from hiring staffers to delivering judgments. The fourth section provides recommendations and directions for three key constituents – the ICC Chambers/Assembly of State Parties, the Registry, and scholars/researchers writing these reimagined judgments. The last section concludes the chapter.
Some Merits and Demerits of Intersectionality as a Tool for Feminist Equity and Judgment
As a theoretical framework for analysing different identities and how they intersect to create a multiplier effect on individuals facing discrimination, intersectionality has spread its theoretical tentacles around the world (geography) and subject matter (disciplines). Popularised by Kimberlè Crenshaw, the concept of intersectionality dominated the discussions of Black feminist scholars who examined how Black women are subjected to multiple axes of interconnected experiences of discrimination as a result of their race, gender, and other marginalised situatedness.Footnote 11
Tracing the roots of the theory of intersectionality is itself an emancipatory act of feminism – one that requires the decentring of masculinities (gender) or, in this case, whiteness (race) as the loci of knowledge production and theoretical formulation. Crediting Black feminist scholars for developing this theory is itself a necessary act of recognising the need to centre the voice, agency, and capabilities of Black women as creators of knowledge.
But what do we know about intersectionality as a process to reach the desired end of achieving an equitable judicial decision? A decision that considers both the visible and invisible, the temporal and the non-temporal, the oppressors and the privileged? To what extent are all these oppositional forces, and many more not listed here, necessary when making a judicial decision?
Intersectionality as theory has helped expand our thinking of the possibilities of law – what the law can do when viewed through the lens of a feminist ideal of equity, fairness, and inclusion. The growing list of feminist rewritten judgments highlights how identities of race, gender, age, language, geography, sexuality, health status, marital status, and so on, may additively converge to create less optimal outcomes for those seeking justice. But are these projects truly inclusive? To what extent does each of these identities capture the centrality of different lived experiences? An analysis of the rewritten cases and commentaries in the current volume raises several questions that may be necessary for other feminist judgment projects.
The Merits
Intersectionality as a feminist framework has proven to possess the theoretical rigour to explain the lived experiences of diverse groups. The replicability and generalisability of intersectionality must however be weighed against the feminist principle of essentialism.Footnote 12 In applying an intersectional lens, judges, prosecutors, and judicial staff can understand how the racial, gender, class, and social categories affect and determine who is a victim of a criminal offence. Through an intersectional lens, judges may also gain some insights into how language affects how defendants express themselves in court, thereby allowing judges to seek a deeper understanding of language, cultural, ethnic, and religious codes.Footnote 13 From a feminist perspective, intersectionality can help illuminate how women’s lives are constructed as victims, why women victims may not express themselves with particular words, and how their age and social standing impact what they say in court. An example of the latter experience is captured in the words of Ugandan Judge Julia Sebutinde, the first African woman to serve on the bench of the International Court of Justice:
Although I am a judge, I’m also a mother. I’m also a wife. I’m also somebody’s daughter. Do I put my human emotions … in these cases? Are we not the human face of justice? I think we are. For example, as I preside over the trial if I notice that a defense lawyer is harassing and badgering an old woman during cross-examination who is struggling to recount a horrific rape she endured, publicly, with a view maybe to intimidating or humiliating her, can you not forgive me for interjecting and saying: ‘Counsel, you are out of order.’ We understand the witness. Am I not allowed to read that women’s body language? If she’s not able to raise her eyes because of the feeling of shame? If all she can do is to mumble with her eyes downcast and narrate her story the best way she can, should we disbelieve her testimony? I recall a woman aged 70 years old who was gang-raped and had to testify before us about it. And this is a story I’m telling you that happened in Sierra Leone. She couldn’t even look at the judges or anybody because her husband and grown children were sitting in the front row. These are gender sensitivities that our male colleagues may not even be aware of during the trial.Footnote 14
The Demerits
There are several pitfalls that must be avoided in attempts to apply intersectionality in international criminal cases before the ICC or other criminal courts. First, it is critical to understand that not all individuals within a socially constructed group face the same oppression. For example, not all women victims of a criminal offence in a conflict will be heterosexual, of the same age, practise the same religion, or have the same educational achievements. These categories show the need to adopt an intra-category approach to decipher the differences within groups.Footnote 15 Second, applying an intersectional lens may open a Pandora’s box of claims that may not be apparent to the most well-versed scholars of intersectionality. For instance, how will judges react to new claims of categorical identities that claim special protections due to new identities developed out of artificial intelligence? Will an avatar or a robot be allowed to claim special prosecutorial or judicial protections? These are just two examples of what could emerge as judges grapple with new rights and freedoms.
Reimagining Judgments: Is Feminism Enough?
Is the application of an intersectional lens enough to cover the universe of discriminatory treatments individuals face in society and by extension in the courtroom? In the same line of questioning, is feminism a concept that has near-universal application to the issues faced by women and other marginalised groups? In this section, I explore several questions and themes on whether ‘feminism/feminist’ is the right description for the rewritten judgments. I base my critique and evaluation on several assumptions inherent in the way these rewritten feminist judgments may have been constructed.
What Is Feminism and Whose Feminism?
If we proceed on the assumption that feminism is about seeking equality between men and women in society, several questions come to the fore. First, the question is, who is the woman we are referring to in this context? How can we assess the personal inclinations or lived experiences of the judgment writers to make an assessment of how well they understand the issues of Indigenous/Aboriginal/Native American/‘Third World’/‘Muslim’, and other marginalised groups of women? Or the plight of immigrant, disabled, sex-trafficked women? To what extent are the lives of these ‘other’ women just an exercise in a dark alley of feminist knowing for the judgment writers if the writer has not lived in those conditions and experienced the daily and historical marginalisations of the very group they purport to ‘save’ through their rewriting exercise?
Who is the ‘woman’ for the purposes of these judgments? To what extent are these projects considering ‘feminism’ not from a biological deterministic binary of the female, but feminism more as a belief system (which, though it benefits from feminine ways of being) is not the exclusive preserve of women? Global feminist movements have helped to advance women’s rights around the world. Yet these movements have not been without their tensions as feminist-ideological battles have been waged by and among women/feminists. Drawing on the works of postcolonial and decolonial feminists,Footnote 16 the bifurcation of the global feminist movement into the ‘developed’ and ‘developing’, ‘first, second, and third’ worlds has led to the ‘othering’ of a large swath of women in the world. Scholars have called for a true global sisterhood, informed by a collective and inclusive mobilisation around women’s issues.Footnote 17 As the different FJPs attempt to reimagine a just world through a feminist lens, it is important to begin the exercise from a place of self-reflection to understand the extent to which the lives and experiences of ‘othered’ and ‘third world women’ may be centred vis-à-vis feminist legal principles that purport to produce just, equitable, and feminist-inclusive jurisprudence.
Which Intersections Matter or Which Are We (Re)marginalising?
At the heart of intersectionality is the need to recognise the multiplicity and simultaneity of oppressions. Women victims embody multiple identities; thus, it is when architects of justice choose one and not other identities that the gravest injustices can occur. The rewritten judgments in this volume run the risk of reproducing marginalisation. As the co-editors note in Chapter 2, due to the overwhelming number of issues in each of the ICC cases/situations under review, authors were tasked with picking and focusing on one issue only. Since this project is an exercise in showing the possibilities of future judgments, it is hoped that this message will be strongly shared with those who will be relying on these rewritten judgments as guideposts – there is more to be said and done. As suggested earlier, the task of judges, prosecutors, and judicial staff in peeling back their personal biases, stereotypes, and lack of knowledge about the lived realities of the litigants before them; and this requires training. Training programmes on (un)conscious bias and intercultural competence will be helpful in moving these actors to a place of awareness. Nonetheless, awareness is not enough to counteract the insidious impact of deep-seated biases. As the famous Black feminist scholar and poet Audre Lorde noted, the ‘master’s tools will never destroy the master’s house’.Footnote 18 The tools of patriarchy and racial, class, ethnic, and religious discrimination are ‘houses’ of oppression with deep foundations. To break down these ‘houses’ requires the adoption of holistic approaches to naming, centring, and hearing the voices of marginalised groups. How will judges and judicial staff determine which intersectional identities need to be protected? Will gender trump race? Will disability trump sexual orientation? Will social class trump geographical location (Global North versus Global South)? These are critical questions to be answered in order to avoid the vicissitudes of remarginalising groups that are already marginalised. When the latter happens, we are reconfirming the second part of Audre Lorde’s famous quote, ‘they may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change’.Footnote 19
Coloniality as a Vehicle for Patriarchy and Racism
Given the criticism against the ICC for its focus on the African continent, it is no surprise that the majority of the rewritten judgments in this volume deal with cases emanating from Africa.Footnote 20 The co-editors in Chapter 2, and some of the contributors, including Angela Mudukuti in Chapter 5, have reflected on the role of imperialism and colonisation as factors explaining the overwhelmingly African cases that have come before the ICC bench. Beyond the impact of colonisation on the spatial borders of these countries, it is essential to question the role of coloniality as a constant state of being, one that lies beyond physical occupation, as a continuity of imperial patriarchy and racism around the world. While physical colonisation may have ended, coloniality as an idea of subjugation continues to be a principal means of control over the political, economic, linguistic, and legal systems of former colonies.Footnote 21 The Rome Statute establishing the ICC attempted to create a diverse bench by considering geography and area of expertise. These modest gains at a diverse bench do not shield the court from failing to account for the nuances in the historical, socio-cultural, and myriad other contexts within which these cases emerge. While the racial and gender diversity of the court has been touted, little has been said about the staffers and legal officers who handle the daily operations of these courts. These important issues are beginning to receive some scholarly attention and also form part of the conversation between Angela Mudukuti and Louise Chappell in this volume (Chapter 5).Footnote 22 To what extent are these staff positions diverse and inclusive? As these feminist judges emerge, how might authors (rewriting judgments) understand the continuity of coloniality and the extent to which it affects and determines the commission of some of these crimes? Who might charges be brought against, and who should be held accountable for the crimes? To what extent is coloniality a constant state of oppression that marginalises individuals along a wide spectrum of discriminatory acts and omissions?
The African Feminist Judgments: Is Africa a Continent or a Country?
The traction gained by the first feminist rewritten judgments is remarkable. One thing that has stood out about these projects is the focus on individual countries as the units of analysis.Footnote 23 Why is it that in the context of countries in Africa, the project has been lumped into the ‘African Feminist Judgments Project’? Is this overgeneralisation and over-homogenisation of a continent of over a billion people not problematic and emblematic of how the issues that arise out of the first judgments stand to be repeated in other forms if the generalisation is not addressed? How can we realistically apply an intersectional lens to a continent that has probably one of the most diverse legal systems – combining transplanted civil law from the French colonial empire, common law from the British colonial empire, Islamic law from invasions from the Middle East, all of which operate side by side with indigenous customary legal systems? The historical, social, political, economic, linguistic, ethnic, and other identities and experiences are too numerous to cluster into one lived experience. What operates as patriarchy may operate as matriarchy in another culture within the same country.Footnote 24 How do we decipher and classify age as a social category and its impact in determining women’s situational ranking in different national contexts?
Who are the Judges and the Registry Officials
Much of the early scholarship on international courts and tribunals focused on who international court judges were, and how they were selected.Footnote 25 While the issue of descriptive diversity on the bench is still instructive, other explorations of diversity beyond the usual issues of race, gender, and geography are gaining traction. Freya Baeten’s edited volume Identity and Diversity on the International BenchFootnote 26 explores many themes, including language, ethnic, religious, and geographic diversity. While ethnic and religious diversity were debunked as not being critical factors in considering diversity on the bench, writing from personal experiences as an international judge, Judge Nosworthy maintained the importance of cultivating an inclusive climate on the bench that allows the minoritised judge from a ‘tiny island’ to be heard and seen as an equal voice.Footnote 27 Many other examples abound of minority (mostly women) judges who questioned how their intersecting identities would affect their presence on the bench.Footnote 28 These reflections by the judges who sit on these courts are instructive because they signal the continuity of social and judicial power hierarchies even on the benches of international courts.
Overwhelmingly, the staff who constitute the registry of these courts are also drawn from geographically dominant, Western countries. We must therefore question to what extent the feminist rewriters reproduce these inherent power hierarchies by failing to question the composition of those who provide essential administrative functions for the Court. What principles of soft law are at play when feminist judgment rewriters write from positions of relative privilege when compared to the lives of the people in the cases they are deliberating? To what extent are the original evidence and the facts of the case they are rewriting coded in language presenting barriers which they may not be able to decode? To what extent will the judgment rewriters have access to the non-verbal communications and cues that were present in the courtroom during the original cases, and how did such non-verbal communication influence the decisions of the judges? These are practical questions to explore as we engage in the liberatory exercise of (re)writing these feminist judgments through a feminist intersectional lens.
Women Judges and the Intersectional Burden
Most feminist analyses operate from the assumption that women will understand women’s issues. This assumption leads to the expectation that women should be at the forefront of finding solutions to women’s issues. These assumptions mostly hold true because women can relate to women’s issues by ‘stepping into’ the imaginary shoes of other women. This ability to transpose into the reality of another woman was crucial in important international criminal cases such as the Anto Furundzija and Kunarac et al. cases, where Justice Florence Ndepele Mumba presided, and where for the first time the International Criminal Tribunal for the Former Yugoslavia (ICTY) pronounced sexual violence in the form of rape as crimes against humanity, war crimes, and torture. In the Akayesu case involving Judge Navi Pillay, the International Criminal Tribunal for Rwanda (ICTR) held rape as a war crime. Equally, in the Sierra Leone case Trial Chamber II, AFRC Judgment, Judge Sebutinde’s concurring opinion in distinguishing between marriage in a time of peace and ‘forced marriage’ in a time of war helped established important principles of criminal conduct in conflict situations.Footnote 29
Despite these examples of the contributions of women judges to developing jurisprudence on international criminal law, we must be cognisant of the fact that not all women are feminists, and not all women will understand the intersectional challenges of other women. In Intersectionality and Women’s Access to Justice in AfricaFootnote 30 I introduced the concept of layered intersectionality. This framework makes the argument that women judges face both oppression and privilege in their access to the courtroom as judges. The level of personal oppression they have faced can inform the extent to which they relate to other women facing similar or different challenges. The oppression need not be personal and can be communal, thus allowing them to relate to what others are facing as women.
Thus, while it may be easier for women to relate to these intersectional burdens, not all women can relate, while some make no effort to relate, limited by the judicial principles of ‘impartiality’. An anti-essentialist reading of this burden women bear as frontline workers in understanding other women’s experiences is important. Until the essence of anti-essentialism is achieved, the extent to which feminist judgment rewriters can explore the detailed socio-cultural understandings of the victims (or purported victims) must be at the forefront in grounding these judgments in an intersectional framework. Understanding women’s situational identities should be the task of all judges – both men and women.
Feminist Judgments beyond Gender: Where Are the Men?
Is feminism intrinsically female? Can feminists confidently profess to represent the many marginalised voices that lie at the substrata of the intersectional barriers and challenges feminists claim to see from their academic towers or activist microphones? Beyond the pen of the academic and the advocacy of activists, can we really hear the voices of the marginalised and the newly emergent marginalised groups? In the current volume, most of the contributors are women. A review of the table of contents of other feminist judgment projects shows the same pattern, thus confirming that this challenge is not unique to the current volume. As an editor of several books, I know first-hand the difficulty of always hitting the diversity mark when selecting chapter contributors. My call to action is for feminist scholars to recruit male feminists. For these judgments to be sustainable and have the desired impact, they must extend beyond the confines of feminist circles and networks of feminist scholars. Including men who understand, respect, and can engage with intersectional and interdisciplinary feminisms is essential. Recruiting men who can rewrite a judgment from a feminist perspective will encourage male judges to descend from their judicial towers and engage with these rewritten judgments. It will also facilitate the efforts to use these feminist judgments as teaching materials in law schools.Footnote 31 If we do not make that extra effort to add men, we risk preaching to the choir. I do however recognise that some readers may ask why we need to ‘re’centre men in our writings and spaces as women.
Recommendations
The preceding analysis has offered some provocative thoughts and reflections on how architects of international criminal law may draw on intersectionality as a guiding framework in adjudicating international criminal law cases. In this section, I provide a few high-level recommendations for judges, the registry, and researchers engaged in other feminist judgment projects.
For Judges
Achieving a more intersectional and inclusive feminist judgment calls for several changes, two of which are presented here. First, judges must acknowledge their positionality relative to the socio-cultural context and temporality of the case and the victims who appear before them. Doing so will allow them to recognise the multiplicative and additive effects of intersectionality, thereby expanding the range of reliefs they order. But how might a judge understand the wide spectrum of intersectional identities? Is there a universe of identities from which a judge can draw when they apply an intersectional lens? Are judges required to consider extenuating circumstances in the two dominant legal traditions the ICC operates from, or do they have the knowledge and skills in understanding and interpreting pluralistic legal systems?
Second, judges must accept the need for continuous judicial education and attentiveness to the role of intersectionality in determining the circumstances that lead to the cases before them. As eloquently submitted by Mudukuti in Chapter 5 of this volume, while some judges may be averse to ‘professional development’, the adoption of creative techniques such as ‘retreats’ could be used. However, the caution here is to ensure that such training about intersectionality and (un)conscious biases should not be one-offs but rather a mainstreamed and continuous programme.
The Registry
As one of the four primary organs of the ICC, the registry plays important functional and administrative roles with consequences for the judicial outcomes of cases that come before the bench. These functions include administering court services, assisting external defence and counsel for victims, organising witness and victim protection, and facilitating victim participation and reparations.Footnote 32 These are important functions that bring the court closer to victims and legal counsel. Therefore, it is critical for the staffers working in the registry to have a deep and contextual understanding of how intersectionality and the multiple axes of oppressions and exclusions affect the people they deal with.
To what extent have these rewritten judgments considered the roles of these ancillary staff in the rewriting process? How might we engage the registries, clerks, and investigating authorities accountable for understanding and applying the concepts in these rewritten judgments? These questions are not a critique of the feminist judgment projects. They lead to two recommendations.
First, there should be representational diversity in the rank and file of the registry. The data presented by Mudukuti supports several prior and ongoing advocacy efforts for the racial, geographic, and gender diversity needed in the ICC. A diverse organisation leads to optimal outcomes, and this is crucial for an organisation that deals with high-level crimes of impunity and the violation of human rights. The ICC registry must engage in conscious and intentional efforts to recruit an expert group of diverse staffers; this is not a call for some sort of affirmative action – it is simple: if they seek, they will find equally qualified racial minorities.
Second, it is essential for the ICC to reform its internal institutional/organisational norms and practices. It is not enough to recruit diverse candidates/staffers and dump them in an institutional environment that operates along toxic levels of overt and covert racism, gender discrimination, sexual harassment, and other forms of oppression. The UN and the ICC have attempted to address some of these issues, but more needs to be done.Footnote 33 In November 2022, the Institute for African Women in Law organised a public dialogue on intersectionality and decoloniality in collaboration with the ICC registry, the ICC Staff Union, the IRMCTFootnote 34 Focal Point for Diversity, Equity, and Inclusion, the ICC Gender Equality Focal Point, and the ICC Office of the Prosecutor (OTP) Focal Point for Gender to address issues of discrimination in their organisations. The seminar ‘Decolonization of Workplaces: A Communal Dialogue’ was hosted virtually with the goal of addressing hard issues such as the decolonisation of workplaces, different forms of workplace harassment, and the role of staffers in breaking the walls of oppression. While more such dialogues are needed, they should be backed by actionable plans by the leaders of these organisations to hear the voices of the oppressed and address their concerns. The intersectional oppressions that staffers in the registry face must be simultaneously addressed alongside the issues victims face. Justice cannot be served to victims if staffers are constantly navigating injustice and the multiple axes of oppression within the corridors of the organisation.
For Researchers
At the outset of this chapter, in line with feminist praxis and academic reflexivity, I presented my positionality (which is by no means universal or exhaustive) to contextualise how I intended to approach the issues to be discussed in the chapter. Throughout the analyses, I was conscious of how my privilege may influence my writing, and this leads me to the following recommendations. First, exercising multiple consciousnessesFootnote 35 should be the guiding principle of all researchers and feminist scholars. Researchers must be in tune with their positionalities and how multiple layers of privilege and power may intersect and filter through the pen of their feminist judgment rewriting.Footnote 36
Second, researchers should approach these judgments with an inclusive ethic of care that is focused on the additive and multiplicative impact of intersectional identities. If we privilege gender/women over other social identity categories (race, ethnicity, religion, ability, sexuality, age, and so on), we risk reproducing the same power hierarchies. In which case, we may just be moving the stakes one notch up or down, with little to no implication for the diverse lives affected by the decisions.
Third, beyond acknowledging positionality and privilege, scholars and researchers must constantly engage in self-reflection of the approaches, strategies, and tools being used to challenge the masculine legal norms and principles in the original judgments. Doing that will be essential to meeting the FJP goal of a feminist (re)imagining while eradicating the (re)marginalisation of the people we purport to liberate through the power of the feminist pen.
Conclusion
The editors of this volume have done a commendable job of compiling the first FJP focusing on international criminal law – and the ICC specifically. They have gone to great lengths to include a diversity of authors and interdisciplinary approaches to broaching the topic of women, gender, and feminism. While the Introduction lays out the parameters of the project and the gaps they self-identify, this book promises to open new avenues for judicial and legal practitioners, researchers, diplomats, and international law policymakers. By incorporating discussions on intersectionality in this project, the book lends a voice to the countless marginalised people who are often the victims of horrific crimes yet remain largely unheard. The world cannot fully address impunity if the institutions (courts) do not represent the diversity in the world – gender, race, religion, sexuality, (dis)ability, and other identity categories. This book lays out several innovative approaches for the ICC as it continues to work towards achieving a more inclusive institution – one that respects not only the rights of minorities who work within it, but also recognises, respects, and protects the intersectional identities and lived experiences of the victims who appear before it.
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