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Otto, Dianne --- "Remapping Crisis Through a Feminist Lens" [2011] UMelbLRS 5

Last Updated: 6 April 2011

Remapping Crisis through a Feminist Lens

Dianne Otto[∗]

INTRODUCTION

The language of ‘crisis’ has become ubiquitous in international law and politics. Rising to a crescendo with the 9/11 crisis of international terror, ‘emergencies’ now dominate global intercourse. Official crises are no longer confined to military and monetary emergencies—although these are not in short supply—but have been declared with respect to a widening range of everyday matters including food,[1] water,[2] development,[3] climate change,[4] HIV-AIDS[5] and peacekeeping sex.[6] Globally, it seems we are more or less permanently suspended in states of crisis which, in turn, are rapidly reshaping our conceptions of international peace and security.[7] The sense of cataclysm has generated a mantra of speedy diagnosis and robust response, crafted by technocratic and military experts. Reflecting this shift in power, away from inclusive law and policy-making to experts in crisis management, the Security Council is now the epicentre of international action.[8] The new dominance of the Security Council ensures that crisis is ‘securitised’;[9] diminishing the importance of the United Nation’s (UN) other main contributions to peace—sustainable development and the realisation of human rights.[10] In this chapter, I critically examine the challenges that the ascendancy of ‘crisis’ governance produce for feminist legal theory and activism in the context of international law.

The understanding that today’s international crises, whether real or imagined, are best addressed by military solutions pushes aside the pacifist methods of conflict resolution that have long been promoted by women’s movements for peace. As Julie Mertus discusses in this collection, the new emphasis on military security has put pressure on feminist peace groups to reinvent themselves in order to remain ‘relevant’ to funding bodies and policy-makers.[11] Mertus uses the example of ‘Women Waging Peace’ renaming itself as the ‘Initiative for Inclusive Security’. In order to stay relevant, the more compliant aspiration of advocating for the participation of women in the existing paradigm was adopted to mask the group’s long-standing pacifist agenda. The feminist vision of peace is thus reduced by crisis to a hope for militarised security.

One way to read the metamorphosis of Women Waging Peace is that feminism is pushed ‘off the map’ in a crisis, as was ‘gleefully’ suggested to feminist author Susan Faludi by a journalist seeking her reaction to the 9/11 attacks.[12] His forecast was that a crisis necessitates the return of ‘manly men’ and ‘domesticated women’. Indeed, following 9/11, Faludi soon found that the American media was saturated with reports of women’s ‘mass retreat’ into domesticity and the ascendancy of a ‘new John Wayne masculinity’.[13] The journalist’s view echoed that of neo-conservative Francis Fukuyama, who suggested several years earlier that the increased ‘femin[ist]ization’ of politics in the West may prove to be a liability, as states in Africa, the Middle East and South Asia continue to be led by young men whose ‘biological’ predisposition for aggression remains unconstrained by feminism.[14] In a similar vein, Christian fundamentalists Jerry Falwell and Pat Robertson jumped at the opportunity presented by 9/11 to warn that it was punishment from God for the immorality and secularism of many Americans, notably doctors who performed abortions, as well as feminists, gays and lesbians.[15] While these examples are located in the West, it is my contention that crises everywhere are a particularly dangerous time for feminism, and indeed for all progressive ways of thinking. That this contention sounds so obvious, illustrates the problem that we all too readily fall into the trap of thinking that nuanced political and legal thinking must be sacrificed at times of crisis. Increased danger for feminist ideas may necessitate different feminist strategies, but my argument is that we need to ensure that liberatory ideas are not diluted in the process. In this spirit, it is to be hoped that the radical vision of Women Waging Peace has found a way to stay alive, despite its new mantle of inclusive security.

The revitalisation of gender hierarchy in the American popular imagination following the crisis of 9/11 has its parallel in governmental reactions, which treat crises as moments that typically demand more ‘muscular’ laws, extensive reliance on executive power, and the downgrading of impediments to robust action posed by the ‘soft’ laws of human rights and due process, which are threatened, like feminism, with being pushed ‘off the map’. The urgency implicit in the rhetoric of crisis has facilitated an ‘explosion of [often executive] law’,[16] like the Security Council’s requirement that all UN member states adopt a far-reaching and detailed set of anti-terrorism measures under its supervision.[17] In the wake of 9/11, as in the wake of other crises, the ‘balance’ between human rights and state security has been ‘substantially recalibrated’ in favour of security concerns,[18] and many established international legal norms have been strained to breaking point, such as the absolute prohibition of the use of torture and the ban on pre-emptive self-defence.[19]

The turn to crisis governance intensifies the already complicated challenges that feminists face in engaging with international law.[20] Calculating how it might be possible to carve out a space for critique in an environment that is so strongly marked by hostility to feminism becomes even more urgent. Indeed, what space is left for any critical or progressive politics at a time of emergency? Does the invocation of an emergency itself ‘enforce compliance’ by silencing dissenting voices and displacing law’s emancipatory potential (assuming it exists)? Or is it possible at the moment of crisis to ‘seize the legal ground without simultaneously being imprisoned within it?’[21]

I develop my thoughts in four parts, beginning with an examination of the spreading normativity of crisis governance. I argue that crises have become an everyday technique of global governance, authorising the operation of a more hegemonic legal order and reducing (though not eliminating) the space for political contestation and critique. In the second and third parts I examine two ways that feminist ideas and crisis thinking interact: first, when feminist ideas are used in the service of crisis governance, like their deployment to legitimate the military interventions in Afghanistan and Iraq, and second, when feminists invoke the language of crisis to serve feminist ends, as in efforts to have violence against women addressed urgently. I examine whether these interactions between the vocabularies of feminism and crisis governance raise new opportunities for feminist engagement with international law and, if so, whether this must be at the cost of critical perspectives and the longer term emancipatory goals of feminism. I argue that when crisis thinking dominates the map of possibilities, feminists seeking to engage with law need also to engage politically, actively contesting the constraints of crisis thinking and remaining aware of the unpredictability of law and the contingency of its certainties.

THE EVERYDAY-NESS OF CRISIS

Italian philosopher, Giorgio Agamben, offers one way of understanding the proliferation of crisis talk, the international legal responses that it makes possible, and the difficulties that feminist scholars and activists face in offering a critique. He suggests that crises are not the exceptional events they are claimed to be, but are instead ordinary; that by the middle of the twentieth century, the ‘state of exception’ had become the ‘dominant paradigm of [modern] government’.[22] In his view, the fiction of the emergency creates a new space for law’s production and reproduction, enabling law to extend its empire, to further colonise ‘life itself’ by taking possession of the sphere of human action that we know as ‘politics’. Agamben’s concern with the blurring of the exception and the norm is similar to David Kennedy’s discussion of the continuities that have emerged between the politics and practices of war and peace.[23] Both scholars lament the increasing dominance of law over politics which, as Kennedy says, creates ‘only the most marginal opportunities for engaged political contestation’[24] and, in Agamben’s view, produces only ‘bare life’ at its extremities.[25] By bare life, Agamben means life that is not recognised as such by law. His examples include those incarcerated in the Nazi concentration camps and, more recently, those detained at Guantanamo Bay, where bare life has reached its ‘maximum indeterminacy’.[26] I must add to his list the 60-year crisis of the Palestinian people, whose ‘Nakba’ (catastrophe) grew directly from the earlier crisis of the holocaust.[27] Agamben’s implication is that all of our lives are gradually being so reduced through the governmental technique of the emergency.

In Agamben’s analysis, the adoption of more muscular legal measures in response to an emergency is unlikely to be a short term and limited derogation from ordinary law as is usually claimed, but instead, the emergency is constitutive of ordinary law; the exception produces what becomes the everyday. Rather than acting as a constraint on executive power and action in the face of a crisis, law offers a means of authorising what would otherwise be an excessive use or abuse of power. He argues that at the very moment that it is crucial for law to place limits on the state, it becomes extraordinarily permissive. Agamben’s thesis has been born out in the wake of 9/11, as existing law has proved incapable of restraining the new resort to pre-emptive military force, as in the case of Iraq, and unable to counter the new indifference to the requirements of human rights and due process, evident in many of the demands of the Security Council in the name of combating international terrorism.[28] In fact, many neo-conservative legal scholars have welcomed the legal developments that cause Agamben and Kennedy (and me) to despair, defending them as necessitated by today’s world of crisis.[29]

Seeing the moment of crisis as an opportunity to achieve otherwise impossible legal ‘reform’ has spread to everyday matters of governance. The 2006 UN World Water Development Report took the view that ‘a perceived or real crisis due to floods and droughts’ may be necessary ‘to create conditions under which it is politically possible to undertake [water] reform’.[30] President Obama’s chief of staff, Rahm Emanuel, has reportedly said ‘never allow a crisis to go to waste’ so often that it has become the administration’s ‘semi-official mantra’.[31] The Howard Government in Australia harnessed the crisis of sexual abuse of Aboriginal children to push through harsh legislative measures which reduced many of the rights of Aboriginal people in the Northern Territory[32] and, in complete disregard of its international human rights obligations, exempted this legislation from the operation of the Racial Discrimination Act 1975 (Cth).[33] In the guise of responding to an emergency, proponents of crisis governance remap the legal and political landscape, laying the groundwork for the operation of (or return to) a more hegemonic legal order, which is less constrained by political deliberation and less open to contestation and critique.

American author, Naomi Klein, has a similar thesis about the technique of crisis, or ‘disaster’ as she prefers, in the economic sphere. [34] She argues that the Milton Friedman School of economics, incubated during the 1950s at Chicago University, fostered the spread of America’s ‘free market’ policies through the exploitation of deliberately inflicted economic ‘shock therapy’, producing disaster-shocked, and therefore compliant, populations. She locates the Chicago School’s hatching of the methods of ‘disaster capitalism’, which are now considered ‘normal’ by many economists,[35] in the ‘laboratory’ of Latin America, beginning with Pinochet’s coup in Chile in 1973.[36] The methods of disaster capitalism have since been embraced by international economic institutions, which have often imposed drastic economic liberalisation measures and ‘shock therapy’ stabilisation programmes as a condition of their loans.

Klein discusses the methods of disaster capitalism used more recently in Iraq, where the crisis created by the US-led international intervention ensured that Iraqis were preoccupied with daily emergencies while new laws were passed that transformed Iraq’s economy, enabling American corporations to buy up publicly owned enterprises at bargain basement prices and creating a fully privatised new market for American products.[37] In South-East Asia, the disaster of a tsunami made it possible for entire coast-lines of beautiful beaches, where many fishing communities had previously lived, to be ‘cleared’ and allocated to developers for ‘reconstruction’ as tourist resorts.[38] Klein’s thesis is that crises are inflicted, or harnessed, as a kind of shock treatment, and the resulting disorientation is exploited by free market economists to undertake a radical reshaping of the economic system in the name of ‘freedom’, which includes the privatisation of state assets and services, economic liberalisation and a radically downsized public sector. As in Agamben’s analysis, measures taken in response to the purported exceptional circumstances are normalised, reducing ‘life itself’ by intensifying its subjection to the free market.

International law has also relied on crises for its development, as many from within the discipline have observed.[39] Hilary Charlesworth argues that, as a result, crises have dominated the imagination of international lawyers, fostering short term, quick-fix and ‘truncated’ ways of thinking that simplify the ‘facts’, dismiss analytical and critical perspectives, and silence the larger picture of everyday structural inequalities and injustices.[40] These characteristics of crisis-fuelled legal thinking are readily observable in the examples of crisis governance I have mentioned. The simplification of facts that renders complex histories and multiple causes irrelevant is demonstrated by the Australian Government’s crisis legislation that enabled its far-reaching intervention into Aboriginal communities.[41] The denigration of analytical thinking in a crisis as dangerous—even seditious—was captured by George W Bush’s infamous pronouncement after 9/11 that ‘you’re either with us or against us’[42] and, in many places including Australia, is evident in the anti-terror legislation mandated by the Security Council, whereby a range of censorship and sedition offences have been enacted.[43] The erasure of the larger picture of underlying structural discrimination and disadvantage can be seen in the techniques of disaster capitalism and the popular resurgence of hierarchical gender and racial stereotypes which are treated as if they were ‘natural’ by crisis-driven thinking, a phenomenon that Maria Grahn-Farley discusses in this collection and describes as ‘the politics of inevitability’.[44]

It follows, then, that international law, as the product of crisis, is well-suited to normalising the state of exception as the paradigmatic form of modern government. As events have played out in the extended post 9/11 emergency, there is considerable evidence to confirm Agamben’s thesis that laws adopted or reshaped to serve the emergency become the norm.[45] In the process, a new politics of the everyday is emerging for feminist contestation. Supported by a crisis-driven sanctification of aggressive masculinity and domesticated womanhood, the new everyday does threaten feminist thinking, along with other analyses that would situate current international legal and political problems in a broader topography of economic and social inequality and injustice. My question is whether, if founded on crisis, international law is always already committed to serve as the ‘handmaiden’ of crisis governance and disaster capitalism,[46] or whether the possibility of an emancipatory agenda is also present. As Aboriginal scholar and activist Marcia Langton has argued with respect to the Northern Territory intervention,[47] a crisis also creates opportunities that did not exist before. While opportunities are always risky, there seems no reason to assume that they cannot be turned to progressive ends.[48]

The challenge is to re-read the maps of short term, quick fix, top-down, market-friendly and, often, military interventions, which are the mainstay of crisis governance, in order to ‘see’ the opportunities for feminist activism. We also need to understand how these opportunities might be exploited without legitimating crisis thinking and silencing feminist legal critique. These are not easy tasks. In the face of crisis-driven legal developments that seem considerably more oppressive than the problematic old law, I have often found it tempting to defend the existing law as a better alternative.[49] But as China Mieville argues, this risks ‘legitimising ... the very structure of international law that critical theory has so devastatingly undermined’.[50] Does this mean that feminists are trapped, along with other critical international lawyers, in the ‘imperial [and gendered] actuality of law’?[51] Or is it possible to challenge the orthodoxies of crisis law-making from within the discipline? Several starting points are suggested by the preceding discussion: we need to find ways to resist international law’s colonisation of politics (life itself), to contest the logic of crisis thinking, and to prevent the forfeit of opportunities created by crisis to the masters of crisis governance.

WHEN FEMINISM IS DEPLOYED IN THE SERVICE OF CRISIS

One way that feminism and crisis thinking may come to interact is when feminist ideas are co-opted to serve crisis governance. While feminism is threatened by crisis, it is not wiped completely off the map, despite the predictions of journalists and hopes of conservative pundits. Instead, the selective deployment of feminist issues to justify or legitimate the new laws and techniques of crisis management keeps feminism, like the former colonies of Europe, still on the map, but seriously compromised, complicating the possibility of grasping opportunities and maintaining critique. A familiar example is the Bush administration’s belated engagement with the ‘humanitarian crisis’ of women in Afghanistan,[52] in order to justify the US military intervention and shore up waning domestic support for the continuing occupation. In the preceding years, many feminists had used the rhetoric of crisis to argue that the brutal treatment of Afghan women during the Taliban regime should be taken up as an issue of international peace and security.[53] Indeed, they were successful insofar as both the General Assembly and the Security Council adopted resolutions that condemned the Taliban’s ‘discrimination’ against women and girls,[54] and several Special Rapporteurs of the UN Commission on Human Rights provided chilling accounts of women’s mistreatment.[55] However, it was a deeply compromising moment when US First Lady Laura Bush, six weeks after the American invasion, described the ‘fight against terrorism’ as ‘also a fight for the rights and dignity of women’, in a national radio address.[56] While many feminists applauded her statement, shoring up the military and Islamophobic agendas of the administration was not the purpose to which feminist efforts to improve the situation of women in Afghanistan had been directed. Clearly feminist ideas are able to serve diverse purposes including those of crisis governance, as in this case, by helping to legitimate the extension of the ideological and military dominance of the US and its allies. The question is whether, once utilised as a technique of crisis, these ideas are permanently divested of their feminist politics or whether they can be (re)claimed, like the African-American civil rights movement claimed liberal rights discourse as their own, using it to further their struggle against racial discrimination in the US.[57]

There have, of course, been feminist efforts to utilise the opportunities that a crisis can present. One example is the promotion of gender-mainstreaming in Iraq by the Women’s International League for Peace and Freedom (WILPF), following the US and UK-led invasion in March 2003, despite its determined opposition to the intervention. The WILPF, in coalition with other NGOs, pressed the Security Council to ensure that gender mainstreaming took place in Iraq’s reconstruction.[58] While the Security Council did not authorise this invasion, it later adopted a resolution which ‘permitted’ the ongoing occupation and gave the UN a role in providing humanitarian assistance.[59] As a result of lobbying by feminists in New York, this resolution recalled the Security Council’s earlier Resolution 1325 on Women, Peace and Security[60] in its preamble, in the context of encouraging the establishment of a ‘representative’ Iraqi government. Resolution 1325 had been adopted in 2000, as the end result of a concerted feminist campaign to have the Security Council take seriously the contributions that women can make to peace, in addition to addressing the many ways that women are harmed in armed conflict and its aftermath.[61]

The invocation of Resolution 1325 in the Security Council’s resolution on Iraq implicated WILPF in the legitimation of the Iraqi occupation, compromising WILPF’s long-standing anti-militarism in much the same way as the decision by Women Waging Peace to change its name. Further, as Sheri Gibbings points out, the advocacy of the NGOs also assumed that Iraqi women, who had suffered for many years under the Security Council’s sanctions regime, would welcome the Council’s endorsement of their participation in reconstruction.[62] On the surface, at least, the feminist strategy to promote gender mainstreaming in Iraq’s reconstruction was infected by the selective fact-telling and counter-analytical thinking of crisis governance. Yet I find it hard to justify why WILPF should have passed up the chance to make Resolution 1325 available to Iraqi women to leverage their participation in post-conflict Iraqi politics, if they wished to use it. Rather, the issue is how best to facilitate Iraqi women’s taking up of these opportunities in a way that does not compromise them. My view is that the potential of the strategy is crucially linked to feminist advocates remaining critical of the intervention, and the legal developments it is said to have crystallised, by actively contesting the implication that this strategy can be equated with feminist endorsement of the invasion and occupation, or feminist support for the earlier sanctions regime. That is, short term expediencies will not translate into longer term change without the benefit of critical analysis, which necessitates maintaining a clear distinction between feminism and crisis governance.

It is clear that the architects of contemporary crisis governance have realised the traction of at least some feminist issues in helping to legitimate the techniques of emergency. When Paula Dobriansky, US Under Secretary of State for Global Affairs, addressed Iraqi women participating in a day of workshops in July 2003, she conveyed a ‘personal message’ from President Bush commending them on their commitment to creating a free and inclusive Iraq.[63] A similar appeal to women as supporters of ‘freedom’ was repeated later in Afghanistan, when a statement from the US State Department heralded women as the ‘new democracy leaders’.[64] These new representations of women in a crisis, as formal actors with decision-making power, have an uncanny resonance with the concept of ‘inclusive security’ which has replaced the idea of Women Waging Peace, although they stand in some tension with the domesticating images of women that usually accompany crisis, which I referred to earlier. The idea that women have a important political contribution to make to conflict resolution and post-conflict reconstruction prompted the feminist campaign that led the Security Council to adopt Resolution 1325.[65] As someone who supported this campaign, which aimed to shift the emphasis from women’s vulnerability to their agency, I have been astounded at the ease with which women’s participation has come to serve as the Trojan horse of crisis governance.

Can the selective mapping of feminist ideas, such as the importance of women’s political participation, onto the new geographies of crisis management and law-making really create new opportunities for feminist change? The experiences of women in Afghanistan and Iraq, since the military interventions,[66] suggest that they may not and that the sponsor of feminist ideas matters a great deal. Despite some formal recognition of women’s equality and rights in both new constitutions,[67] in many parts of both countries women’s position may even have worsened. Two years after the launch of President Bush’s fight for women’s rights in Afghanistan, a UNIFEM study confirmed that Afghan women were feeling ‘neither secure nor safe’.[68] In 2003, Human Rights Watch reported that violence against women in Afghanistan seemed to be increasing, perpetrated not only by family members, but also by local police and militias.[69] In March 2004, the New York Times reported that increasing numbers of young women were committing suicide to escape forced marriages and domestic violence.[70] And in September 2008, a resurgent Taliban launched a wave of deadly attacks on women across the country, apparently targeting those who have assumed public roles.[71] The ‘new democracy leaders’ appear to have been abandoned by their sponsors.

In Iraq, soon after Dobriansky’s praise for women’s leadership in the cause of freedom, Noeleen Heyzer, the executive director of UNIFEM, was warning that women were ‘worse off’ than before the US invasion.[72] In September 2006, following a month-long investigation, The Observer described Iraqi women as the ‘hidden victims’ of the conflict which had erupted in the wake of the US occupation.[73] The investigation found that women had increasingly become the targets of rape, abduction and murder simply because they work, they wear the ‘wrong’ clothing, they participate in public life, they have the ‘wrong’ religious affiliation, or because of the ‘wider permissive brutalization of women’s lives’.[74] The much feted American ‘surge’ in troop numbers in early 2008, which relied heavily on recruiting and empowering the local militias of sheiks and tribal leaders, was declared a success in military terms, but led to additional restrictions being placed on women in the name of ‘Islam’ and a further rise in violence directed at women in the family and in public spaces.[75] As in Afghanistan, the co-option of feminist ideas by crisis governance in Iraq has not opened opportunities for feminist political engagement or led to positive change in women’s everyday lives. In fact, as soon as their fleeting instrumental value was exhausted, they were discarded.

One reason that the feminist ideas, which arrived with the international interventions, failed to lead to substantive change for women is that there was little effort to engage with Iraqi and Afghan women, other than those in the diaspora. Yet in both countries, there was an extended history of women’s resistance to oppressive policies and practises. Many women, like those involved with the Revolutionary Association of the Women of Afghanistan (RAWA),[76] had risked their lives, in their efforts to promote women’s equality. As Sari Kouvo argues in this collection, the failure to engage with local women’s groups in Afghanistan compounded the lack of understanding of the complexities that different cultures, religions, levels of poverty and education bring to discrimination experienced by Afghan women, which helped to ensure that the rhetoric of women’s participation and gender mainstreaming had no effects beyond symbolically legitimating the occupation.[77] In both countries local feminists continue to face threats to their lives and social ostracism, despite the lip-service of the occupiers, their own governments, the UN, and international feminist NGOs.

While it is not surprising to find that feminism as a tool of crisis governance, rather than as a grass roots political movement, does not lead to concrete improvement in the status of women, the question remains whether feminist ideas, even when they are conveyed by the architects of crisis governance, might yet provide footholds for feminist change. Intuitively, it seems preferable to have a place on the map of possibilities, rather than to disappear altogether in the selective fact-telling and historical simplifications of the politics of inevitability. But, as the examples of Afghanistan and Iraq show, it is not easy for local feminists to translate instrumental endorsement of feminist ideas into opportunities that can serve their local struggles for emancipation; to breathe ‘new life’ into the promotion of women’s political participation and gender mainstreaming in order to claim them as their own, as African Americans did with civil rights.

If the quid pro quo for the US administration’s professed commitment to the promotion of women’s rights in Afghanistan and Iraq was the silencing of feminist critics of its larger agenda, then this ensured that any emancipatory potential was ‘effectively captured by the right’, [78] well before those feminist ideas were able to link with and become useful to Afghan and Iraqi women. However, the capture of ideas can never be complete because of their continual reconstitution in language and practices. In order to exploit these discursive and practical opportunities, it is important that feminists maintain a distinction between feminist ideas and the vocabulary of crisis governance. One way to do this is to build strong links with local feminists and support the advancement of the issues they identify as important, against the grain of the international blue-print of crisis governmentality. Another way to remain at arms length from hegemonic power is to ensure that feminist critique of the larger agenda continues to be heard, in coalition with other critical voices, outside the institutions of government, in the political domain. This will enable more ‘pragmatic’ assessments of the opportunities for using international law to challenge gendered actualities,[79] and help to avoid the silencing of critique as a condition precedent. It is necessary to re-situate the short term crisis capture of feminist ideas in the broader geographies of complex histories and multiple struggles against empire and domination.

WHEN FEMINISTS UTILISE THE LANGUAGE OF CRISIS

Another way that feminist ideas and crisis thinking interact is when feminists engage in ‘crisis talk’ themselves in the hope of eliciting serious responses to some of the pressing problems that women face. Indeed, a great deal of feminist legal scholarship and activism has been concerned with recasting everyday sexual violence as a crisis that must be addressed as a priority.[80] In this way, adopting the language of crisis can be a strategy of desperation aimed at drawing attention to the everyday brutalities suffered by far too many women, hoping to propel them onto the official maps of international law and politics. The call by feminists, long before 9/11, for forceful intervention in Afghanistan to protect women from the cruelty of the Taliban, was one such attempt which (thankfully) failed.[81]

Feminist utilisation of the language of crisis has enjoyed some success in extracting international commitments to eliminate sexual abuse during armed conflict and sexual exploitation in post-conflict peace-keeping. However, in both cases, consistent with Agamben’s analysis, the invocation of crisis has precipitated an ‘explosion of law’. These explosions have dramatically increased the number of sexual crimes explicitly recognised by international criminal law,[82] and resulted in a prohibition of sex that extends to (almost) all forms of consensual sexual conduct in peace support operations.[83] These ‘successes’ can be explained by feminist reliance on ‘sexual negativity’, which treats human sexuality as a dangerous force that needs to be tightly controlled by legal and cultural norms,[84] a view that resonates strongly with conservative views about sexuality. The resulting laws and codes of conduct build on a long history of ‘sexual panics’ providing the pretext for states to extend their power to regulate erotic behaviour,[85] which is a cautionary reminder of the role that sexuality has played in the genealogy of crisis governance. Like other emergency laws, these developments may be symbolically reassuring in the short term, but they suffer from vague and over-inclusive definitions which catch many forms of consensual sex in the net of criminalisation and prohibition.[86] They compromise human rights protections associated with privacy and sexual self-determination, recalibrating the balance between human rights and state power in favour of a more repressive state. Like the vague and over-inclusive definitions of ‘terrorism’ employed in the cause of counter-terrorism, these new laws and policies create a dangerously vast space in which a wide range of official interventions can be legitimated in the name of feminism.

Another example of feminist invocation of crisis is Catherine MacKinnon’s suggestion that the international response to the crisis of 9/11 presents a model for possible emulation by feminists in their efforts to have men’s violence against women outlawed as a ‘war’ on women.[87] MacKinnon draws parallels between international terrorism and the war on women to make her point—she argues that they both involve premeditated violence (which can be seen in the war on women in gang rapes, stalking and sex trafficking for example), which is perpetrated by non-state actors (men), against ‘innocent’ civilians (women), for ideological or political reasons (sexual violence being the practice of the politics of misogyny), and they both result in large victim numbers.[88] Yet, ‘what will it take’, MacKinnon asks, ‘for violence against women ... to receive a response in the structure and practise of international law anything approximate to the level of focus and determination inspired by the September 11th attacks?’[89]

While MacKinnon’s comparison has some intuitive attractiveness, it is important to work against the emotional response that the idea of a ‘war on women’ engenders precisely because it contains a kernel of truth, because her proposal relies on the problematic thinking that is characteristic of crisis governance. First, she reads ‘the facts’ of the war on women through a narrow and totalising prism, as a conflict fought by ‘men’ against ‘women’, which leaves no room for contextualisation in history, culture, past feminist campaigns, or present specific realities. Secondly, analytical thinking is foreclosed by MacKinnon’s version of ‘us’ and ‘them’—as if all men are perpetrators and all women are their victims, which relies on misleading sexual stereotypes and seems to leave no room for pleasurable sex between women and men. We also know that gendered violence is commonly accepted as a normal everyday occurrence, which will not be eradicated by armed intervention or by criminalising its most sensational forms. Thirdly, MacKinnon’s singular focus on the gendered nature of violence against women ignores intersecting systems of inequality, like those of culture, religion and levels of poverty and education, as in Afghanistan, leaving these aspects of gendered violence to ‘the politics of inevitability’. Her analysis treats women’s struggle for liberation as if it was disconnected from other struggles against disadvantage and oppression.

The truncated lens of MacKinnon’s crisis analogy of a ‘war’ on women suggests military solutions, yet we know that armed interventions, and even Security Council sanctions, inevitably make the lives of the majority of women significantly worse, as has been demonstrated again in Afghanistan and Iraq. Although MacKinnon attempts to distance herself from this problem by claiming that she is not necessarily arguing that the war on terror is the ‘right model’ for opposing violence against women,[90] she does not offer an alternative. Employing the language of crisis, in efforts to have a problem taken more seriously, securitises the issue, prioritising militarism over progressive social change and law over politics, and making it possible for law to extend its empire deeper into the everyday lives of women and men, reducing the space for ‘life itself’.

Even at my most optimistic, I find it hard to see how feminist invocation of crisis could further the goals of feminism. The discourse of crisis requires the kind of thinking that is antithetical to an emancipatory agenda. Women’s inequality, like most issues of international peace and security, is a structural problem that is not amenable to a quick-fix. As feminists, we need to resist the seductions of the language of crisis by refusing to sacrifice nuanced political and legal thinking. Feminist counter-crisis thinking is called for, which embraces rich and complex facts, promotes critical analysis, resists the politics of inevitability, and refuses the false promises of ‘inclusive security’ and its instrumental embrace of women’s rights.

TOWARDS RE-MAPPING EMERGENCIES

To contest the maps and techniques of crisis governance, it is necessary to resist the impoverished thinking that is legitimated by crisis, and question the inevitability of the ‘rules’ that emerge from the crucible of urgency, by reviving international politics. What moments of official crisis often do is fleetingly expose the vastness of the systemic discrimination, poverty and despair that is maintained and normalised by the international order. The crisis of 9/11, for example, brought dramatic visibility to the widespread dissatisfaction with the dominance of American financial and political power, and revealed the vast space this has created for dissatisfaction to convert into deadly hatred and fundamentalisms. This created an important opportunity for feminists to resist the polarising politics of ‘us’ and ‘them’. As Faludi observed, there was a moment for moral leadership, which would ‘challenge Americans to think constructively about [their] place in the world, to redefine civic commitment and public responsibility’.[91] This brief moment of emancipatory opportunity soon passed as talk of exceptionality and crisis quickly camouflaged the continuities of the laws and practices which have served the (super)power of America and its allies at the expense of many inside as well as outside the West. What is at stake at such a moment is that the inequalities which are briefly exposed will remain visible and come to be identified for what they are—the product of the ‘normal’ operation of international law and politics. Maintaining the visibility of systemic inequalities would not allow the problem to be cast as a crisis, but locate it instead in the imperial and gendered everyday actualities of the structures and practices of international law and politics.

Once the initial moment of visibility has passed, and emergency thinking has come to dominate public opinion and legal response, what then could feminists hope to achieve from within the discipline of international law? I have some sympathy for Mieville’s view that looking to the existing law as a means of progressive change undermines feminist criticism of the law as fundamentally gendered—especially at times of crisis. However, unlike Mieville, I do not think that international law’s capture or co-option of otherwise revolutionary ideas is ever total. Like Mieville’s fantasy city of Un Lun Dun, which is the flip-side of the city of London we are familiar with, where many of London’s unwanted people (like bus conductors), lost umbrellas, libraries, broken and discarded objects, and its smog, end up hidden from view,[92] international law also has parallel universes, where other ways of thinking about the law and its possibilities are possible. One unlikely place that I experience this shadow world is in the corridors and bars of the annual meeting of the American Society of International Law, where feminists, and others who engage critically with international law, seek each other out.

Feminist tenacity, now spanning decades, has led to international law’s repeated formal commitment to realising the equality of women, which gives the law an ‘irresolution’ that enables it to be ‘both appropriated to imperial ends and used as a force for liberation’, as Sundhya Pahuja argues with reference to the ‘postcoloniality’ in international law.[93] Following Pahuja’s argument, the vacillation in international law between the inevitability of women’s secondary status and their emancipation through the discourse of equality and non-discrimination, creates a dynamic (or parallel universe) which might be called its ‘post-patriarchalism’. This is not to suggest that law may not be ‘part of the problem’, or to claim that law is the optimum location from which to pursue a feminist agenda for change. It is also not to underestimate the difficulties of promoting emancipatory readings and applications of the texts of international law. But it is to say that the markings that have been left by feminist engagement with international law remain, including the markings of Resolution 1325 in Iraq, the increased representation of women in Afghanistan’s legislature and the redefinition of international crimes to specifically include sexual violence. These traces of earlier feminist efforts provide bearings from which further strategies for change can be mapped—whether it is in the corridors of international law conferences or behind the walls of women’s homes in Kabul.

Drawing further on Mieville’s story of Un Lun Dun, what we need is ‘un-crisis’ thinking—the flip side of crisis logic—if we are to find creative solutions to international problems using international law. Like the ‘un gun’ (which, needless to say, does not use typical ammunition) that Mieville creates to fight the ‘evil’ Smog, which creeps into the brains of UnLunDuners and has addictive and malicious powers (a little like crisis thinking), un-crisis thinking frees the imagination from the strictures of crisis. It liberates the kind of thinking that is necessary to ensure that we are not seduced by the institutional embrace of some feminist ideas or that we devalue the feminist bearings already mapped onto the law. The traces of earlier feminist struggles provide vantage points from which it is possible to imagine, and struggle towards, new and better worlds.

Feminist normative projects are significantly enhanced by an awareness of the politics of the law and the shortcomings of the institutions they seek to engage for the benefit of women, without which there is a high risk of treating international law as if it were ‘saviour and humanitarian’.[94] In the context of Afghanistan, a more critically informed perspective may have led feminists to expose the cynicism of the US administration’s engagement with women’s rights, rather than applauding it. If feminism is limited to the singular lens of ‘carrying a brief for women’,[95] it is very vulnerable to co-option by crisis governance, whether the brief is to increase women’s participation in decision-making or to criminalise rape as a war crime. The new quotas for women in the Afghanistan legislature, for example, do not alone challenge the gendered practices associated with religion and culture, so it remains impossible for legislators to pursue an agenda that would secure the safety and political participation of all Afghan women.[96] In the context of the anti-Islamic fervour that helped to drive the military occupations of Afghanistan and Iraq, there was an opportunity for feminists to challenge (rather than reinforce) orientalist mythologies about veiled women needing rescue by the West from the barbaric traditions of Islam.[97] Similarly, in responding to inter-ethnic war-time sexual violence in the Balkans, the lack of an intersectional analysis meant that feminists generally failed to challenge the biological determinism of the assumption that the ethnicity of a child is determined by the biological father, as Karen Engle has argued.[98] Feminists need to be considerably more sceptical about the embrace of feminist ideas by crisis, searching for ways in which those ideas can be reclaimed for feminist purposes, while at the same time emphasising the continuing complicity of law in women’s inequality and the long term structural nature of the struggle for change.

It is also important to remember that legal change, by itself, is never enough. Essential to exploiting the possibilities of international law’s post-patriarchal dynamic is the relationship between politics (life) and law. As Klein concludes, the shock of disaster does wear off—crises are temporary, whether real or imagined. She finds hope in the emerging peoples movements of Latin America who, following the shock therapy of disaster capitalism, are roundly rejecting the idea of the unfettered free market and its false promise of trickle down prosperity, building, instead, visions and practices of democratic socialism from the grass roots up.[99] Political engagement will keep feminist attention focused on the deeply entrenched structures of inequality and help to refuse the politics of inevitability. A focus on structural inequalities will also expose the dangers of inordinate reliance on the Security Council and crisis law reform to promote feminist change; a reliance that has been fostered by crisis governance. Un-crisis thinking requires supporting the activism of women outside the mainstream institutions of law and politics as well as carving out spaces on the inside. The institutionalisation of feminist ideas will always extract a price of compromise and dilution, even more so in a crisis; but the damage to long term feminist goals can be mitigated by outside movements of women, in coalition with others, demanding that emergencies be remapped through a feminist lens. Politics, in all its richness and life-sustaining complexity, must be part of every feminist strategy in law.

[∗] Professor of Law, Melbourne Law School, the University of Melbourne, Australia. With thanks, as always, to Joan Nestle for her creative thinking and unwavering encouragement, and to the many people who responded so generously at the lectures and seminars where I presented this paper in various forms.

[1] ‘The World Bank tackles food emergency’, BBC News, 14 April 2008; Secretary General’s High Level Task Force on the Global Food Security Crisis, established 28 April 2008; Human Rights Council, 7th Special Session on ‘The negative impact on the realization of the right to food of the worsening of the world food crisis, caused inter alia by the soaring food prices’, Geneva, 22 May 2008, the first Human Rights Council Special Session to focus on a thematic issue; High-Level Conference on World Food Security: The Challenges of Climate Change and Bioenergy, Rome 3–5 June 2008.

[2] ‘Global water crisis looming, UN says’, The West Australian, 19 March 2008; ‘Water: a crisis of governance says second UN World Water Development Report’, UN-Water Newsroom, 9 March 2006, referring to Water: A Shared Responsibility, The United Nations World Water Development Report 2 (New York, UNESCO & Berghahn Books, 2006).

[3] ‘To put it bluntly, we face a development emergency’, UN Secretary-General Ban Ki Moon, addressing the first day of General Debate at the 63rd Session of the United Nations General Assembly, 23 September 2008.

[4] ‘Impact of Climate Change on International Peace and Security’, Security Council Open Debate, 17 April 2007.

[5] Declaration of Commitment on HIV/AIDS, ‘Global Crisis—Global Action’, UN General Assembly, A/RES/S-26/2, 2 August 2001; ‘HIV/AIDS and international peacekeeping operations’, UN Security Council, S/RES/1308 (17 July 2000).

[6] ‘Crisis in the Congo: Sex Charges Roil UN’, Fox News, 3 March 2005; Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004) 1: ‘For Peacekeeping (UN and other) there is a crisis of perception in relation to trafficking and the linked issue of sexual exploitation and abuse’.

[7] The similarities between this ‘reshaping’ and the earlier imperial order of international law are striking. See further A Anghie, ‘On critique and the other’ in A Orford (ed), International Law and its Others (Cambridge, Cambridge University Press, 2006) 389.

[8] This shift was anticipated by the Security Council as early as 1992, when the President of the Security Council, following its 3,046th meeting, held at the level of Heads of State and Government, made a Statement on behalf of members which asserted that ‘non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to international peace and security’. Note by the President of the Security Council, S/23500, 31 January 1992.

[9] SV Scott, ‘Securitizing climate change: international legal implications and obstacles’ (2008) 21 Cambridge Review of International Affairs 603.

[10] Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 21 March 2005, para 12. See further, para 17: ‘Accordingly, we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights’. Endorsed by 2005 World Summit, High Level Plenary Meeting of the General Assembly, 14-16 September 2005, A/59/HLPM/CRP.1/Rev.2.

[11] See Mertus, below, this collection.

[12] D Aitkenhead, ‘Home and the Hero’, in conversation with Susan Faludi discussing her new book, The Terror Dream: Fear and Fantasy in Post-9/11 America, The Australian Books Supplement, 12 April 2008.

[13] S Faludi, The Terror Dream: Fear and Fantasy in Post-9/11 America (Melbourne, Scribe, 2008) 4. See Kouvo, below, this collection.

[14] F Fukuyama, ‘Women and the Evolution of World Politics’ (1998) 77 Foreign Affairs 24, 36–39. Contra responses from B Ehrenreich, K Pollitt, RB Ferguson and JS Jaquette, ‘Fukuyama’s Follies: So What If Women Ruled the World?’ (1999) 78 Foreign Affairs 118–29.

[15] ‘Jerry Falwell and Pat Robertson say immorality and anti-Christian groups should share in the blame for the Terrorist Attacks on American—Truth!’, www.truthorfiction.com/rumors/f/falwell-robertson-wtc.htm (visited 29 May 2009). Under pressure from the administration, Falwell apologised two days later in a CNN interview, www.archives.cnn.com/2001/US/09/14/Falwell.apology/ (visited 29 May 2010).

[16] G Noll, ‘Force, Partisanship, Dislocation: An Essay on International Law in the State of the Exceptional’ in J Petman and J Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Leiden, Martinus Nijhoff, 2003) 207.

[17] Security Council Resolution 1373, UN Doc S/RES/1373 (28 September 2001).

[18] O Gross and F Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge, Cambridge University Press, 2006) 399.

[19] ibid 380–84.

[20] D Otto, ‘Lost in translation: re-scripting the sexed subject of international human rights law’ in A Orford (ed), International Law and its Others (Cambridge, Cambridge University Press, 2006) 318.

[21] M Craven, S Marks, G Simpson and R Wilde, ‘We Are Teachers of International Law’ (2004) 17 Leiden Journal of International Law 363, 366.

[22] G Agamben, State of Exception (K Attrell tr, Chicago, University of Chicago Press, 2005) 2.

[23] D Kennedy, Of War and Law (Princeton, Princeton University Press, 2006) 5.

[24] ibid 25.

[25] Agamben, above n Error! Bookmark not defined., 87–88. See further, G Agamben, Homo Sacer: Sovereign Power and Bare Life (D Heller-Roazen tr, Stanford, Stanford University Press, 1998).

[26] Agamben, above n Error! Bookmark not defined., 4.

[27] Reuters, ‘Lieberman’s party proposes ban on Arab Nakba’, 14 May 2009 www.haaretz.com/hasen/objects/pages/PrintArticleEn.jhtml?itemNo=1085588 (visited 29 May 2010).

[28] See, eg, Security Council Resolution 1390, UN Doc S/RES/1390 (28 January 2002) and Security Council Resolution 1453, UN Doc S/RES/1453 (24 December 2002) which mandated the freezing of funds of various non-state actors including Osama bin Laden and others believed to be members of the Al-Qaeda network or the Taliban, without any provision for a fair hearing or effective judicial review. However, it seems that at least in the European Community, the founding principles include protection of fundamental human rights, which cannot be abrogated by international legal obligations under the UN Charter. See joined cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission, judgment of 3 September 2008.

[29] MJ Glennon, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2001–02) 25 Harvard Journal of International Law & Public Policy 539; J Yoo, ‘International Law and the War in Iraq’ (2003) 97 American Journal of International Law 563, 575; R Wedgwood, ‘The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defence’ (2003) 97 American Journal of International Law 576, 585; RF Blomquist, ‘The Presidential Oath, the American National Interest, and a Call for Presiprudence’ (2004–05) 73 University of Missouri-Kansas City Law Review 1.

[30] Water: A Shared Responsibility, above n Error! Bookmark not defined., 60.

[31] A Davies, ‘100 days in FDR’s shadow’, The Age Insight, Melbourne, Saturday 25 April 2009, 3.

[32] Northern Territory National Emergency Response Act 2007 (Cth).

[33] ibid s 132.

[34] N Klein, The Shock Doctrine: The Rise of Disaster Capitalism (Melbourne, Penguin/Allen Lane, 2007).

[35] There is some tentative evidence that this may be changing in the face of the global crisis of ‘extreme capitalism’ that emerged during the second half of 2008.

[36] Klein, above n Error! Bookmark not defined.4, 75–87.

[37] ibid 345–46.

[38] ibid 387–88.

[39] H Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377, referring to, eg, M Riesman and A Willard (eds), International Incidents: the law that counts in world politics (Princeton, Princeton University Press, 1988) 15.

[40] ibid 382–86.

[41] See generally, J Altman and M Hinkson (eds), Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal Australia (Melbourne, Arena Publications, 2007).

[42] ‘You are either with us or against us’, CNN Washington, 6 November 2001 www.archives.cnn.com/2001/US/11/06/gen.attack.on.terror/ (visited 29 May 2010).

[43] Criminal Code Act 1995 (Cth), ss 80.2(1)–(8). See further D Otto and J-C Tham, ‘Deconstructing the logic of responding to one threat with another: The perils of countering terrorism by eroding human rights’ in Australian Human Rights Critique: A Selection of Essays (Melbourne, Australian Human Rights Working Group, 2006) 22.

[44] See Grahn-Farley, below, this collection.

[45] K Macdonald, ‘Coming Out of the Shadows’, Crown Prosecution Service inaugural lecture, London, 20 October 2008, 12: ‘it is in the nature of State power that decisions taken in the next few months [to increase State power in efforts to counter terrorism] ... are likely to be irreversible. They will be with us forever. And they in turn will be built upon’, www.cps.gov.uk/news/articles/coming_out_of_the_shadows/index.html (visited 29 May 2010).

[46] P Alston, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’ (1997) 3 European Journal of International Law 435. See further S Scott, ‘International Lawyers: Handmaidens, Chefs, or Birth Attendants? A Response to Philip Alston’ (1998) 4 European Journal of International Law 750.

[47] M Langton, ‘Trapped in the Aboriginal reality show’ (2008) Griffith Review: Reimagining Australia 145.

[48] C Gordon, ‘Government Rationality: An Introduction’ in G Burchell, C Gordon and P Miller (eds), The Foucault Effect: Studies in Governmentality (Chicago, University of Chicago Press, 1991) 46–47.

[49] See also Craven et al, above n Error! Bookmark not defined., 363–74.

[50] C Mieville, Between Equal Rights: A Marxist Theory of International Law (London, Pluto Press, 2005) 299.

[51] ibid 300.

[52] D Kandiyoti, ‘The Politics of Gender and Reconstruction in Afghanistan’, UNRID Occasional Paper 4, New York, UNRISD, February 2005, 1, describes women’s situation in Afghanistan as a ‘humanitarian crisis’. See, Kouvo, below, this collection.

[53] eg, US-based NGO Feminist Majority’s campaign against ‘gender apartheid’ in Afghanistan, which commenced in the late 1990s. For discussion, see C Hirschkind and S Mahmood, ‘Feminism, the Taliban, and Politics of Counter-Insurgency’ (2002) 75 Anthropological Quarterly 339.

[54] General Assembly Resolution 52/145 (12 December 1997); General Assembly Resolution 53/65 (25 February 1998); Security Council Resolution 1193, UN Doc S/RES/1193 (28 August 1998); Security Council Resolution 1214, UN Doc S/RES/1214 (8 December 1998).

[55] Report by K Hossain, Special Rapporteur on the Situation of Human Rights in Afghanistan, UN Doc E/CN.4/1999/40 (24 March 1999); Report by Radhika Coomaraswamy, Special Rapporteur on Violence Against Women, its Causes and Consequences, Mission to Pakistan and Afghanistan, UN Doc E/CN.4/2000/68/Add.4 (13 March 2000).

[56] L Bush, ‘Radio Address to the Nation’, 17 November 2001.

[57] PJ Williams, The Alchemy of Race and Rights (Cambridge, Harvard University Press, 1991) 163.

[58] S Gibbings, Governing Women, Governing Security: Governmentality, Gender Mainstreaming and Women’s Activism at the UN (2004) Unpublished thesis, Graduate Programme in Social Anthropology, Toronto, York University, 84–85.

[59] Security Council Resolution 1483, UN Doc S/RES/1483 (22 May 2003).

[60] Security Council Resolution 1325, ‘Women, Peace and Security’, UN Doc S/RES/1325 (31 October 2000).

[61] D 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.

[62] Gibbings, above n Error! Bookmark not defined., 87–88.

[63] ibid 91. The workshop, initiated by the US, entitled ‘The Voice of Women in Iraq’ was held in Baghdad on 9 July 2003. Gibbings cites the Permanent Mission of the United States to the United Nations, ‘Statement by Ambassador John D Negroponte, United States Representative to the United Nations, Remarks to the United Nations Security Council, New York, 29 October 2003’.

[64] J Brinkley and C Gall, ‘Afghans Delay Vote a 3rd Time: Assembly Elections Moved to September’, The International Herald Tribune, 18 March 2005, 5.

[65] Otto, above n Error! Bookmark not defined.; H Charlesworth, ‘Are Women More Peaceful?’ (2008) 16 Feminist Legal Studies 347. See also Charlesworth, above, this collection.

[66] I am not suggesting that feminist ideas were absent in Afghanistan or Iraq, but I am tracing the formal and conscious deployment of feminist ideas by the US and its allies, and the UN, to support the urgency and the legitimacy of these interventions.

[67] Constitution of Afghanistan (2004), art 22, declares that ‘the citizens of Afghanistan—whether man or woman—have equal rights and duties before the law’; Constitution of Iraq (2005), art 14, states that ‘Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status’.

[68] E Rehn and EJ Sirleaf, Women, War and Peace: The Independent Experts’ Assessment on the Impact of Armed Conflict on Women and Women’s Role in Peace-Building (G Jacobs ed, New York, UN Development Fund for Women, 2002) 2.

[69] Human Rights Watch, ‘Killing You is a Very Easy Thing for Us’: Human Rights Abuses in Southeast Afghanistan, July 2003, 24–30.

[70] C Gall, ‘For more Afghan women, immolation is escape’, New York Times, 8 March 2004.

[71] JF Burns, ‘Taliban assassinates high-profile woman police officer’, International Herald Tribune, 28 September 2008.

[72] S Pleming, ‘Iraqi women no better off, UN official says’, Common Dreams News Centre, 24 September 2003, www.commondreams.org/cgi-bin/print.cgi?file=/headlines03/0924-03.htm (visited 29 May 2009).

[73] P Beaumont, ‘Hidden victims of a brutal conflict: Iraq’s women’, The Observer, 8 October 2006.

[74] ibid.

[75] S Spring and L Kaplow, ‘Sacrificed to the surge: Tribal fighters have cut down Iraq’s violence. But they’re subjecting women to often-medieval mores’, Newsweek, 14 April 2008.

[76] Revolutionary Association of the Women of Afghanistan (RAWA) www.rawa.org/index.php (visited 29 May 2010).

[77] See Kouvo, below, this collection.

[78] K Engle, ‘Liberal Internationalism, Feminism, and the Suppression of Critique: Contemporary Approaches to Global Order in the United States’ (2005) 46 Harvard International Law Journal 427, 439.

[79] D Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard Human Rights Journal 101.

[80] C Bunch, ‘Women’s Rights as Human Rights: Toward a Re-vision of Human Rights’ (1990) 12 Human Rights Quarterly 486–98.

[81] See above n Error! Bookmark not defined..

[82] K Askin, ‘Reflection on Some of the Most Significant Achievements of the ICTY’ (2003) 37 New England Law Review 903; V Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25 Michigan Journal of International Law 605.

[83] Secretary-General’s Bulletin, Special measures for protection from sexual exploitation and abuse, ST/SGB/2003/13, 9 October 2003. See further, D Otto, ‘Making sense of zero tolerance policies in peacekeeping sexual economies’ in V Munro and CF Stychin (eds), Sexuality and the Law: Feminist Engagements (Oxford/Cambridge, Routledge-Cavendish, 2007) 259–82.

[84] G Rubin, ‘Thinking Sex: Notes for a Radical theory of the Politics of Sexuality’ in CS Vance (ed), Pleasure and Danger: Exploring Female Sexuality (Boston, Routledge & Kegan Paul, 1984) 267, 278. Rubin uses the term ‘sexual negativity’ to describe the prevalence of the idea that sex is a ‘dangerous, destructive, negative force’, unless performed pursuant to a narrow set of socially approved ‘excuses’ like ‘marriage, reproduction, and love’.

[85] KM Franke, ‘Sexual Tensions of Post-Empire’ (2004) Columbia Law School, Public Law and Legal Theory Working Paper Group, paper number 04-62.

[86] J Halley, ‘Rape in Berlin: Reconsidering the Criminalization of Rape in the International Law of Armed Conflict’ [2008] MelbJlIntLaw 3; (2008) 9 Melbourne Journal of International Law 78; D Otto, ‘The Sexual Tensions of UN Peace Support Operations: A plea for “sexual positivity”’ (2007) XVIII Finnish Yearbook of International Law 33.

[87] CA MacKinnon, ‘Women’s September 11th: Rethinking the International Law of Conflict’ (2006) 47 Harvard International Law Journal 1, 3. MacKinnon goes on to argue that violence against women is also analogous to a crime against humanity and even genocide 13–14.

[88] ibid 11–12.

[89] ibid 19.

[90] ibid 28.

[91] Faludi, above n Error! Bookmark not defined., 3.

[92] C Mieville, Un Lun Dun, 2nd edn (London, Pan Macmillan, 2008).

[93] S Pahuja, ‘The Postcoloniality of International Law’ (2005) 46 Harvard International Law Journal 459, 460.

[94] A Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge, Cambridge University Press, 2003) 188.

[95] J Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, Princeton University Press, 2006); D Otto, ‘The Gastronomics of TWAIL’s Feminist Flavourings: some lunch-time offerings’ (2007) 9 International Community Law Review 345. See also Charlesworth, above, this collection.

[96] See, Kouvo, below, this collection.

[97] Ratna Kapur, ‘Unveiling Women’s Rights in the War on Terrorism’ (2002) 9 Duke Journal of Gender, Law and Policy 211.

[98] Engle, above n Error! Bookmark not defined..

[99] Klein, above n Error! Bookmark not defined., 443–66. See also Thomas, below, this collection.