Abstract
In The Justice of Humans: Subject, Society and Sexual Violence in International Criminal Justice, Kirsten Campbell sets out to analyze approaches to international justice for victims of mass violence through a feminist lens. Using a remarkable breadth of disciplines, Campbell develops a “feminist social theory of the existing legal and feminist forms of international justice and a socio-legal methodology for empirically investigating them” (p. 4). She draws on her own extensive experience with the conflict in the former Yugoslavia to consider two responses to conflict-related sexual violence there: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Women's Court. The result is a book that not only challenges current capitalist structures in international criminal law, but also offers a constructive and comprehensive set of recommendations for integrating feminist theory and practice into the institution.
The author organizes the book into two parts. In the first part, Campbell uses the case study of the ICTY to consider conflicts in the foundational concepts of current international law, namely international crime, the international legal subject, the international trial, and international justice. At the outset, the author shows that despite the recognition of sexual violence as an international crime under public international law, there are “profound contradictions in the concept of the international crime [of sexual violence] itself,” in terms of what ideas of harms to persons and society this crime reflects (p. 64). This leads to a similar tension with respect to the international legal subject, which Campbell notes is not clearly individual persons or groups of persons, even though criminal law is primarily aimed at individuals. The international criminal trial, despite its ability to bring evidence of conflict-related sexual violence to light, remains ill-suited to serve the needs of victim-witnesses. The author notes that attempts at fact-finding in sexual violence cases “create[] testimonial, hermeneutic, and social injustice through the gendered shaping of legal narratives of fact, victimisation, and perpetration of conflict-related sexual violence” (p. 129).
Campbell then considers the fourth fundamental category, international criminal justice, and concludes that because international criminal law “cannot institute justice, justice appears as a gap or a lack in the socio-symbolic order of international criminal law” (p. 157). It is this gap, according to Campbell, that turns the desire for justice into trauma, because international criminal law is not capable of addressing the injustice of sexual violence. The author does not use this chapter to eschew the possibility of developing gender justice within international criminal law, but rather to show the necessity of “opening” the existing legal form. In the final section of Part I of the book, Campbell reveals the limits of the global legal form of international criminal law, within the context of globalization, and argues that this is the cause of the contradictions in the fundamental legal categories. At the ICTY, she shows, there were struggles to change the then-existing framework of international criminal law, through the development of feminist rules, practices, and values. While these contributed to the development of the gender-based crime of sexual violence, they were “not sufficient to change international criminal law itself” (p. 197).
One important contribution this book makes to feminist legal scholarship in international criminal law is the author's use of such a wide range of disciplines to construct her critique. Not only does Campbell rely on her years of fieldwork in the former Yugoslavia and at the ICTY, but she also engages with sociological, philosophical, political science, historical, and economic critiques of the law. The author deftly moves between these disciplines without sacrificing intellectual rigor or losing the reader.
Part I does rely almost solely on the ICTY to ground the author's understanding and critiques of international criminal law, and this leads to two possible concerns with the overall conclusions in the first part of the book. First, the author's conclusions are almost always about “international criminal law” or “international criminal justice” as a whole, and while the ICTY represents an important structure within that system, it does not represent the whole system. While Campbell notes her reasons for using a case study as an illustration, she still seems to generalize with respect to the conclusions. The ICTY has been wrapped up (for the most part) since 2017, while the International Criminal Court (ICC) is much more reflective of current practices in international criminal law. This is not to say that many of Campbell's critiques do not also apply to the ICC, but given that the body was created pursuant to a different legal structure than the ICTY, and given that there was at least some thought put into constructing an institution better able to address sexual violence against women in conflict, the suggestion that international criminal law as a whole suffers from all the same problems as the ICTY might be stronger were it argued for, rather than assumed on the basis of one legal body.
Second, the author's reliance on the ICTY may unnecessarily narrow the author's engagement with larger questions about international criminal justice. In chapter 5, the author criticizes the focus on the justificatory foundations of international criminal law, claiming that it increasingly results in the “rejection of international criminal justice per se for conflict-related sexual violence” (p. 131). Instead, Campbell chooses to assess international justice as a legal category, identifying the values that underpin the category. Yet the author's reliance on the ICTY may limit her in considering what values might be found in other, more recent legal structures, or the focus in recent years on the expressive potential of international criminal law (quite outside of the retributive potential of international criminal law, and still squarely within the realm of “social phenomena”). The conclusion in this chapter that “models of justice assume that international criminal law in its current form institutes justice” might be overstating the views of all but the most ardent supporters of international criminal legal institutions, as it's not clear that most supporters really see the legal order as “complete” (pp. 157, 159).
Yet the author's aim in the book is not merely to critique the entire system of international criminal law, and ultimately the positive framework Campbell proposes does not rely on the scope of her critique. In Part II of the book, Campbell turns to the Women's Court, one of a series of initiatives that developed as an alternative to the traditional justice mechanisms for the former Yugoslavia in the post-conflict period. She analyzes the potential of the Women's Court to achieve what international criminal trials at the ICTY could not: a feminist, transformative form of justice. Campbell notes that the Women's Court develops a new concept of justice, grounded in addressing concrete injustice, and “necessarily normatively oriented to a future gender-just society” (p. 214). The categories contained in this feminist form of justice include (1) transformative feminist justice; (2) gender-based injustice; (3) feminist justice proceedings; (4) feminist judging; and (5) feminist subjects (p. 231).
Campbell concludes that the Women's Court is successful in countering the capitalist, globalist structures that plagued the ICTY, thereby showing the possibility for different models of justice. In chapter 8, she attempts to use this model to engage with international criminal law, rather than claiming that the success of the Women's Court suggests we should remove the realm of gender-based violence from international criminal law altogether. The author shows we can include international criminal law in a feminist, relational model for responding to gender-based harms of conflict. In the final chapter, Campbell offers two strategies for integrating this feminist justice model with international criminal law. First, she suggests a direct alternative to the foundational concepts she critiques in the first part of the book, suggesting feminist models of substantive offenses, legal subjecthood, legal proceedings and institutions, and relational legal justice. Second, the author develops feminist principles for policy and legal frameworks for prosecuting sexual violence, including a draft international convention on conflict-related sexual violence.
One of the strongest and most necessary parts of the proposal is the focus on feminist epistemology as a crucial feature of Campbell's feminist approach to international criminal justice. Centering victim-witnesses of sexual violence as legal subjects in international criminal law not only requires more participation from women at every level, but also requires that we change norms within the trial proceedings. Campbell takes great care to provide a gender analysis of each angle of a trial proceeding, and the discussion of feminist fact-finding is particularly striking. While the “white, Western, and male global elites” have traditionally made up the international legal profession and installed their preferred norms for fact-finding, the author's proposal requires that we transform the courtrooms as well as the laws they enforce (pp. 324–325).
In short, Campbell's book is an essential contribution to larger conversations about whether the global underpinnings of international law generally, and international criminal law specifically, can be overcome to make the institutions serve the needs of more global communities. This author's feminist model of justice for gender-based violence is hopeful that they can.
