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Intersectionality and International Law: Recognizing Complex Identities on the Global Stage

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Intersectionality and International Law: Recognizing Complex Identities on the Global Stage \\jciprod01\productn\H\HLH\28-1\HLH105.txt unknown Seq: 1 6-JUL-15 11:18 Intersectionality and International Law: Recognizing Complex Identities on the Global Stage Aisha Nicole Davis* As a legal theory, intersectionality seeks to create frameworks that con- sider the multiple identities that individuals possess, including race, gen- der, sexuality, age, and ability. When applied, intersectionality recognizes complexities in an individual’s identity to an extent not possi- ble using mechanisms that focus solely on one minority marker. This Note proposes incorporating intersectional consideration in the realm of inter- national human rights law and international humanitarian law to bet- ter address the human rights violations that affect women whose identities fall within more than one minority group because of their ethnicity or race. The Note begins with an explanation of intersectional- ity, and then applies intersectionality to human rights mechanisms within the United Nations and to cases in international criminal tribu- nals and the International Criminal Court. As it stands, international human rights law, international criminal law, and international hu- manitarian law view women who are members of a racial or ethnic mi- nority as variants on a given category. This Note contends that by applying a framework that further incorporates intersectionality—that is, both in discourse and action—in international human rights law, international humanitarian law, and international criminal law, these women’s identities will be more fully recognized, opening up the possibil- ity for more representative women’s rights discourse, and remedies for human rights abuses that better address the scope and nature of the violations. * J.D., Columbia Law School, 2013; LL.M., University of London, School of Oriental and African Studies, 2013; B.A., Washington & Lee University, 2009. Many thanks to Lutz Oette and Kimberl´e Crenshaw for their guidance throughout the research and writing of this Note. \\jciprod01\productn\H\HLH\28-1\HLH105.txt unknown Seq: 2 6-JUL-15 11:18 206 Harvard Human Rights Journal / Vol. 28 INTRODUCTION The field of international human rights1 has expanded significantly since the United Nations’ Universal Declaration of Human Rights (“UDHR”).2 These developments include the creation of the International Criminal Court (“ICC”), which has the power to oversee cases of international human rights law (“IHRL”) and international humanitarian law (“IHL”) viola- tions—including genocide,3 crimes against humanity,4 war crimes,5 and, in the future, the crime of aggression.6 Yet, in spite of these developments, there is much work to be done to recognize and remedy human rights viola- tions. This is especially true for violations against people whose identities are classified under more than one of the core international human rights instruments, such as women who belong to a minority racial or ethnic group. For these doubly marginalized persons, human rights mechanisms do not provide the same level of protection afforded to people whose identi- ties represent one minority. Remedies for crimes against these persons should take into consideration all aspects of their identities that made them a target. To this aim, intersec- tionality should be applied on an international level through the core inter- national human rights instruments and international criminal tribunals (“ICTs”). IHRL must recognize intersectionality in both the discourse and adjudication of international crimes that involve women within ethnic mi- nority groups. This Note examines the effectiveness of intersectionality in this discourse and adjudication, with a focus on the rhetoric of the women’s rights movement and the prosecution of rape in international tribunals and courts. These two areas were chosen to illustrate both the methodological and practical application of the theory of intersectionality in the interna- tional human rights community. Over the course of three sections, this Note will illustrate the ways in which intersectionality can be applied internationally to better recognize women who do not fall within the normalized boundaries of “women” in international human rights rhetoric. Part I will discuss the theory and 1. Throughout this Note, “field of international human rights” and “international human rights community” are used to refer to legal, social, and political tools, as well as the group made up of NGOs, scholars, advocates, and international organizations like the United Nations that discuss, study, and work in relation to international human rights issues. 2. The United Nations has listed ten other core international human rights instruments. The Core International Human Rights Instruments and Their Monitoring Bodies, U.N. OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx, archived at http://perma.law.harvard.edu/0ELfdWrGa7W. 3. Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 90, available at http://www.unhcr.org/refworld/docid/3ae6b3a84.html, archived at http://perma.cc/5RTY- U3GG [hereinafter Rome Statute]. 4. Rome Statute, supra note 3, art. 7. 5. Id. art. 8. 6. Id. art. 5; The Crime of Aggression, COALITION FOR THE INT’L CRIMINAL COURT, http://www .iccnow.org/?mod=aggression, archived at http://perma.cc/46T7-7RFE. \\jciprod01\productn\H\HLH\28-1\HLH105.txt unknown Seq: 3 6-JUL-15 11:18 2015 / Intersectionality and International Law 207 methodology of intersectionality, explaining how the theory developed and how it has been used over the past two decades. Part II focuses on how intersectionality may be adapted to apply to the international women’s rights movement through the core international human rights mechanisms. This section expounds on the first part of the two-part argument for inter- national intersectionality, proposing that intersectionality can be used to deconstruct the prevalent rhetoric and representation of women as a mono- lithic group needing special consideration because of an inherent vulnera- bility.7 In its place, intersectionality would better recognize marginalized groups of women that have so far been viewed primarily in the context of the normalized concept of women under IHRL.8 Part III focuses on the second part of the Note’s two-part argument: the need for intersectionality in the adjudication of situations in which both gender and ethnicity have caused a group to be targeted with violence. Part III examines how the International Criminal Tribunal for the former Yugo- slavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) changed how rape was adjudicated internationally, especially in relation to conflicts that were ethnic in origin. Finally, Part III examines the conflict in Darfur as a case study for the potential application of inter- sectionality in the adjudication of human rights violations. This section acknowledges the shortcomings of the application, or lack thereof, of inter- sectionality in the ICTs and explains how best to incorporate intersectional- ity moving forward such that remedies for victims can better respond to the complex realities of their experiences. I. INTERSECTIONALITY: THEORY, METHODOLOGY, AND APPLICATION Intersectionality considers the connectedness of different components of identity that are often viewed separately.9 As a theory, intersectionality challenges typical analytical frameworks and highlights the inseparability 7. For an analysis of the presentation of women’s rights, see generally CATHARINE A. MACKINNON, SEX EQUALITY 20–24 (2d ed. 2001); SALLY ENGLE MERRY, HUMAN RIGHTS & GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE 91 (2005); R. Charli Carpenter, “Women, Chil- dren and Other Vulnerable Groups”: Gender, Strategic Frames and the Protection of Civilians as a Transnational Issue, 49 INT’L STUD. Q. 295, 303 (2005); Bonita Meyersfeld, Domestic Violence, Health, and International Law, 22 EMORY INT’L L. REV. 61, 73–74 (2008); Dianne Otto, The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade, 10 MELBOURNE J. INT’L L. 11, 17 (2009). 8. For discussion on the normalized concept of women in international human rights, see Hilary Charlesworth, What Are “Women’s International Human Rights”?, in HUMAN RIGHTS OF WOMEN: NA- TIONAL AND INTERNATIONAL PERSPECTIVES 58, 62 (Rebecca J. Cook ed., 1994) [hereinafter Charles- worth, What are?]; Jennifer Chan-Tiberghien, Gender-Skepticism or Gender-Boom?: Poststructural Feminisms, Transnational Feminisms and the World Conference Against Racism, 6 INT’L FEMINIST J. POL. 454, 455 (2004); Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT’L L. 379, 384 (1999) [hereinafter Charlesworth, Feminist Methods]. 9. Kimberl´e Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1244–45 n.9 (1991) [hereinafter Crenshaw, Mapping]. \\jciprod01\productn\H\HLH\28-1\HLH105.txt unknown Seq: 4 6-JUL-15 11:18 208 Harvard Human Rights Journal / Vol. 28 of identities.10 This concept goes beyond merely merging separate identities but considers the unique identity developed from an individual belonging to multiple categories simultaneously. The purpose behind the develop- ment of intersectionality was to create a feminist discourse that moves away from essentialism and combines critique with “a strategy of insubordina- tion.”11 This discourse aims to correct the gaps created
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