A Response to Dianne Otto by Gina Heathcote

Can arguments for preemptive self defence under international law be regarded as a mirroring of feminist arguments for justified self-defence in cases of homicide by individuals who have experienced long-term domestic violence? This is one of the questions Dianne Otto raises in response to my MJIL article, ‘Feminist Reflections on the ‘End’ of the War on Terror’. In the article I argued that preemptive force, or what was known as the Bush Doctrine, mirrors provocation defences in western national legal structures. The core of my argument assumes that, as a consequence, the removal of preemptive force justifications would be beneficial to the integrity of the discipline just as provocation has increasingly been abolished or rejected by national legal structures.

To shift the domestic analogy from provocation to legal constructions of self-defence introduces a host of new feminist questions. Western states have often responded to and attempted to adapt feminist reasoning on the gendered nature of interpersonal self-defence claims to create legal justifications for domestic violence survivors who have killed their partners to ensure their own or their children’s long term security. If my domestic analogy is accepted as a useful tool to engage and explore the assumptions behind the discipline of international law, the self-defence analogy may lead to a requisite broadening of international self-defence to encompass preemptive self-defence in response to long term violence against a state by another actor.

In my article in the MJIL, however, I use the domestic analogy to explore conceptual analogies between Western, common law legal structures and international law rather than in a prescriptive manner. This approach is enlarged on in my forthcoming book, The Law on the Use of Force: a Feminist Analysis (Routledge, 2011) where I argue:

A prescriptive analogy assumes the correlation of domestic legal categories with international legal categories and, therefore, explains international legal justifications for violence by drawing upon domestic legal justifications for violence. In contrast, the conceptual analysis developed in this book does not assume the sameness of international and domestic legal structures instead, it seeks, to expose concepts developed in Western domestic legal orders that are assumed to exist in the international legal system. . . The conclusion drawn from this is not that the analogy between the two forms of justifications should be strengthened or that feminist solutions to domestic legal issues should be superimposed on to the international. Instead the feminist appraisal of the international law on the use of force, viewed through the lens of the domestic analogy, promotes a re-examination of the appropriateness of contemporary legal rules on the use of force.

In the book, I conclude that one of the flaws of international self-defence is the implicit personification of the state within constructions of the law on the use of force, particularly the imagery and expectations of legal self-defence under Article 51 of the UN Charter and customary international law. The consequential limitations contribute to the sexing and gendering of international law, where violence and law are both concepts that function through the projection and development of strong gender norms about what is rational, justified and legitimate. Our preconceptions about the ‘normal’ characteristics of international legal subjects (or any legal subject or in any legal structure) infiltrate our understanding of how law should or could work. Furthermore, this understanding of the international legal subject is not only gendered male but also envisages heteronormative spaces (that is, where not only are legal subjects imbued with male characteristics, they exist in opposition to other actors whose traits are feminised). I will be enlarging these thoughts on the impact of heteronormative assumptions in the law on the use of force at the upcoming Queer Perspectives on Law Workshop at SOAS on 13 May 2011 (see: http://www.soas.ac.uk/cceil/events/13may2011-queer-perspectives-on-law-workshop.html) .

If we open international law to examine our own assumptions, about the gendered characteristics of legal subjects as well as our heteronormative expectations of relationships between subjects (for example, the powerful state protects the weaker state, forcefully when necessary, and often without consent), we find a range of powerful tools to see the structures which humanity has built as law as normative stories representing only the beginning of what human thinking might imagine in the making and re-making of international law. In my MJIL article, I use Arendt’s powerful description of natality to begin to envisage where we might go next to better represent humanity in the international. To return then to Otto’s question about the parallels between domestic laws on self-defence, particularly cases where survivors of intimate partner violence have killed their abuser and seek justification, and international arguments for acts of preemptive force: hunting out the conceptual analogies should push us toward exposing the assumptions we bring to international law; assumptions that we must work toward moving beyond.