A Response to Gina Heathcote by Dianne Otto

[Dianne Otto is a Professor of Law at the University of Melbourne, where she directs the programme on International Human Rights Law]

Two of the challenging questions that Gina Heathcote asks in her wonderfully provocative article are: What is a ‘feminist’ approach to the regulation of the ‘use of force’ in international law? What light is thrown onto this question by reforms feminists have promoted in domestic criminal law whereby, in seeking the abolition of provocation as a (partial) defence to murder, they have sought to tighten rules that excuse pre-emptive use of deadly force?

Heathcote argues that feminist engagement with international law has circled around the first of these questions rather than confronting it. I agree. Even worse, as Heathcote goes on to explain, since 9/11, most feminist work relating to the use of force in international law has, directly or indirectly, lent support to the increasing number of justifications for the pre-emptive use of force that have emerged. To illustrate this unlikely alliance, she uses the example of feminist concern with women as the victims of armed conflict and terrorism, which has served to strengthen arguments for pre-emptive use of force in order to protect women, as in Afghanistan and Iraq. Feminist advocacy has thus helped to sustain the familiar gendered imaginaries of international law that support the belief that military force is fundamental to global security, rather than subjecting them to fundamental challenge. Heathcote proposes that feminists focus more on strengthening the prohibition of the use of force in international law, following the lead of those seeking to abolish provocation as a defence in domestic criminal law.

As creative and thought-provoking as Heathcote’s analogy with domestic law is, I would like to push it a step further. Feminists have not just sought to limit the availability of exculpatory defences to murder in domestic criminal law. They have also argued that the rules that justify killing in self-defence should be loosened, in order to exonerate women who respond pre-emptively with deadly force to anticipated domestic violence. Extending Heathcote’s analogy, this suggests there may be some instances in which feminists would endorse the pre-emptive use of force in international law. This could help to explain apparent feminist support for the idea that force could be used to rescue women from widespread or systematic sexual violence during armed conflict, as Security Council Resolutions 1820 and 1960 suggest. The extended analogy raises a host of further questions which feminists engaging with international law need to address. Are there situations in which feminists would support the pre-emptive use of force? How far might this support extend? To situations where men are facing widespread sexual violence during armed conflict? For ‘humanitarian’ purposes? To stop the accumulation of weapons of mass destruction? To fight terrorism? And does it matter who uses the force?

My suggested extension of Heathcote’s argument only reinforces her conclusion that feminists engaged in international law need to address questions that are raised by the rules on the use of force head-on. In addition to finding ways to strengthen prohibitions as she proposes, the example of self defence in domestic law attests to the importance of also examining the possibility that there may be circumstances in which feminists support the use of force. Recognizing this would, to begin with, disrupt the conventional wisdom that associates ‘women’ with ‘peace’, which Heathcote identifies as deeply embedded in the gendered hierarchies of international law. It would also challenge the feminist adage that armed force, and the militarism that accompanies it, is never good for women. Heathcote’s provocation made me wonder whether circling around these issues may, in some instances, end up being the most violent thing to do.