Feminist Reflections on the ‘End’ of the War on Terror
[Gina Heathcote is a Senior Teaching Fellow at the School of Oriental and African Studies]
In my 2010 article in the Melbourne Journal of International Law (‘MJIL’), I explore two issues within a larger discussion of the impact of the war on terror on feminist scholarship in the international arena. The first issue is the role of feminist approaches in contemporary international legal scholarship. This leads on to questions that need to be asked about what we can expect from feminist approaches to international law, what feminist approaches might add to contemporary issues on collective security and at what entry point feminist debates might be occurring. The second issue considered in my article, is the end of the war on terror, or at least the Bush administration’s approach to combating global terrorism, and the legacy of the noughties on our understanding of the law on the use of force. Even if we can only argue that the end of the Bush administration in the US resulted in a semantic conclusion to the war on terror, and no change in practice, it is important to review and acknowledge the legacy of this period. This leads us then toward questions about the shape of collective security in 2011. When these two sets of questions and issues are drawn together, as I have done in this article, a range of new and pertinent questions and debates about the position of international law today, and the assumptions international law continues to work within, become exposed.
Feminist approaches appear to have gained a permanent space in international law, yet outcomes remain marginalised. For example, sexual violence in armed conflict is regarded as a gendered issue and thus an important site for feminist progress within international law. Militaries are identifiably skewed toward male membership so gender disaggregated statistics are collected. Both these developments may be important, although it would be misleading to think their importance stems from feminist concerns alone. At the same time the central argument of pivotal feminists works on the sexed and gendered limitations of international law — notably Charlesworth and Chinkin’s Boundaries of International Law; Buss and Manji’s International Law: Modern Feminist Approaches and Anne Orford’s Reading Humanitarian Interventions — remain muted in terms of international legal outcomes, even if they continue to raise and lead academic scholarship and conversations, globally. In the area of collective security this is a largely overlooked concern. Yet feminist scholarship has much to say about the assumptions of international law, about the structural bias of the discipline and a need to shift beyond seeing feminist dialogues as wholly about the twin issues of combating sexual violence in armed conflict and female representation within military structures.
Through the use of a domestic analogy I have attempted to re-develop feminist knowledge to think through the basic concepts and legal models that we bring to feminist debates on collective security. That is, I have used feminist critiques of the relationship between law, gender and violence that have been developed within the national feminist arena as a tool to test, identify and measure the gendered assumptions that permeate our understandings of the international. The second method used is a law-as-a-narrative model. When law is identified as a narrative that produces and reflects gendered understandings of legal subjects and relationships, gendered concepts are connected across the range of social discourses. In taking these two feminist methods to an analysis of the war on terror, what is now described as the global war against terrorism, I have challenged the preemptive force argument as a deployment of a provocation type excuse for the use of force in the international sphere that is analogous to domestic provocation excuses within Western, common law structures. It is interesting to note that Sir Ian Brownlie came to a similar conclusion in 1961 arguing against any form of provocation excuse within the international legal structure. When coupled with a feminist understanding of the limitations of provocation as an excuse or mitigation for killing within domestic legal structures, the limitations of the Bush Doctrine of preemptive force are difficult to overlook.
In examining law as a narrative, preemptive force arguments can also be seen to be embedded in wider social discourses that curtail rather than develop humanity, be it through the consequent social fears and civil restrictions or the necessary denial of the two way impact of force — on both those who use force (whether that force be illegal, justified, excused, mitigated, authorised or legitimate) and those who experience the use of force within their community. Ultimately the joint interrogation of feminist scholarship and international legal understandings of the global war against terrorism, raises two final questions. Can international law afford to ignore the gendered assumptions deployed and reinforced in contemporary legal narratives on the use of force? And, when, if ever, would feminist approaches justify the use of force on the territory of another state? These are issues this symposium might further develop discussion on.
The full article may be accessed here.
 For discussion of alliance treaties see Sir Ian Brownlie, ‘The Use of Force in Self-defence’ (1961) 37 British Yearbook of International Law 183, 199.