Many feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. While acknowledging law's ineffectiveness in fundamentally reordering social relations, a number of scholars and policy makers believe that it is an institution that can be used to make substantive gains for women. The agreement by states on the establishment of an International Criminal Court (ICC), combined with a Statute that augments international legal prohibitions on violence against women, has given traction to optimistic views on international criminal law's capacity to proactively address female specific harms. Moreover, there is confidence that transformative international legal norms will, in turn, enable and support domestic law's capacity to advance accountability for violence against women. In that context, this article considers the potential for proactive and gender-centered complementarity under the ICC system. Based on a systematic review of a wide range of domestic legislation enacted by States Parties following signature and ratification of the ICC Statute, the analysis considers the significance and ramifications of domestic legal changes for the operation of the ICC complementarity system. Detailed consideration is given to ways in which the ICC complementarity regime might be operationalized to ensure a gendered understanding of the “unwilling and unable” standard contained in Article 17 of the ICC Statute. I further address the extent to which optimism around domestic legal enforcement is warranted, and what pitfalls may follow from a reliance on international criminal law to spearhead normative developments addressing gender violence.
- international criminal law, gender-based harms, sexual violence, complementarity