Empowering Women in Criminal Defence: Redefining Jurisprudence Through Marginalized Perspectives and answering the ‘Cocktail Party Question’

Written by Phillipa Stafford, Felicity Gerry KC and Alka Pradhan

 

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Introduction

In the realm of criminal defence, the question ‘How can you defend those people?’ echoes as a persistent challenge, particularly for women practitioners. Yet, within this seemingly entrenched adversarial landscape, women defence counsel possess a unique vantage point that can redefine jurisprudence and challenge prevailing norms. The ‘cocktail party question’ – how can you, as a woman, defend those people – has transformative potential when considering international criminal law through a critical feminist lens. This is particularly so in the context of the complexities of defending individuals accused of gender-based violence (GBV) and gender persecution in the International Criminal Court (ICC). One potential is that women have the opportunity to apply feminist, anti-carceral and Third World approaches to international law, hitherto on the margins. This article is a short exploration of the potential of a feminist approach to criminal defence in light of the prevailing patriarchal and imperialist norms entrenched in ICL and its ‘performance’ of legal order.

Feminism in International Criminal Law

The historic invisibility of gender-specific crimes in ICL underscores the uphill battle feminist activists have faced in elevating GBV as a key concern. However, over the past few decades, feminist ideas have gained traction within legal institutions, culminating in landmark jurisprudence recognizing GBV,  particularly sexual violence against women during conflict, as actionable offenses under ICL. Yet, despite these advancements, there are criticisms regarding the operation and efficacy of legal frameworks in addressing gender-based crimes and a notable focus on prosecutorial outcomes. This focus on prosecutory ‘success’ relies on the liability and punishment (often, incarceration) of individuals for widespread and systemic attacks. This individual liability/systemic problem dichotomy gives rise to an interesting and important area for further examination – for example it may reveal the opaqueness of the ‘nexus question’, when one considers how much GBV occurs outside conflict situations; therefore, in a case where the very existence of ‘conflict’ is challenged can GBV that is a routine behaviour of men be separated from acts that have a nexus to an alleged conflict?

The Prosecutorial Preoccupation

The ICC’s prosecutorial focus on GBV has garnered significant attention from feminist scholars, who often critique outcomes of specific investigations or trials for falling short of securing convictions for sexual violence.  This ‘carceral turn’ in feminist legal activism has faced scrutiny for its reliance on punitive measures, which may inadvertently perpetuate harmful narratives and fail to address systemic issues of gender inequality. Moreover, concerns arise about the intersectionality of gender-based crimes and the marginalization of certain groups within the criminal justice system. These questions can be heightened where complicity by an accused person is alleged not by direct presence but by a group policy and can be exacerbated where reparations for victimhood are linked to conviction of an individual, rather than findings on the situation. The opportunity presented to grapple with the scope of complicity law and thus the scope of liability in current ICC cases may allow for the development of jurisprudence to delineate between group responsibility for human rights abuses and individual culpability more clearly. Current cases also provide a unique opportunity to more clearly enunciate the meaning and interpretation of ‘gender persecution’ under the Rome Statute to clarify the ambiguities and ‘fundamental uncertainty’ about its prosecution. However, the idea that the only way to build jurisprudence is through ‘successful’ prosecutions (by this logic, conviction) is a narrow view, as meaningful interpretation may be garnered from a successful defence, that goes beyond the symbolic weight of a prosecution as the next desirable thing in a linear progression of law-making.

Embracing Marginality in Criminal Defence

For women defence counsel, often also marginalised, navigating the complexities of international criminal law often means grappling with intersecting forms of marginalization, both within legal institutions and broader society. However, far from being a hindrance, these experiences offer valuable insights into the lived realities of marginalized communities and the systemic injustices they face. By embracing the ambiguities of the margins, women defence lawyers can bring a nuanced understanding to their advocacy efforts, challenging entrenched biases and advocate for more equitable outcomes. There can also be the occasional brave or controversial step – depending on your outlook – to challenge a whole system, especially around issues such as religion or torture. Moreover, the defence upholds right of the accused to a fair trial, which is of utmost importance and, as Rosemary Grey points out, the ‘success’ of a court should be judged on fair and impartial proceedings rather than a metric of convictions.

Redefining Success: A Feminist Approach to Criminal Defense

Traditional measures of success within the legal profession often prioritize convictions and acquittals. However, for women defence counsel, success extends beyond mere courtroom outcomes. By centering the experiences and voices of marginalized individuals, women lawyers can redefine success in terms of amplifying marginalized narratives, challenging oppressive structures, and advocating for systemic change. At the same time, feminism in ICL is centered around the equal application of standards to women and men (and, by the authors, among all genders). This requires detailed examination of witnesses and victims; the frequent criticism of women lawyers engaging in rigorous questioning of women witnesses is facile as it undermines the autonomy of those women and the ability of women lawyers to properly uphold evidentiary standards. On the contrary, women lawyers are sometimes uniquely able to employ trauma-centered approaches where appropriate to preserve the integrity of both evidence and person. In doing so, they not only uphold their ethical duty to their clients but also contribute to a more just and inclusive legal system.

Cases in the ICC provide a unique opportunity to examine both defences for accused persons and accusations of GBV/gender persecution. As noted above, feminist scholarship has primarily focused on prosecution and there exists a noticeable gap in the literature addressing defence strategies within ICL. However, a feminist analysis of defence may offer a critical lens through which to challenge prevailing norms and provide nuanced contextualization of gender-based crimes.

Defence teams must grapple with the reality (and truism) that while certain rights are universal, there are significant differences in cultural, social, and legal norms in different parts of the world that must be understood. The legacy of colonialism and its role in fracturing societies along racial or religious lines casts a long shadow over the events in many countries where conflict occurs, or is alleged to occur. This requires defence teams to explore and understand the history and traditions predating the events, including practices which may echo in other parts of the world. Gender-based violence is ubiquitous, and regarding charges arising out of armed conflict, it is imperative to determine whether such acts are actually connected to any alleged armed conflict (the ‘nexus’), or whether they are properly addressed in other fora. Furthermore, it is essential that women form part of the courtroom exercise that determines such issues.

Recognising intersectionality in practice means navigating gender, race, culture,  and socioeconomic status. As women defence counsel, this intersectionality lies at the heart of defence advocacy through helping courts to recognize the interconnected nature of these issues to better understand the unique challenges faced by the accused and thus advocate for more tailored and holistic judicial understanding. Moreover, by amplifying the voices of those from marginalized communities within legal discourse, women defence counsel can, and do, challenge dominant narratives to pave the way for more inclusive jurisprudence – often whilst also battling perceived norms about their own role.

Empowering the Next Generation: Mentorship and Advocacy

Such challenges require resilience and an emphasis on empowering women defence counsel. This is where mentorship can play a crucial role: by fostering supportive mentorship networks and providing opportunities for skill development and leadership, experienced women lawyers can support the next generation of advocates to embrace their marginality and leverage it as a catalyst for change ­­– as well as supporting each other when faced with overzealous prosecutors or inflexible administration. Moreover, by advocating for systemic reforms within legal institutions, women defence counsel can create more inclusive and equitable spaces for future generations of practitioners: one that is more than a ‘well-being’ mantra, oft used to suggest women cannot cope.

Conclusion

In conclusion, the intersection of feminism and criminal defence in ICL presents both challenges and opportunities for advancing gender justice. While the notion of a ‘feminist defence’ may seem unconventional within traditional legal paradigms, it holds promise as a mode of resistance and incursion against patriarchal norms. By advocating for accountability and contextualizing gender-based crimes within broader socio-political landscapes, a feminist defence has the potential to reshape the discourse surrounding GBV from both prosecutorial and defence angles and foster more equitable outcomes within the realm of international law. It follows that women defence counsel possess a unique ability to redefine jurisprudence and challenge prevailing norms within the legal profession and in court. By embracing their experiences working in the margins, they can bring a nuanced understanding to their advocacy efforts, amplify marginalized voices, and advocate for systemic change. Through mentorship and advocacy, women defence lawyers can empower the next generation of advocates to continue this important work, paving the way for a more just and inclusive legal system for all: bringing a much needed ‘cocktail’ of experience and understanding to the party.

Phillipa Stafford
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Phillipa Stafford is an Honours candidate at Deakin Law School, researching gender-based violence and international law through Butlerian performativity and feminist jurisprudence. She works with Dr Felicity Gerry KC as an admin and research assistant and volunteers as a Lead Paralegal at Anika Legal on pro bono tenancy matters. She is also an artist, producer and researcher, creating projects exploring the radical possibilities of radio transmission as one half of Sisters Akousmatica, who were 2023 artists in residence at Wave Farm (New York) researching radio broadcast, international borders and sovereignty.

Felicity Gerry KC
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Felicity is on the lists of counsel for the ICC and KSC having come to international practice now her children are older. She is admitted in England and Wales and Australia (Victoria and the High Court Roll) and specialises in complex criminal law cases, generally involving an international element including terrorism, homicide, biosecurity and human trafficking. She has a particular interest in complicity as leading counsel in the UK Supreme Court decision in R v Jogee [2016] UKSC 8 and having led an amicus brief on CIL and complicity in the ICTY. She is Professor of Practice at Deakin University where she teaches a unit on Contemporary International Legal Challenges. She is widely published in areas including women & law, technology & law and reforming justice systems. Her current PhD candidature is on Transnational Feminisms and the Human Trafficking Dilemma.

Alka Pradhan
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Alka Pradhan  is an expert on the application of human rights and humanitarian law to counterterrorism situations, and the impact of torture on fair trials. She is currently Human Rights Counsel at the Guantanamo Bay Military Commissions, representing one of the defendants in the capital case of United States v. Khalid Sheikh Mohammad (the “9/11 case”), and Associate Counsel in the Al Hassan case at the International Criminal Court. Ms. Pradhan was a member of the Drafting Committee of the Principles of Effective Interviewing (the "Mendez Principles").

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