Women Lawyers and the Struggle for Change in Conflict and Transition

Abstract.

This article examines the particular experiences of female ‘cause-lawyers’ in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to ‘make a difference’ in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict/cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.

Notes

1 Personal interview with veteran struggle lawyer, Cape Town, South Africa, 12 August 2014.

2 Personal interview with human rights lawyer and activist, Tel Aviv, Israel, 14 May 2014.

3 Schabas William A and Bernaz Nadia Routledge Handbook of International Criminal Law Routledge Abingdon 2011; Mallinder Louise Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide Hart Publishing Oxford 2008; Chapman Audrey R and Van der Merwe Hugo (eds) Truth and Reconciliation in South Africa: Did the TRC Deliver? University of Pennsylvania Press Philadelphia 2009.

4 Teitel Ruti Transitional Justice Oxford University Press Oxford 2000; Czarnota Adam, Krygier Martin and Sadurski Wojciech (eds) Rethinking the Rule of Law After Communism Central European University Press Budapest 2006; Couso Javier, Huneeus Alexandra and Sieder Raches (eds) Cultures of Legality: Judicialization and Political Activism in Latin America Cambridge University Press Cambridge 2010.

5 See, for example, Morison John, McEvoy Kieran and Anthony Gordon (eds) Judges, Transition and Human Rights Oxford University Press Oxford 2007; Hilbrink Lisa Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile Cambridge University Press Cambridge 2007.

6 Friedman Lawrence The Legal System: A Social Science Perspective Russell Sage New York 1975 p 155.

7 Engle Merry Sally Human Rights and Gender Violence: Translating International Law into Local Justice University of Chicago Press Chicago 2005; Sharafi Mitra ‘A New History of Colonial Lawyering: Lihowski and Legal Identities' (2007) 32(4) Law and Social Inquiry 1059; McEvoy Kieran ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411.

8 See, for example, McEvoy Kieran and McGregor Lorna (eds) Transitional Justice from Below: Grassroots Activism and the Struggle for Social Change Hart Publishing Oxford 2008; Clark Phil The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda Cambridge University Press Cambridge 2010; Palmer Nicola Courts in Conflict: Interpreting the Layers of Justice in Post-Genocide Rwanda Oxford University Press Oxford 2015.

9 Abel Richard L Politics By Other Means: Law and the Struggle Against Apartheid in South Africa 1980–1994 Routledge London 1995; Caiger Andrew Cause Lawyering in South Africa: The Process of Empowering a Rights Based Legal Culture and its Socio-Political Impact Austin & Winfield San Francisco 2005; Dezalay Yves and Garth Bryant G The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States University of Chicago Press Chicago 2002; Hajjar Lisa Courting Conflict: The Israeli Military Court System in the West Bank and Gaza University of California Press Santa Monica 2005; Collins Cath Post-Transitional Justice: Human Rights Trials in Chile and El Salvador Pennsylvania State University Press University Park 2010.

10 As noted above, this major international comparative research project is funded by the Economic and Social Research Council (ES/J009849/1). See www.lawyersconflictandtransition.org (last visited 8 January 2016).

11 In Cambodia due to ongoing concerns regarding both personal safety and professional life, each of the three women we interviewed asked to be referred to simply as ‘an international lawyer’. In Chile we spoke to a government lawyer, the director of a human rights organisation, a legal academic and human rights activist, a lawyer in private practice and a civil society activist. Our cohort in Israel included three legal academics and human rights activists, a politician and lawyer, three lawyers working in human rights NGOs and two lawyers working in private practice. In Palestine the women we interviewed included three female lawyers employed by human rights NGOs, a lawyer in private practice and a civil society activist. In Tunisia female interviewees included one of Ben Ali's former lawyers and allies, two Europeans working for Tunisian-based NGOs, three ‘cause-lawyers' working in private practice and two lawyers working for human rights NGOs. Finally, in South Africa we interviewed two celebrated female cause-lawyers, a legal academic and activist and a former ANC activist.

12 Zartman I William ‘Comparative Case Studies' (2005) 10 International Negotiation 3 at 7.

13 Merton Robert On Theoretical Sociology Free Press New York 1968.

14 Glenn H Patrick ‘Comparative Legal Families and Comparative Legal Traditions' in Reimann Mathias and Zimmermann Reinhard (eds) The Oxford Handbook of Comparative Law Oxford University Press Oxford 2006 p 421–440.

15 Meintjies Sheila, Pillay Anu and Turshen Meredeth (eds) The Aftermath: Women in Post-Conflict Transformation Zed Books London 2001 p 16.

16 Alam Mayesha Women and Transitional Justice Palgrave London 2004 p 3.

17 Hassim notes, for example, that ‘[t]he transition to democracy in South Africa ushered in a formal institutional framework and a government that has been held up as a model of serious commitment to the ideal of gender equality’. Hassim Shireen ‘The Gender Pact and Democratic Consolidation: Institutionalizing Gender Equality in the South African State’ (2003) Feminist Studies 29(3) 505 at 505. See further Waylen Georgina Engendering Transitions: Women's Mobilizations, Institutions and Gender Outcomes Oxford University Press Oxford 2007 p 199–202.

18 Nelken David Comparative Criminal Justice: Making Sense of Difference Sage Publications London 2010.

19 Popper Karl The Logic of Scientific Discovery Routledge London 1959.

20 Sarat Austin and Scheingold Stuart A Something to Believe In: Politics, Professionalism and Cause-Lawyering Stanford University Press Palo Alto 2004 p 3–4.

21 Boukalas Christos ‘Politics as Legal Action / Lawyers as Political Actors: Towards a Reconceptualisation of Cause Lawyering’ (2013) 22(3) Social & Legal Studies 395.

22 Devyani Prabhat ‘After 9/11: Guantánamo and the Mobilization of Lawyers' (2011) 54 Studies in Law, Politics, and Society 213; Garcia Melanie ‘The Lawyer as Gatekeeper: Ethical Guidelines for Representing a Client with a Social Change Agenda’ (2011) 24 Georgetown Journal of Legal Ethics 551.

23 Prominent scholar-activists include Catharine MacKinnon, Ruth Bader Ginsburg, Martha Fineman, Mari Matsuda and Frances Webber. See Grant Bowman Cynthia and Schneider Elizabeth M ‘Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession’ (1998) 67(2) Fordham Law Review 249; Scales Ann Legal Feminism: Activism, Lawyering, and Legal Theory New York University Press New York 2006.

24 Menkel-Meadow Carrie ‘The Comparative Sociology of Women Lawyers: The “Feminization” of the Legal Profession’ (1986) 24(4) Osgoode Hall Law Journal 897 at 897. Not surprisingly many of these key developments reflected (and informed) evolving feminist legal theories. For an analysis of the competing sway of difference and dominance theories see, for example, MacKinnon Catharine Feminism Unmodified: Discourses on Life and Law Harvard University Press Cambridge 1987 p 32–45.

25 See, for example, Larson Magali S The Rise of Professionalism: A Sociological Analysis University of California Press Berkeley 1977; Curran Barbara A The Lawyer Statistical Report: A Statistical Profile of the US Legal Profession in the 1980s American Bar Foundation Chicago 1985; Hagan John ‘The Gender Stratification of Income Inequality Among Lawyers' (1990) 68(3) Social Forces 835; Bolton Sharon C and Muzio Daniel ‘Can’t Live With ‘Em; Can’t Live Without ‘Em: Gendered Segmentation in the Legal Profession (2007) 41(1) Sociology 47; Payne-Pikus Monique, Hagan John and Nelson Robert L ‘Experiencing Discrimination: Race and Retention in America's Largest Law Firms' (2010) 44(3) Law and Society 553. For the relevant Australian data see ‘Beyond the Statistical Gap: 2009 Court Appearance Strategy for Advancing Appearances by Female Advocates in Australian Courts' Law Council of Australia 2009 p 10–11, 15–16; ‘National Attrition and Re-engagement Study (NARS) Report’ Law Council of Australia 2012 p 9.

26 Menkel-Meadow Carrie above note 24 at 897. Schultz and Shaw's authoritative overview of women in the legal profession addresses this fundamental question in the context of fifteen civil and common law jurisdictions. Schultz Ulrike and Shaw Gisela (eds) Women in the World's Legal Professions Oxford University Press Oxford 2003.

27 Butler's Gender Trouble attacks what she considers to be an underlying assumption of feminist theory, namely that there is a gendered identity that requires representation in discourse and politics. It advances from the notion that gender is essentially ‘performative’ and that the associated ‘acts' constitute — rather than express — the illusion of a stable gender identity. Butler Judith Gender Trouble: Feminism and the Subversion of Identity Routledge London 1990.

28 See, for example, Menkel-Meadow Carrie ‘Portia in a Different Voice: Speculations on a Women's Lawyering Process' (1985) 1 Berkeley Women's Law Journal 39; Menkel-Meadow Carrie ‘Exploring a Research Agenda of the Feminization of the Legal Profession: Theories of Gender and Social Change’ (1989) 14(2) Law and Social Inquiry 289; Menkel-Meadow Carrie ‘Portia Redux: Another Look at Gender, Feminism and Legal Ethics' in Parker Stephen and Sampford Charles (eds) Legal Ethics and Legal Practice: Contemporary Issues Clarendon Press Oxford 1995 p 25.

29 Tomlinson Jennifer, Muzio Daniel, Sommerlad Hilary, Webley Lisa and Duff Liz ‘Structure, Agency and Career Strategies of White Women and Black and Minority Ethnic Individuals in the Legal Profession’ (2013) 66(2) Human Relations 245 at 246; Hanlon Gerard ‘Institutional Forms and Organizational Structures: Homology, Trust and Reputational Capital in Professional Service Firms' (2004) 11(2) Organization 186; Sommerlad Hilary ‘The “Social Magic” of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession’ (2015) 83 Fordham Law Review 2330; Pearce Russell G, Wald Eli and Ballakrishnen Swethaa ‘Difference Blindness vs Bias Awareness: Why Law Firms With the Best of Intentions Have Failed to Create Diverse Partnerships' (2015) 83 Fordham Law Review 2407.

30 Waylen above note 17; Ní Aoláin Fionnuala ‘Advancing Feminist Positioning in the Field of Transitional Justice’ (2012) 6(2) International Journal of Transitional Justice 1 at 5. For a fascinating account of the struggle to ensure that women were included in the constitutional negotiations to create a Democratic South Africa see Albertyn Catherine ‘Women and the Transition to Democracy in South Africa’ in Kaganas Felicity and Murray Christina (eds) Gender and the New South African Legal Order Juta Cape Town 1994 p 54.

31 See, for example, Mayesha above note 16; Bedont Barbara and Hail-Martinez Katherine ‘Ending Impunity for Gender Crimes Under the International Criminal Court’ (1999) 6 Journal of World Affairs 65; Campbell Kirsten ‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia’ (2007) 3 International Journal of Transitional Justice 411. UN Security Council Resolution 1325 (2000) emphasised the need for increased participation of women at all stages of peace processes. In October 2015, the UN Security Council unanimously adopted Resolution 2242 to improve implementation of that agenda. Speaking at the launch of the report Phumzile Mlambo-Ngcuka, Executive Director of the UN Entity for Gender Equality and the Empowerment of Women, stated that ‘a growing body of evidence had shown that perhaps the greatest but most under-used tool for building peace was the meaningful inclusion of women’. Full text available at <www.un.org/press/en/2015/sc12076.doc.htm> Accessed 19 January 2016.

32 For an analysis of the extent to which the gender perspective of UN Security Council Resolution 1325 was reflected in peace agreements signed between January 1990 and January 2010 see Bell Christine and O’Rourke Catherine ‘Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and their Agreements' (2010) 59(4) International and Comparative Law Quarterly 941. For a criticism of the resolution as an apt example of ‘gender mainstreaming’ see Ní Aoláin Fionnuala, Haynes Francesca and Cahn Naomi On the Frontlines: Gender, War, and the Post-Conflict Process Oxford University Press Oxford 2011 p 11, 16–18. See also Mertus Julie ‘Shouting from the Bottom of a Well: The Impact of International Trials for Wartime Rape on Women's Agency’ (2004) 6 International Feminist Journal of Politics 110 and O’Rourke Catherine Gender Politics in Transitional Justice Routledge London 2013 p 63–82.

33 The result for women may be, as suggested by Harris Rimmer, new curtains, cut from the same cloth. Harris Rimmer Susan ‘Sexing the Subject of Transitional Justice’ (2014) 32(1) Australian Feminist Law Journal 136 at 123. See further Chinkin Christine, Charlesworth Hilary and Wright Shelley ‘Feminist Approaches to International Law: Reflections from Another Century’ in Buss Doris and Maji Ambreena (eds) International Law: Modern Feminist Approaches Hart Publishing Oxford and Portland Oregon 2005 p 17–47.

34 Bell and O’Rourke suggested in a seminal essay in 2007 that transitional justice mechanisms should be assessed strategically, in terms of the likely substantive and material gains for women. Bell Christine and O’Rourke Catherine ‘Does Feminism Need a Theory of Transitional Justice? An Introductory Essay’ (2007) 1 International Journal of Transitional Justice 23. Similarly Ní Aoláin notes that ‘an uncritical and narrowly liberal conception of gender equality directs our gaze away from the cultural, material and geopolitical sites in which transitional justice practices have emerged’. Ní Aoláin above note 30 at 2. See further Yarwood Lisa (ed.) Women and Transitional Justice: The Experience of Women as Participants London Routledge 2013.

35 Ní Aoláin and Hamilton suggest, for example, that ‘the moment’ of transition can, from a feminist perspective, be one of ‘retrenchment’. Such retrenchment, they suggest, is arguably located in the core private/public division that accompanies the rule of law in theory and practice. Ní Aoláin Fionnuala and Hamilton Michael ‘Gender and the Rule of Law in Transitional Societies' 11 March 2009 Minnesota Legal Studies Research Paper No 09–12 p 102. Citing the specific example of the work of truth commissions, Ní Aoláin and Turner further suggest that the construction of narratives of former conflict often translates into a ‘retrenchment of patriarchal family norms and the reassignment of highly circumscribed gender roles for women’. Ní Aoláin Fionnuala and Turner Catherine ‘Gender, Truth and Transition’ (2007) 16 UCLA Women's Law Journal 229 at 273.

36 For an overview see Bourdieu Pierre Outline of a Theory of Practice trans Nice Richard Cambridge University Press Cambridge 1997; Giddens Anthony The Constitution of Society: Outline of the Theory of Structuration Polity Press Oxford 1984; Elder-Vas David The Causal Power of Social Structures: Emergence, Structure and Agency Cambridge University Press Cambridge 2010; Archer Margaret Structure, Agency and the Internal Conversation Cambridge University Press Cambridge 2003.

37 Marx Karl ‘The Eighteenth Brumaire of Louis Bonaparte’ in Feuer Lewis (ed.) Marx and Engels: Basic Writings on Politics and Philosophy Doubleday New York 1959 p 320.

38 Durkheim Emile The Rules of Sociological Method Free Press republished Free Press New York 2014, especially Chapters One and Two.

39 Ewick Patricia and Silbey Susan The Common Place of Law: Stories from Everyday Life University of Chicago Press Chicago 1998 p 41.

40 Sarat Austin and Scheingold Stuart ‘The Dynamics of Cause Lawyering’ in Sarat Austin and Scheingold Stuart (eds) The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice Stanford University Press California 2005 p 7.

41 Personal interview with human rights lawyer, Ramallah, Palestine, 20 May 2014. As in other contexts, female interviewees sometimes employed the male pronoun to refer to women and men.

42 Meintjies Sheila, Pillay Anu and Turshen Meredeth ‘There is No Aftermath for Women’ in Meintjies Pillay and Turshen above note 15 at 7.

43 Giles Wenona and Hyndman Jennifer (eds) Sites of Violence: Gender and Conflict Zones University of California Press Berkeley 2004; Buvinic Mayra, Das Gupta Monica, Casabonne Ursula and Verwimp Philip ‘Violent Conflict and Gender Inequality: An Overview’ (2013) 28(1) World Bank Research Observer 110; True Jacqui The Political Economy of Violence Against Women Oxford University Press Oxford 2012.

44 Meintjies Pillay and Turshen above note 15 at 16. Of course some women also become directly involved in armed struggle themselves. See, for example, Ibanez Ana Cristina ‘El Salavador: War and Untold Stories, Women Guerrillas' in Mosner Caroline O N and Clark Fiona C (eds) Victims, Perpetrators or Actors: Gender, Armed Conflict and Political Violence Zed Books London 2001 p 117; Yarwood above note 34.

45 Bell and O’Rourke above note 32 at 41. See further Ní Aoláin Fionnuala, Hayes Francesca and Cahn Naomi On the Frontlines: Gender, War and the Post-Conflict Process Oxford University Press Oxford 2011 p 6; O’Rourke above note 32 at 4–5.

46 Personal interview with international human rights lawyer, Ramallah, Palestine, 22 May 2014.

47 Hansford Justin ‘The Legal Ethics of Nelson Mandela’ forthcoming New York Law Review, available at: www.ssrn.com abstract no 2556320.

48 Personal interview with international human rights lawyer, Tel Aviv, Israel, 14 May 2014.

49 Personal interview with cause lawyer, Tunis, Tunisia, 16 June 2014.

50 See Sarat and Scheingold above note 40 at 9; Boukalas Christos ‘Politics as Legal Action/Lawyers as Political Actors: Towards a Reconceptualisation of Cause Lawyering (2013) 22(3) Social and Legal Studies 395; Michalowski Raymond ‘All or Nothing: An Inquiry into the (Im)Possibility of Cause Lawyering Under Cuban Socialism’ in Sarat Austin and Scheingold Stuart A Cause Lawyering: Political Commitments and Professional Responsibilities Oxford University Press Oxford 1998.

51 Sarat and Scheingold above note 20 at 20.

52 Personal interview with international human rights lawyer, Cape Town, South Africa, 12 August 2014.

53 Personal interview with cause-lawyer and prisoner rights activist, Tunis, Tunisia, 20 June 2014. Zine al-Abidine Ben Ali was the authoritarian President of Tunisia for 23 years. In January 2011 he was forced to resign and flee to Saudi Arabia; he was subsequently sentenced in absentia for embezzlement and corruption.

54 Personal interview with international human rights lawyer, Santiago, Chile, 28 April 2014. The Vicariate of Solidarity was an agency of the Chilean Catholic Church under the Archdiocese of Santiago which became one of Chile's most high-profile NGOs litigating on behalf of political prisoners and others abducted and tortured by the Pinochet regime. Its effectiveness and ability to operate was widely attributed to the protection of the Church.

55 It is estimated that the Khmer Rouge regime murdered all but 6–12 of the country's 400–600 lawyers. See Donovan Dolores A ‘Cambodia: Building a Legal System from Scratch’ (1993) 27(2) The International Lawyer 445. One of our Cambodian interviewees stated: ‘In Cambodia they killed not just lawyers, they killed everybody — they killed a whole generation. Today you’ll hardly find people of my generation aged between 50 and 60 … those that are the foundation of a country, those that are educated — teachers, lawyers, doctors, psychiatrists, engineers, they all were gone … lawyers, particularly lawyers, you know, I think only a few survived’. Personal interview with NGO lawyer, Phnom Penh, Cambodia, 10 March 2014.

56 See Snyder Edward C ‘Dirty Legal War: Human Rights and the Rule of Law in Chile 1973–1995’ (1994) 2 Tulsa Journal of Comparative and International Law 253.

57 Personal interview with international human rights lawyer, Santiago, Chile, 28 April 2014.

58 From a personal point of view she also noted that dealing with the military courts and witnessing the suffering that was inflicted on young people especially, day after day, eventually took a toll. Personal interview with legal academic and human rights activist, Tel Aviv, Israel, 14 May 2014.

59 Personal interview with human rights activist, Ramallah, Palestine, 22 May 2014.

60 Personal interview with cause-lawyer, Tunis, Tunisia, 20 June 2014.

61 For those who accept the ‘double-burden’ as a given, the reform of working practices — in particular the demands for long and unsociable working hours and the corresponding celebration of the ‘ideal employee’ as one who works full time, overtime and with no career interruptions — is an absolute priority. See Cha Youngjoo ‘Overwork and the Persistence of Gender Segregation in Occupations' (2013) 27(2) Gender and Society 158; Williams Joan C Unbending Gender: Why Family and Work Conflict and What to do About it Oxford University Press New York 2000; Korzec Rebecca ‘Working on the “Mommy-Track”: Motherhood and Women Lawyers' (1997) 8 Hastings Women's Law Journal 117.

62 Personal interview with human rights lawyer, Ramallah, Palestine, 20 May 2014.

63 Personal interview with former ANC and human rights activist, Johannesburg, South Africa, 15 August 2014.

64 As above.

65 See, for example, Campbell above note 31 at 411.

66 O’Rourke above note 32 at 7.

67 Copelon Rhonda ‘Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law’ (1994) 5 Hastings Women's Law Journal 243; Copelon Rhonda ‘Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217.

68 Oosterveld Valerie ‘The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’ (2005) 18 Harvard Human Rights Journal 55.

69 Franke Katherine M ‘Gendered Subjects of Transitional Justice’ (2006) 15(3) Columbia Journal of Gender and Law 813 at 816–817. The Inter-American Commission of Human Rights also accepted in Gladys Carol Espinoza Gonzáles v the Republic of Peru Case 11.157, Inter-American Commission of Human Rights Report No 67/11, 31 March 2011 that rape constituted torture. See further Green Jennifer, Copelon Rhonda, Cotter Patrick and Stephens Beth ‘Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique’ (1994) 5 Hastings Women's Law Journal 171; Askin Kelly D ‘A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003’ (2004) 11(3) Human Rights Brief 1; Bactrach Michael ‘The Protection and Rights of Victims Under International Criminal Law’ (2000) 34(1) The International Lawyer 7.

70 Nesiah Vasuki et al ‘Truth Commissions and Gender: Principles, Policies, and Procedures' (July 2006) International Center for Transitional Justice p 7.

71 See Bell and O’Rourke above note 34 at 28.

72 For example, just over 300 instances of sexual violence were reported to the UN-sponsored El Salvador Commission (1993). This is widely held to be a mere fraction of the real figure with under-reportage variously attributed to the social stigma attached to sexual violence, fears of ostracisation or retaliation and the failure of the commission to proactively solicit information on the theme. See Hoover Amelia ‘Conflict and Gender: Data Overview’ (November 2009) Benetech Human Rights Data Analysis Group Yale University p 2. Full text available at <www.preventgbvafrica.org/wp-content/uploads/2013/10/Conflict_and_Gender_Data_Overview.pdf> Accessed 18 April 2016.

73 Ní Aoláin further cautions that the processes that ‘construct’ truth, in particular the privileging of certain kinds of memory (associated with ‘public’ allocations of power and territory), may have ‘a consistent patriarchal under-current’. Ní Aoláin and Turner above note 35 at 273.

74 Ross Fiona C Bearing Witness: Women and the Truth and Reconciliation Process in South Africa Pluto Press London 2003. See further Millar Hayli ‘Facilitating Women's Voices in Truth Recovery: An Assessment of Women's Participation and the Integration of a Gender Perspective in Truth Commissions' in Durham Helen and Gurd Tracey (eds) Listening to the Silences: Women and War Martinus Nijhoff Boston Leiden 2005 p 171–222.

75 See Bell and O’Rourke above note 34.

76 Rubio Marin Ruth ‘The Gender of Reparations: Setting the Agenda’ in Rubio Marin Ruth (ed.) What Happened to the Women: Gender and Reparations for Human Rights Violations Social Science Research Council New York 2006 p 31.

77 Urban Walker Margaret ‘Transformative Reparations? A Critical Look at a Current Trend in Thinking About Gender-Just Reparations' (2015) International Journal of Transitional Justice 1. Walker uses the useful illustration of the Moroccan Reconciliation Commission which apportioned benefits among family members of deceased victims in ways that departed from Morocco's gender-biased inheritance law, resisting the established gender hierarchy.

78 Gready Paul The Era of Transitional Justice Routledge London 2011; Root Rebecca ‘Through the Window of Opportunity: The Transitional Justice Network in Peru’ (2009) 31(2) Human Rights Quarterly 473.

79 Personal interview with legal academic and human rights activist, Johannesburg, South Africa, 13 August 2014.

80 Keck Margaret and Kathryn Sikkink Activists Beyond Borders: Advocacy Networks in International Politics Cornell University Press New York 1998; O’Rourke above note 32.

81 Roht-Arriaza Naomi and Mariezcurrena Javier (eds) Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice Cambridge University Press Cambridge 2006; Harvey Colin ‘Bringing Humanity Home: A Transformative Human Rights Culture in Northern Ireland’ in McAlinden Anne Marie and Dwyer Clare (eds) Criminal Justice in Transition Hart Publishing Oxford 2015 p 47–67.

82 Personal interview with Chilean human rights lawyer, Santiago, Chile, 28 April 2014.

83 Macias Teresa ‘“Tortured Women and Hungry Widows”: Patriarchal Neoliberalism and the Logic of Compensational Justice in Chile’ (2013) 28(2) Affilia 126.

84 Killean Rachel ‘An Incomplete Narrative: Prosecuting Sexual Violence Crimes at the Extraordinary Chambers in the Courts of Cambodia’ (2015) 13 Journal of International Criminal Justice 331. See also Elander Maria ‘Prosecuting the Khmer Rouge Marriages’ (2016) 42(1) Australian Feminist Law Journal 163. In April 2014, the ECCC Co-Prosecutor made two announcements that the Prosecution were ‘requesting the investigation of sexual or gender-based violence’ as an element of the broader charges in two further cases (003 and 004). The Cambodian government is opposed to these cases going ahead, arguing that the prosecutions in cases 001 and 002 should suffice, and that further prosecutions will ‘lead the country into instability’. See further Brinkley Joel ‘Justice Squandered: Cambodia's Khmer Rouge Tribunal’ (2013) World Affairs Journal. Available at <www.worldaffairsjournal.org/article/justice-squandered-cambodia%E2%80%99s-khmer-rouge-tribunal> Accessed 10 May 2016.

85 Personal interview with international human rights lawyer, Phnom Penh, Cambodia, 10 March 2014. The report cited is Fulu Emma et al ‘Why Do Some Men Use Violence Against Women and How Can We Prevent It? Quantitative Findings from the United Nations Multi-Country Study of Men and Violence in Asia and the Pacific’ (2013) UNDP, UNFPA, UN Women and UNV Asia-Pacific Regional Joint Programme for Gender-Based Violence Prevention.

86 Cited in Cowan Ruth B ‘Women's Representation on the Courts in the Republic of South Africa’ (2006) 6(2) University of Maryland Law Journal of Race, Religion, Gender & Class 292.

87 As above at 291.

88 Albertyn Catherine ‘Defending and Securing Rights Through Law: Feminism, Law and the Courts in South Africa’ (2005) 32(2) Politikon: South African Journal of Political Studies 217.

89 Jewkes Rachel and Naeema Abrahams ‘The Epidemiology of Rape and Sexual Coercion in South Africa: An Overview’ (2002) 55(7) Social Science & Medicine 1231.

90 Personal interview with international human rights lawyer, Johannesburg, South Africa, 16 August 2014.

91 As above.

92 Waylen above note 17.

93 Scheingold Stuart A The Politics of Rights: Lawyers, Public Policy and Political Change 2nd ed University of Michigan Press Ann Arbor 2004; Jones Lynn C ‘The Haves Come Out Ahead: How Cause Lawyers Frame the Legal System for Movements’ in Sarat Austin and Scheingold Stuart A (eds) Cause Lawyers and Social Movements Stanford University Press Stanford 2006 p 182–196.

94 McCann Michael (ed.) Law and Social Movements Ashgate Aldershot 2006; Boutcher Steven ‘Mobilizing in the Shadow of the Law: Lesbian and Gay Rights in the Aftermath of Bowers v Hardwick’ (2011) 31 Research in Social Movements, Conflict and Change 175.

95 Personal interview with legal academic and human rights activist, Johannesburg, South Africa, 13 August 2014.

96 See Ní Aoláin and Turner above note 35 at 273. In the case of South Africa, Albertyn similarly cautions that constitutionalism and rights can introduce a dangerous sense of apathy: ‘One of the tasks for women in South Africa is to ensure that the interim Constitution, with its rights framework, is not used in a way which restricts rather than furthers the goal of gender equality … all of this needs to take place within a vision of social reconstruction that addresses the material bases of women's inequality’. Albertyn above note 30 at p 62–63.

97 Ní Aoláin above note 30 at 3.

98 Personal interview with legal academic and human rights activist, Johannesburg, South Africa, 13 August 2014.

99 Personal interview with Chilean human rights lawyer, Santiago, Chile, 30 April 2014.

100 See Ní Aoláin and Turner above note 35 at 264.

101 Personal interview with cause-lawyer, Tunis, Tunisia, 20 June 2014.

102 Personal interview with legal academic and human rights activist, Tel Aviv, Israel, 14 May 2014.

103 Mazzei Lisa A ‘An Impossibly Full Voice’ in Jackson Alecia Y and Mazzei Lisa A (eds) Voice in Qualitative Inquiry: Challenging Conventional, Interpretive, and Critical Conceptions in Qualitative Research Routledge London and New York 2009 p 45 at 47–48.

104 Sarat Austin and Scheingold Stuart A ‘The Dynamics of Cause Lawyering: Constraints and Opportunities' in Sarat and Scheingold above note 40 at 2.

105 Personal interview with Palestinian human rights activist and legal academic, Jerusalem, Israel, 19 May 2014.

106 Posner Eric A and Vermeule Adrian ‘Transitional Justice as Ordinary Justice’ (2004) 117 Harvard Law Review 761. See further Ohlin Jens David ‘On the Very Idea of Transitional Justice’ (2007) 8(1) Whitehead Journal of Diplomacy and International Relations 51.

107 Ignatieff Michael The Warrior's Honor: Ethnic War and the Modern Conscience Henry Holt & Co New York 1998.

108 Ní Aoláin Fionnuala above note 30 at 4.

109 Ní Aoláin and Turner above note 35 at 229; Snyder Jack and Vinjamuri Leslie ‘Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice’ (2004) 7 Annual Review of Political Science 354.

110 Personal interview with former ANC and human rights activist, Johannesburg, South Africa, 15 August 2014.

111 Gready Paul The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond Routledge London 2011 p 8. See further McAuliff Pádraig ‘Structural Causes of Conflict and the Superficiality of Transition’ in Corradetti Claudio Eisikovits Nir and Volperotondi Jack (eds) Theorizing Transitional Justice Routledge London 2016 p 93; Dave Whyte ‘The Crimes of Neo-Liberal Rule in Occupied Iraq’ (2007) 47(2) British Journal of Criminology 177.

112 Ní Aoláin above note 30 at 11; Katherine M Franke contends that ‘[i]n different ways, and by different means, rebuilding post conflict societies is almost inevitably a process of re-masculinization. Left untended, this process can take the form, for instance, of reinstalling men as good citizens by and through the ideological redefinition of “women's place”, or of formulating new political leadership in the form of a “national father”’. Franke above note 69 at 824.

113 More than 25 years ago Carol Smart produced a groundbreaking critique of feminist engagements with law. Adopting a post-structural analysis, she argued that law as a discourse inevitably excludes women by failing to account for women's experience and knowledge. Smart Carol Feminism and the Power of Law Routledge London 2011.

114 Ní Aoláin cautions against ‘an emphasis on including women to match off the presence of men’, arguing that this may fail to address ‘the hierarchies of race, ethnicity, religious affiliation and social status that privilege elite women partly because their biographies look the most like those of the men present and included in transitional processes’. Ní Aoláin above note 30 at 16.

115 Scheingold Stuart The Politics of Rights: Lawyers, Public Policy, and Political Change 2nd ed Yale University Press New Haven 2004.

116 Pierre Bourdieu ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805. Manji also argues that, in the African context, lawyers can be viewed as part of a postcolonial bourgeoisie whose intimate bond with the state ‘determines the approach taken and means that endeavours to ameliorate the position of women remain within the magnetic field of state law and within the dominant paradigm of legal centralism’. Manji Ambreena S ‘Imagining Women's “Legal World”: Towards a Feminist Theory of Legal Pluralism in Africa’ (1999) 8(4) Social and Legal Studies 440.

117 See for example, Campbell above note 31 at 427.

118 Kirchheimer Otto Political Justice: The Use of Legal Procedure for Political Ends Princeton University Press Princeton 1961 p 430–431. See also Habermas Jürgen Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy trans Rehg William Polity Press Oxford 1996.

119 O’Rourke above note 32 at 248.