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47 Harv. Int'l L.J. 1 (2006)
Women's September 11th: Rethinking the International Law of Conflict

handle is hein.journals/hilj47 and id is 9 raw text is: VOLUME 47, NUMBER 1, WINTER 2006

Women's September 11 th:
Rethinking the International Law of Conflict-
Catharine A. MacKinnon**
The configuration of acts and actors of September 11, 2001 is not one that
international law, centered on states, has been primarily structured to ad-
dress.' Neither was most of men's violence against women in view when the
laws of war, international humanitarian law,2 and international human rights
guarantees were framed.3 The formal and substantive parallels between the
* For permission to reprint this Article, please contact the author directly.
** Elizabeth A. Long Professor of Law, University of Michigan Law School, and Fellow, Center for
Advanced Study in the Behavioral Sciences, Stanford, Cal., 2005-2006. These thoughts benefited greatly
from exchanges surrounding their delivery in prior forms at the Northwestern University Law School
(Apr. 17, 2002); the Law and Terrorism Conference, Hofstra Law School, Nice, France (July 17, 2002);
the Barbara Aronstein Black Lecture, Columbia University Law School (Sept. 17, 2002); the Hofstra Law
School (Dec. 5, 2002); the Mellon Lecture, University of Pittsburgh Law School (Apr. 14, 2003); the
Ralph Spielman Lecture, Bucknell University (Sept. 25, 2003); Kalamazoo College (Oct. 4, 2004); the
Dewey Lecture, University of Chicago Law School (Oct. 9, 2003); the University of Denver Sturm Col-
lege of Law (Mar. 10, 2005); Stanford Law School (Apr. 14, 2005); the University of Paris X, Nanterre,
France (Golden Gate Law School) (June 29, 2005); the New Scholarship in International Law Workshop,
Harvard Law School (Oct. 6, 2005); and the University of San Francisco (Nov. 3, 2005). I thank all these
audiences for their engagement. Some parts appeared in Catharine A. MacKinnon, State of Emergency: Who
Will Declare War on Terrorism against Women?, WOMEN'S REVIEW OF BOOKS, Mar. 2002, at 7-8. Jos6
Alvarez, Tal Becker, Tom Bender, Karima Bennoune, Christine Chinkin, George Fletcher, Linda Gardner,
Jack Goldsmith, Ryan Goodman, Jack Greenberg, Kent Harvey, Laura Beth Nielsen, Jessica Neuwirth,
Mary Ellen O'Connell, Michael Reisman, Diane Rosenfeld, Abe Sofaer, and Eric Stein generously con-
tended with prior drafts. Comments from three anonymous reviewers were exceptionally useful. The
University of Michigan Law Library, Melanie Markowitz, and especially Ron Levy provided research assistance.
Emma Cheuse and Anna Baldwin contributed superb technical help. I am deeply grateful for all of their
support. The Center for Advanced Study in the Behavioral Sciences provided an idyllic as well as stimu-
lating setting in which to write about these horrific realities.
1. This obvious observation about international law since at least the Treaty of Westphalia, Oct. 24,
1648, 1 Consol. T.S. 198, is illuminated in the present setting by, among others, Antonio Cassese, Terror-
ism Is Also Disrupting Some Crucial Legal Categories of International Law, 12 EUR. J. INT'L L. 993, 993-98
(2001); Robert K. Goldman, Certain Legal Questions and Issues Raised by the September 1 1th Attacks, 9 HUM.
RTS. BRIEF 2 (2001), available at http://www.wcl.american.edu/hrbrief/09/lsept.cfm (last visited Nov.
17, 2005); and Noah Feldman, Choices ofLaw, Choices ofWar, 25 HARV. J.L. & PuB. POL'Y 457 (2002).
2. Of this list, international humanitarian law has the best facial history, long prohibiting some vio-
lence against women in wartime in very clear terms. See, e.g., Francis Lieber, Instructions for the Government
of Armies of the United States in the Field (The Lieber Code), U.S. War Dep't General Orders No. 100, § 2,
art. 37 (Apr. 24, 1863), reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS,
RESOLUTIONS AND OTHER DOCUMENTS 3, 3 (Dietrich Schindler ed., 2004) (The United States ac-
knowledge and protect, in hostile countries occupied by them . .. the persons of the inhabitants, espe-
cially those of women; and the sacredness of domestic relations.); Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3516, 75 U.N.T.S. 287.
3. Attempts to get the drafters of the Universal Declaration of Human Rights to consider women's human-
ity are analyzed in MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNI-
VERSAL DECLARATION OF HUMAN RIGHTS 111-12, 164 (2001). A particularly telling example is the

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