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“This book is an ambitious multidisciplinary undertaking to theorize about gender and sex as two social constructs and explain consequences for international human rights law. Gilleri does not hesitate to take distance from prejudiced, outdated or unscientific views, whoever presents them.”
Martin Scheinin, British Academy Global Professor, University of Oxford, UK
“Combining queer, feminist and psychoanalytical insights, Gilleri exposes the exclusions, confusions – and human rights abuses – that flow from the binary conceptions of sex/gender/sexual orientation assumed by international human rights law. Her examination of the surgical sexing of intersex children and sadomasochistic sexual practices provide compelling illustrations.”
Dianne Otto, Melbourne Law School, Australia
Sex, Gender, and International Human Rights Law
This book investigates the relationship between sex and gender under international human rights law, and how this influences the formation of individual subjects.
Combining feminist, queer, and psychoanalytical perspectives, the author scrutinises the sexed/gendered human rights discourse, starting from the assumptions underpinning interpretations of sex, gender, and the related notions of gender identity, sex characteristics, and sexual orientation. Human rights law has so far offered only a limited account of the diversity of sexed/ gendered subjectivities, being based on a series of simplistic assumptions. Namely, that there are only two sexes and two genders; sex is a natural fact and gender is a social construct; gender is the metonymic signifier for women; and gender power relations take the asymmetrical shape of male domination versus female oppression. Against these assumptions, dominative and subordinate postures interchangeably attach to femininities and masculinities, depending on the subjects’ roles, their positionalities, and the situational meanings of their acts. The limits of an approach to gender which is based on rigid binaries are evident in two case studies, on the UN human rights treaty bodies’ vocabulary on medically unnecessary interventions upon intersex children and on the European Court of Human Rights’ narrative on sadomasochism.
This examination of the impact of human rights on gendered subjectivities will be of interest to scholars, students, and researchers in international law, gender studies, queer studies, cultural studies, critical race theory, and psychoanalysis.
Giovanna Gilleri is Postdoctoral Research Fellow at the Departmental Centre for Law and Pluralism, University of Milano-Bicocca, Italy.
PART OF THE FEMINIST AND QUEER INTERNATIONAL LAW SERIES
Series
Editors
Gina Heathcote, SOAS University of London, UK
Vanja Hamzić, SOAS University of London, UK
Sex, Gender, and International Human Rights Law
Contesting Binaries
Giovanna Gilleri
First published 2024 by Routledge
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-45611-9 (hbk)
ISBN: 978-1-032-45612-6 (pbk)
ISBN: 978-1-003-37783-2 (ebk)
DOI: 10.4324/9781003377832
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To my dad, and his show
The Psy-Femi-Queer Approach
1.1 A Blended Method 13
1.1.1 Differences 14
1.1.2 Categories and Dichotomies 14
1.1.3 Criticising and Questioning 15
1.2 Queer Theory as an Analytical Tool 17
1.2.1 Assimilation 20
1.2.2 Queer for All 21
1.3 A Feminist Queer Method 23
1.4 Voices in the Discourse 24
1.4.1 Subject Formation 25
1.4.2 Tensions, and Relaxations 27
1.5 Linguistic Choices 28 2 Sexes, Genders, Sexualities
2.1 Sex, Gender, Sex/Gender 32
2.1.1 A Legal Genealogy of Sex and Gender 33
Contents
2.1.2 Beyond the Sex-versus-Gender Paradigm 37
2.2 Sex (Characteristics) 50
2.3 Gender (Identities) 54
2.4 Sexual Orientations 61
2.4.1 Sexual Orientations in the Law 61
2.4.2 The Desire in the Law 67
2.5 Gendered Constellations, Definitional Gaps 72
3 Exclusionary Binaries
3.1 Binary-Normativity 73
3.1.1 The Norms of Gender 74
3.1.2 Some Effects of the Heterosexual Norm 77
3.1.3 Legal Formulations 78
3.2 Interpretive Axioms 80
3.2.1 Gender as Women’s Monopoly 82
3.2.2 A Gendered Asymmetry 84
3.2.3 A Single Version of Gender Relations 88
3.3 A Few Queer Interpretations 91
3.4 Beyond Narrow Interpretations 95
4 Rethinking Victimisation
4.1 Oppression, Survival, and Enjoyment 97
4.2 Domination and Subordination 100
4.2.1 Recognition and Dependency 100
4.2.2 A New Formula 102
4.3 The Victim and the Perpetrator 103
4.3.1 The Ideal ‘f’ 103
4.3.2 The Ideal ‘m’ 105
4.4 Multiplicitous Relationships 109
4.4.1 Masculinities in Danger 109
4.4.2 Dangerous Femininities 116
4.5 Abandoning Asymmetry through CEDAW 120
4.5.1 Cultural Change 121
4.5.2 Scope for Reinterpretation 128
4.6 Protections for Ever-Changing Roles 132
73
97
5 Unspeakable Gender: Medical Sexing Interventions 137
5.1 Medical Sexing Interventions 138
5.2 Why Gender? 140
5.3 Evidence of Gendered Practices 142
5.3.1 The Subjects Involved 142
5.3.2 The Practices 144
5.3.3 Human Rights Abuses 147
5.4 Ill-Treating Gender ‘Uncertainty’ 149
5.5 Intersex Mainstreaming 154
5.5.1 An Exception: CAT 154
5.5.2 Many Perspectives: CRPD, CRC, and Human Rights Committee 155
5.5.3 Ambiguity: CEDAW Committee 157
5.6 Integrating Femininities and Masculinities 160
5.7 Making Sense of Gender in Law 161
6 A Pleasurable Danger: Sadomasochism 163
6.1 Sadomasochistic Practices 164
6.1.1 Domination, Subordination, Recognition 164
6.1.2 Reversible Roles 167
6.2 Subject Formation in Sadomasochism 172
6.2.1 A Quest for Boundaries 173
6.2.2 Choices and Consent 174
6.3 Judging Sadomasochism 175
6.4 Sadomasochism and the Repeal of Sodomy Laws 177
6.5 Sex, Violence, or Violent Sex? 179
6.5.1 Laskey in a Nutshell 180
6.5.2 The Court’s Reasoning 181
6.5.3 Is Sadomasochism Sexual? 182
6.5.4 Upside Down Victimisation 184
6.6 From Victimisation to Sexual Expression 185
6.6.1 More Than One Victimisation 185
6.6.2 An Enigmatic Posture 188
6.6.3 Sadomasochistic Performance as Sexual Expression 191
6.6.4 Sadomasochism Left Behind 193
6.7 Some Sex Is Better Than Others 196
6.8 Rights and Pain 201
6.9 Disrupting Binaries through Lust 202
Conclusion: Subject Formations in Interpretive Oceans 204
Bibliography 217 Index 248
About the Author
Giovanna Gilleri is Postdoctoral Research Fellow at the Departmental Centre for Law and Pluralism, University of Milan-Bicocca, Italy. She holds a PhD in international human rights law (EUI), an LLM in comparative, European, and international laws (EUI), an LLM in human rights, conflict, and justice (SOAS), and a combined LLB + LLM (University of Trieste). She teaches and researches in the theory and practice of gender and human rights law from critical legal feminist, queer, psychoanalytical, and comparative perspectives. Other areas of interest include comparative law, legal pluralism, and human rights indicators. She was a research fellow at the University of Trieste, and previously worked at the European Court of Human Rights and in the Gender Team of the UN FAO.
Preface
Anti-gender movements and politics are gaining ground. While narratives on ‘gender ideology’ are manifold, they do have a common core, that is, the accusation against gender-related progressive interpretations of human rights. Grievances about ‘gender ideology’ are usually found in the opposition to, for example, gender identity recognition, equal marriage, gender and sexuality education, and voluntary termination of pregnancy. These narratives have taken hold in many countries. In his 2021 report, the UN Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz, has expressed his concern about the different actors who challenge the recognition of gender under international law. ‘Resistance to the recognition of protection of gender, gender identity and gender expression under international human rights norms is often framed,’ he has stressed, ‘as resistance to the imposition of socalled “gender ideology.”’1 The backlash against the incorporation of gender frameworks into human rights law relies heavily on exclusionary narratives and actions exploiting prejudice and stigma related to gender.2
The use of the linguistic formula ‘gender,’ left untranslated in some nonEnglish-speaking countries, such as Italy, has become synonymous with the so-called ‘gender ideology.’ The foreign word unleashes fear and anguish of an unknown force fuelling a conspiracy against ‘traditional,’ ‘natural’ values in the name of a culture allegedly under attack. The manipulation of language starts from ‘gender,’ a word and a category which organises our lives from before birth. ‘Gender ideology’ misses this point (and many others): if we want to learn about social phenomena, we cannot prescind from gender.
1 UNGA, ‘Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity: Practices of Exclusion’ (2021) A/76/152 para 9.
2 ibid para 6.
Therefore, there’s no reliable understanding of human rights issues without consideration of gender dynamics.
But ‘gender ideology’ is also an opportunity. It is an opportunity to respond to its claims showing that gender and human rights do not concern only a small group of special people, but all of us; that language is essential to create, negotiate, and convey meanings in the realm of gender and law; that sometimes law lacks the vocabulary to pronounce certain gender-related words, and to develop gender-based frameworks. This book wants to demonstrate how crucial gender analysis is for the human rights of all.
I have decided to start from language to understand whether and to what extent the legal discourse on gender is able to combine words to express certain concepts, and ultimately provide protections. Thus, interpretations and definitions on gender (and related notions) are at the centre of this book. Some of these are broad, others are narrow; some are inclusive, others are exclusionary. Whatever their scope, gender-related norms do influence how we see the world and how the world sees each one of us depending on our gendered posture. International human rights law is not only an accumulation of rules, securing rights and establishing duties. Norms have the inherent power to shape the subject by influencing their formation. The ‘subject’ is each and every one of us. We are bounded to legal and gender norms, but, at the same time, we cannot prescind these boundaries to build a sense of ourselves.
The relationship between rules and subject formation is troubled. I have experienced an array of diverse feelings triggered by the tension between these two dimensions. Anxiety, joy, excitement, despair: they are only some of the many meanings I have given unconsciously to the clash between myself and the gendered system constraining (my) existence. So, well beyond ‘gender ideology,’ that’s where this book comes from. The path towards what you are going to read has been fun and painful, the soft declination of Eros and Thanatos. In all, travelling across gender has never been such an inspiring and relieving detour.
This book originates from plural encounters across different existential eras. Acknowledgements are like (gender) categories: once you create one by including certain people, you are unintentionally excluding other important ones. A heartfelt thank you to Martin Scheinin for supervising my PhD research at the European University Institute, on which a large part of this book draws. I am extremely grateful to Dianne Otto for her generous comments and the inspirational influence of her work on my research. Di, along with Michael O’Flaherty and Neha Jain, engaged truthfully with my PhD thesis as jury members of my defence. In the last six years, many scholars have contributed to my theory on gendered human rights with constructive criticism. Thank you to Daniela Alaattinoğlu, Yussef Al Tamimi, Merav Amir, Sophia Ayada, Michela Balocchi, Fareda Banda, Matteo Bassetti, Joxerramon Bengoetxea, Manon Beury, Brenna Bhandar, Francesco Bilotta,
Mauro Bussani, Carmelo Danisi, Laura Downs, Alexandra Grolimund, Aeyal Gross, Gina Heathcote, Stéphanie Hennette Vauchez, Lena Holzer, Marta Infantino, Emily Jones, Jurgen Kurtz, Riccardo Labianco, Darian Leader, Kerttuli Lingenfelter, Hans Micklitz, Dolores Morondo Taramundi, Melanie O’Brien, Claerwen O’Hara, Alice Ollino, Stefano Osella, Irini Papanicolopulu, Lucia Re, Jacqueline Ross, Urška Šadl, Juliana Santos de Carvalho, Bérénice Schramm, Smita Shah, Pierre Thielbörger, Mike Videler, and Matteo Winkler. Thank you to Miluska Kooij for the careful linguistic revision. Any mistake, confusion, or distraction are my own.
I gratefully acknowledge the funding for my PhD received from the European University Institute and the Italian Ministry of Foreign Affairs and International Cooperation, as well as the funding for my postdoc from the University of Milano-Bicocca.
A huge thank you to Paola Gottardis and Claudia Tinti for their disruptive psychoanalytical listening.
My heart stays with Lucrezia for recognising my desire with frankness. My deepest gratitude goes to my mum and my brother for their beloved support throughout the difficult times I, and we, went through. Dad, you were the queerest person I ever met. So unpredictable, so faithful to your passions. This book is for you, wherever your theatre is now.
Giovanna Gilleri Florence-Milan-Treviso, September 2023
Acronyms and abbreviations
AI
Amnesty International
ASEAN Association of Southeast Asian Nations
Banjul Charter African Charter on Human and Peoples’ Rights
BDSM Bondage, discipline, and sadomasochism
CAT Committee against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CEDAW Committee Committee on the Elimination of Discrimination against Women
CESCR Committee on Economic, Social and Cultural Rights
CMW Committee on Migrant Workers
Convention of Belém do Pará Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women
CRC Committee on the Rights of the Child
CRPD Committee on the Rights of Persons with Disabilities
DEDAW Declaration on the Elimination of Discrimination against Women
DSM-5 Diagnostic and Statistical Manual of the American Psychiatric Association – 5th edition
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ESC European Social Charter
HRW Human Rights Watch
IACHR Inter-American Commission for Human Rights
IACtHR Inter-American Court of Human Rights
xviii Acronyms and abbreviations
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
Istanbul Convention Convention on Preventing and Combating Violence against Women and Domestic Violence
LGBTI
Lesbian, gay, bisexual, trans, intersex
Maputo Protocol Charter on Human and Peoples’ Rights on the Rights of Women in Africa
OAS Organization of American States
OHCHR Office of the United Nations High Commissioner for Human Rights
Pact of San José American Convention on Human Rights
SOGI Sexual orientation and gender identity
UDHR Universal Declaration of Human Rights
UN United Nations
UN treaty bodies United Nations human rights treaty bodies
UNAIDS Joint United Nations Programme for AIDS
UNHCR United Nations High Commissioner for Refugees
YP+10
Yogyakarta Principles Plus 10
Introduction
On the Edges of the Gendered Human Rights Discourse
International human rights law has a gender.1 The human rights regime is not neutral in terms of gender but reproduces gender hierarchies under the guise of neutrality and objectivity.2 The gendered nature of human rights makes gender a fundamental analytical category to understand the scope of protections provided to different individuals under human rights law. This book investigates the interrelationship between sex and gender under international human rights law by exploring the manner in which this interaction shapes individual subject formations. Subject formation is, indeed, the process through which we come to understand ourselves in relation to society, and therefore legal norms.
This enquiry has a twofold focus. On the one hand, I look at the legal letter of human rights law as a gendered regime, along with the respective interpretations provided by international bodies and courts. On the other hand, I consider the subject of law as a gendered individual whose rights are recognised, limited, or denied conditional on the interpretations of sex/gender, and related concepts, enshrined in human rights law. The two components interact.
The investigation of gendered interactions between the individual and the socio-legal system is not a new development, having been at the centre of several studies on the correlation between kinship and socialisation,3 as well as on the links between gender, sexuality, and race.4 In the legal realm, the reproduction and reinforcement of disadvantage by international law is the concern of many lines of research. Subordination as an imposed status is a unifying topic of discussion for those scholars challenging the injustices produced by the international legal regime. These voices assume the perspective
1 Hilary Charlesworth, ‘Feminist Critiques of International Law and Their Critics’ (1994) 13 Third World Legal Studies 1, 2.
2 Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press 2016) 192.
3 See, for example, Camille Robcis, The Law of Kinship: Anthropology, Psychoanalysis, and the Family in France (Cornell University Press 2013).
4 Max Belkin and Cleonie White (eds), Intersectionality and Relational Psychoanalysis: New Perspectives on Race, Gender, and Sexuality (Routledge 2020).
DOI: 10.4324/9781003377832-1
of the ‘others of international law’5: those sites and subjects which the rules and practices of international law have ignored and marginalised. Examples of such studies abound. The predominance of masculine discourses in human rights norms and narratives is at the core of feminist legal studies.6 Feminist analyses of women’s subjugation to men have relied on constructivist conceptualisations of gender as opposed to biological sex.7 Postcolonial and decolonial feminist theorists have also shown that colonisation has imposed the idea that biology serves as a rationale to organise society by determining the social category of gender. According to these scholars, gender is a western invention. For instance, Oyèrónkẹ Oyěwùmí explains that the Yorùbá society did not rely on ‘gender’ as an organisational principle before colonisation.8 For Maria Lugones, colonisation penetrated all aspects of social life, giving rise to new social (gender) and geo-cultural (racial) identities.9
Many thinkers of heterogeneous geographical origins and intellectual backgrounds, grouped under, among others, ‘Third World Approaches to International Law,’10 ‘Critical Race Theory,’11 and ‘Crip Theory,’12 discredit
5 Luis Eslava and Sundhya Pahuja, ‘Between Resistance and Reform: TWAIL and the Universality of International Law’ (2011) 11 Trade, Law & Development 103, 104.
6 See, inter alia, Ngaire Naffine and Rosemary Owens, Sexing the Subject of Law (LBC Information Services 1997); Catharine A MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1991); Carol Smart, ‘The Woman of Legal Discourse’ (1992) 1 Social and Legal Studies 29; Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829; Hilary Charlesworth and others, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613, and, by the same authors, ‘Feminist Approaches to International Law: Reflections from Another Century’ in Doris Buss and Ambreena Manji (eds), International Law: Modern Feminist Approaches (Hart 2005); Gina Heathcote, Feminist Dialogues on International Law: Successes, Tensions, Futures (Oxford University Press 2019); Simone Cusack and Rebecca Cook, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press 2011); Doris Buss and Ambreena S Manji (eds), International Law: Modern Feminist Approaches (Hart 2005).
7 See, for example, one of the primary sources of inspiration, also for legal scholars: Simone de Beauvoir, Le Deuxième Sexe – Vol. I (Gallimard 1949).
8 Oyèrónkẹ Oyěwùmí, The Invention of Women: Making an African Sense of Western Gender Discourses (University of Minnesota Press 1997).
9 María Lugones, ‘The Coloniality of Gender’ in Wendy Harcourt (ed), The Palgrave Handbook of Gender and Development: Critical Engagements in Feminist Theory and Practice (Springer 2016).
10 Among others, Makau Mutua, ‘What Is TWAIL?’ (2000) 94 ASIL Proceedings 31; Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 1; Upendra Baxi, ‘What May the “Third World” Expect from International Law?’ (2006) 27 Third World Quarterly 713; Chandra Talpade Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial Discourses’ (1988) 30 Feminist Review 61.
11 Inter alia, Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139; Iyiola Solanke, ‘Putting Race and Gender Together: A New Approach to Intersectionality’ (2009) 72 Modern Law Review 723.
12 Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability (New York University Press 2006).
progress narratives in human rights law by unearthing disadvantage in existential peripheries. Notwithstanding the diversity of assumptions and conclusions of these perspectives, what these critiques share is an understanding of sex/gender as a form of power, thereby keeping alive Michel Foucault’s critical legacy on the apparatus of sex/gender.13
Indeed, gender is well beyond a mere organisational principle and a legal category. Behind the grid of human rights norms lies the specific conception that the actors and authors of human rights law have of gendered power differentials. This is the main argument of Queer Legal Theory, including queer approaches to international law.14 This book contributes to the queer legal debate by problematising human rights as a regime which legitimises marginalisation of non-normative gendered subjects. The ‘queer exercises’ I am going to propose range from unpacking hierarchies relying on sex/gender and its connected categories, to showing that domination and subordination are multi-directional. I will explore the margins of law by examining the effects of the imposition of one single version of gender on human rights law. Human rights law is, in fact, a discursive terrain, where different subjects are included or excluded depending on their sex/gender performances, as well as on the position (dominative or subordinate) they occupy within or outside human rights dichotomies.
Dichotomies constitute the skeleton of sex/gender and the connected legal categories: male/female, man/woman, masculine/feminine, heterosexual/ homosexual, cisgender/trans, perpetrator/victim, dominator/subordinated, just to mention a few. The corollaries of a dichotomy are dependency and exclusion, incorporated in Jacques Derrida’s concept of ‘différance.’15 Each element of the (legal) dichotomy can exist only in the presence of the other half of the pair from which it gains meaning. At the same time, each element rests on the exclusion of the other. This structure is unbalanced in that it presupposes hierarchy between the two components: one is the norm (for example, male, man, masculine, heterosexual, or cisgender), while the other is the deviation from that norm (for example, female, woman, feminine, homosexual, or trans). In terms of discourse construction, différance describes the two modes through which words assume a specific meaning. First, ‘deferral’
13 Michel Foucault, Histoire de la sexualité: La volonté de savoir (Gallimard 1976) 121, 207.
14 See, inter alia, Dianne Otto, ‘Introduction: Embracing Queer Curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018); Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Vanja Hamzić, ‘The Case of “Queer Muslims”: Sexual Orientation and Gender Identity in International Human Rights Law and Muslim Legal and Social Ethos’ (2011) 11 Human Rights Law Review 237; Brenda Cossman, ‘Queering Queer Legal Studies: An Unreconstructed Ode to Eve Sedgwick (and Others)’ (2019) 6 Critical Analysis of Law 23; Martha Fineman and others (eds), Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Ashgate 2009).
15 Jacques Derrida, L’écriture et la différence (Seuil 1997) 302.
is the parallel of the corollary of dependency: words express what they mean only if read in conjunction with and by deferring to other different words. Second, ‘difference’ mirrors the corollary of exclusion: difference between elements creates meanings based on binary and hierarchical oppositions.16
Binaries and hierarchies underlie both gender and law. The encounter of the normativity of human rights law – its legal provisions and binding nature – with the normativity of the gender system – the limited range of gendered possibilities which it imposes on individuals – produces exclusionary effects. Human rights provisions must be analysed in the context where they arise, looking at the gendered assumptions they mirror, in order to grasp the scope and impact of the connected norms. I will thus delve into intricacies of sex/ gender by combining the hermeneutic analysis of the legal text with a critical approach to the definitions and interpretations of sex/gender and the gendered dynamics reproduced in human rights protections.
There is no one single version of gender in the human rights vocabulary. While the human rights system reflects the gendered interests of its makers and interpreters, it is nevertheless inherently flawed. That rules are interpreted and applied according to a rational method is a myth that this book will debunk. Indeterminacy17 resides in the rooms of interpretation of sex/ gender, reflecting continuous power struggles in the human rights arena. Actually, different, often opposite, definitions of sex/gender coexist in interpretive documents and judgements. Some are narrow; others are expansive. Some restrict the possibilities for gender identifications and performances; others allow the scope of protections to be broadened. Eventually, the one which prevails dictates how the gendered subject of law should appear –should they wish to have their rights protected. Mainstream interpretations do not exist in a vacuum, however. They share the hermeneutic space with those interpretations which remain on hold for a while but may disrupt traditional accounts at other moments. Many of these unorthodox interpretations open up to renewed shapes for gendered individuals and their protection. I am equally concerned with prevailing and silenced versions of sex/gender as essential components of the human rights discourse. No interpretation, including mainstream interpretations, is completely sound or comes close to a purported ‘truth.’ Legal interpretations, like any other expression of knowledge, are conditional since they are the products of political and ethical values, as well as socio-historical forces.
16 See Jacques Derrida, ‘Interview with Julia Kristeva’ in Positions (University of Chicago Press 1981) 21, 28–30.
17 On indeterminacy in international law, see Martti Koskenniemi, The Politics of International Law (Hart 2011) 112, 147–148; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (reissue with a new epilogue, Cambridge University Press 2005) 590–596.
Refining the above opening statement (‘international law has a gender’), international human rights law is a discourse, and it has a gender. International human rights law is, therefore, a gendered discourse. In order to unearth the hidden attitudes behind the human rights discourse, I investigate the vocabulary and the grammar of the legal talk on sex/gender, rather than the subject matter of each legal source. For example, in Chapter 6, I examine the language used in decisions on sadomasochism by the European Court of Human Rights to uncover the ideology on sexualities hidden behind its vocabulary. Theories on language, such as Lacanian psychoanalysis, are, therefore, particularly useful for the focus of this study – the impact which human rights interpretations have on moulding the gendered subject.
In fact, psychoanalysis, in its theoretical and clinical components, is the place of understanding and hearing any individual. The individual is immersed in the social intersubjective complexities and, at the same time, subject to the norms of gender and human rights. In the domains of both human rights and psychoanalysis, the individual is valued by virtue of being. For Jacques Lacan, the subject comes to light in a world which is already structured by and as a language, and so the unconscious is structured.18 We understand and shape reality through language in the same way that language shapes and penetrates us. Likewise, language does not only describe human rights norms, but also generates them. Hence, this book is not about feminist theory, or queer theory, or psychoanalytical theory. Rather, it applies some feminist, queer, and feminist queer insights in conjunction with the psychoanalytical (particularly, but not only) Lacanian theory of the subject, to the sex/gendered human rights discourse. This combination forms what I will later call the ‘psy-femi-queer’ approach.
This integrated method helps illuminate the position of the subject vis-àvis preestablished systems of interconnected expectations originating in the social fabric and reflected in the legal discourse.
The psy-femi-queer lens is a piercing way to deconstruct gendered relations as portrayed under international human rights law. The method does something more than deconstructing common understandings of sex/gender – the common thread between feminist and queer theories. It also traces a genealogy and an ontology of the subject of human rights law following the encounter between the individual and the set of socio-legal norms. Genealogically, this means going back to the origins of subjectivity to uncover the history of the subject, that is, how they have come to be as they are today. Ontologically, subject formation begs the question about the result of that specific process, that is, who the subject has come to be. I want to understand what gender does to us, especially when it penetrates the human rights language spoken
18 Jacques Lacan, Il Seminario. Libro II: L’io nella teoria di Freud e nella tecnica della psicoanalisi (1954–1955) (Antonio Di Ciaccia ed, Einaudi 2006).
by international actors and applied to our existences. This kind of knowledge concentrates on the subject, set in motion by multifaceted desires, and, at the same time, immersed in the grid of gendered norms.
The disruptive nature of the psy-femi-queer approach stems from its synergistic nature, merging insights from different disciplines on the same object of enquiry, that is the gendered subject – of law, of feminism, of queer theory, of psychoanalysis. My method problematises the assumptions underlying the architecture of human rights legitimating exclusionary readings of law. International norms rely on binaries within and between sex/gender and related concepts, which prevent a whole range of sexed/gendered individuals from being seen, recognised, and protected. These unauthorised existences do not find room in prevailing socio-legal dictates, which become, instead, the frontier for subjective creative movements. And this may be true not only for so-called ‘gender non-conforming’ people, or for those falling under the ever-expanding acronym LGBTIAQ+, but for all (or most) gendered subjects. Indeed, the queer component of the psy-femi-queer method assumes that identifications are not forever, but constantly prone to change. Thus, the instability and unpredictability of subject positioning in the wide variety of possible identifications makes binary structures unwelcoming to (almost) anyone, at some point in their life at least.
That positions shift applies also to power dynamics. Mainstream interpretations of human rights conceive women as subordinated to men’s domination, thereby neglecting an array of other possible experiences – of women dominating women, of women dominating men, of men dominating men, of men dominating any other gendered subjects, and other infinite variations. These alternative declinations of gendered power differentials may well involve (also) those usually considered as ‘gender conforming.’
Nevertheless, the psy-femi-queer method, with its psychoanalytical derivation, also offers alternative modes of figuring out the boundary set by socio-legal norms. Besides being a limitation, the boundary is also a possibility for subjective construction. The boundary determines the end of the legitimate existential territory and, simultaneously, serves as an ingredient of subject formation for those living across it. True, human rights and gender norms either recognise or constrain one’s existence. Yet, it is by engaging with boundaries that the subject can mould their gendered traits.
Overall, thinking through the psy-femi-queer mode allows me to look at human rights law as a complex, sometimes chaotic, regime, with internal contradictions. What makes human rights law virtuous or vicious is, indeed, its capability to protect or neglect the diversity of gendered subjects, to frame certain concepts so as to include all individuals or only certain groups of individuals to the detriment of others. An interpretation embodying restrictive understandings of sex/gender (and related concepts) perpetuates the vicious approach. Where interpretations overlook the multiplicity of gendered subjectivities, they draw a sharp line between who falls inside and who
falls outside human rights protections. Through the voice of its own actors, human rights law determines the limitedness of its actual field of operation, in contrast to the ideal universality underpinning its very generation. My aim is to shed light on these ‘dark sides’19 of human rights law from the perspective of gendered subject formations. I am interested in discovering what the cracks produced by certain definitions and interpretations of sex/gender are made of; who inhabit them; and how these subjects interrelate with the norms of human rights.
Following this Introduction, this book is divided into two parts. Part I provides the theoretical instruments and lays the conceptual groundwork to read the loopholes of the conception of sex/gender enshrined in human rights law as discussed in Part II. Part I begins by introducing the above-mentioned psy-femi-queer method in Chapter 1. Given the focus on subject formations, I rely on feminist, queer, and psychoanalytical theories which concentrate prominently on the individual and on the way in which socio-legal systems shape them. A terminological section explains the linguistic choices made to meet the assumptions and purposes of the book.
That words matter will be better understood in the light of Chapter 2. This chapter scrutinises the notions of sex, gender, sexual orientation, gender identity, and sex characteristics from the perspective of legal interpretations as well as psychoanalytical and feminist queer thoughts. At the heart of the analysis lies the proliferation of meanings attached to the above concepts depending on the individual’s desire and gender performance. Following an examination on the sex/gender divide, I posit that both sex and gender are constructs. Therefore, ‘sex/gender’ will be preferred throughout the work, except where the examined source refers to a single notion of ‘sex’ or ‘gender.’
In the light of the conceptual toolbox provided in Chapters 1 and 2, Chapter 3 deals with mainstream interpretations of and within sex/gender which have prevailed under international human rights law. The latter has accounted for the diversity of sexed/gendered bodies only to a limited extent so far, being partially based on ‘binary-normativity,’ that is, a socio-cultural system of intertwined gender expectations. Particularly, four axioms characterise the configuration of the relation between sex and gender, and the relationship between men and women under human rights law. Human rights law assumes that sex is a natural fact, whereas gender is a social construct (sex ≠ gender); gender equates with only the group of women rather than comprising all gendered subjects (the metonymy gender = women); there are only two sexes and two genders (the dualism m/f); and gender power relations take the shape of male domination versus female oppression (the asymmetry m > f). Prevailing interpretations enshrined in authoritative sources reflect
19 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press 2011).
these four axioms in myriad ways. Nevertheless, a number of alternative accounts provide sex/gender and related concepts with expansive interpretations. These can broaden the scope of human rights protections by opening possibilities for gendered performances.
Chapter 4 is the last chapter of Part I. Building on the four axioms of human rights law, Chapter 4 scrutinises how the shape that human rights law gives to masculinity and femininity impacts on the scope of violations. I challenge mainstream configurations of gendered power differentials, such as womanvictim and man-perpetrator, by opposing plural forms of masculinities and femininities variously combined with dominative and subordinate postures. This plurality of roles will find a clear example in Chapter 6 on the European Court of Human Rights’ approach to sadomasochism. Chapter 4 ends with the reinterpretation of Article 5(a) of the United Nations (UN) Convention on the Elimination of All Forms of Discrimination against Women. Albeit contained in an instrument focused on one specific gendered group (‘women’), the provision may secure protection for all gendered individuals thanks to its symmetrical conception of sex/gender in relation to men-women as well as inferiority-superiority.
This new configuration of gendered interplays will lead us to Part II, presenting two case studies: the legal and societal responses to the so-called ‘medical sexing interventions’ (Chapter 5) and sadomasochistic practices (Chapter 6). The two cases concern very different situations which nevertheless both constitute the paradigmatic examples of the limits of the binarynormative approach to gender, based on rigid dichotomies of masculinity/ femininity, domination/subordination, and perpetrator/victim. The binarynormative approach is unable to comprehend the gendered interplays of existing practices.
Chapter 5 discusses medical sexing interventions, that is, medically unnecessary surgeries performed upon children whose sex characteristics do not fit the typical male or female anatomies. Underlying these violations are gendered expectations concerning how bodies should appear and behave. Intersex individuals are targeted not for being (perceived as) a woman or a man, but due to the social necessity of being either a woman or a man; being either feminine or masculine. Notwithstanding this gendered rationale, international human rights law, particularly at the UN human rights treaty bodies, fails to frame the abuse as gender based.
Chapter 6 is a critical reappraisal of the European Court of Human Rights’ case law on sadomasochism. The Court assesses the legitimacy of the state’s interference with sadomasochistic practices against the notions of violence, private life, and sexual acts. The Court’s narrative, even if sometimes ambiguous, victimises individuals participating in sadomasochistic acts even where they have freely consented to receive pain as a source of pleasure under specific conditions agreed upon with the dominator. For the Court, subordination is synonymous with victimhood, making the dominator a perpetrator.
In contrast, the psy-femi-queer reading of sadomasochism dismantles the traditional chain of dichotomies, showing that pleasure may propel both the dominator and the dominated.
Finally, the conclusions attest that, while hard sources of international human rights law lack definitions of sex/gender and related concepts, interpretations by international bodies and regional courts form the main legal corpus. The multiplicity of different, sometimes opposite, interpretations proves that ‘international human rights law’ is a fragmented discourse. Various voices pronounce the words generating diverse conceptualisations of sex/gender. Only some of them make room for all gendered subjectivities to enter the human rights discourse. Yet, fragmentation allows discrepancies to emerge. In these interpretive discrepancies, I am going to show that there is a place for gendered specificities. Ultimately, this book is about you, me, all of us, constantly negotiating with our desires, re-forming our subjectivities, and renewing our identifications. The psy-femi-queer method reaches where psychoanalytical, feminist, and queer legal theories alone cannot – the everchanging desire under gendered human rights norms.
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[13] Andeli-sur-Seine, three leagues from Mantes.
[14] Pont St Pierre,—four leagues from Andeli
[15] Harcourt, ten leagues from Rouen, near Brionne.
[16] La Roche-Guyon,—a market-town in Normandy, three leagues from Mantes.
CHAP. VII.
THE COUNTS OF EU AND OF ST POL TAKE BY STORM THE NEW CASTLE OF NICORPS[17].—THE CASTLE SURRENDERS ON TERMS.—THE COUNT DE DUNOIS GAINS THE CASTLE OF HARCOURT.
A the middle of September, it was resolved, in the councils held at Louviers, that, considering the great body of french chivalry, it would be necessary to form two divisions: the one under the command of Charles d'Artois count of Eu, Louis de Luxembourg count of St Pol, and other captains, having with them from three to four thousand combatants, were ordered to besiege the new castle of Nicorps, which was held by the captain, Adam Illeton[18] , an Englishman. The french army came before it on Tuesday the 12th day of September, and took the town by storm on the following Thursday. The castle was then besieged,—and surrendered on capitulation fifteen days afterward.
The other division was under the command of the count de Dunois, lieutenant-general, having with him the counts de Clermont and de Nevers, with four thousand veteran soldiers. On leaving Louviers, they marched to lay siege to the castle of Chambrais[19] on the 18th of September, of which an Englishman, called William Crinton[20] , was governor, and had under him two hundred men for its defence. After seven days siege, it surrendered on capitulation with the count de Clermont,—and thus was it restored to the obedience of the king of France.
Without losing time, the lieutenant-general marched his army before the castle of Harcourt, which is handsome and strong. It was governed by sir Richard Frongueval[21] , an Englishman, having under him about eight score of his countrymen. The siege lasted about fifteen days, with daily skirmishes with the garrison. Great
advances were made, in which a very valiant man at arms from the garrison of Louviers was killed by a cannon-shot,—and an Englishman lost his life by the shot of a culverine, on the portal of the lower court.
A mutiny now took place in the garrison, when the governor was disgraced, and hung by his feet under the gate,—when the French, taking advantage of it, played their cannon so well that they greatly damaged the walls of the lower court. The English, fearful of consequences, entered into a capitulation to surrender, if they should not, on the ensuing Friday, be in force to meet them in the field, and gave hostages for the performance. When the day arrived, not receiving any succours, they yielded up the place.
While these armies were thus employed, the english garrison of the town and castle of Essay[22] made an excursion to fish a pond at some distance,—which coming to the knowledge of the duke d'Alençon, he instantly ordered his men to mount, and marched, as secretly as he could, to cut off their retreat. He succeeded in making the whole prisoners, and, carrying them to Essay, forced them to deliver up the town and castle, on pain of losing their heads.
The french garrison in Dieppe, knowing that there was but a small garrison in Fecamp, which is a sea-port, marched thither secretly, and won it by storm.
Shortly after, arrived a vessel from England, having on board ninetyseven soldiers to garrison the abbey, supposing it still to belong to king Henry, whom the French suffered to land without opposition, but instantly afterwards took them all prisoners.
FOOTNOTES:
[17] Nicorps, a village in Normandy, diocese and election of Coutances.
[18] Adam Illeton. Q. Elton, or Hilson?
[19] Chambrais, a market-town in Normandy, 13 leagues from Evreux
[20] W. Crinton. Q. Clinton?
[21] Sir Richard Frongueval Q
[22] Essay, a market-town in Normandy, five leagues from Alençon, two from Sées.
CHAP. VIII.
THE DUKE OF BRITTANY AND THE CONSTABLE OF FRANCE ENTER NORMANDY WITH A GREAT ARMY, AND LAY SIEGE TO ST LO[23] , WHICH SURRENDERS TO THEM, AS DO MANY OTHER SMALL PLACES.— THE TOWN OF CARENTAN[24] SURRENDERS ALSO.
A the same period of this year, the duke of Brittany, his brother the count de Richemont, constable of France, with other nobles and men at arms from his duchy, amounting to a thousand or twelve hundred lances, entered lower Normandy, to restore it to the obedience of the king of France from the dominion of the English (the ancient enemies of the realm), who had usurped the government of it for nearly thirty-two years. They first advanced to the town of Mont St Michel[25]; and the nobles and men at arms were quartered in the villages of upper and lower Les Pas[26] , Courtis[27] , St George en Gaine, Postulbanch, and thereabouts.
The duke, on quitting Brittany, had left his brother, the lord Peter, on the frontiers, near to Fougeres and Avranches, for their defence, with three hundred lances. On the morrow, the duke and the constable formed their van-guard under the command of sir James de Luxembourg, lieutenant to the constable, the marshal and admiral of France, of five hundred spears, who that day marched to Coutances[28], and lay before it,—while the duke and the main army, consisting of five or six hundred lances, remained that night in and about Granville[29] . On the morrow, the constable advanced the main army toward Coutances, and halted opposite to the hospital; but they were not there a day before the English in the town marched away, and the inhabitants continued in the same peaceful state as before this renewal of war.
The duke of Brittany next marched to lay siege to St Lo, and ordered his van to advance and take up their quarters on one side of the town,—while he followed with the army on the next day, and posted himself on the opposite side. Sir William de Poitou commanded in the place, with a garrison of two hundred men,—but notwithstanding these numbers, he made no resistance, but capitulated with the duke for its surrender, on being allowed to march away with his men whither he should please. The duke and the constable, during their stay at St Lo, won the following towns, villages and castles, namely, le Hommet[30] , Neufville[31] , Torigny[32] , Beuseville[33] , Hambie[34] , La Motte l'Evêque[35] , la Haye-du-Puy[36] , Chanteloup[37] , L'Aunay[38] , and many other small places round St Lo, in which city, as well as in those captured places, strong garrisons were posted.
The van was now detached to the town of Carentan, and followed by the main body; but the garrison held out only three days before they surrendered, and then marched away with staves in their hands,— and those in the town were reinstated in their possessions. The marshal and the admiral of France now separated from the duke and the constable, and came before Pont d'Oue[39] , which having taken by storm, they overran all the country of Coutantin, without meeting any resistance. The government of it and Carentan was given to Joachim Rohault. From Carentan, the above lords returned to Coutances, and thence, in the month of October, detached a party to Gavrey[40] . On the morrow, the duke and the constable came to Coutances, where the duke staid that day, and before the constable could arrive at Gavrey, the bulwark had been won by storm; and on the morrow, sir Geoffry de Couvren, who directed the siege, having made great approaches by his mines, attacked the castle with such vigour that the english garrison, of about six score men, demanded a parley, and concluded a treaty with the constable for its surrender, on being allowed to march away in safety with their effects.
FOOTNOTES:
[23] St Lo, a city of Normandy, on the Vire.
[24] Carentan, a town in Normandy, three leagues from the seacoast.
[25] Mont St Michel, a strong town in Normandy, built on a rock, and surrounded by the sea at high water
[26] Les Pas, a village in Normandy, diocese of Avranches.
[27] Les Courtis, a village in Normandy, diocese of Avranches
[28] Coutances, capital of the Coutantin, two leagues from the sea.
[29] Granville, a sea-port in Normandy, six leagues from Coutances
[30] Le Hommet, a small town near St Lo.
[31] Neufville, a village near Alençon
[32] Torigny, three leagues from Coutances.
[33] Beuseville, a village in Normandy
[34] Hambie, a market-town near Coutances.
[35] La Motte-l'Evêque, a barony and castle near St Lo
[36] La Haye-du-Puy, a market-town near Coutances.
[37] Chanteloup, a village near Coutances
[38] L'Aunay, a village.
[39] Pont d'Oue Q Pont d'Ouilly? a market-town in Normandy, on the Vire
[40] Gavrey, a town on the Seine, four leagues from Coutances.
CHAP. IX.
THE DUKE OF ALENÇON CONQUERS HIS TOWN OF ALENÇON[41].—THE COUNT DE FOIX GAINS THE TOWN AND CASTLE OF MAULÉON[42].—THE COUNT DE DUNOIS TAKES ARGENTAN[43].—THE ENGLISH RETIRE INTO THE KEEP OF THE CASTLE, AND, ON SURRENDERING IT, MARCH AWAY WITH ONLY STAVES IN THEIR HANDS.
T duke of Alençon, in consequence of intelligence with friends in Alençon, advanced thither by day-break, and by their means was admitted into the town. The english garrison retreated to the castle, which was instantly surrounded by the duke, who had with him eight hundred lances besides archers. There were numbers of English in the place,—but their hearts failed them, for they made little resistance, and surrendered the town to the duke, whose inheritance it was. Sir Louis de Beaumont, governor of Mans, had come to his assistance with sixty lances, and archers in proportion. During this time, the king of France was at Louviers.
About this same period, namely, the latter end of September, the count de Foix accompanied by the counts de Comminges, d'Estract[44] , the viscount de Lautrec his brother, and many other knights, barons, and esquires from the counties of Foix, Comminges, Estract, Bigorre and Béarn, to the amount of five or six hundred lances and two thousand cross-bows, marched from his country of Béarn through that of the Basques[45] , until he came before the town of Mauléon de Soule, to which he laid siege. The inhabitants, perceiving such numbers, were afraid of the consequences, should the siege be pushed to extremities, and capitulated to surrender, on condition that no harm should be done to them.
Upon this, the english garrison retreated into the castle, which is the strongest in all the duchy of Guienne, and is seated on a high rock. But the count de Foix, learning that it was badly provided with stores and provision, surrounded it with his troops on all sides; and this coming to the knowledge of the king of Navarre, he instantly issued his summons for the relief of the English, and marched six thousand Navarrois, Arragonians, Gascons and English, to within two leagues of it, to raise the siege. Finding the enemy so strongly intrenched, and so numerous, he retreated, and sent messengers to the count to say that he was desirous of having a conference with him, if he would send passports for himself and what company he might please to bring with him.
The king of Navarre, on receiving the passports, advanced with a small company to within a quarter of a league of the count's army, where he was waiting for him; when, after the usual salutations from the count, (who had married the king of Navarre's daughter, and had a beautiful family) the king said that he was much astonished, considering how nearly they were connected together, that he had besieged a place under his protection, his constable being governor for the king of England, to whom he had promised to defend it against all his enemies. The count good-humouredly replied (paying at the same time all honour and respect), that he was lieutenantgeneral for the king of France of all the countries between the river Gironde and the mountains: he was, likewise, a relation and subject to the king of France, and it was by his command that he had taken the town and besieged the castle; and to preserve his honour unspotted, and that no blame might ever be cast on him by any of his family, he would never raise the siege until the place was reduced to the obedience of the king of France, unless he should be fought withal and conquered; that in every other respect he would assist and serve the king of Navarre, the father of his wife, against all persons whatever, excepting the king of France, his subjects and allies, and all things appertaining to the crown of France. Upon this, the king of Navarre returned with the troops to his own country. The garrison in the castle, finding they had no hopes of succour, and knowing their scarcity of provisions, surrendered it on capitulation,—
and thus was the castle restored to the obedience of the king of France. Shortly after, the lord de Luce[46] , attended by six hundred combatants, all wearing red crosses, came and did homage to the king of France in the hands of his lieutenant-general for the town and castle of Mauléon, which was his inheritance. After he had taken the oaths, he and his company returned to his mansion, wearing white crosses, to the great astonishment of all the men, women and children, of his country. When this had been done, the count de Foix marched his army back to Béarn, having left a sufficient garrison in the town and castle of Mauléon.
On the 27th of September, the lord de Blainville came with a large force of men at arms before the castle of Toucques, strongly situated on a rock close to the sea, and having an english garrison of sixty men. On seeing so large a body, they did not attempt resistance, but surrendered on having their lives and fortunes spared, and being allowed to march in safety whither they pleased.
On the last day of this month, the counts de Dunois and de Nevers laid siege to the castle of Yemmes[47] , which the English instantly surrendered on similar terms.
The count de Dunois then marched his army to besiege the town and castle of Argentan. The English opened a parley, although they had not any intentions to surrender; but when the townsmen saw that they were only laughing at the French by these pretended parleys, and knew their intention of holding out to the last, and that what they were saying to the French was the farthest from their thoughts, they called some of their countrymen aside, and bade them have no more parleys with the English, for that they would hold out as long as they could. At the same time, they asked for a banner or pennon, which they would display from a certain part of the walls, —and that when they should see it they should advance thither with courage, and they would admit them into the town, which was done.
The English, perceiving themselves betrayed, retreated into the castle; but a large bombard was instantly pointed against the walls, and made a breach wide enough for a cart to pass. The French, on this success, attacked the castle, and entered the breach,—but the
English retired into the dungeon, which they soon surrendered, fearing to be taken by storm; and although they demanded a capitulation, they were marched away with only staves in their hands.
FOOTNOTES:
[41] Alençon, a handsome city in lower Normandy, 47 leagues from Paris.
[42] Mauléon Q Mauléon de Soule? a town in Gascony, eight leagues from Pau
[43] Argentan, seven leagues and a half from Alençon.
[44] D'Estract In the MS from Du Cange's copy, it is changed to d'Estrar. I suspect that it ought to be de la Trane; for the souldich de la Trane was of that country, and one of Edward the IIId's great captains. He is frequently mentioned by Froissart.
[45] Basques, a small country near the Pyrenées, surrounded by Spain, the ocean, Béarn and the river Adour
[46] De Luce. Luxe. MS. D C .
[47] Yemmes Q if not Yesme, a village in Maine?
CHAP. X.
THE KING OF SICILY WAITS ON THE KING OF FRANCE AT LOUVIERS.—FRESNOY[48] SURRENDERS
TO THE DUKE OF ALENÇON.—GISORS[49] CAPITULATES.—THE CASTLE OF GALLON[50] IS BESIEGED.
A this season, the king of Sicily came to the king of France at Louviers, where he was very joyfully received. He had with him his brother the count du Maine, and a long train of nobles, knights and esquires, whose names it would be tedious to relate, to the number of more than two hundred lances, and archers, without including those from the army of the duke d'Alençon, the duke of Brittany, the count de Dunois lieutenant-general, the count de Clermont, nor those of the count d'Eu, or of the count de St Pol, who all had with them very many men of note.
The king, seeing such a numerous and well appointed body of chivalry, resolved to pursue with vigour the conquest of the whole duchy of Normandy, and began his operations by ordering siege to be laid to the castle of Gallon. This castle was very strong, and impregnable but by famine,—for it was seated on a rock near to the Seine, out of cannon-shot, and could not any way be won, so long as provision for the garrison should last. The command of the siege was given to the seneschal of Poitou and others, who pushed their approaches toward it with great activity. The king went thither in person.
In the mean while, the duke of Alençon laid siege to the town and castle of Fresnoy, wherein were many English; but they made no opposition to the prosperity of the king's affairs, and surrendered on capitulation.
During the siege of Gallon, and about three or four days before its surrender, sir Richard de Merbury, an english knight and governor of Gisors, agreed to terms of capitulation with the brother of his wife, for its surrender on the 17th day of October following. In fact, the governor turned to the french interest, and took the oaths of allegiance, on condition that two of his sons, John and Hemond, who had been made prisoners at the capture of Pont-Audemer, should be restored to him without ransom; and also that he should enjoy unmolested the lands of his wife, which were now held by the French, whether by gift from the king or otherwise. At the solicitations of his wife's relations, the king granted his requests,— and, in expectation of the services that he looked to from him and his children, he also made him governor of St Germain en Laye, and gave him, for his life only, all the profits and emoluments arising from this government.
The king appointed, as governor of Gisors, the lord de Gaucourt, who had long laboured in his majesty's service: and considering his great age, of four score years and upwards, he had lately acquired very great honour.
FOOTNOTES:
[48] Fresnoy, a village in Normandy.
[49] Gisors, a city in Normandy, capital of Vexin-Normand
[50] Gallon, 10 leagues from Rouen, about a league from the Seine.
CHAP. XI.
THE KING OF FRANCE ORDERS THE COUNTS DE DUNOIS, D'EU, AND DE ST POL TO JOIN HIM, AS HE INTENDED TO MARCH TO ROUEN, WHENCE, AFTER REMAINING THREE DAYS HE RETURNS.—SOME OF THE INHABITANTS OF ROUEN ARE NEAR DELIVERING UP THE CITY TO HIM.—THE DUKE OF BRITTANY BESIEGES FOUGERES.—CONDE IS TAKEN.
I the month of October, the king of France ordered the count de Dunois, and the lords in his company who had subdued Argentan, to join him: and likewise the counts d'Eu and de St Pol; for it was his intention to march to reduce Rouen to his obedience. They hastily complied with his orders, insomuch that their armies were soon in the plains of Neufbourg[51] , and assembled on the opposite side of the river, toward Rouen.
The king of France departed from Louviers, attended by the king of Sicily and his nobles, and advanced to Pont de l'Arche,—when the inhabitants came out with great joy, to welcome him on his arrival. He thence sent heralds without delay to summon Rouen to surrender, that all oppressions might be avoided by a voluntary submission: but the english garrison, aware on what embassy the heralds came, would not let them approach the walls, nor would they hear their summons, ordering them, at the same time, to make haste and return, under pain of death. They reported to the king all they had seen and heard, who, having learnt the answers the English had given to his heralds, commanded the army to cross the bridge at Pont de l'Arche, which was done under the conduct of the count de Dunois, and thence to proceed to Rouen. They remained before that city for three days with a multitude of men at arms and soldiers of all descriptions; but during these three days, the army suffered so
greatly from the continual rains and storms that the whole was nearly destroyed.
Notwithstanding the severity of the weather, the garrison made many sallies, in which very gallant deeds of prowess were done; and a french esquire, called the bastard de Forbier, was made prisoner by reason of his horse falling under him. The french lords drew their army up in battle-array before the walls, and sent the king's heralds, a second time to summon the city to surrender; but as the English would not suffer them to approach near enough to be heard by the people, they were forced to return as before, which was quite contrary to every rule of chivalry; for heralds are always allowed the liberty of freely going and coming, to deliver their messages, provided such messages do not contain any thing treasonable.
The heralds, having made their report to the count de Dunois on their return, and he having considered that there seemed at present no chance that the city would surrender, and that the severity of the weather had much weakened his army, and worse was to be expected during the winter, which was nigh at hand, marched back to Pont de l'Arche, and quartered his men in the villages round that town. On the day of this retreat, the king of France had come with the king of Sicily to a nunnery within a league and a half of Rouen; but the king of France returned to his former quarters at Pont de l'Arche, while the king of Sicily remained until all the companies had marched for their cantonments near to Pont de l'Arche.
Shortly after, the king received intelligence that some of the inhabitants of Rouen had gained two towers that commanded part of the walls, and that they would admit them by this way into the city. On this information, the count de Dunois was ordered with the army to undertake the business, who marched off, on the 16th day of October, in handsome array
On their arrival before Rouen, the army was drawn up fronting the new castle, whence two detachments were ordered,—the one to the gate of the Carthusians, and the gate Beauvoisienne, under the command of the counts de Dunois, de Nevers, d'Eu, and de St Pol, having with them many knights and esquires. The other detachment
was to take post between the place appropriated to the execution of criminals and the walls of the city, under the command of the counts de Clermont, de Chartres, the viscount de Lomaigne and others. Each remained in battle-array until two hours after midday, when a person sallied out of the city on horseback, and told the abovementioned commanders that some of the townsmen had gained, and kept by force, two towers, purposely to introduce, by their means, the king's army into the town.
Upon this, the count de Dunois, and the other lords in the detachment before the gate of the Carthusians, ordered their archers to march towards that part of the walls between these two towers,— and the count and his companions instantly dismounted and advanced to the foot of the walls, against which they raised the few scaling ladders they had, and made all diligence to mount them.
On this occasion were made knights the count de Nevers, the lord Concresault, Brunet de Long-champ, the lord de Pleu-martin, Pierre de la Fayette, the lord de Graville, master William Cousinot, Jacques de la Rivierre the bailiff of Nivernois, Robert de Hurenville, who all exerted themselves manfully to scale the walls, so that there were more than thirty Frenchmen who were on the battlements or within the town.
The lord Talbot now advanced, with about three hundred men, planting his banner on the wall, charged the French most valiantly, to repulse those who had made good their entrance into the town. They, however, fought well,—and great part saved themselves by leaping into the ditches, being forced thereto by the arrows of the english archers. Those who could not thus escape were put to death, or made prisoners,—and the English became masters of the wall and of these two towers. At this attack, from fifty to sixty French, including those of the townsmen who had assisted them, were killed or taken; and several, in attempting to escape, destroyed themselves. A few saved themselves from the towers: others had their legs broken by their fall, and such as remained were inhumanly slaughtered; so that it was an abomination to see the torrents of blood that ran in streams from the two towers.
During this time, the kings of France and of Sicily arrived at Darnetal[52]; but when they saw that the attempt had failed, and that the citizens of Rouen were not unanimous to assist them, they returned, on the 16th day of October, to Pont de l'Arche. The army was quartered in the villages on the banks of the Seine, according to their former disposition.
On the 17th day of October, sir Richard Merbury, the english knight before mentioned, fulfilled his engagement, and delivered the town and castle of Gisors to the lord de Gaucourt, for the king of France. In consequence, his children were restored to him, and all the articles agreed on fulfilled; after which, he departed. He, however, sent away, previously to yielding up the place, an english captain called Regnéfort[53] , who had been his lieutenant in the command of the garrison, and in the guard of the castle.
At this period, the duke of Brittany left lower Normandy, where he had taken many places, on his return to besiege the town of Fougeres, held by sir Francis de Surienne, called the Arragonian.
The French, at this time, won the town of Condé sur Noireau[54] through neglect of the guard at the gate; and therein was taken the lady of sir Francis de Surienne, who had been driven from her lord's own residence, and forced to shelter herself in Condé. The French plundered every thing within the town, and also carried away the English prisoners.
FOOTNOTES:
[51] Neufbourg, a town in Normandy, between the Seine and Rille, 8 leagues from Rouen
[52] Darnetal, a town very near to Rouen.
[53] Regnéfort Q Rainford
[54] Condé sur Noireau, in the valley of Noireau, diocese of Bayeux.
CHAP. XII.
THE ARCHBISHOP OF ROUEN AND OTHERS OF THE CITIZENS NEGOTIATE TO SURRENDER THAT CITY TO THE KING OF FRANCE.—THE KEYS ARE PRESENTED TO THE LIEUTENANT-GENERAL, THE COUNT DE DUNOIS, WHO ENTERS THE TOWN WITH HIS ARMY.
O the 18th day of October, the inhabitants of the city of Rouen, being greatly frightened lest their town should be stormed by the French, and of course pillaged and destroyed, and also to avoid the further effusion of blood, assembled with one accord at the bishop's palace. They were much enraged at the deaths of their relatives and friends; and had they met the lord Talbot, it was generally supposed that they would have murdered him, as he had done their fellowcitizens and friends.
They, however, saw the duke of Somerset, and plainly told him, that it was expedient that a treaty should be opened, with the king of France, otherwise they would be ruined and starved,—for it was upwards of six weeks since any corn, wood, meat or wine had entered the town. This language was not very agreeable to the duke, —but looking round, and seeing that he had not more than fifty or sixty Englishmen with him, and that there were from eight hundred to a thousand of the townsmen, without including the remainder of the inhabitants who were under arms in the different streets, he began to be alarmed, and, addressing himself with much humility to the archbishop and people, said, that he was ready to do whatever the inhabitants of the town should wish. To appease the populace, he went to the town-hall, where public meetings are usually held,—and, after some discussion, it was resolved that the archbishop, with some english knights and citizens, should attend at the gate of St Ouen, to confer with the king, or with a part of his great council, respecting the welfare and surrender of the city of Rouen.
In consequence of this resolution, the official of the town was sent to the king at Pont de l'Arche to obtain a safe conduct for certain persons therein named, to treat of peace,—which being granted, the official returned to the archbishop and the duke. The archbishop, and some knights and esquires on the part of the duke of Somerset, together with certain of the townsmen, were sent to Port St Ouen[55] , within a league of Pont de l'Arche, where they met, on the part of the king of France, his lieutenant-general the count de Dunois, the chancellor of France, the seneschal of Poitou, sir William de Cousinot, and some others. They had a long conference, in which the deputies from Rouen insisted on a general amnesty being granted, and that such as chose might depart with the English, and all who preferred to stay should have the enjoyment of their fortunes unmolested. It was also stipulated, that the English and their party should have safe conducts for themselves and their effects, when they marched away. All these demands having been agreed to by the count de Dunois and the king's counsellors, the archbishop and his associates promised to deliver up the town to the king's obedience.
The archbishop and his companions then departed, to make their report to the English and the citizens of Rouen,—but as they arrived in the night, they could not do it until the following day. On the 18th, therefore, the archbishop and the other deputies went very early to the town-hall, and related every thing that had passed between them and the ministers from the king of France, which was very agreeable to the inhabitants, but sorely displeasing to the English, who, when they saw the strong inclinations of the townsmen to turn to the french interest, were greatly astonished, more especially the duke of Somerset and the lord Talbot. They therefore left the town-hall much discontented, and, instantly arming themselves, withdrew to the government-palace, the bridges, and portals of the castle.
The citizens, having observed their motions, began to take alarm, and armed themselves also. They, as well as the English, kept up a strong guard the whole of this Saturday, and likewise during the night; but the townsmen, anxious to expel the English for refusing to accept of the terms the deputies had agreed to, sent a messenger to
Pont de l'Arche, who arrived there on Sunday by day-break, to inform the king, that if he would send a force to their relief, it should have free entrance into the town.
On this same Sunday, the 19th day of October, about eight o'clock in the morning, the whole of the inhabitants were under arms, and on their guard against any attempts of the English,—when they attacked all of that nation whom they found in the streets so sharply that it was with difficulty that they could join their companions on the bridge, and in the palace and castle. In the pursuit, from seven to eight English were killed,—and the townsmen gained possession, in the interim, of the principal gates of the town.
The count de Dunois lost no time in hastening to the relief of Rouen, but instantly mounted his horse, attended by a large company of men at arms. In the number was Flocquet, bailiff of Evreux; but in his hurry, he forgot to put his greaves on, and was so badly kicked by one of the horses of his troop that his leg was broken, and he was carried back to be cured at Pont de l'Arche, after he had given the command of his men to the lord de Maulny.
On the arrival of this force before Rouen, those within St Catherine's were summoned to surrender the place to the king of France, who had, during the summons, set out from Pont de l'Arche, grandly accompanied by men at arms and archers, to appear personally before the walls of Rouen. He had ordered his artillery to be charged, for an immediate attack on his arrival at St Catherine's, although there was no necessity,—for the governor of the place, having six score English under his orders, seeing so noble a company, and knowing that the king was on the road, fearful also of the event, if he made any resistance, surrendered it to the count de Dunois, and he and his garrison marched away whither they pleased. The bailiff of Evreux was appointed governor, until the king should otherwise dispose of it. A herald was sent with the english garrison of St Catherine's, to answer for their safety, and to conduct them to Port St Ouen. On their march, they met the king, who bade them take nothing from the poor people without paying for it; but as they said they had no money, he gave them the sum of one hundred francs to defray the expences,—and then they continued their march
