We have come a long way, but we still have a long way to go: The Struggle for the Recognition of Gender-Based Crimes

Gender-based crimes have been committed for as long as records exist, but unfortunately they still remain under-prosecuted. On June 8, 2018, the International Criminal Court (ICC) acquitted former Congolese Vice-President Jean-Pierre Bemba, convicted at trial for war crimes, stating that he could not be held criminally responsible for actions committed by his troops in the Central African Republic. The Bemba conviction was the ICC’s first and only conviction for sexual violence as a weapon of war in its history. ICC Chief Prosecutor Fatou Bensouda stated that the acquittal was “regrettable and troubling,” but highlighted that the judges still recognized the suffering caused by the atrocities committed by Bemba’s soldiers. Impunity for sexual crimes as a weapon of war is still today a serious problem, and prior to this acquittal, the Bemba case had been a milestone judgment for gender justice in international criminal law.

Until not long ago, gender-based crimes have been perceived to be a collateral damage of conflict. In international criminal law,gender-based crimes focus mainly on sexual violence against women, which – as Catherine McKinnon points out – is a product of gender inequalities and patriarchal structures.[1] Women’s bodies have been considered as instruments for the use of soldiers to de-stress after battle and satisfy their “manly” necessities. Recent conflicts have shown that gender-based crimes can also be committed purposefully. In conflicts such as Kosovo, Rwanda, the Central African Republic (CAR) and the Democratic Republic of Congo (DCR), rape became a weapon of war and terror as part of the political and military goals of the belligerent groups.[2]During the conflict in Kosovo, Serbian forces targeted ethnic Albanian women as a means of carrying out ethnic cleansing by systematically raping them. In the CAR, the population was terrorized and forced to support the government by the Mouvement de Libération du Congo (MLC) using rape as a weapon of war. Crimes of sexual violence have also become a weapon of war in the DRC since 2002.

Jean-Pierre Bemba Gombo (Reuters)

In order to show how gender-crimes have evolved through time, it is useful to distinguish three eras, each of them highlighting a particular evolution of gender-based crimes: (a) the “honour crimes era”; (b) the “International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) era”; and (c) the “ICC era”.

The “Honour Crimes Era”

During the “honour crimes era”, international treaties and international customary law did not overtly prohibit gender-based crimes as war crimes, crimes against humanity or genocide.[3] International humanitarian law subsumed gender-based crimes under the label “crimes against honour”. In the 1949 Geneva Conventions – the pillars of the current International Humanitarian Law – gender-based crimes are implicitly prohibited under the category of “attacks against the honour of women” or “outrages upon human dignity.”[4] These provisions are highly problematic, because (a) they focus on honour and/or dignity, but not on the physical, mental, social and cultural suffering that victims of gender-based crimes experience; (b) they assume that victims are always going to be women, giving no place for the commission of gender-crimes against men; (c) they are based on outdated and discriminatory ideas of honour as chastity and virtue, perpetuating gender stereotypes by emphasizing expectations about male and female roles and their correct behavior; and (d) the category of “honour crimes” diminishes the seriousness of gender-based crimes because it subsumes victims in shame and social stigma,making them less likely to report such crimes, which in turn, reduces the number of investigations and prosecutions of gender crimes.[5]

The “ICTY and ICTR Era”

ICTY Headquarters in The Hague, available at <http://www.icty.org/&gt;

The International Criminal Tribunal for the former (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) stepped away from the conception of gender-crimes as crimes against honour, towards a conception of gender-based crimes as sexual violence crimes.[6] The case law of the aforementioned international tribunals has greatly contributed to the criminalization of gender-based crimes in international law, even when they focused almost exclusively on sexual violence crimes rather than the broader category of gender-based crimes. In the famous Akayesu case, the ICTR stated that sexual violence can be used as an instrument to commit genocide. [7] The ICTY in the Kunarac case also framed gender-based crimes as crimes of sexual violence, explicitly stating that rape could be a crime against humanity and a war crime.[8] Moreover, Akayesu introduced a broad and novel definition of rape which refocused the elements of crime away from penetration; the Trial Chamber defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”. [9]The SCSL reached another milestone decision by prosecuting and distinguishing for the first time the crimes of sexual slavery and forced marriage.[10]

The “ICC Era”

ICC Headquarters in The Hague, available at <https://www.un.org/ldcportal/international-criminal-court-icc/&gt;

The progressive criminalization of gender-based crimes has culminated in the inclusion of a gender mandate within the Rome Statute, the first international criminal law treaty to have explicitly included gender crimes in groundbreaking and progressive ways, but not without complications. The Statute defines gender as “the two sexes, male and female, within the context of society.”[11] This definition has been criticized for being circular and for referring to the concept of “sex” rather than the concept of “gender.” As Valerie Oosterveld points out, this formulation was the result of the negotiators resorting to “constructive ambiguity” in order to reconcile different points of view, which leaves the interpretation to the Prosecutor and ICC.[12]

According to Oosterveld, while the definition is intentionally opaque it is not necessarily restrictive as it can cover a wide range of violations based both on gender and on sex. This is recognized in the Office of the Prosecutor’s 2014 Policy Paper on Sexual and Gender-Based Crimes. That policy recognizes that gender-based crimes “are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.”

Most importantly, the Rome Statute is often praised for being the first international treaty to codify a progressive list of gender-based crimes. The Rome Statute incorporated the gender-based crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as war crimes, crimes against humanity and genocide.[13] Persecution on the basis of gender and trafficking in women and children as enslavement are both incorporated as crimes against humanity.[14] The Rome Statute undoubtedly incorporated gender crimes in progressive and admirable ways. However, those groundbreaking provisions have so far failed to translate into practice. The prosecution and sentencing of gender based crimes will be the measure of real success for gender equality and the end of gender-crimes impunity.

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

[1] Catherine A. McKinnon, “Reflections on Sex Equality Under Law” (1990) 100 Yale Law Journal1281 at page 1302.

[2] Kelly D. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles” (2003) 21 Berkeley J.I.L. at page 298.

[3] Fionnuala Ní Aoláin, “Criminal Justice for Gendered Violence and Beyond” (2011) 11 International Criminal Law Review 425 at pages 426-427.

[4] Article 27 of the 4th.Geneva Convention relative to the Protection of Civilian Persons, 1949; Article 76 (1) of the Additional Protocol I, 1977, Article 4 (2) of the Additional Protocol II, 1977. Common Article 3 to the Four Geneva Conventions, 1949.

[5] Janet Halley, “Rape at Rome:Feminist Interventions in the Criminalization of Sex-related Violence in Positive International Criminal Law” (2008) 30 Mich. Journal Int’l Law 3 at page 8.

[6] Solange Mouthaan, “The Prosecution of Gender-based Crimes at the ICC: Challenges and Opportunities” (2011) 11 International Criminal Law Review 775 at page 779.

[7] The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-A,  ICTR, 1 June 2001.

Available at < http://www.unhcr.org/refworld/docid/4084f42f4.html&gt;; Sherrie L. Russell-Brown, “Rape as an Act of Genocide” (2003) 21 Berkeley J. Int’ L.350 at pages 371-372.

[8] Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment), IT-96-23-T & IT-96-23/1-T, ICTY 22 February 2001. Available at < http://www.unhcr.org/refworld/docid/3ae6b7560.html. paras 596-598>.

[9] Prosecutor v. Akeyesu at para. 688.

[10] Article 2 (g), Statute of the Special Court for Sierra Leone (2002). Available at <www.unhcr.org/refworld/docid/3dda29f94.html>

[11] Article 7 (3), Rome Statute of the International Criminal Court (1998) Doc., A/CONF.183/9 entered into force 1 July 2002.

[12] Valerie Oosterveld, “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 54-84 at page 54.

[13] Rome Statute at Article 7(1)(g).

[14] Rome Statute Articles 7 (1) (h) & 7 (2) (g) and 7 (3); Article (71) (h) of the ICC Statute’s Elements of Crime, ICC-ASP/1/3 (part II-B), entered into force 9 September 2002.

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