While the indictments and verdicts of international tribunals have come to frequently include gender-based violence over the years, the framework within which such crimes are prosecuted does neither the victims nor
the underlying . The time has come to make gender-based violence a distinct crime under international law. causes justice
Born in the immediate aftermath of the Second World War, International Criminal Law is one of the driving forces alongside Human Rights for the paradigm shift in the concept of sovereignty in the 20th Century. The underlying logic is that some crimes are so egregious that the international community cannot stand by idly as perpetrators go unpunished, limited to specifically three international “core” crimes (Arts. 6-8)- war crimes, genocide, and crimes against humanity.
Because of its global nature and reach, another characteristic of International Criminal Law is arguably its norm-setting or trickle down-effect – the idea that setting legal and moral rules on an international level will also have an impact regionally and locally. Through this, some view International Criminal Law as a possible avenue for advancing gender equality, notably through how it addresses and deals with gender-based violence.
Gender-based violence, while having no agreed upon single definition, is most commonly viewed as violence which targets a person because of their gender or disproportionately affects them because of it. As this definition is based on gender, it can include violence against a broader category of people, including men. It is, however, often used synonymously with violence against women and girls because they are thought to make up the majority of gender-based violence victims.
Because International Criminal Law deals with the individual criminal responsibility for committed atrocities, gender-based violence could very well be addressed within this field of law. Studying its inclusion in international law historically, it becomes apparent that gender-based violence has been notably absent for a long time and its recognition is still very slow. Further, at this point, gender-based violence can only be prosecuted as part of one of the three defined core crimes. The result is that certain types of gender-based violence are not prosecutable based on distinctions which are arbitrary or irrelevant from the point of view of the victims. Also, when gender-based violence is prosecuted as part of the core crimes, this tends to reduce it to a means to an end. The narrative which is to large extent reflected in the way the crimes are structured, is that gender-based violence is primarily a crime against the communities, nations, and populations which women are part of. Victims and their experiences as well as structural problems, such as misogyny or patriarchy, play only a secondary role.
The oldest form of recognition of gender-based violence in International Law has been the recognition of sexual violence, particularly rape, as a war crime. Historically, war-time rape was long considered an unfortunate, yet inherent, part of warfare. This may explain why in the Geneva conventions, which deal with the law of war (Hague Convention IV, Oct 1907, Article XLV), rape has often been circumscribed (Fourth Geneva Convention, 12 August 1949, 75 UNTS 287, Article 27) only as a “crime of honor” (Protocol I, 8 June 1977, 1125 UNTS 3, Article 76). Additionally, the concept of war crimes relies on the distinction between war and peace which is sometimes criticised as detached from reality, as much gender-based violence also happens on the sides of or in the aftermath of conflict. At the same time, the concept of “war-time rape” tends to focus on rape across enemy lines. In a recent development however, the International Criminal Court recognised that sexual violence perpetrated against one’s own troops can also constitute a war crime.
Genocide – literally the act of killing a people – is a crime defined through specified categories which are protected. This, for now exhaustive, list of categories consists of race, nationality, ethnicity and religion. For gender-based violence this means that violence targeting a woman because she is a woman, even if the intent is to destroy women as a group, would not amount to genocide.
The decision of the International Criminal Tribunal for Rwanda in Akayesu (1998) was an important step in making sexual and other kinds of gender-based violence visible. The tribunal recognised that rape could constitute and be punished as genocide if somebody was targeted for belonging to one of the protected groups. Moreover, the International Criminal Tribunal for Rwanda was applauded for using a particularly broad definition of sexual violence which did not rely on purely physical aspects, such as penetration, and also focusing on the psychological damage to women rather than just harm done to their reproductive ability.
However, it should be noted that the original indictments of the tribunal did not include a single count of rape or other sexual violence. It was not until a female judge started questioning witnesses on their knowledge of sexual violence that the court became aware of its prevalence and the prosecution amended their indictments.
Prosecuting crimes against women as genocide can be problematic as it, by definition, puts their belonging to a certain group – and thereby the group – in the foreground. This inherently reduces women to objects rather than treating them as the primary victims of crimes and focussing on their experiences.
Finally, crimes against humanity may include crimes committed during peace-time and against civilian populations more generally. Under the Rome Statute of the ICC, the category “gender” is even explicitly protected from persecution. In order to qualify violence as a crime against humanity, an act must be part of a “wide-spread or systematic attack” against the population. This is usually understood as relating to certain policies or agendas pursued by the state, such as laws or official statements inciting grave breaches of human rights.
This means that many forms of gender-based violence against women, as for example the rampant and unpunished sexual violence and killing of women in parts of Mexico, do not qualify as systematic since the framework within which gender-based violence occurs often tends to be implicit rather than explicit. This raises the question whether certain cultural practices, or the omission of the state to sanction crimes against women, can be understood as a policy or agenda amounting to a crime against humanity. This has not yet been addressed by any court.
With these limitations that each of the existing definitions of international crimes poses, there are two options through which gender-based violence could become easier to address and prosecute internationally. The first is to expand the definitions of the current crimes. Here, a broadening of the legal concepts of crimes against humanity and “wide-spread or systematic attacks” would likely be preferable. The second option is to introduce a new crime of “femicide” or more generally: gender-based violence. Its advantage would be the focus on the experiences of victims in the first place, rather than the accompanying circumstances of the crime, such as the belonging to a group or the instrumentalisation of individuals by using rape as a strategy of war. Instead, gender-based violence as the pinnacle of gender discrimination would be at the front and center of such a new crime.
Currently, the idea of this new crime is yet to gain traction in the international legal community. However, with a growing number of governments pursuing an openly feminist foreign policy agenda – amongst them Sweden, France and Canada – such a change could some day become reality.
A version of this article has been published at http://friedensakademie-blog.eu/2019/08/24/gender-based-violence-an-international-crime/#_ftn2.