Sexual and gender-based crimes (SGBC) have long been neglected in international criminal law. It took decades and significant efforts by international civil society to change the status quo. While SGBC have already been recognised as crimes against humanity and war crimes at the International Criminal Court, the actual implementation of provisions enabling the prosecution of such crimes has shown mixed results.
International criminal law (ICL) is a relatively recent branch of international law, which progressed with the recognition of the need of accountability for mass atrocities after World War II. Unlike transnational crimes – national crimes with transborder effect – international ones comprise ‘the most serious crimes of concern to the international community as a whole’ (Preamble to the Rome Statute). The International Criminal Court (ICC) recognises four such types of crimes: genocide, crimes against humanity, war crimes and the crime of aggression (crimes against peace). It was a long process to recognise sexual and gender-based crimes (SGBC) as having sufficient gravity to amount to international crimes.
SGBC have always been present in conflict, yet they have historically been considered an ‘unfortunate consequence’ of war. For example, the crime of rape has been regarded as a ‘crime of honor’ primarily impacting the victim’s family. This conception misrepresents the true nature of the crime, ignoring the fact that rape constitutes an attack on physical integrity. In addition, SGBC against men have been largely neglected.
The status of SGBC in ICL changed significantly at the UN ad hoc tribunals for the former Yugoslavia and for Rwanda (the ICTY and ICTR, respectively). A groundbreaking case was the Prosecutor v. Akayesu at the ICTR in 1998, the judgment of which explicitly recognised rape as an instrument of genocide (Bensouda, 2014, p. 539). The Special Court for Sierra Leone (SCSL) further addressed forced marriage as a crime against humanity (Park, 2006). Yet, the most comprehensive list of SGBC as both war crimes and crimes against humanity is to be found in the Rome Statute of the ICC, which has been operational since 1 July 2002. The Statute codifies the following types of SGBC as such: ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and any other form of sexual violence.’ In addition, gender is recognised as possible grounds for the crime against humanity of persecution.
Achieving these developments at the ICC was the result of extensive lobbying by international civil society and certain states. One NGO coalition, in particular, advocated the incorporation of the term gender and the codification of SGBC into the Rome Statute – the Women Caucus for Gender Justice, created in 1997, which included more than 300 women’s organisations from across the world. As a result, the Statute’s provisions on SGBC proved innovative on many accounts. Rape was accepted as a gender-neutral term with regard to both the victim and the perpetrator. In addition, the Rome Statute definition focuses on the intentions of the perpetrator instead of the consent, or lack thereof, of the victim. An even bigger success for the gender justice lobbyists was the inclusion of the crime of forced pregnancy, the definition of which incorporated the possible intent of perpetrators to affect the ethnic composition of the population. The Statute also lists enforced prostitution and sexual slavery as distinct crimes. Finally, the crime of persecution on the grounds of gender recognises that women as a class could be persecuted in the same way as ethnic groups have been. The crime requires a nexus with another crime (Joseph, 2008, pp. 78-96).
Rapes as international crimes have been perpetrated against both women and men. For example, during the 2002-2003 conflict in the Central African Republic, men, especially those in power, were raped publicly to damage their community standing and their capacity to lead, and women – to assert the dominance of the offenders (GRC, 2011, p. 237). Rapes in conflict have been perpetrated with particular cruelty. Gang rapes and acts of mutilation amount to the crime of torture. Public rapes and rapes in front of members of the victims’ families constitute outrages upon personal dignity. Another form of SGBC prevalent during conflict is sexual slavery. Women are abducted and kept by one or more members of an armed group. The so called ‘war wives’ are used for sexual exploitation and other services such as cooking and cleaning. Yet, despite the term ‘wives,’ these activities are coercive in nature, and women subject to the crime of sexual slavery do not enter willingly into marriage. SGBC have also been perpetrated against members of armed groups, especially child soldiers. International experts such as Radhika Coomaraswamy and Judge Elizabeth Odio Benito have emphasised the multiplicity of roles of girl soldiers, which include armed combatants, cooks, messengers and sexual slaves. They have advocated against the ‘invisibility’ of girl soldiers in international law. An aspect of preventing SGBC against child soldiers that requires further attention is the fact that sexual and gender-based violence is not restricted to girls.
However, despite these positive developments in the codification of SGBC, results from the actual implementation of the Rome Statute provisions in ICC case law have been mixed. The first ICC trial – the Prosecutor v. Lubanga – did not include any SGBC charges despite the well-documented gender-based violence nature of the conflict in the Democratic Republic of the Congo (DRC). The Prosecution later unsuccessfully tried to subsume SGBC under the crime of using child soldiers in hostilities. SGBC charges were also dropped from the Katanga judgment because the Trial Chamber could not establish that they were part of the common purpose of the Ngiti militia to ‘wipe out’ the village of Bogoro. While the Bemba case brought the first ICC verdict that included charges of rape, the Pre-Trial Chamber declined to confirm cumulative charges for some of the rapes that also constituted acts of torture and outrages upon personal dignity, which affected the precise characterisations of the crimes that had taken place. Yet, the ICC has revised its stance of prosecuting SGBC since its earlier cases. Examples are the Mudacumura case, which includes a wider range of SGBC as war crimes and the Ntaganda case, which, in addition to SGBC against civilians, also charges such crimes perpetrated against child soldiers within Ntaganda’s own armed group. Furthermore, the Office of the Prosecutor at the ICC has appointed a Special Gender Adviser. It also issued a Policy Paper on SGBC in 2014 and included the prosecution of such crimes as a key goal of the Prosecutorial strategy in 2012.
Liana Minkova is a Special Advisor on gender in conflict and peacemaking at the Centre for Gender Rights at LCILP Global. She has an MPhil in International Relations and Politics from the University of Cambridge. Her research interests include gender-based violence as a tool of war, human rights, international regimes and gender-based crimes in international criminal law.
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