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University of New South Wales Law Journal Student Series |
KATHERINE CHENG
Sexual and gender-based crimes (‘SGBC’) have been marginalised for decades. Often viewed as inevitable by-products of war, or more perniciously, as ‘spoils of war’,[1] victims seldom receive recognition. Perpetrators of sexual and gender-based violence (‘SGBV’) often evade accountability which weakens the deterrent effect of criminalisation. The ad hoc tribunals of the 1990s were a watershed moment for the prosecution of SGBC and heralded a new era of optimism and hope which culminated in the codification of numerous SGBC in the Rome Statute. However, in practice, progress has been uneven.
This paper argues that the prosecution of SGBC was hamstrung by sexist and gendered norms which were internalised by both judges and prosecutors during the trial process. Part II briefly outlines the feminist debate between the ‘reformists’ who recognise the potential of international criminal law (‘ICL’) for change and the ‘sceptics’ who believe the law reproduces patriarchal structures. Part III traces the legal developments in ICL from the postwar treaties to ad hoc tribunals to the Rome Statute. Part IV discusses the legal and procedural challenges that confront the successful prosecution of SGBC. This Part focuses on the International Criminal Court (‘ICC’) and not domestic prosecutions of international crimes. Finally, Part V adopts a prospective approach by considering the potential of ICL for achieving gender justice. It would be premature to extol the achievements of ICL but excessive pessimism about structural irreformability is overstated by critics. Much work needs to be done and it is possible.
SGBC is relevant to feminism because women are disproportionately the victims of wartime sexual violence. The feminist debate over the efficacy of ICL in combating SGBC is broadly characterised by two contrasting positions: the ‘reformists’ who believe the law is an effective tool capable of protecting women;[2] and the ‘sceptics’ who believe the law inevitably reproduces patriarchal norms.[3] The reformists advocate for doctrinal inclusion so international legal documents cover and protect the rights of women.[4] They focus on enforcement because there is a presumption that once the legal doctrine is established, institutions will follow suit and no structural upheaval is necessary. The sceptics mock the reformist mechanism for change as ‘add women and stir’ and believe law is constructed by and for men.[5] Such biases are enshrined in human rights treaties that suggest women are bearer of rights but excludes the domestic sphere from its jurisdiction which means it can never fully address a woman’s lived experience.[6] Whilst the sceptics have always been suspicious of lauding new treaties and successful prosecutions as a win for feminism, both camps are critical of the lack of development in ICL regarding the protection of women and gender minorities.
A Treaties
Sexual violence has been central to armed conflict since time immemorial. In ancient societies, rape was not seen as a crime against a woman’s dignity but as a property crime against the proprietors of women – men.[7] Women were legitimate spoils of war and Brownmiller sardonically observes that rapists were never convicted because ‘the winning side is the side that does the raping’.[8] Consequently, early international law either saw sexual violence as a regrettable but foreseeable consequence of chaos in war and thus of secondary significance to other crimes or as a private matter committed by opportunistic soldiers that did not reflect a broader common enterprise in war.
International humanitarian law (‘IHL’) treaties govern crimes committed during conflict. The 1907 Hague Conventions categorised rape as a property crime against ‘[f]amily honour and rights’.[9] The four 1949 Geneva Conventions expressed a prohibition against rape and forced prostitution but failed to define the offence specifically and captured it within the broad category of ‘inhumane treatment’ so it may be interpreted as a ‘grave breach’ of IHL that is subject to universal jurisdiction.[10] The two 1997 Additional Protocols to the Geneva Convention further reiterated the prohibition against rape in both international and internal armed conflicts.[11] Additional Protocol I states that ‘women shall be the object of special respect’ and ‘protected against rape, forced prostitution and any other form of indecent assault’[12] and Additional Protocol II classifies rapes as ‘outrages upon personal dignity’.[13]
IHL’s approach to SGBV is problematic because it is paternalistic and protectionist. Judith Gardam argues the language of these treaties are rooted in deeply essentialised sexual norms that attempt to protect a woman’s chastity and modesty.[14] Women’s honour, a social construct that reinforces the idea of women as men’s property, has very little to do with their experience of SGBV. It fails to grapple with the gendered reality of war where the true injury of rape is a brutal physical and psychological assault on the individual. The notion that rape is a ‘mere injury to honour or reputation’ also diminishes the perception of harm and makes SGBC seem less worthy of prosecution.[15] This legal regime views women as being worthy of protection only in relation to others (eg, community and spouse) rather than as individuals in their own right. Whilst the shift from ‘honour’ to ‘dignity’ is preferable, dignity still fails to capture the violence inherent to sexual assault and rape and the fact that women are not solely targeted for the sexual satisfaction of men.[16] The depiction of women as ‘special objects’ further denotes a perceived weakness on the basis of sexual difference.[17] Finally, IHL’s overemphasis on SGBV ignores the socio-economic dimensions that affect a woman’s experience in conflict and explains why they are vulnerable in the first place.[18] For example, access to female hygiene items and gender-based persecution can affect women in meaningful ways. Therefore, IHL insufficiently deals with the specificities of gendered experiences in war leaving much room for improvement.
B Ad Hoc Tribunals
The Yugoslavian War and Rwandan Genocide were notorious for widespread occurrences of rape, sexual mutilation, and humiliation. The International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and International Criminal Tribunal for Rwanda (‘ICTR’) made key developments in SGBC jurisprudence.
1 ICTR
The ICTR statute lists rape as a war crime and allows it to be prosecuted under the heading of genocide.[19] The seminal case was Prosecutor v Akayesu (‘Akayesu’) which provides the first definition of rape.[20] Jean-Paul Akayesu, the mayor of Taba, subjected female civilians to sexual violence by armed local militia and communal police after they sought refuge in a town hall. The Trial Chamber defined rape as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive’[21] but also recognised sexual violence can ‘include acts which do not involve penetration or even physical contact’ such as the forced undressing of a woman.[22] This is referred to as the ‘conceptual approach’ because this definition states essential elements of rape rather than an exhaustive list of constituent elements.[23] Importantly, lack of consent is not an element of rape because the context – where genocide, crimes against humanity (‘CaH’) and armed conflict are occurring – is so oppressive and coercive such that consent can never be meaningfully given.[24] Additionally, rape was prosecuted as a constitutive act of genocide because sexual violence was committed to terrorise and destroy the Tutsis – to bring about the ‘destruction of spirit, the will to love, and to life itself’.[25] Akayesu also demonstrated the need for female representation amongst judges. Wartime sexual violence charges were only included in Akayesu’s indictment after the intervention of Navanthem Pillay which reveals the ease of overlooking SGBV.[26]
Further, Prosecutor v Gacumbitsi (‘Gacumbitsi’) confirmed Akayesu’s core finding that the surrounding context may be so coercive it negates the possibility of consent and held that ‘[n]on-consent is not a separate element to be proven, but could be inferred from context’.[27] This means it is unnecessary to show evidence of the victim’s relationship with the perpetrator and the victim’s conduct (eg, resistance and words). This is a significant improvement because often in rape trials, victims are humiliated and retraumatised when the defence attempts to prove the victim consented.
2 ICTY
The ICTY statute allowed for the prosecution of rape as a CaH but not as a war crime or genocide.[28] Although, article 3 is an umbrella rule that covers serious violations of customary IHL so if sexual violence constitutes a ‘grave breach’ the prosecution may make a finding under the heading of war crimes.[29] In Prosecutor v Furundžija (‘Furundžija’), Furundžija commanded a paramilitary leader to commit multiple rapes against a woman as an interrogation method.[30] The ICTY defined rape as:
(i) sexual penetration, however slight:
a. of the vagina or anus of the victim by penis of the perpetrator or any object used by the perpetrator; or
b. of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion of force or threat of force against the victim or a third person.[31]
This is known as the ‘mechanical approach’ where there is an emphasis on the actual elements of the crime.[32] This approach is criticised for limiting the ability of ICL to recognise forms of SGBC that do not include penetration.
In Prosecutor v Kunarac (‘Kunarac’), paragraph (ii) was subsequently amended to recognise factors that are not exhaustive.[33] Kunarac further clarified that cases charged as either war crimes or CaH ‘will be almost universally coercive’.[34] This aligned the ICTY’s jurisprudence more closely with the ICTR and provided significant clarification and elaboration on the elements of rape in ICL.
3 Impact
The developments in the ad hoc tribunals were momentous in raising awareness, defining sexual violence, and expanding the parameters of the core crimes to encompass SGBC. For the first time in history, perpetrators of sexual violence were brought to justice. Whilst legally significant, in practice, the number of successful prosecutions was underwhelming. At the ICTY, 51% of those charged with sexual violence were convicted.[35] At the ICTR, 90% of cases did not contain rape charges despite the extreme prevalence of rape.[36] Amongst the 10% of cases that did include rape charges, only 25% of the accused were convicted, compared to the 67% conviction rate for other crimes.[37]
There are a few explanations for this. First, prosecution for rape under the headings of CaH, war crimes or genocide often had the additional evidentiary burdens of proving it was ‘part of a widespread or systematic attack’,[38] ‘directed against any civilian population’[39] or ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.[40] It was thus insufficient to prove an individual experienced sexual violence. For example, in Gacumbitsi, it was difficult to prosecute the rape of a Hutu woman married to a Tutsi man as a CaH because she was Hutu and not part of the targeted group. Instead, the prosecution had to make a circuitous argument that the husband was the actual target which downplays the trauma of the woman.[41] Second, there were a series of procedural problems which hindered prosecution. This includes during the: investigation phase, failing to uncover evidence;[42] indictment phase, failing to include and prioritise sexual violence charges;[43] pre-trial phase, cutting sexual violence charges;[44] and trial phase, adducing insufficient evidence to secure convictions.[45] Third, sexual violence is seen as less serious and isolated which ignores the ways that gender norms contribute to the commission of genocide, war crimes and CaH. Therefore, the achievements of the ad hoc tribunals cannot be exaggerated.
C ICC
The successes of the ad hoc tribunals culminated in the Rome Statute which was revolutionary for being the first international instrument to include a range of SGBC and procedural protections for victims.[46] Gender was defined for the first time. Article 7 states that gender ‘refers to the two sexes, male and female, within the context of society’.[47] However, this definition is criticised for its ‘constructive ambiguity’ because it simultaneously views gender in a biologically essentialist way but also recognises gender as a social construct.[48] This reflects the conflict between special interest groups in the drafting of Rome Statute where the conservative faction (eg, the Holy See, conservative NGOs from North America and many Islamic countries) lobbied for a narrow definition of gender[49] whereas feminist NGOs (eg, Women Caucus for Global Justice) advocated for a definition that understands gender as a cultural construct informed by social relations between sexes.[50] Arguably, the definition of gender is sufficiently broad and flexible to cover all manifestations of socially constructed gender norms. The ICC Office of the Prosecutor (‘OTP’) further clarified in a 2014 Policy Paper that the definition ‘acknowledges the social construction of gender’.[51]
Additionally, the Rome Statute explicitly includes SGBC within the enumerated list of acts that constitute war crimes, genocide and CaH.[52] There is a reiteration of the Akayesu principle that consent is immaterial for acts of sexual nature where there is a nexus to genocide, armed conflict and CaH.[53] Gender is recognised as a ground for persecution which means the ICC has the purview to target crimes that affect the socio-economic wellbeing of women.[54] Additionally, Rules of Procedure and Evidence (‘RPE’) creates obligations to protect victims and witnesses.[55] For example, the RPE: excludes evidence based on a victim’s prior sexual history;[56] does not require corroboration with other witnesses;[57] prohibits an inference of consent by silence or lack of resistance;[58] and limits the use of audio-visual recordings that may lead to re-traumatisation.[59] Further, the Rome Statute imposes responsibilities on the prosecutor to protect victims and witnesses and specifically provides that gender needs to be accounted for.[60] The prosecutor must appoint advisers with legal expertise on SGBV to facilitate successful prosecutions and to ensure the prosecution is cognisant of the gendered dimensions of armed conflict which are often marginalised.[61] The institutional make-up of the bench requires fair representation of both female and male judges.[62] Together, this body of rules and regulations should result in an improvement in prosecuting SGBC. In practice, ICC prosecutions replicated the same errors as the ad hoc tribunals.
IV CHALLENGES
A Prosecutorial Strategy
Failures in prosecutorial strategy means SGBC have often not been included in charges against the accused in the ICC. The first trial before the ICC, Prosecutor v Lubanga (‘Lubanga’),[63] charged Thomas Lubanga Dyllo with war crimes and conscription of children but not rape and sexual slavery despite ample evidence of them gathered by ICC investigations that were publicly available.[64] The former Prosecutor Luis Moreno-Ocampo chose not to pursue SGBC charges due to the limited time to arrest Lubanga and thus prioritised expediency. Moreno-Ocampo was ridiculed for a decision that cared less about justice than the interests of a ‘Court starved for trial work’.[65] Further, during the pre-trial and trial stages, Moreno-Ocampo failed to conduct more investigations into SGBC that would have allowed him to amend the charges. This was despite lobbying from women’s rights NGOs and the United Nations Special Representative for Child and Armed Conflict who filed an amicus curiae.[66] As a desperate attempt to address growing criticisms, the prosecution allowed witness testimonies that discussed experiences of sexual violence without amending the charges. The Trial Chamber correctly concludes that the lack of a charge for sexual violence means this evidence is irrelevant[67] and further ‘strongly deprecates the attitude of the former Prosecutor’ for his handling of SGBC.[68] Rosemary Grey argues for a sympathetic approach to Lubanga that considers the pressures of the first case, staffing problems, time pressure and inconsistent objectives.[69] However, the systemic failings at all stages of the trial that reflect failings in the ad hoc tribunals suggest little was learnt from the tribulations of past prosecution teams. Further, nine years after Lubanga’s arrest, Prosecutor v Al Mahdi led by the new Prosecutor, Fatou Bensouda, also failed to include SGBC charges despite the OTP receiving evidence from the International Federation of Human Rights that alleged Ahmad al-Faqi al-Mahdi commissioned rape, sexual slavery and forced marriage.[70]
B Judicial Conservatism and Higher Degree of Scrutiny
Even where proper charges are introduced, judicial conservatism obstructs the prosecution of SGBC because there is a lack of ‘judicial receptiveness’ to interpreting the Rome Statute in a way that captures the broad scope of sexual violence.[71] In Prosecutor v Muthaura et al (‘Muthaura’), the Trial Chamber found forcible circumcision, forced nudity and genital mutilation of men and boys of Luo ethnicity were not acts of a ‘sexual nature’ because it was motivated by ethnic and cultural superiority.[72] Such a position finds no support in legal scholarship or caselaw. The ICTY found sexual mutilation (eg, cutting off a woman’s breast,[73] biting off a man’s testicles[74]) constitutes sexual violence.[75] Further, it is unclear how an act that permanently damages an individual’s sexual integrity falls short of sexual violence. Possessing a ‘sexual nature’ is also not mutually exclusive to attempts to exert cultural dominance. This ruling likely relies on discriminatory stereotypes that men are not targets of SGBV and a belief that SGBV is more about sexual gratification than power which only manifests as rape. This understanding of sexual violence is reiterated when the Pre-Trial Chamber recharacterised blatantly sexual violence (eg, forced nudity, genital mutilation) as torture when the Prosecutor sought to open an investigation into the crimes committed by the Imbonerakure in Burundi – sexual violence can be a form of torture.[76]
Whilst Muthaura’s ruling is astoundingly illogical, the most egregious incident of judicial conservatism occurred in Prosecutor v Jean-Pierre Bemba Gombo (‘Bemba’).[77] In 2016, Jean-Pierre Bemba Gombo, President and commander-in-chief of the Movement de Libération du Congo (‘MLC’), became the first person convicted on the basis of command responsibility for SGBC.[78] Seven out of the ten charges against Bemba included sexual violence. However, in the arrest warrant application, the Pre-Trial Chamber refused to qualify forced nudity as sexual violence because it was not of ‘comparable gravity’ to other crimes.[79] This departs from Akayesu which did recognise forced nudity as sexual violence. Further, at the confirmation of charges stage, the judges subsumed charges of torture, outrage of personal dignity and two separate charges of rape under one count.[80] This reluctance to allow cumulative charges to protect the rights of the accused resulted in only two out of seven charges making it to trial. The focus on rape is problematic because it neglects the diversity of SGBV that is inflicted upon victims. Although, Bemba brought many positive contributions to the Court’s treatment of SGBC. The court held rape was a ‘gender neutral’ crime.[81] The trial also displayed sensitivity towards a victim who mis-remembered her age when the crime took place, and the Chamber explicitly noted it did not undermine their credibility.[82]
However, Bemba was acquitted in 2018.[83] The crimes were established but the Appeals Chamber found that Bemba was a remote commander in a foreign country and thus lacked the reasonable measures to control the MLC. Similarly, in Prosecutor v Katanga, Germain Katanga was convicted as an accessory for all crimes except the use of child soldiers, rape, and sexual slavery.[84] These crimes were established but the Court struggles to ascribe criminal responsibility to Katanga because he was not physically perpetrating the crimes and there was no evidence of an order. The Court concluded the sexual crimes committed lacked ‘common purpose’ and arose from ‘opportunistic acts by members of the group’[85] but also contradictorily that ‘rape and enslavement formed an integral part of the militia’s design to attack the predominantly Hema civilian population of Bogoro’.[86] This proves how sexual violence is treated differently both factually and legally from other crimes. There is a perception that sexual violence is personally motivated and isolated and therefore difficult to connect to a broader criminal enterprise. Like killings and pillaging, a few incidences of rape can form a pattern of violent conduct that satisfies elements for a war crime or CaH. However, there is a double standard in the Court’s treatment of SGBC where they require a far larger scale of sexual violence to attach it to a criminal enterprise. Additionally, when applying modes of liability, the Court demands more evidence than legally required to establish common purpose.[87] Both Katanga and Bemba demonstrate the Court’s reluctance to find liability where the accused is not physically present at the perpetration of the crime and there is no unequivocal order commissioning sexual violence. Therefore, gendered stereotypes that deem SGBV of secondary importance to other crimes further entrench a culture of impunity that has existed for decades.
V POTENTIAL
Whilst the ICC’s jurisprudence often seems retrograde even compared to the ad tribunals of the 1990s, there has been some recent success which might signal a new era for a gender-sensitive and gender-competent court.
A Successful Cases
The first conviction of SGBV was in Prosecutor v Ntaganda.[88] The case signalled a shift in prosecutorial strategy when initially, in 2006, there were no SGBV charges.[89] In 2012, charges of rape and sexual slavery against men, women and child soldiers were added and in 2019, Bosco Ntaganda was found guilty as a direct perpetrator and indirect co-perpetrator.[90] Most significantly, the Court found sexual violence against child soldiers committed by members of the same group fell within the purview of ICL.[91] Whilst this extension was criticised for departing from IHL which only protects civilians and person hors de combat,[92] this decision affords more protection to some of the most vulnerable actors in armed conflict.
In Prosecutor v Ongwen, the Lord’s Resistance Army (‘LRA’) in Uganda abducted girls to serve as domestic servants, sexual slaves and forced exclusive conjugal partners.[93] Dominic Ongwen was the alleged senior commander and he became the first person found guilty of forced marriage and forced pregnancy, which was captured by the CaH basket clause ‘other inhumane acts’.[94] The recognition that reproductive violence threatens people’s bodily autonomy is a momentous leap in ICL. Law has been a poor vehicle for prosecuting reproductive violence because of discrepancies between states in their treatment of women’s bodily autonomy (eg, criminalisation of abortion, coercive measures to manage population growth). This made it difficult to achieve intentional consensus for protecting reproductive autonomy. Grey believes reproductive violence violates a ‘respect for personal dignity’ which lies at the heart of ICL and thus recognises its potential for achieving justice.[95] Further, the OTP took eight witness testimonies by video-link before a single judge prior to the trial to avoid re-traumatisation of victims.[96] Both these cases demonstrate a shift towards an increased willingness and receptiveness to expand prosecutions of SGBC beyond rape.
B Persecution
Many scholars believe the CaH ‘persecution’ has enormous potential.[97] Article 7(2)(g) defines persecution as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’ and article 7(1)(h) includes gender as a group.[98] The breadth of this charge means the ICC can target crimes that are gender-based but not sexual. In Prosecutor v Al Hassan, the accused served as the de facto head of Islamic police during Al Qaeda and Ansar Dine’s occupation of Timbuktu.[99] He was charged with the discriminatory treatment of women by permitting forced marriages and enforcing strict dress codes through violence.[100] Additionally, the Prosecutor charged Abd-Al-Rahman, a senior leader of the Janjaweed in Sudan, with persecution for targeting men of Fur ethnicity who were presumed to be rebels due to the ‘socially constructed gender role presuming males to be fighters’.[101] By pursuing charges of persecution, this broadens the Court’s understanding of SGBC being predominantly about sexual violence by highlighting the socio-economic marginalisation of women and other gender minorities.
In the first decade of its inception, the ICC failed to advance international jurisprudence on SGBC. In fact, its jurisprudence was often more regressive than the case law which preceded it. Since 2014, the court has become increasingly bold and receptive to gender-sensitive interpretations of the law. Now, more than ever we need accountability for SGBC. The Taliban takeover of Afghanistan resulted in women’s exclusion from work and secondary education.[102] Boko Haram operates in Nigeria with impunity where girls are coerced to be suicide bombers and women subjected to sexual slavery and forced marriage.[103] Investigations in the Ukraine War have uncovered sexual abuse of civilians by Russian soldiers.[104] Gender is not a ‘luxury’ but a necessity for competent prosecutorial and judicial decision-making.[105] The ICC must recognise the marginalisation of SGBC within ICL is what contributes to this epidemic of violence against women and girls. The ICC is on a positive trajectory but there is much work to be done.
[1] Daniela Nadj, International Criminal Law and Sexual Violence against Women: The Interpretation of Gender in the Contemporary International Criminal Trial (Routledge, 2018) 29.
[2] Lelila Ullrich, ‘But What about Men? Gender Disquiet in International Criminal Justice’ (2021) 25(2) Theoretical Criminology 209, 210.
[3] See Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law’ (2008) 30 Michigan Journal of International Law 30.
[4] Karen Engle, ‘Feminist Governance and International Law: From Liberal to Carceral Feminism’ in Janet Halley et al (eds), Governance Feminism: Notes from the Field (University of Minnesota Press, 2019) 3, 5.
[5] Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Re-vision of Human Rights’ (1990) 12(4) Human Rights Quarterly 486, 494.
[6] Engle (n 4) 7.
[7] Sarah Schwartz, ‘Wartime Sexual Violence as More Than Collateral Damage: Classifying Sexual Violence as Part of a Common Criminal Plan in International Criminal Law’ [2017] UNSWLawJl 4; (2017) 40(1) University of New South Wales Law Journal 57, 59.
[8] Susan Brownmiller, Against Our Will: Men, Women and Rape (Penguin Books, 1976) 35.
[9] Hague Convention (IV) Concerning the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, opened for signature 18 October 1907, 205 ConTS 277 (entered into force 26 January 1910) art 46 (‘Hague Conventions and Regulations’).
[10] Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) art 3 (‘Geneva Convention I’); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) art 3 (‘Geneva Convention II’); Geneva Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) art 3 (‘Geneva Convention III’); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) arts 3, 147 (‘Geneva Convention IV’).
[11] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) art 75(2)(b) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) art 4(2)(e) (‘Additional Protocol II’).
[12] Additional Protocol I art 76.
[13] Additional Protocol II art 4(2)(e).
[14] Judith Gardam, ‘Women and the Law of Armed Conflict: Why the Silence?’ (1997) 46(1) International and Comparative Law Quarterly 55, 57.
[15] Nadj (n 1) 62.
[16] Judith G Gardam and Michelle J Jarvis (eds), Women, Armed Conflict and International Law (Kluwer International Law, 2001) 94.
[17] Additional Protocol I art 76.
[18] Nadj (n 1) 63.
[19] SC Res 995, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex arts 3(g), 4 (‘ICTR Statute’).
[20] Prosecutor v Akayesu (Judgement) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-96-4-T, 2 September 1998) (‘Akayesu Trial’).
[21] Ibid [688].
[22] Ibid.
[23] Olga Jurasz, ‘About Justice That Is Yet to Come: A Few Remarks about the International Pursuit of Post-Conflict Gender Justice’ (2015) 24(1) Journal of Gender Studies 56, 61.
[24] Akayesu Trial [688].
[25] Ibid [731]–[732].
[26] Nadj (n 1) 71.
[27] Prosecutor v Gacumbitsi (Appeals Judgement) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-2001-64-A, 7 July 2006) [155]–[157] (‘Gacumbitsi Appeals Judgement’).
[28] SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN DOC S/RES/827 (25 May 1993) art 5(g) (‘ICTY Statute’).
[29] Ibid art 3.
[30] Prosecutor v Furundžija (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-95-17/1-A, 21 July 2000) (‘Furundžija Appeal’).
[31] Ibid [185].
[32] Jurasz (n 23) 62.
[33] Prosecutor v Kunarac (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case Nos IT-96-23-T and IT-96-23/1-T, 22 February 2001) (‘Kunarac Trial’).
[34] Ibid [130].
[35] Schwartz (n 7) 58 n 4.
[36] Binaifer Nowrojee, ‘”Your Justice Is Too Slow”: Will the ICTR Fail Rwanda’s Rape Victims’ (Occasional Paper No 10, United Nations Research Institute Social Development, 2005) 8.
[37] Schwartz (n 7) 58 n 4.
[38] ICTR Statute art 3.
[39] ICTY Statute art 5.
[40] ICTR Statute art 2.
[41] Gacumbitsi Appeals Judgement (n 27) [222].
[42] Michelle Jarvis and Kate Vigneswaran, ‘Challenges to Successful Outcomes in Sexual Violence Cases’ in Baron Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford University Press, 2016) 33, 55–5.
[43] Ibid 55–60.
[44] Ibid 61–2.
[45] Ibid 64–5.
[46] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’).
[47] Ibid art 7.
[48] 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 55, 71.
[49] Louise Chappell, ‘Women’s Rights and Religious Opposition: The Politics of Gender at the International Criminal Court’ in Yasmeen Abu-Laban (ed), Gendering the Nation State: Canadian Comparative Perspectives (University of British Columbia Press, 2008) 139, 151–52.
[50] Barbara Bedont and Katherine Hall-Martinez, ‘Ending Impunity for Gender Crimes under the International Criminal Court’ (1999) 6(1) Brown Journal of World Affairs 65, 66.
[51] International Criminal Court Office of the Prosecutor, ‘Policy Paper on Sexual and Gender-Based Crimes’ (Policy Paper, International Criminal Court, 2014) 3.
[52] Rome Statute arts 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi); International Criminal Court, Elements of Crimes, UN Doc A/CONF.183/9 (adopted 9 September 2002) art 6(b) n 3 (‘ICC Elements of Crimes’) .
[53] Catherine MacKinnon, ‘The ICTR’s Legacy on Sexual Violence’ (2008) 14(2) New England Journal of International and Comparative Law 101, 102.
[54] Ibid art 7(1)(h).
[55] Report of the Preparatory Commission for the International Criminal Court: Addendum 1, UN Doc PCNICC/2000/1/Add.1 (2 November 2000) rr 16(1)(d), 17(2)(a)(iv), 17(b)(iii), 86, 88 (‘ICC Rules of Procedure and Evidence’).
[56] Ibid r 71.
[57] Ibid r 63(4).
[58] Ibid rr 70, 72.
[59] Ibid r 112(4).
[60] Rome Statute art 68(1).
[61] Ibid art 42(9).
[62] Ibid art 36(8)(a)(iii).
[63] Prosecutor v Lubanga (Judgement Pursuant to Article 74 of the Statute (International Criminal Court, Trial Chamber I, Case No ICC-01/04-01/06-2842, 14 March 2012) (‘Lubanga Trial’).
[64] Natacha Bracq, ‘Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor?’ in Takeh BK Sendze et al (eds), Contemporary International Criminal Law Issues (TMC Asser Press, 2023) 317.
[65] William A Schabas, ‘Prosecutorial Discretion v Judicial Activism at the International Criminal Court’ (2008) 6(4) Journal of International Criminal Justice 744, 744.
[66] Bracq (n 64) 318.
[67] Lubanga Trial (n 63) [896].
[68] Ibid [60].
[69] Rosemary Grey, Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential (Cambridge University Press, 2019) 250–1.
[70] Prosecutor v Al Mahdi (Judgement and Sentence) (International Criminal Court, Trial Chamber VIII, Case No ICC-01/12-01/15, 27 September 2016).
[71] Niamh Hayes, ‘Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court’ in William Schabas and Yvonne McDermott (eds), The Ashgate Research Companion to International Critical Law: Critical Perspectives (Routledge, 1st ed, 2013) 7, 41.
[72] Prosecutor v Muthaura (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09/02/11, 23 January 2012) [264]–[266].
[73] Prosecutor v Brdanin (Judgement I) (International Criminal Court for the Former Yugoslavia, Case No IT-99-36, 1 September 2004) [517]–[518].
[74] Prosecutor v Tadić (Appeals Judgement) (International Criminal Court for the Former Yugoslavia, Case No IT-94-1-A, 15 July 1999) [198].
[75] Prosecutor v Kvočka (Appeals Chamber) (International Criminal Court for the Former Yugoslavia, Case No IT-98-30/1-A, 28 February 2005).
[76] Situation in Burundi (Public Redacted Version of ‘Request for Authorisation of an Investigation Pursuant to Art 15’, ICC-01/17-5-US-Exp, 6 September 2017) [129].
[77] Prosecutor v Jean-Pierre Bemba Gombo (Judgement Pursuant to Article 74 of the Statute) (International Criminal Court, Case No ICC-01/05-01/08-3343, 21 March 2016) (‘Bemba Trial Judgement’).
[78] Ibid [633], [637].
[79] Prosecutor v Jean-Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo) (International Criminal Court, Case No ICC-01/05-01/08-14, 10 June 2008) [40].
[80] Prosecutor v Jean-Pierre. Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome State on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo (International Criminal Court, Case No ICC-01/05-01/08, 15 June 2009) [204]–[205].
[81] Bracq (n 64) 340.
[82] Bemba Trial Judgement (n 77) [482].
[83] Prosecutor v Jean-Pierre Bemba Gombo (Judgement on the Appeal of Mr Jean-Pierre Bemba Combo against Trial Chamber III’s “Judgement Pursuant to Article 74 of the Statute”) (International Criminal Court, Case No ICC-01/05-01/08-3636-Red, 8 June 2018).
[84] Prosecutor v Germain Katanga (Trial Judgement Pursuant to Art 73 of the Statute) (International Criminal Court, Case No ICC-01/04-01/07-3319, 7 March 2014).
[85] Ibid [1630].
[86] Ibid [1664].
[87] See Susana SáCouto and Patricia Viseur Sellers, ‘The Bemba Appeals Chamber Judgement: Impunity for Sexual and Gender-Based Crimes’ (2019) 27 William and Mary Bill of Rights Journal 599.
[88] Prosecutor v Bosco Ntaganda (Judgement) (International Criminal Court, Case No ICC-01/04-02/06, 9 July 2019) (‘Ntaganda Judgement’).
[89] Prosecutor v Bosco Ntaganda (Warrant of Arrest) (International Criminal Court, Case No ICC_01/04-02/06-2-tENG, 24 August 2006).
[90] Ntaganda Judgement (n 88) [1199].
[91] Katerina Uhlírová, ‘Contribution of the International Criminal Court to the Prosecution of Sexual and Gender-Based Crimes: Between Promise and Practice’ in Pavel Šturma, The Rome State of the ICC at Its Twentieth Anniversary (Koninklijke Brill, 2019) 83, 100.
[92] See Kevin Jon Heller, ‘ICC Appeals Chamber Says a War Crime Does Not Have to Violate IHL’, OpinioJuris (Web Page, 15 June 2017) <http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/#:~:text=No%20more.,as%20the%20AC%20openly%20acknowledges> .
[93] Prosecutor v Dominic Ongwen (Trial Judgement) (International Criminal Court, Case No ICC-02/04-01/15-1726-Red, 4 February 2021).
[94] Rome Statute art 7(1)(k).
[95] Rosemary Grey, ‘Reproductive Crimes in International Criminal Law’ in Indira Rosenthal, Valerie Oosterveld and Susana SáCouto, Gender and International Criminal Law (Oxford University Press, 2022) 231, 264.
[96] Ibid art 56; Grey (n 69) 175.
[97] Grey (n 69) 310; Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto, ‘What Is “Gender” in International Criminal Law’ in Indira Rosenthal, Valerie Oosterveld and Susana SáCouto, Gender and International Criminal Law (Oxford University Press, 2022) 11, 30; Lisa Davis and Danny Bradly, ‘Victory for Women and LGBTIQ+ Rights under International Criminal Law’ in Indira Rosenthal, Valerie Oosterveld and Susana SáCouto, Gender and International Criminal Law (Oxford University Press, 2022) 187.
[98] Rome Statute arts 7(1)(h), 7(2)(g).
[99] Prosecutor v Al-Hassan (Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) (International Criminal Court, Case No ICC-01/12-01/18, 27 March 2018).
[100] Ibid [7]–[9].
[101] Prosecutor v Ali Muhammad Ali Abd-Al Rahman (‘Ali Kushayb’) (Public Redacted Version of ‘Second Corrected Version of “Document Containing the Charges’) (International Criminal Court, Case No ICC-02/05-01/20-325-Anx1-Corr2-Red, 22 April 2021) [93].
[102] Richard Bennett et al, ‘Afghanistan: UN Experts Say 20 Years of Progress for Women and Girls’ Rights Erased since Taliban Takeover’ (Press Release, United Nations Human Rights, 8 March 2023) <https://www.ohchr.org/en/press-releases/2023/03/afghanistan-un-experts-say-20-years-progress-women-and-girls-rights-erased#:~:text=Since%20the%20takeover%20of%20Afghanistan,compelled%20to%20stay%20at%20home.>.
[103] Al Chukwuma Okoli, ‘Gender and Terror: Boko Haram and the Abuse of Women in Nigeria’, Georgetown Journal of International Affairs (Web Page, 5 April 2022) <https://gjia.georgetown.edu/2022/04/05/gender-and-terror-boko-haram-and-the-abuse-of-women-in-nigeria%EF%BF%BC/>.
[104] ‘Ukraine: Women Face Grave Risks as Russia’s Full-Scale Invasion Enters Its Second Year’, Amnesty (Web Page, 8 March 2023) <https://www.amnesty.org/en/latest/news/2023/03/ukraine-women-face-grave-risks-as-russias-full-scale-invasion-enters-its-second-year/>.
[105] Patricia Viseur Sellers, ‘Gender Strategy Is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender Based Crimes before Internationalized Criminal Courts’ (2009) 17 American University Journal of Gender, Social Policy and the Law 327, 339.
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