Gender and International Criminal Law 0198871589, 9780198871583

Table of contents :
Dedication
Foreword • Judge Elizabeth Odio- Benito
Acknowledgements
Table of Contents
Table of Cases
About the Editors
About the Contributors
List of Abbreviations
Introduction • Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto
PART I: MISCONCEPTIONS AND MISUNDERSTANDINGS ABOUT GENDER IN INTERNATIONAL CRIMINAL LAW
1. What Is ‘Gender’ in International Criminal Law? • Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto
2. The Gendered Framework of International Humanitarian Law and the Development of International Criminal Law • Michelle Jarvis and Judith Gardam
3. A Feminist Critique of Approaches to International Criminal Justice in the Age of Identity Politics: A Case Study of Conflict-Related Sexual Violence Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia • Kirsten Campbell and Gorana Mlinarević
PART II: EXPANDING APPROACHES TO GENDER IN INTERNATIONAL CRIMINAL LAW: BEYOND ‘GENDER = WOMEN’ AND ‘GENDER = CRIMES OF SEXUAL VIOLENCE’
4. Sexual Violence Against Men in Contemporary Warfare • Dubravka Žarkov
6. The International Crimes of Slavery and the Slave Trade: A Feminist Critique • Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum
7. Victory for Women and LGBTIQ+ Rights Under International Criminal Law: Gender in the Draft Crimes Against Humanity Treaty • Lisa Davis and Danny Bradley
8. Gender Dimensions of Forced Marriage in International Criminal Law • Melanie O’Brien
9. Reproductive Crimes in International Criminal Law • Rosemary Grey
10. Using International Criminal Law to Curb Discriminatory Practices Against Females: The Case of Female Genital Mutilation • Antonia Mulvey
PART III: ENGENDERING JUSTICE: THE FUTURE OF INTERNATIONAL CRIMINAL LAW
11. ‘Gender-Inclusivity’ in the International Criminal Court’s First Reparations Proceedings • Jonathan O’Donohue and Rosemary Grey
12. Gender and the Implementation of International Criminal Law in the Latin American Region • Daniela Kravetz
13. Fragmentation Fears or Interaction Opportunities? The Role and Potential of International Human Rights Law in Shaping International Criminal Law’s Gender Jurisprudence • Catherine O’Rourke
14. Contemporary Armed Conflict and Gender • Helen Durham and Laura Green
15. Is International Criminal Law Particularly Impervious to Feminist Reconstruction? Legally Authorized Resistances to Feminist Judging • Dianne Otto
Index

Citation preview

Gender and International Criminal Law

Gender and International Criminal Law Edited by

I N D I R A R O SE N T HA L , VA L E R I E O O ST E RV E L D, A N D SU S A NA S ÁC O U T O

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The many contributors 2022 The moral rights of the authors have been asserted First Edition published in 2022 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http://​www.natio​nala​rchi​ves.gov.uk/​doc/​open-​gov​ernm​ent-​lice​nce/​open-​gov​ernm​ent-​lice​nce.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2022934506 ISBN 978–​0–​19–​887158–​3 DOI: 10.1093/​oso/​9780198871583.001.0001 Printed and bound in the UK by Clays Ltd, Elcograf S.p.A. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

This book is dedicated to the feminists in the field of international law who have gone before us and with whom we work alongside. This work rests on their courage, intelligence, diligence, creativity and compassion. IR: To Jan, without whom nothing is possible, and to mum, the first feminist in my life. VO: To my family, who are ever supportive. SS: To my family and my ‘village’ for their support and keeping me grounded.

Foreword Judge Elizabeth Odio-​Benito President of the Inter-​American Court of Human Rights1

We live in challenging times. As I write these lines, the world is facing one of humanity’s greatest challenges. Every woman, child, and man on our planet will suffer the consequences of the global Covid-​19 pandemic. While the outbreak affects us all, it has a major and disproportionate effect on girls and women, racial, and ethnic minorities, LGBTIQ+​people and other historically disadvantaged communities. I hesitated about mentioning the Covid-​19 pandemic in the foreword of this book. It is my hope that when it finally reaches the hands of its readers, the outbreak will be controlled. Nevertheless, the structural complexities of the profound inequalities of our society will last for years to come. This pandemic has obscenely exhibited those inequalities. Victims and dismantled communities are not just anecdotal figures in the map of history. We must not forget them. International law must not forget them. As we enter a human rights crisis, a global economic crisis, a food crisis, and a long-​predicted climate crisis, a multilateral response is vital for global governance. Our international institutions must be up to the challenge. Therefore, gender in international law remains a key aspect for global governance. The Universal Declaration of Human Rights is clear: All human beings are born equal in rights and dignity. Yet, in the twenty-​first century, women and girls continue to be excluded from the outcomes of human progress. The Convention on the Elimination of All Forms of Discrimination Against Women constituted a legal milestone to fight gender inequality and sex discrimination. Yet, across the globe women and girls continue to face a wide range of inequalities and discrimination because they are women. For centuries, women’s bodies were transformed into weapons of war. Militias, military officials, both legitimate and illegitimate combatants, all of them, have resorted to rape and sexual violence as tactics of warfare. The Rome

1 The author is the President of the Inter-​American Court of Human Rights, former Judge at the International Criminal Tribunal for the former Yugoslavia and at the International Criminal Court. The views are those of the author and in no way reflect those of the previously mentioned tribunals.

viii Foreword Statute of 1998 was pivotal in including sexual violence under the scope of international crimes. The International Criminal Court (ICC) has undoubtedly made advances, but as regards to gender, there are major setbacks that impede the ICC’s full potential. Sexual violence committed against women and girls has not yet been thoroughly investigated so as to demonstrate the systematic nature and devastating effects these crimes have on women’s lives and also in their entire communities. The trials involving sexual violence have been a serious disappointment. Even though international law has a clear gender mandate, a range of investigative and judicial decisions made by international criminal justice bodies reveal that gender remains poorly understood. Gender is still narrowly conceptualized in international criminal law with numerous misconceptions and stereotypes persisting. At the ICC, the chambers have adopted different and sometimes contradictory approaches as regards to victims’ participation, their legal representation, and their eventual reparations. Comprehensive remedies in international criminal law remain an unmet need. Yet they are vital. Violence against women not only takes place during armed conflict. It occurs every day, in every sphere of our lives, in the daylight, in public and private, in our homes, in our workplaces, and in relation to education and healthcare. Violence against women is only the tip of the iceberg of sexual harassment, labour inequality, the glass ceiling, lack of access to education, gender micro aggressions, and many other forms of gender-​based discrimination. Unfortunately, we are not doing nearly enough. International law is not doing nearly enough. An understanding of the power dynamics of gender is key to eliminating reductionist approaches to international law. ‘Violence against women is an offense against human dignity and a manifestation of the historically unequal power relations between women and men’, states the Inter-​American Convention on the Prevention, Punishment, and Eradication of Violence against Women. I quote this regional treaty because, in addition to being one of the most progressive gender-​mandate international instruments, the contributions of its follow-​up mechanism and those of the Inter-​American Court of Human Rights are immense. Both organs are paving the way to the transformation of aspiration into reality. The expansion of approaches to gender in international law mean more than solely deciding on cases where women experience violence or when crimes of sexual violence occur. As the law is not static, cross-​fertilization and judicial dialogue between tribunals is necessary to advance the progressive development of the scope and content of a proper gender perspective. For instance,

Foreword  ix the Inter-​American Court of Human Rights, where I am a sitting Judge and President, has established the obligation for domestic judges to use the gender lens when hearing cases of violence against women. The use of this gender perspective has made visible the most common gender stereotypes, and the possibility to analyse them, and reject them. However, its case law is not limited to cases of violence. The Inter-​American Court has also analysed a wide range of cases on gender-​based discrimination that includes sexual and reproductive rights, access to health, and education. The Inter-​American Court’s contributions to the concept of comprehensive reparations are profound. Furthermore, it has used intersectionality as a tool to determine the nature, scope, and outcome of discrimination against women and girls. A person’s race, sexual orientation, or gender identity, as well as the fact that she is elderly or subject to international protection, has a disability, or belongs to an indigenous community, among other factors, could determine restrictions in her enjoyment of basic human rights. The message is clear: international law must not turn a blind eye on these social, economic, and cultural factors. In the same way, international criminal law must not turn a blind eye on developments made by human rights protection bodies. Gender, ultimately, is a human rights issue. Of course, not everything in international protection bodies is straightforward. Women remain underrepresented in several mechanisms, including various United Nations bodies and the Inter-​American Court, where I am the only female sitting Judge. More than solely an additional historical debt to women and to other ethnic and racially excluded groups in society, balanced representation is an essential step towards bringing about the structural change needed to advance substantive gender equality. It is about time. In addition, I cannot stress enough how important the contributions of academia are to the progressive knowledge of gender in international law. This volume is oriented to respond to—​and to raise new questions about—​some of the most common misconceptions and misunderstandings concerning gender in international criminal law. The authors challenge the orthodoxy of the disciplinary boundaries of what is traditionally considered international law. Therefore, the chapters included here reflect the necessity to move forward in expanding innovative and more progressive notions on gender in international law. I want to congratulate the authors and editors for such stimulating studies. In addition, I urge the reader to focus on the overarching idea of this book, which is the perennial question on how to make international criminal law effective for all. Since its inception, international criminal law is both complex and ambitious. Judges, prosecutors, legal practitioners, victims’ representatives,

x Foreword activists, and members of academia have to be up to the challenge. The power of gender studies in international law is the power of ideas on how to change the world. It inspires us to continue working to ensure that every woman, girl, and child can gain back their freedom, equality, and dignity. One vital aspect of this task is to empower victims to demand what should be guaranteed: their basic human rights. This book constitutes a modest but significant contribution to that work.

Acknowledgements This book could not have been realized without the diligent, intelligent, and calm assistance of Rebecca Orsini. We cannot thank her enough. We also wish to thank Bridget Dunne for her contributions. Additionally, we are grateful to the Social Sciences and Humanities Research Council of Canada and Western University’s Undergraduate Student Research Internship (USRI) Program for supporting the research for, and work on, this book project. We wish also to thank UN Women for supporting the initial book brainstorming session with authors and experts on the margins of the ‘Strategic Dialogues on Gender-​Based Crimes’ held in London, United Kingdom, in 2018. We would also like to thank the authors for their thoughtful contributions and, in particular, Patricia Viseur Sellers and Michelle Jarvis, from whose expertise we benefitted during our writing of Chapter 1. We also wish to acknowledge Michelle Jarvis’ important contribution to the initial conceptualization of this book. Finally, we wish to thank Jack McNichol and Luise Wilde from Oxford University Press for their collaboration during the preparation and realization of the book.

Table of Contents Table of Cases  About the Editors  About the Contributors  List of Abbreviations 

Introduction  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto

xix xxxv xxxvii xli

1

PA RT I   M I S C O N C E P T IO N S A N D M I SU N D E R STA N D I N G S A B OU T G E N D E R I N I N T E R NAT IO NA L C R I M I NA L L AW 1. What Is ‘Gender’ in International Criminal Law?  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto

A. Introduction  B. ‘Gender’ in International Law  C. What Happens When Gender Is Misunderstood in ICL and Why It Matters That We Get It Right  D. Understanding Gender Is Not a Luxury 

2. The Gendered Framework of International Humanitarian Law and the Development of International Criminal Law  Michelle Jarvis and Judith Gardam

A. Introduction  B. The Gender of IHL in the Early 1990s  C. The Gendered Relationship Between IHL and ICL  D. Conclusions 

3. A Feminist Critique of Approaches to International Criminal Justice in the Age of Identity Politics: A Case Study of Conflict-​Related Sexual Violence Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia  Kirsten Campbell and Gorana Mlinarević

A. The ‘Problem’ of Gender in CRSV Prosecutions Before the ICTY  B. The ICTY and the Shaping of Prosecutions of Sexual Violence as International Crimes  C. The Concept of the ‘Individual’ in the International Criminal Justice Paradigm 

11 11 18 23 42

47 47 51 59 72

75 75 78 80

xiv  Table of Contents

D. The Concept of ‘Identity’ in the International Criminal Justice Paradigm of CRSV  E. Building Feminist Gender Analysis for International Criminal Justice 

86 94

PA RT I I   E X PA N D I N G A P P R OAC H E S T O G E N D E R I N I N T E R NAT IO NA L C R I M I NA L L AW: B EYO N D ‘G E N D E R = ​ WOM E N ’ A N D ‘G E N D E R =​ C R I M E S O F SE X UA L V IO L E N C E’ 4. Sexual Violence Against Men in Contemporary Warfare  Dubravka Žarkov

A. Introduction  B. Modern Masculinities: On Power and Heteronormativity  C. Victimized Bodies: Collective Identities, Different Visibilities  D. Attention to Sexual Violence Against Men and International Criminal Law  E. Conclusion 

5. Children, Gender, and International Criminal Justice  Gloria Atiba-​Davies and Leo C Nwoye

A. Introduction  B. Underused and/​or Limited Statutory Focus in International Human Rights Law, International Humanitarian Law, and International Criminal Law on Gender-​Based Crimes Against Children  C. ‘Invisibilization’ of Gender-​Based Crimes Against Children at the Leipzig Trials, Nuremberg, Tokyo, Yugoslavia, Rwanda, and Cambodia Tribunals  D. Evolving Considerations with Positive Potential: Gender-​Based Crimes Against Children at the Special Court for Sierra Leone and the International Criminal Court  E. Conclusion: The Need for Deeper Recognition of Differential Gendered Impacts on Children 

6. The International Crimes of Slavery and the Slave Trade: A Feminist Critique  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum

A. Introduction  B. East and West African Slavery and Slave Trades  C. 1926 Slavery Convention and 1956 Supplementary Slavery Convention 

101 101 103 109 118 122

127 127 130 135 140 153

157 157 161 168

Table of Contents  xv

D. Critique of Slavery, the Slave Trade, and Related Crimes: Enslavement, Sexual Slavery, and Trafficking  E. Conclusion 

7. Victory for Women and LGBTIQ+​Rights Under International Criminal Law: Gender in the Draft Crimes Against Humanity Treaty  Lisa Davis and Danny Bradley

A. Introduction  B. The Road to Rome: Protecting Gender Rights Under International Law  C. The Founding of a New Treaty on Crimes Against Humanity  D. International Law on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics  E. The Campaign for Gender Justice in the Draft Crimes Against Humanity Treaty 

8. Gender Dimensions of Forced Marriage in International Criminal Law  Melanie O’Brien

A. Introduction  B. Forced Marriage Under International Human Rights Law  C. Forced Marriage During Atrocities  D. The Gendering of Forced Marriage in Atrocities and International Criminal Law 

9. Reproductive Crimes in International Criminal Law  Rosemary Grey

A. Introduction  B. Understanding Reproductive Violence  C. International Responses to Reproductive Violence  D. Prosecuting Reproductive Crimes  E. Conclusion 

10. Using International Criminal Law to Curb Discriminatory Practices Against Females: The Case of Female Genital Mutilation  Antonia Mulvey

A. Introduction  B. Female Genital Mutilation as Torture and a Crime Against Humanity  C. The Benefits of Framing FGM (and Other Discriminatory Practices) as the Crime Against Humanity of Torture 

174 183

187 187 189 192 195 205

207 207 208 211 227

231 231 235 239 247 263

265 265 273 286

xvi  Table of Contents

PA RT I I I   E N G E N D E R I N G J U S T IC E : T H E F U T U R E O F I N T E R NAT IO NA L C R I M I NA L L AW 11. ‘Gender-​Inclusivity’ in the International Criminal Court’s First Reparations Proceedings  Jonathan O’Donohue and Rosemary Grey

A. Introduction  B. The ICC’s Reparations Mandate and First Reparation Proceedings at a Glance  C. ‘Gender-​Inclusivity’ in the ICC Reparations Process  D. ‘Gender-​Inclusivity’ in the Reparations Decision  E. Transforming the Structural Causes of Sexual and Gender-​Based Crimes  F. Conclusion 

12. Gender and the Implementation of International Criminal Law in the Latin American Region  Daniela Kravetz

A. Introduction  B. Viewing Gender-​Based Atrocities in Context  C. Charging Strategies for Violations of Reproductive Autonomy as International Crimes  D. Conclusion 

13. Fragmentation Fears or Interaction Opportunities? The Role and Potential of International Human Rights Law in Shaping International Criminal Law’s Gender Jurisprudence  Catherine O’Rourke

A. Introduction  B. The Fragmented Protection of Women’s Rights in Conflict Under International Law  C. Interaction Opportunities  D. Fragmentation Fears  E. Formal Interaction Between ICL and IHRL  F. ICL–​IHRL Interactions on ICC Child Soldier Jurisprudence  G. Conclusion 

14. Contemporary Armed Conflict and Gender  Helen Durham and Laura Green

A. Introduction  B. Protracted Urban Conflict and Undefined Battlefields  C. Shifting Parties to Conflict  D. New Technology  E. Terrorism and Counterterrorism  F. Conclusion 

291 291 295 301 308 317 322

325 325 327 339 345

347 347 348 349 354 359 362 368

371 371 372 379 381 383 385

Table of Contents  xvii

15. Is International Criminal Law Particularly Impervious to Feminist Reconstruction? Legally Authorized Resistances to Feminist Judging  Dianne Otto

A. Introduction  B. Feminist Engagement With the Criminal Law  C. Systemic Resistance to Feminist Judging in International Criminal Law  D. The Reconstructive Vision of NGO-​Organized Women’s Tribunals  E. Conclusion 

Index 

387 387 390 395 408 413

415

Table of Cases COURT OF JUSTICE OF THE EUROPEAN UNION Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel (Judgment) C-​199/​12, C-​200/​12 & C-​201/​12 (7 November 2013)������������� 198n.60 EUROPEAN COURT OF HUMAN RIGHTS A, B and C v Ireland [2010] 25579/​05 ECHR������������������������������������������������������������������� 352n.24 Cestaro v Italy, App no 6884/​11, 7 July 2015 ��������������������������� 274n.60, 275nn.62–​63, 275n.64 Ireland v the United Kingdom, App no 5310/​71, 18 January 1978����������274n.57, 275, 275n.61 Musaiłek and Bacyński v Poland, App no 32798/​02, 26 July 2011��������������������������������� 275n.67 RBAB v the Netherlands, App no 7211/​06, 7 June 2016 ����������������������������������������������� 287n.122 RR v Poland [2012] 27617/​04 ECHR ������������������������������������������������������������������������������� 352n.24 Selmouni v France, App no 25803/​94, 28 July 1999��������������������������������������������������������� 274n.59 Tysiac v Poland [2007] 5410/​03 ECHR����������������������������������������������������������������������������� 352n.24 EXTRAORDINARY AFRICAN CHAMBERS Ministère Public v Hissène Habré (Judgment) (30 May 2016) ������������������������������������� 176n.112 Le Procureur v Hissène Habré (Appeal Judgment) (27 April 2017)����������������������������� 176n.112 EXTRAORDINARY CHAMBERS IN THE CRIMINAL COURTS OF CAMBODIA Case 002 against Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith (Closing Order) [2010] 002/​19-​09-​2007-​ECCC-​OCIJ�������������������������������������������������410–​11n.153 Case 002 against Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith (Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing Order) [2011] 002/​19-​09-​2007-​ECCC-​OCIJ �������������������������������������������������������������410–​11n.153 Case 002/​02 against Nuon Chea and Khieu Samphan (Co-​Prosecutors’ Amended Closing Brief) [2017] 002/​19-​09-​2007-​ECCC/​TC����������������������������������������������� 251n.102 Case 002/​02 against Nuon Chea and Khieu Samphan (Trial Judgment) [2019] 002/​19-​09-​2007/​ECCC/​TC���������������������������������������������������������� 31–​32, 32n.119, 217n.54, 217n.58, 219nn.75–​76, 220n.78, 227n.137, 233n.8, 251–​52, 316n.140 Case 002/​02 against Nuon Chea and Khieu Samphan (Co-​Prosecutor’s Appeal) [2019] 002/​19-​092007-​ECCC/​SC ��������������������������������������������������������������������������� 220n.78 Case 004 (Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation) [2016] 004/​07-​09-​2009-​ECCC-​OCIJ ������������������������������������������������������������� 248n.80, 261 Case 001 against Kaing Guek Eav (alias Duch) (Transcript of Trial Proceedings –​ Public) 001/​18-​07-​2007-​ECCC/​TC (8 June 2009)��������������������������������������������������������� 140 Case 001 against Kaing Guek Eav (alias Duch) (Judgment) [2012] 001/​18-​07-​2007-​ ECCC/​TC��������������������������������������������������������������������������������������������������������������������������� 140

xx  Table of Cases INTER-​A MERICAN COURT OF HUMAN RIGHTS Atala Riffo v Daughters of Chile [2012] (Judgment: Merits, Reparations, and Costs) Inter-​Am Ct HR (ser C) No 239���������������������������������������������������������������������������������197–​98 Juan Gelman et al v Uruguay [2011] (Judgment) Inter-​Am Ct HR (ser C) No 221����������������������������������������������������������������������������������������������247n.75, 341n.92 González et al (Cotton Field) v Mexico [2009] (Judgment: Preliminary Objection, Merits, Reparations, and Costs) Inter-​Am Ct HR (ser C) No 205 �������������������������317–​18 Gonzalez et al (Cotton Field) v Mexico [2009] (Concurring Judgment of Judge Cecilia Medina Quiroga) Inter-​Am Ct HR (ser C) No 205��������������������������������� 286n.120 López Soto y Otros v Venezuela [2018] (Judgment: Merits, Reparations, and Costs) Inter-​Am Ct HR (ser C) No 362����������������������������������������������������������������� 180n.147 INTERNATIONAL COURT OF JUSTICE Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment of 26 February 2007)������������������������������������������������������������������������������� 250n.93 INTERNATIONAL CRIMINAL COURT Central African Republic Cases Prosecutor v Jean-​P ierre Bemba Gombo (Bemba) Prosecutor v Jean-​Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean‐Pierre Bemba Gombo) [2008] ICC‐01/​ 05‐01/​ 08 ���������������������������������������������������������������������������������������������������������27–​28 Prosecutor v Jean-​Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-​Pierre Bemba Gombo) [2009] ICC-​01/​05-​01/​08��������������������������������������������������������������� 280n.93 Prosecutor v Jean-​Pierre Bemba Gombo (Testimony of Dr André Tabo) [2011] ICC-​01/​05-​01/​08-​T-​100-​ENG 48��������������������������������������������������������������������������� 311n.105 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment Pursuant to Article 74 of the Statute) [2016] ICC-​01/​05-​01/​08������������������������������������������������������������ 120–​21, 389 Prosecutor v Jean-​Pierre Bemba Gombo (Decision on Sentence pursuant to Art. 76 of the Statute) [2016] ICC-​01/​05-​01/​08-​339921�������������������262n.160, 310–​11 Prosecutor v Jean-​Pierre Bemba Gombo (Submissions relevant to reparations) [2016] ICC-​01/​05-​01/​08-​3455�����������������������������������������������������������������������������������309–​10 Prosecutor v Jean-​Pierre Bemba Gombo (Submission by QUB Human Rights Centre on reparations issues pursuant to Article 75 of the Statute) [2016] ICC-​01/​05-​01/​08-​3444 ������������������������������������������������������������������������������������������� 309n.103 Prosecutor v Jean-​Pierre Bemba Gombo (Public redacted version of ‘Decision appointing experts on reparations’) [2017] ICC-​01/​05-​01/​08-​3532-​Red������������������� 300 Prosecutor v Jean-​Pierre Bemba Gombo (Public redacted version of ‘Annex, 28 November 2017, ICC-​01/​05-​01/​08-​3575-​Conf-​Exp-​Anx-​Corr2’) [2017] ICC-​01/​05-​01/​08-​3575-​Anx-​Corr2-​Red ������������������������ 300n.52, 305, 307, 309–​10, 315 Prosecutor v Jean-​Pierre Bemba Gombo (Final decision on the reparations proceedings) [2018] ICC-​01/​05-​01/​08-​3653 ����������������������������������������������������������������� 300 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”) [2018] ICC-​01/​05-​01/​08A ������������������������120–​21, 389, 406–​7

Table of Cases  xxi Prosecutor v Alfred Yekatom and Patrice-​E douard Ngaïssona Prosecutor v Alfred Yekatom and Patrice-​Edouard Ngaïssona (Decision on the Prosecution’s Request to Amend Charges pursuant to Article 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges) [2020] ICC-​01/​14-​01/​18-​517��������������������������� 23 Prosecutor v Alfred Yekatom and Patrice-​Edouard Ngaïssona (Consolidated Decision on filings ICC-​01/​14-​01/​18-​524-​Corr and ICC-​01/​14-​01/​18-​545 (Prosecutor’s requests for leave to appeal the decisions pursuant to article 61(9) of the Rome Statute dated 14 May 2020 and 1 June 2020)) [2020] ICC-​01/​14-​01/​18-​560 ��������������� 23 Côte D’Ivoire (Ivory Coast) Cases Prosecutor v Laurent Gbagbo (Public redacted version of “Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo”) [2011] ICC-​02/​11-​01/​11-​9-​Red 30 ����������������28n.93 Prosecutor v Simone Gbagbo (Warrant of Arrest for Simone Gbagbo) [2012] ICC-​02/​11-​01/​12 ����������������������������������������������������������������������������������������������������������28n.93 Democratic Republic of Congo Cases Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons) [2012] ICC-​01/​04-​01/​07-​3319���������������36–​37 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges) [2008] ICC-​01/​04-​01/​07-​717 �����������������������36–​37, 145n.121 Prosecutor v Germain Katanga (Trial Judgment pursuant to article 74 of the Statute) [2014] ICC-​01/​04-​01/​07-​3319������������������35n.134, 36–​37, 176n.112, 179–​80, 181n.154, 280n.94, 280n.95, 281n.100, 281n.102, 312 Prosecutor v Germain Katanga (Queens University Belfast’s Human Rights Centre (HRC) and University of Ulster’s Transitional Justice Institute (TJI) Submission on Reparation Issues pursuant to Article 75 of the Statute) [2015] ICC-​01/​04-​01/​07-​3551 ����������������������������������������������������������������������������������������������������� 320 Prosecutor v Germain Katanga (Report on Applications for Reparations in accordance with Trial Chamber II’s order of 27 August) [2015] ICC-​01/​04-​01/​07-​3512-​Anx1-​Red2 ������������������������������������������������������������������������������� 307 Prosecutor v Germain Katanga (Order for Reparations pursuant to Article 75 of the Statute) [2017] ICC-​01/​04-​01/​07-​3728-​tENG������������������������������������������292n.8, 294–​95, 299–​300, 312, 313 Prosecutor v Germain Katanga (Draft implementation plan relevant to Trial Chamber II’s order for reparations of 24 March 2017 (ICC-​01/​04-​01/​07-​3728)) [2017] ICC-​01/​04-​01/​07-​3751-​Red�������������������������������������������������312, 314–​15, 315n.130 Prosecutor v Germain Katanga (Judgment on the appeals against the order of Trial Chamber II of 24 March 2017 entitled ‘Order for Reparations pursuant to Article 75 of the Statute’) [2018] ICC-​01/​04-​01/​07-​3778-​Red���������������������������� 299–​300 Prosecutor v Germain Katanga (Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018) [2018] ICC-​01/​04-​01/​07-​3804-​Red-​tENG������������������������������������������������������������������������� 300n.49 Prosecutor v Mathieu Ngudjolo Chui (Judgment pursuant to article 74 of the Statute) [2012] ICC-​01/​04-​02/​12���������������������������������������������������������������������������179–​80, 180n.148

xxii  Table of Cases Prosecutor v Thomas Lubanga Dyilo Prosecutor v Thomas Lubanga Dyilo (Warrant of Arrest) [2006] ICC-​01/​04-​01/​06-​2-​tEN������������������������������������������������������������������������������������������� 132n.30 Prosecutor v Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006) [2006] ICC-​01/​04-​01/​06 (OA4)������������������������������������������� 201n.79, 360 Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges) [2007] ICC-​01/​04-​01/​06) ��������������������������������������������������������������� 145, 148n.141, 201n.79 Prosecutor v Thomas Lubanga Dyilo (Written submissions of Ms Radhika Coomaraswamy) ICC-​01/​04-​01/​06-​1229-​AnxA (EVD-​CHM-​00007)�����������������145–​46 Prosecutor v Thomas Lubanga Dyilo (Decision Inviting Observations from the Special Representative of the Secretary General of the United Nations for Children and Armed Conflict) [2008] ICC-​01/​04-​01/​06-​1175�������������������� 145–​46, 370 Prosecutor v Thomas Lubanga Dyilo (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court) [2009] ICC-​01/​04-​01/​06-​1891-​tENG������������������� 248n.80 Prosecutor v Thomas Lubanga Dyilo (Transcript) [2009] ICC-​01/​04-​01/​06-​T-​150-​Red-​ENG (18 March 2009)������������������������������������������� 248n.80 Prosecutor v Thomas Lubanga Dyilo (Transcript) [2010] ICC-​01/​04-​01/​06-​T-​223-​ENG (7 January 2010) ����������������������������������������������������������� 150 Prosecutor v Thomas Lubanga Dyilo (Prosecution’s Closing Brief –​Public Redacted Version) [2011] ICC-​01/​04-​01/​06������������������������������������������������ 145–​46, 401–​2 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) [2012] ICC-​01/​04-​01/​06���������������������������������������������������145–​46, 148n.148, 233, 311–​12, 358–​59, 360n.68, 370n.116, 397, 401–​2 Prosecutor v Thomas Lubanga Dyilo (Separate and Dissenting Opinion of Judge Odio Benito) [2012] ICC-​01/​04-​01/​06������������������������������134n.45, 146, 367–​68, 403–​4, 405–​6 Prosecutor v Thomas Lubanga Dyilo (Decision on Sentence pursuant to Article 76 of the Statute) [2012] ICC-​01/​04-​01/​06���������������������������������������������������145–​46 Prosecutor v Thomas Lubanga Dyilo (Observations of the Women’s Initiatives for Gender Justice on Reparations) [2012] ICC-​01/​04-​01/​06-​2876������������293n.13, 294–​95, 306, 307, 317n.144, 319 Prosecutor v Thomas Lubanga Dyilo (Observations on Reparations in Response to the Scheduling Order of 14 March 2012) [2012] ICC-​01/​04-​01/​06-​2872 ������������������������������������������������������������������������������������� 293n.13, 319 Prosecutor v Thomas Lubanga Dyilo (Decision establishing the principles and procedures to be applied to reparations) ICC-​01/​04-​01/​06 (7 August 2012)���������������������������������������������������������������������������199–​200, 296, 298, 311–​12, 319, 351–​52, 369nn.111–​14 Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) [2014] ICC-​01/​04-​01/​06 A 5 �������������������������� 145–​46, 147 Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) [2015] ICC-​01/​04-​01/​06-​3129 ������������������������������������������������������ 297, 298, 309n.97, 311–​12, 314 Prosecutor v Thomas Lubanga Dyilo (Order for Reparations (amended)) [2015] ICC-​01/​04-​01/​06-​3129-​AnxA����������������������������������291–​92, 293n.11, 296n.25, 306, 307, 309n.98, 311–​12, 313, 319 Prosecutor v Thomas Lubanga Dyilo (Filing on Reparations and Draft Implementation Plan) [2015] ICC-​01/​04-​01/​06-​3177-​Red�������������������������������������306–​7 Prosecutor v Thomas Lubanga Dyilo (Filing regarding symbolic collective reparations projects with Confidential Annex: Draft Request for Proposals, ICC-​01/​04-​01/​06-​3223-​Conf) [2016] ICC-​01/​04-​01/​06-​3223-​Red��������������������������� 314

Table of Cases  xxiii Prosecutor v Thomas Lubanga Dyilo (Order approving the proposed plan of the Trust Fund for Victims in relation to symbolic collective reparations) [2016] ICC-​01/​04-​01/​06-​3251 ����������������������������������������������������������������������������������������������������� 298 Prosecutor v Thomas Lubanga Dyilo ((Draft) SCOPE OF WORK Collective Reparations projects in relation to the conviction of Thomas Lubanga Dyilo before the International Criminal Court) [2017] ICC-​01/​04-​01/​06-​3273-​AnxA���������� 314 Prosecutor v Thomas Lubanga Dyilo (Annex 5 to the Ordonnance enjoignant au Greffier de verser au dossier des documents additionnels) [2017] ICC-​01/​04-​01/​06-​3344-​Anx5������������������������������������������������������������������������������������������� 303 Prosecutor v Thomas Lubanga Dyilo (Annex 15 to the Ordonnance enjoignant au Greffier de verser au dossier des documents additionnels) [2017] ICC-​01/​04-​01/​06-​3344-​Anx15 [58]��������������������������������������������������������������������������������� 303 Prosecutor v Thomas Lubanga Dyilo (Decision Approving the Proposals of the Trust Fund for Victims on the Process for Locating New Applicants and Determining their Eligibility for Reparations) [2019] ICC-​01/​04-​01/​06-​3440-​Red-​tENG���������305–​6 Prosecutor v Thomas Lubanga Dyilo (Rectificatif de la Version publique expurgée de la Décision faisant droit à la requête du Fonds au profit des victimes du 21 septembre 2020 et approuvant la mise en œuvre des réparations collectives prenant la forme de prestations de services) [2021] ICC-​01/​04-​01/​06-​3495-​Red-​Corr����������������������������������������������������������������������������������� 298 Prosecutor v Callixte Mbarushimana Prosecutor v Callixte Mbarushimana (Prosecution’s Application under Article 58) [2010] ICC-​01/​04-​01/​10-​11-​Red2 27-​01-​2011������������������������������������������������������ 200n.72 Prosecutor v Callixte Mbarushimana (Prosecution’s document containing the charges) [2011] ICC-​01/​04-​01/​10-​330-​AnxA-​Red��������������������������������������������� 260n.151 Prosecutor v Callixte Mbarushimana (Decision on the confirmation of charges) [2011] ICC-​01/​04-​01/​10-​465-​Red��������������������������������������������������������������������������� 200n.73 Prosecutor v Bosco Ntaganda Prosecutor v Bosco Ntaganda (Document Containing the Charges) [2014] ICC-​01/​04-​02/​06-​203-​AnxA �������������������������������������������������������������������������������61, 148–​49 Prosecutor v Bosco Ntaganda (Transcript) [2104] ICC-​01/​04-​02/​06-​T-​10-​Red-​ENG (13 February 2014)���������������������������������������61, 403–​4 Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) [2014] ICC-​01/​04-​02/​06 �������������������������������������������������������� 145n.121, 147–​49, 149n.154, 403–​4 Prosecutor v Bosco Ntaganda (Updated Document Containing the Charges) [2015] ICC-​01/​04-​02/​06-​458-​AnxA��������������������������������������������������������������������������������� 61 Prosecutor v Bosco Ntaganda (Second decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9) [2017] ICC-​01/​04-​02/​06-​1707 �������������������������������������������������������������������������������������� 147–​48, 149 Prosecutor v Bosco Ntaganda (Judgment on the Appeal of Mr. Ntaganda against the Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9) [2017] ICC-​01/​04-​02/​06 OA5��������������� 55nn.35–​36, 61–​62, 147–​49, 343–​44, 344n.114 Prosecutor v Bosco Ntaganda (Former Child Soldiers’ observations on the ‘Appeal from the Second decision on the Defence’s challenge to the Jurisdiction of the Court in respect of Counts 6 and 9’) [2017] ICC-​01/​04-​02/​06-​1798��������������������������� 367 Prosecutor v Bosco Ntaganda (Trial Judgment) [2019] ICC-​01/​04-​02/​06-​2359 ����������������������������������������������������������������������43n.182, 120–​21, 123, 147–​49, 176n.112, 179–​80, 184, 343–​44, 380n.40, 403–​4

xxiv  Table of Cases Prosecutor v Bosco Ntaganda (Sentencing Judgement) [2019] ICC-​01/​04-​02/​06 ��������������������������������������������������������������������������������������������� 148, 148n.141 Prosecutor v Bosco Ntaganda (Mr. Ntaganda’s Notice of Appeal against the Judgment pursuant to Article 74 of the Statute, ICC-​01/​04-​02/​06-​2359) [2019] ICC-​01/​04-​02/​06A�������������������������������������������������������������������������������������������������������120–​21 Prosecutor v Bosco Ntaganda (Appeal Judgment) [2020] ICC-​01/​04-​02/​06 A��������� 148n.144 KENYA CASES Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) [2010] ICC-​01/​09������������������������������������������������������������������281n.106 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) [2011] ICC-​01/​09-​02/​11 [27]�������������������������������������������������� 26–​27, 121–​22 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Transcript) ICC-​01/​09-​02/​11-​T-​5-​Red-​ENG (22 September 2011) �����������������������������������������������������������������������������������������������������26–​27 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the “Prosecution’s Application for Leave to Appeal the ‘Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali’”) [2011] ICC-​01/​09-​02/​11-​27�����������������������������������������������������������������������������������������26–​27 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) [2012] ICC-​01/​09-​02/​11 ����������������26–​27, 106n.18, 121–​22 MALI CASES Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) [2018] ICC-​01/​12-​01/​18 �����������������������������������������������������������������������������������������������������������30–​31 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Decision on the Confirmation of Charges) [2019] ICC-​01/​12-​01/​18����������� 23n.67, 200–​1, 220, 221–​22, 223n.102, 223n.109, 224–​25, 224n.113, 224n.115, 227n.139 Prosecutor v Ahmad Al Faqi Al Mahdi Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) [2016] ICC-​01/​12-​01/​15-​171 ����������������������������������������������������������������������������������������������� 33n.126 Prosecutor v Ahmad Al Faqi Al Mahdi (Public redacted version of ‘Submissions of the Legal Representative of Victims on the principles and forms of the right to reparation’ dated 2 December 2016) [2017] ICC-​01/​12-​01/​15-​190-​Red-​tENG�������������������������������������������������������������������������������307–​8 Prosecutor v Ahmad Al Faqi Al Mahdi (Expert Report –​Reparations Phase The Prosecutor v. Ahmad Al Faqi Al Mahdi, by Dr. Marina Lostal) [2017] ICC-​01/​12-​01/​15-​214-​AnxII-​Red2�����������������������������������������������������������������������������307–​8

Table of Cases  xxv Prosecutor v Ahmad Al Faqi Al Mahdi (Annex 1 to the Transmission of the Public Version of one Expert’s Report pursuant to the Trial Chamber’s Order of 11 July 2017) [2017] ICC-​01/​12-​01/​15-​214-​AnxI-​Red3�������������������������������������������307–​8 Prosecutor v Ahmad Al Faqi Al Mahdi (Reparations Order) [2017] ICC-​01/​12-​01/​15-​236 ���������������������������������������������������������� 292n.8, 294–​95, 300, 305n.78, 307–​8, 315–​16, 321–​22 Prosecutor v Ahmad Al Faqi Al Mahdi (Annex 1 to the Transmission of the Public Version of One Expert’s Report pursuant to the Trial Chamber’s Order of 11 July 2017) [2017] ICC-​01/​12-​01/​15-​214-​AnxI-​Red3�������������������������315–​16 Prosecutor v Ahmad Al Faqi Al Mahdi (Observations du Représentant légal sur le Second rapport mensuel d’activité du Fonds au profit des victimes et sur le processus de sélection des victimes aux reparations) [2018] ICC-​01/​12-​01/​15-​284-​Red�����������������������������������������������������������������������������������������315–​16 Prosecutor v Ahmad Al Faqi Al Mahdi (Lesser public redacted version of ‘Updated Implementation Plan’ submitted 2 November 2018) [2019] ICC-​01/​12-​01/​15-​291-​Red3�������������������������������������������������������������������������������������307, 315 Prosecutor v Ahmad Al Faqi Al Mahdi (Decision on the Updated Implementation Plan from the Trust Fund for Victims) [2019] ICC-​01/​12-​01/​15-​324-​Red����������������� 315 MYANMAR/​BANGLADESH CASES Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Corrected version of “Decision on Victims’ joint request concerning hearings outside the host State”) [2020] ICC-​01/​19-​38��������������������������������������� 287n.123 Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Request for Authorisation of an Investigation pursuant to Article 15) [2019] ICC-​01/​19-​7������������������������������������������������������������������������������������������������������28n.95 SUDAN (DARFUR) CASES Prosecutor v Omar Hassan Ahmad Al Bashir Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest) [2010] ICC-​02/​05-​01/​09-​95 ��������������������������������������������������������������������������������������������������������� 251 Prosecutor v Ali Muhammad Ali Abd-​Al-​Rahman (“Ali Kushayb”) Prosecutor v Ali Muhammad Ali Abd-​Al-​Rahman (“Ali Kushayb”) (Decision on the Confirmation of Charges against Ali Muhammad Ali Abd-​Al-​Rahman (‘Ali Kushayb’)) [2021] ICC-​02/​05-​01/​20 70���������������������������������������������������������������30–​31 Prosecutor v Ali Muhammad Ali Abd-​Al-​Rahman (“Ali Kushayb”), (Public redacted version of “Second Corrected Version of ‘Document Containing the Charges’, 29 March 2021, ICC-​02/​05-​01/​20-​325-​Conf-​Anx1’, 22 April 2021, ICC-​02/​05-​01/​20-​325-​Conf.-​Anx1-​Corr2) [2021] ICC-​02-​05-​01/​20-​325-​Anx1-​Corr2-​Red �������������������������������������������������������������������30–​31 UGANDA CASES Prosecutor v Dominic Ongwen Prosecutor v Dominic Ongwen (Decision on the Confirmation of Charges against Dominic Ongwen) [2016] ICC-​02/​04-​01/​15��������������146, 219, 221, 223, 224, 233, 253–​54 Prosecutor v Dominic Ongwen (Prosecution’s Pre-​Trial Brief) [2016] ICC-​02/​04-​01/​15 [742]�����������������������������������������������������������������������������154n.191, 253–​54 Prosecutor v Dominic Ongwen (Transcript) ICC-​02/​04-​01/​15-​T-​20-​Red-​ENG (21 January 2016)���������������������������������������������������������������������������������������������������������253–​54

xxvi  Table of Cases Prosecutor v Dominic Ongwen (Transcript) ICC-​02/​04-​01/​15-​T-​21-​Red2-​ENG (22 January 2016)��������������������������������������������������������������������������������������������������������������� 254 Prosecutor v Dominic Ongwen (Request for Reconsideration of the ‘Decision on the Legal Representatives for Victims Requests to Present Evidence and Views and Concerns and Related Requests’) [2017] ICC-​02/​04-​01/​15-​1203 ������������������������������� 303 Prosecutor v Dominic Ongwen (Prosecution’s Closing Brief) [2020] ICC-​02/​04-​01/​15-​1719-​Red��������������������������������������������������������������������������������������������� 231 Prosecutor v Domenic Ongwen (Trial Judgment) [2021] ICC-​02/​04-​01/​15-​1762-​Red�������������������������������� 29n.104, 30, 31–​32, 43n.182, 145n.121, 150–​53, 176–​81, 180n.151, 185–​86, 220, 221, 222–​26, 224n.111, 224nn.115–​16, 227–​28, 231–​32, 254 Prosecutor v Dominic Ongwen (Sentence) [2021] ICC-​02/​04-​01/​15 ��������������176–​77, 226–​27 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY) The Prosecutor v Tihomir Blaškić (Trial Judgment) IT-​95-​14-​T (3 March 2000)��������� 138n.71 Prosecutor v Radoslav Brđanin (Amended Indictment) IT-​99-​36-​T (9 December 2003)����������������������������������������������������������������������������������������������������� 268n.23 Prosecutor v Radoslav Brđanin (Trial Judgment) IT-​99-​36-​T (1 September 2004) ������������������������������������������������������������������������ 87n.55, 92n.87, 274n.60 Prosecutor v Zejnil Delalić et al (Trial Judgment) IT-​96-​21-​T (16 November 1998) ����������������������������������������������������������������������������������199n.67, 273n.54 Prosecutor v Zejnil Delalić et al (Appeal Judgment) IT-​96-​21-​A (20 February 2001)����������������������������������������������������������������������������������������������������� 339n.76 Prosecutor v Vlastimir Đordević (Trial Judgment) IT-​05-​87/​1 (23 February 2011)����������������������������������������������������������������������������������������������������� 38n.151 Prosecutor v Vlastimir Đordević (Appeal Judgment) IT-​05-​87/​1-​A (27 January 2014)������������������������������������������������������������������������������������������������������� 41n.174 Prosecutor v Anto Furundžija (Trial Judgment) IT-​95-​17/​1 (10 December 1998)��������������������������������������������������������������������� 12n.6, 199n.67, 260n.147, 273n.54, 397, 400–​1, 405–​6 Prosecutor v Anto Furundžija (Appeal Judgment) IT-​95-​17/​1-​A (21 July 2000) ������������������������������������������������������������������������������� 398–​99, 400nn.87,89, 401 Prosecutor v Ante Gotovina et al (Decision on Ante Gotovina’s Interlocutory Appeal against Decision on Several Motions Challenging Jurisdiction) IT-​06-​90-​AR72.1 (6 June 2007) ������������������������������������������������������������������������������������47n.1 Prosecutor v Ante Gotovina (Trial Judgment) IT-​06-​90-​T (15 April 2011)������������������������������������������������������������������������������������������������63n.74, 63n.77 Prosecutor v Ante Gotovina (Appeal Judgment) IT-​06-​90-​A (16 November 2012) ����������������������������������������������������������������������������������������������������63n.74 Prosecutor v Enver Hadžihasanović & Amir Kubura (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) IT-​01-​47-​AR72 (16 July 2003) ������������������������������������������������������������������������������� 261n.152 Prosecutor v Sefer Halilović (Appeal Judgment) IT-​01-​48-​A (16 October 2007)�������� 339n.76 Prosecutor v Radovan Karadžić (Third Amended Indictment) IT-​95-​5/​18-​PT (19 October 2009) ���������������������������������������������������������������������������������������������������83–​84, 86 Prosecutor v Radovan Karadžić (Trial Judgment) IT-​95-​5/​18-​T (24 March 2016)������������������������������������������ 81–​82, 83–​84, 86, 87, 91–​92, 92n.91, 280n.92 Prosecutor v Momčilo Krajišnik (Trial Judgment) IT-​00-​39-​T (27 September 2006) �����������������������������������������������������������������������������������������������������39–​40

Table of Cases  xxvii Prosecutor v Momčilo Krajisnik (Appeal Judgment) IT-​00-​39-​A (17 March 2009)��������������������������������������������������������������������������������������������������������� 40n.163 Prosecutor v Milorad Krnojelac (Trial Judgment) IT-​97-​25-​T (15 March 2002)����������������������������������������������������������������������������������������175n.109, 275n.65 Prosecutor v Radislav Krstić (Trial Judgement) IT-​98-​33-​T (2 August 2001)�����������41, 85–​86, 88n.59, 137–​38, 139–​40, 412–​13 Prosecutor v Radislav Krstić (Appeal Judgment) IT-​98-​33-​A (19 April 2004)������������� 250n.93 Prosecutor v Dragoljub Kunarac et al (Trial Judgment) IT-​96-​23-​T & IT-​96-​23/​1-​T (22 February 2001)���������������������������������������������������������������������� 32, 49n.12, 63–​64, 82n.39, 83–​84, 84n.45, 90–​91, 92–​93, 138–​39, 140, 178–​79, 199n.68, 228n.144, 235n.12, 274–​75, 278n.82 Prosecutor v Dragoljub Kunarac et al (Appeal Judgment) IT-​96-​23 & IT-​96-​23/​1-​A (12 June 2002)�������������������������������������������������������� 34n.129, 69n.115, 93n.94, 138–​39, 178, 255n.121, 255n.123, 255n.125, 276–​77, 278n.82, 280n.94 Prosecutor v Zoran Kupreškić et al (Trial Judgment) IT-​95-​16-​T (14 January 2000)����������������������������������������������������������������������������������������������������� 261n.152 Prosecutor v Miroslav Kvočka (Amended Indictment) IT-​98-​30/​1-​T (21 August 2000) ������������������������������������������������������������������������������������������������������� 268n.23 Prosecutor v Miroslav Kvočka et al (Trial Judgment) IT-​98-​30/​1-​T (2 November 2001)�������������������������������������������������� 25n.77, 81–​82, 84n.44, 88–​90, 92–​93, 228n.144, 235n.11 274 nn.58, 274n.60, 275nn.62–​63 Prosecutor v Milan Lukić and Sredoje Lukić (Trial Judgment) IT-​98-​32/​1-​T (20 July 2009) ������������������������������������������������������������������������������������������������42n.175, 92n.87 Prosecutor v Milan Milutinović et al (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction –​Joint Criminal Enterprise) IT-​99-​37-​AR72 (21 May 2003)������������������������������������������������������������������������������������81n.33 Prosecutor v Milan Milutinović et al (Trial Judgment) IT-​05-​87 (26 February 2009)����������������������������������������������������������������������������������������������������� 38n.151 Prosecutor v Ratko Mladić (Fourth Amended Indictment) IT-​09-​92-​PT (16 December 2011)������������������������������������������������������������������������������������������������������83n.41 Prosecutor v Ratko Mladić (Trial Judgment) IT-​09-​92-​T (22 November 2017) �������������������������������������������������������������������������������������81–​82, 138n.71 Prosecutor v Zdravko Mucić et al (Trial Judgment) IT-​96-​21-​T (16 November 1998) �������������������������������������������������� 84, 88–​89, 260nn.149–​50, 262n.159 Prosecutor v Momčilo Perišić (Trial Judgment) IT-​04-​81-​T (6 September 2011) ������� 280n.92 Prosecutor v Vujadin Popović et al (Revised Second Consolidated Amended Indictment) IT-​05-​88-​T (4 August 2006)��������������������������������������������������������������� 251n.98 Prosecutor v Vujadin Popović et al (Trial Judgment) IT-​05-​88-​T (10 June 2010) ������� 251n.98 Prosecutor v Vujadin Popović et al (Prosecution’s notice of filing a public redacted version of the prosecution final trial brief: Annex A) IT-​05-​88-​T (14 July 2010) ������������������������������������������������������������������������������������������������������������� 251n.98 Prosecutor v Jadranko Prlić et al (Trial Judgment) IT-​04-​74-​T (29 May 2013)������������������������������������������������������������������������������������������������63n.77, 280n.92 Prosecutor v Jadranko Prlić (Appeal Judgment) IT-​04-​74-​A (29 November 2017) ��������������������������������������������������������������������������������������61n.63, 63n.77 Prosecutor v Nikola Šainović et al (Appeal Judgment) IT-​05-​87-​A (23 January 2014)������������������������������������������������������������������������������������������������������� 41n.174 Prosecutor v Blagoje Simić et al (Trial Judgment) IT-​95-​9-​T (17 October 2003)��������� 117n.79 Prosecutor v Milomir Stakić (Trial Judgment) IT-​97-​24-​T (31 July 2003) ������������� 37, 118n.82 Prosecutor v Milomir Stakić (Appeal Judgment) IT-​97-​24-​A (22 March 2006)��������� 261n.152

xxviii  Table of Cases Prosecutor v Jovica Stanišić and Franko Simatović (Trial Judgment) IT-​03-​69-​T (30 May 2013)������������������������������������������������������������������������������������������������������������� 280n.92 Prosecutor v Duško Tadić (Decision on the Defense Motion on Jurisdiction) IT-​94-​1 (10 August 1995) ������������������������������������������������������������������������������������������������� 175 Prosecutor v Duško Tadić (Trial Judgment) IT-​94-​1-​T (7 May 1997)����������������� 12n.8, 84, 175 Prosecutor v Duško Tadić (Appeal Judgment) IT-​94-​1-​A (15 July 1999)���������41n.171, 80–​81 Prosecutor v Duško Tadić (Judgment in Sentencing Appeals) IT-​94-​1-​A and IT-​94-​1-​Abis (26 January 2000) ��������������������������������������������������������������������������81n.34 Prosecutor v Zdravko Tolimir (Third Amended Indictment) IT-​05-​88/​2-​T (4 November 2009)���������������������������������������������������������������������������������������������������� 251n.98 Prosecutor v Zdravko Tolimir (Prosecution notice of re-​filing of public redacted final trial brief: Annex A) IT-​05-​88/​2-​T (28 November 2012)����������������������������� 251n.98 Prosecutor v Zdravko Tolimir (Judgment) IT-​05-​88/​2-​T (12 December 2012)����������� 251n.98 INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) Prosecutor v Jean Paul Akayesu (Transcript) ICTR-​96-​4-​T (17 January 1997)����������� 248n.82 Prosecutor v Jean Paul Akayesu (Transcript) ICTR-​96-​4-​T (31 October 1997)��������� 263n.162 Prosecutor v Jean Paul Akayesu (Transcript) ICTR-​96-​4-​T (4 November 1997)�����������������������������������������������������������������������������������248n.82, 263n.162 Prosecutor v Jean Paul Akayesu (Trial Judgment) ICTR-​96-​4 (2 September 1998) ������������������������������������������12n.5, 25nn.75,77, 28n.92, 76n.4, 139–​40, 199n.67, 250, 251–​52, 273n.54, 397–​98, 399–​402, 404, 405–​6 Prosecutor v Jean Paul Akayesu (Appeal Judgment) ICTR-​96-​4 (1 June 2001)�������������������������������������������������������������������������������������������������������399nn.73–​76 Prosecutor v Théoneste Bagosora et al (Trial Judgment) ICTR-​98-​41-​T (18 December 2008)���������������������������������������������������������������������������������������������117–​18n.81 Prosecutor v Jean Kambanda (Judgment and Sentence) ICTR 97-​23-​S (4 September 1998) ��������������������������������������������������������������������������������������������������� 139n.85 Prosecutor v Ferdinand Nahimana et al (Judgment) ICTR-​99-​52-​T (3 December 2003)����������������������������������������������������������������������������������������������������� 200n.71 Prosecutor v Mikaeli Muhimana (Judgment) ICTR-​95-​1-​T (28 April 2005)����������������������������������������������������������������������������������� 117–​18n.81, 260n.151 Prosecutor v Eliézer Niyitegeka (Judgment and Sentence) ICTR-​96-​14-​T (16 May 2003)������������������������������������������������������������������������������������������������������������� 139n.83 INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG (IMT) Trial of the Major War Criminals Before the International Military Tribunal at Nuremberg, 14 November 1945 –​1 October 1946, Vol. I (1947)��������������������������������80n.30 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 –​1 October 1946 Volume 6��������������������������������� 263n.162 International Military Tribunal at Nuremberg, Trial of Carl Krauch et al and Trial of Alfred Felix Alwyn von Bohlen und Halbach et al in Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg Volume 10 (1947)������������������������������������������������������������������������������������������������������������������������� 174n.103 International Military Tribunal at Nuremberg, United States of America v. Karl Brandt et al in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law 10, Vol. II (US Government Printing Office 1949) 174������������������������������������������������������������������������������������������������� 136, 249n.84

Table of Cases  xxix International Military Tribunal at Nuremberg, United States of America v. Ulrich Greifelt et al. in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law 10, Vol. V (US Government Printing Office, 1949) ��������������������������������������������������������������������������������������������������������������� 249n.85 INTERNATIONAL MILITARY TRIBUNAL AT TOKYO (IMTFE) International Military Tribunal for the Far East, Tokyo, ‘Judgement of 4 November 1948’ in John Pritchard and Sonia M Zaide (eds), The Tokyo War Crimes Trial vol 22 (Garland Publishing 1981)����������������������������������������������������������������������������� 136n.55 SPECIAL COURT FOR SIERRA LEONE (SCSL) Prosecutor v Brima, Kamara and Kanu (Trial Judgment) SCSL-​04-​16-​T (20 June 2007)�������������������������������������������������������������� 25n.71, 141n.96, 142n.103, 143–​44, 176n.112, 213–​14, 228n.143, 387–​88 Prosecutor v Brima, Kamara and Kanu (Appeal Judgment) SCSL-​04-​16-​A (22 February 2008)��������������������������������������������������� 32n.119, 142n.99, 176n.112, 212n.24, 212n.26, 214, 216n.52, 219n.74, 228n.143 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) SCSL-​2004-​14-​AR 72(E) (31 May 2004)������������������������������������������������������������������������������������������������������������� 142n.98 Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Decision on Prosecution Request for Leave to Amend the Indictment) SCSL-​04-​14-​PT (20 May 2004)����������������������������������������������������������������133n.41, 143n.108 Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana And Allieu Kondewa) SCSL-​04-​14-​T (2 August 2004)��������������������������� 143n.108 Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Decision on Prosecution Appeal against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to file an Interlocutory Appeal) SCSL-​04-​14-​T (17 January 2005)����������������������������������������������������������������������������������������������������� 143n.108 Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence) SCSL-​04-​14-​PT (24 May 2005) ����������������133n.41, 143n.108 Prosecutor v Moinina Fofana and Allieu Kondewa (Judgement) SCSL-​04-​14-​T (2 August 2007)����������������������������������������������������������������������������������������������������������� 141n.96 Prosecutor v Moinina Fofana and Allieu Kondewa (Appeal Judgement) SCSL-​04-​14-​A (28 May 2008)������������������������������������������������133n.41, 142n.100, 143n.108 Prosecutor v Sesay, Kallon and Gbao (Trial Judgment) SCSL-​04-​15-​T (2 March 2009)�����������������������������������������������32n.118, 33n.123, 40–​41, 61n.63, 123n.109, 141n.96, 142n.101, 143–​44, 144n.113, 176n.112, 179n.140, 180n.148, 181n.153, 182n.157, 212nn.24–​25, 215, 216nn.49–​50, 227n.136, 228n.143 Prosecutor v Issa Hassan Sesay Morris Kallon and Augustine Gbao (Sentencing Judgement) SCSL-​04-​15-​T (8 April 2009)�������������������������142n.103, 144n.114, 151n.163, 153n.186, 154n.187 Prosecutor v Sesay, Kallon and Gbao (Appeal Judgment) SCSL-​04-​15-​A (26 October 2009) ��������������������������������������������������������������������32n.119, 176n.112, 219n.74

xxx  Table of Cases Prosecutor v Taylor (Trial Judgment) SCSL-​03-​01-​T (18 May 2012) ��������������31–​32, 33n.123, 141–​42, 143–​44, 144n.116, 148n.144, 176n.112, 179n.140, 180n.148, 181n.153, 215–​16 Prosecutor v Charles Taylor (Appeal Judgment) SCSL-​03-​01-​A (26 September 2013) ����������������������������������������������������������������������������������������������� 142n.102 UNITED NATIONS HUMAN RIGHTS COMMITTEE (UNHRC) Mellet v Ireland, (Judgment) [2016] CCPR/​C/​116/​D/​2324/​2013�������������������������246nn.70–​72 Toonen v Australia (Communication No. 488/​1992) CCPR/​C/​50/​D/​488/​1992 (31 March 1994)�����������������������������������������������������������������������������������������������������������195–​97 Whelen v Ireland, (Judgment) [2017] CCPR/​C/​119/​D/​2425/​2014�����������������������246nn.70–​72 THE WOMEN’S INTERNATIONAL WAR CRIMES TRIBUNAL FOR THE TRIAL OF JAPAN’S MILITARY SEXUAL SLAVERY Prosecutor v Hirohito et al (Judgment on the Common Indictment and the Application for Restitution and Reparation) PT-​2000-​1-​T (4 December 2001)������������������������������������������������������������������������������������������� 263n.161, 409 Prosecutor v Hirohita et al (Summary of Findings and Preliminary Judgment) PT-​2000-​1-​T (12 December 2001)������������������������������������������������������������������������� 409n.144 DOMESTIC CASES Argentina Aebi, Maria Eva and others (Judgment) Tribunal Oral en lo Criminal Federal de Santa Fe, Case No 54000012/​2007/​TO1 (16 October 2018)��������������������������������� 341n.86 Aliendro, Juana Agustina and others (Judgment) Tribunal Oral en lo Criminal Federal de Santiago del Estero (Federal Oral Criminal Tribunal of Santiago del Estero), Case No 960/​11 (5 March 2013)����������������������������������� 328n.8, 328n.11, 329n.14, 331n.29, 337nn.62–​63 Azar, Musa and others (Judgment) Cámara Federal de Casación Penal, Case No 830960/​2011/​12/​CFC1 (22 June 2015)��������������������������������������337n.62, 337n.66 Arsenal Miguel de Azcuénaga and the Police Headquarters of Tucumán (Judgment) Tribunal Oral en lo Criminal Federal de Tucumán (Federal Oral Criminal Tribunal of Tucumán), Case No A-​81/​12 (19 March 2014)���������������������328n.8, 328n.11, 329n.13, 341n.86, 341n.93 Barberis, Marcelo Eduardo and others (Judgment) Tribunal Oral en lo Criminal Federal de La Rioja, Case No 1861/​2011/​TO1 (18 September 2015)���������������������328n.8, 329n.14, 337nn.62–​63 Barcos, Horacio Américo (Judgment) Tribunal Oral en lo Criminal Federal de Santa Fe (Federal Oral Criminal Tribunal of Santa Fe), Case No 43/​08 (19 April 2010)��������������������������������������������������������������������������������������������������������������328n.6 Bignone and others (Judgment) Tribunal Oral Federal en lo Criminal No 6 de Buenos Aires, Case No 1894 (26 February 2015)�����������������������������341nn.89–​90 Bignone, Reynaldo Benito Antonio and others (Judgment), Tribunal Oral Federal en lo Criminal No. 3 (Oral Federal Criminal Tribunal No. 3), Case No 9243/​2007 (30 October 2018)����������������������������������������������������341n.94, 342n.96 Franco Rubén O and others (Judgment) Tribunal Oral Federal en lo Criminal No 6 de Buenos Aires (Oral Criminal Federal Tribunal No. 6 of Buenos Aires), Case No 1351 (17 September 2012)�����������������������������������������������������������������341nn.89–​90

Table of Cases  xxxi Jucio a las Juntas Militares (Judgment) Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital de Buenos Aires (National Criminal and Correctional Chamber of Appeals of Buenos Aires), Case No 13/​84 (9 December 1985)������������������������������������������������������������������������������������������������������������327n.3 Martel, Osvaldo Benito and others (Judgment) Tribunal Oral en lo Criminal Federal de San Juan (Federal Oral Criminal Tribunal of San Juan), Case No 1077 (3 September 2013) ��������������������������������������������������������������������������������������328n.8, 329n.13 Menéndez Luciano Benjamín and others (Judgment) Tribunal Oral en lo Criminal Federal de La Rioja (Federal Oral Criminal Tribunal of La Rioja), Case No FCB 710018028/​2000 (28 June 2016)���������������������������������� 328n.8, 337n.63, 337n.66, 341n.86 Molina, Gregorio Rafael (Judgment) Tribunal Oral en lo Criminal Federal de Mar del Plata (Federal Oral Criminal Tribunal of Mar del Plata), Case No 2086 (9 June 2010)�����������������������������������������������������������������������������������������������������������������327–​28 Molina, Gregorio Rafael (Judgment) Cámara Federal de Casación Penal (Federal Chamber of Criminal Cassation), Case No 12.821 (17 February 2012) ���������������327–​28 Riveros, Santiago and others (Judgment) Cámara Federal de Casación Penal, Case No FSM 146/​2013/​TO1/​CFC8 (16 May 2018) ��������������������������������������������� 329n.15 Sambuelli, Danilo Alberto and others (Judgment) Tribunal Oral Criminal Federal de Santa Fe, Case No 21/​10 (25 September 2013)������������������������328n.8, 329n.13 Sambuelli, Danilo Alberto and others (Judgment) Cámara Federal de Casación Penal, Case No FRO 88000021/​2010/​TO1/​CFC1 (6 April 2017)������������������������� 329n.15 Chile Disappearances of Cecilia Miguelina Bojanic Abad and Flavio Arquimedes Oyarzun Soto (Judgment) Corte de Apelaciones de Santiago, Case No 11.844-​Volume E (18 December 2006) ��������������������������������������������������� 339n.77 The Disappearance of Rebeca Espinoza Sepúlveda (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (14 July 2008)������������������������������� 334n.47 Episode Londres 38-​folder María Cecilia Labrín Saso (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (25 April 2013)����������������������������� 339n.77 Episode ‘Luis Rodriguez’ (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (4 August 2013)����������������������������������������������������������������������� 339n.77 Episode “Nilda Peña Solari” (Judgment) Corte de Apelaciones de Santiago (Appeals Court of Santiago), Case No 6.741-​2006 (20 March 2012)������������������� 334n.47 Episode “Villa Grimaldi” -​Folder “Maria Cristina Chacaltana and others” (First Instance Judgment) Corte de Apelaciones de Santiago, Case No 2182-​98 (12 January 2015)������������������������������������������������������������������������������������������������������� 334n.49 Episode “Villa Grimaldi” -​Folder “Maria Cristina Chacaltana and others” (Appeal Judgment) Corte de Apelaciones de Santiago, Case No 82. 246-​2016 (27 April 2017)����������������������������������������������������������������������������������������������������������� 334n.49 Lara Reyes vs the State of Chile (Judgment) Corte Suprema (Supreme Court), Case No 31.711-​17 (23 January 2018)��������������������������������������������������������������������� 334n.49 Trigesimo Cuarto Juzgado del Crimen de Santiago (Thirty-​Fourth Criminal Tribunal of Santiago), Rol No 73-​2016 “Venda Sexy” (5 November 2020)�����������333–​35 Villa Grimaldi -​Episode Eight of Valparaiso (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (30 July 2010)��������������������������������������������������������� 339n.77 Colombia Corte Constitucional de Colombia (Constitutional Court of Colombia) (Judgment) Case No SU-​599/​19 (11 December 2019)�������������������������������������343–​44n.110, 344n.112

xxxii  Table of Cases German Antonio Pineda López (Judgment) Tribunal Superior de Medellín, Sala de Justicia y Paz, Case No 110016000253-​2010-​84502 (25 January 2019)�����������������������������������������������������������������������������������������������332nn.35–​36 Galindo Cifuentes and others (Judgment) Corte Suprema de Justicia de Colombia (Colombia Supreme Court of Justice), Criminal Chamber, Case No 44921 (23 November 2017)����������������������������������������������������������������������������������������������������������� 331n.31 Héctor Arboleda Buitrago (Decision on request for provisional release) JEP, Chamber of Amnesty and Pardons, Case No SAI-​LC-​XBM-​046 (25 February 2019)������������������������������������������������������������������������������������344–​45nn.115–​16 Javier Alonso Quintero and others (Judgment ) Tribunal Superior del Distrito Judicial de Medellín, Sala de Justicia y Paz, Case No 110016000253/​2009/​83705 (12 February 2020)����������������������������������������������������������������������������������������������������� 332n.36 Murillo (Judgment), Tribunal Superior de Medellín, Sala de Justicia y Paz, Case No 110016000253200680018 (2 February 2015)������������������������������������������� 332n.33 Olimpo de Jesús Sánchez Caro and others (Judgment) Tribunal de Medellin, Sala de Justicia y Paz, Case No 110016000253200883621 (16 December 2015)���������������������������������������������������������������������� 256–​57, 340n.85, 343–​44 Orlando Guerrero Ortega (Judgment) JEP, Sala de Definición Jurídicas (Chamber for the Definition of Legal Situations), Case No 973 (31 July 2018) ������������������������������������������������������������������������������������������������������������� 333n.40 Orlando Guerrero Ortega (Dissent) JEP, Sala de Definición Jurídicas, Case No 973 (31 July 2018)��������������������������������������������������������������������������������������� 333n.40 Orlando Villa Zapata and others (Judgment) Tribunal Superior de Bogotá, Sala de Justicia y Paz, Case No 110016000253200883612-​00 (24 February 2015)����������������������������������������������������������������������������������������������������� 331n.32 Oscar Enrique de Lima Contreras (Judgment) JEP, Sala de Amnistías e Indultos (Chamber of Amnesty and Pardons), Case No 20181510212642, 20181510120712 (8 April 2019)������������������������������������������������������������������������������� 333n.40 Reclutamiento y utilización de niñas y niños en el conflicto armado (Judgment) JEP, Sala de Reconocimiento de Verdad, de Responsabilidad y de Determinación de los Hechos y Conductas (Chamber for the Acknowledgement of Truth and Responsibility), Decision No 029 (1 March 2019)������������������������������������������������� 333n.42 Sentencia SU599/​19, Bogotá D.C. (11 December 2019) ��������������������������������������������� 257n.135 Guatemala Guatemala v Esteelmer Francisco Reyes Girón, Heriberto Valdez Asig (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente (First Tribunal for Crime, Drug Trafficking and Environmental Offences), C-​01076-​2012-​00021 (26 February 2016) ����������������������325n.1, 326, 330–​31, 331n.28, 340–​41, 345–​46 Hugo Ramirez Zaldaña Rojas and others (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo Grupo “C” (First Tribunal for Crime, Drug Trafficking and Environmental Offences) Case No C-​01077-​1998-​00002 (23 May 2018)������������330–​31, 336–​37 José Mauricio Rodríguez Sánchez and José Efraín Ríos Montt (Judgment), Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo C-​01076-​2011-​00015 (10 May 2013)����������������������� 343n.101 José Mauricio Rodríguez Sánchez (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo, C-​01076-​2011-​00015 (26 September 2018)�������������������������������������������������337–​39 Sentencia C-​01076-​2011-​00015, Guatemala (26 September 2018) ����������������������������� 250n.96

Table of Cases  xxxiii Israel Attorney General v Adolf Eichmann (Judgment) Case 40/​61, District Court of Jerusalem Case (11 December 1961)������������������������������������������������������������������������������� 249 Peru Chumbivilcas (Judgment) National Criminal Chamber “B” (Peru), Case No 37-​2008, (28 June 2017)����������������������������������������������������������������������������� 336n.61 Manta and Vilca, Corte Suprema de Justicia de la República (Supreme Court of Justice of the Republic), Sala Penal Nacional (National Criminal Chamber), Decision on Annulment Appeal, Case No 2395-​2017 (20 June 2018)������������������335–​36, 336nn.60–​61 MMMB (Judgment) Sala Penal Nacional (National Criminal Chamber), Case No 314-​2010 (26 October 2016)�������������������������������������������������������331n.29, 339–​40 United States Doe v. Karadžić, 866 F Supp 734 (SDNY 1994)�����������������������������������������������������������������242–​43

About the Editors Indira Rosenthal consults widely on gender, international human rights, and international criminal law. She served as Gender and Legal Adviser at Amnesty International, as Legal Counsel with Human Rights Watch, and as a senior Australian government lawyer. She is a PhD candidate at the Faculty of Law, University of Tasmania. Valerie Oosterveld is a full Professor at the University of Western Ontario Faculty of Law and Associate Director of Western’s Centre for Transitional Justice and Post-​ Conflict Reconstruction. She has published widely on the subject of gender issues in international criminal law. Susana SáCouto directs the War Crimes Research Office at American University Washington College of Law, where she teaches doctrinal and experiential education courses on international criminal law (ICL), including a seminar on gender and ICL. She advises and provides legal research and analysis in these areas of the law to international, regional, and domestic courts and has published widely on gender issues in ICL.

About the Contributors Gloria Atiba-​Davies was the Head of the Gender and Children Unit in the Office of the Prosecutor at the International Criminal Court for fifteen years. Previously, she served as Principal State Counsel and acting Director of Public Prosecutions in Sierra Leone, and as Deputy Director of Public Prosecutions in The Gambia. Danny Bradley is the Global Campaigns Officer at MADRE, an international human rights organization and feminist fund. Kirsten Campbell teaches at Goldsmiths College, University of London. She has published extensively in the areas of gender, conflict-​related sexual violence, international criminal law, and transitional justice, and has recently completed a study of the prosecution of conflict-​related sexual violence at the International Criminal Tribunal for the former Yugoslavia and the Bosnian State Court. Lisa Davis is an Associate Professor of Law and Co-​Director of the Human Rights and Gender Justice (HRGJ) Clinic at the City University of New York (CUNY) School of Law. Davis also serves as the Senior Legal Advisor for MADRE, an international feminist human rights organization. She is Special Adviser on Gender Persecution to the Prosecutor of the International Criminal Court. Helen Durham is currently Director of International Law and Policy at the Headquarters of the International Committee of the Red Cross (ICRC) in Geneva, and has also been Director at the Australian Red Cross (IHL, Movement Relations and Research) as well as Head of Office for the ICRC in Australia and Regional Legal Adviser for the Pacific Delegation. Judith Gardam is Emeritus Professor at the Law School, University of Adelaide in South Australia and a Fellow of the Academy of Social Sciences in Australia. Jocelyn Getgen Kestenbaum is Associate Professor of Clinical Law at the Benjamin N Cardozo School of Law. She is Faculty Director of the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) and Director of the Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic. Laura Green is a solicitor working in public law in New Zealand and holds an LLM in Public International Law from Leiden University. She previously worked for NATO, the UN International Criminal Tribunal for the Former Yugoslavia, and the International Committee of the Red Cross.

xxxviii  About the Contributors Rosemary Grey is a lecturer at Sydney Law School, University of Sydney, and an active member of the University’s Sydney Southeast Asia Centre. She has participated as amicus curiae in the International Criminal Court and Extraordinary Chambers in the Courts of Cambodia, has been Co-​Director of the Sydney Centre for International Law, and is a member of the Journal of International Criminal Justice editorial committee. Michelle Jarvis is the Deputy Head of the International, Impartial and Independent Mechanism (Syria). She was the Deputy to the Prosecutor of the ICTY and the Mechanism for International Criminal Tribunals (MICT). She serves on the Advisory Board of the International Association of Prosecutors’ Prosecuting Conflict-​Related Sexual Violence Network, which she initiated. Daniela Kravetz is an international criminal justice and gender practitioner. She has served with the United Nations in different capacities, including as the UN Special Rapporteur on the situation of human rights in Eritrea and as a prosecutor at the UN International Criminal Tribunal for the former Yugoslavia. She is a visiting professor at American University Washington College of Law and at the University of Calgary Faculty of Law. Gorana Mlinarević is a visiting research fellow at Goldsmiths, University of London. Since 2013, she has been involved in the research project: Gender of Justice—​The Prosecution of Sexual Violence in Armed Conflict. For over twenty years, she has participated in numerous feminist initiatives, both academic and grassroots, aiming at addressing gender-​based international crimes. Antonia Mulvey is the founder and Executive Director of Legal Action Worldwide, a human rights INGO providing legal assistance to victims and survivors in fragile and conflict affected areas. Previously, she served as UN investigator and head of rule of law and access to justice programmes for the UN. Leo C Nwoye is a former Assistant Appeals Counsel in the Office of the Prosecutor at both the International Residual Mechanism for Criminal Tribunals (The Hague and Arusha branches) and the International Criminal Tribunal for Rwanda. He is an accredited mediator and a PhD candidate at the School of International Relations, University of St Andrews, Scotland. Melanie O’Brien is Associate Professor in International Law at the University of Western Australia. Melanie is President of the International Association of Genocide Scholars (IAGS), and volunteer with the Australian Red Cross. Her work on forced marriage has been cited by the International Criminal Court. Jonathan O’Donohue is a consultant on human rights and international justice and a PhD candidate at UNSW Sydney. Between 1999 and 2019 he worked as a legal adviser on international justice for Amnesty International. Catherine O’Rourke is Professor of Global Law, Durham Law School, United Kingdom.

About the Contributors  xxxix Dianne Otto is Professorial Fellow at Melbourne Law School. She held the Francine V McNiff Chair in Human Rights Law 2013–​16, and was Director of the Institute for International Law and the Humanities 2012–​15. Patricia Viseur Sellers is Special Advisor on Slavery Crimes, Office of the Prosecutor, International Criminal Court. She is also Visiting Fellow, Kellogg College, University of Oxford and a Practicing Professor at London School of Economics. She was the Legal Advisor for Gender and a prosecutor at the UN International Criminal Tribunals for the former Yugoslavia and Rwanda. Dubravka Žarkov is a research associate at the Radboud University Nijmegen, The Netherlands. She was previously Associate Professor, International Institute of Social Studies, The Hague, The Netherlands.

List of Abbreviations AFRC AI AP I AP II CAH CAR CAT CEDAW CESCR CRC CRSV CSW DRC EAC ECCC ELN ERG FARC FGM HRC ICC ICCPR ICJ ICL ICRC ICTR ICTY IHL IHRL IIIM ILC IMTFE ISIL ISIS

Armed Forces Revolutionary Council (Sierra Leone) Amnesty International Additional Protocol I to 1949 Geneva Conventions Additional Protocol II to 1949 Geneva Conventions Crimes against humanity Central African Republic Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention for the Elimination of All Forms of Discrimination against Women UN Committee on Economic, Social and Cultural Rights Convention on the Rights of the Child Conflict-​related sexual violence UN Commission on the Status of Women Democratic Republic of Congo Extraordinary African Chambers Extraordinary Criminal Chambers of Cambodia Ejército de Liberación Nacional Ejército Revolucionario Guevarista Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Columbia) Female genital mutilation UN Human Rights Council International Criminal Court International Covenant on Civil and Political Rights International Court of Justice International criminal law International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International humanitarian law International human rights law International, Impartial and Independent Mechanism for Syria UN International Law Commission International Military Tribunal for the Far East Islamic State of Iraq and the Levant Islamic State of Iraq and Syria

xlii  List of Abbreviations JCE Joint criminal enterprise JEP Special Jurisdiction for Peace (Jurisdicción Especial para la Paz) LGBTQI+​/L ​ GBTIQ+​ Lesbian, gay, bisexual, transgender, queer and intersex LRA Lord’s Resistance Army (Uganda) MONUSCO UN Organization and Stabilization Mission in the DRC NGO Non-​governmental organization OAS Organization of American States OTP Office of the Prosecutor of the International Criminal Court RCT International Rehabilitation and Research Centre for Torture Victims RUF Revolutionary United Front (Sierra Leone) SCSL Special Court for Sierra Leone SFRY Socialist Federal Republic of Yugoslavia SGBC Sexual and gender-​based crimes SOGIE/​SC Sexual orientation and gender identity and expression/​and sex characteristics UN United Nations UNCAT United Nations Committee Against Torture UNFPA United Nations Population Fund UNGA United National General Assembly UNHCR United Nations High Commissioner for Refugees UNICEF United Nations International Children’s Emergency Fund UNITAD UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​ISIL in Iraq UNSC United Nations Security Council WHO World Health Organization

Introduction Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto*

There can be no love without justice.1

Despite nearly thirty years of unprecedented attention on the commission of sexual violence and other gender-​based crimes under international law, these crimes, their causes, and their consequences remain poorly understood. The result has been a series of investigative, prosecutorial, and judicial decisions in international criminal courts and tribunals that reveal deeply held misconceptions about the role of gender in the commission, experience, investigation, prosecution, and punishment of crimes under international law. In our experience, sustained efforts by feminist lawyers, academics, and activists to improve understanding of the role gender plays in international criminal law (ICL) have not (yet) eradicated these mistaken beliefs. They remain pervasive among ICL practitioners—​ investigators, prosecutors, defence counsel, and judges—​ as well as in the media. This volume grew out of our concern that these widely held misconceptions are undermining accountability efforts for sexual violence and other gender-​based crimes amounting to genocide, crimes against humanity, and war crimes. The objective of this book, therefore, is to enhance prospects of accountability for these crimes under ICL by debunking misapprehensions about the term ‘gender’, promoting a more nuanced and expanded understanding of the concept, and exposing the ways in which narrow or incomplete interpretations of gender undermine accountability. In this, our aim is to support ICL practitioners in international and national justice mechanisms to improve their awareness of the gender dimensions of sexual violence, other * The authors wish to thank Rebecca Orsini and Bridget Dunne for their assistance with this Introduction. 1 bell hooks, All About Love: New Visions (Harper Collins 2017).

2  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto gender-​based crimes, and crimes not ordinarily perceived as gendered, and to better understand, investigate, and prosecute these crimes. At the same time, we hope to stimulate a deeper discussion about gender in ICL scholarship. We believe this is particularly important, given the close relationship between academics writing on ICL issues and ICL practitioners, a relationship that we have directly experienced and witnessed over the past quarter of a century of working in this field. Of course, this is not the first work to expose the limitations and failings of ICL and its mechanisms to adequately address sexual violence and other gender-​based crimes.2 However, it is the first volume to consider gender dimensions of ICL more broadly and to do so across various contemporary national and international tribunals.3 In this book, our contributors expose the narrow (or absent) understandings of gender that are at the root of much of ICL’s poor responses to sexual violence and other gender-​based crimes, and which continue to predominate in much of contemporary ICL. Due to its central place in the practice of contemporary ICL, much of the discussion in this volume focuses on the work of the International Criminal Court (ICC). The book comprises three Parts. The starting point, Part I, titled Misconceptions and Misunderstandings about Gender in International Criminal Law, considers the current status of understandings of gender in ICL. In this Part, the authors focus on misconceptions about gender, some of which stem from similar misunderstandings in international humanitarian law (IHL). This part discusses the narrow approach to gender in ICL, including the limited range of gender-​based harms that are being, or have been, addressed, and the failure to reflect the gendered aspects of harms, such as sexual violence, that have been recognized. The authors in this part question whether ICL is gender-​ neutral and highlight gender blind spots that impact the investigation and prosecution of crimes under international law. In Chapter 1, Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto provide a brief history of the use of the term ‘gender’, the main theories of gender and the contestation between them, and how the term has been defined, in ICL. The authors also consider examples from ICL practice in international 2 See Chapter 1 by Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto in this volume, n 16. 3 For example, some recent books focus on gender but limit their analysis to one court, such as the ICC. See Louise Chappell, The Politics of Gender justice at the International Criminal Court, Legacies and Legitimacy (OUP 2016); Rosemary Grey, Prosecuting Sexual and Gender-​Based Crimes at the International Criminal Court Practice, Progress, and Potential (CUP 2019). Others limit their analysis to crimes against women or sexual violence crimes, see Kelly Dawn Askin, War Crimes Against Women, Prosecution in International War Crimes Trials (Martinus Nijhoff 1997); Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016).

Introduction  3 and national criminal courts and tribunals that illustrate the undermining effect of misunderstandings about gender, particularly regarding what makes sexual violence ‘sexual’, the recognition of non-​sexual violations as gendered, and the need for contextualization to accurately characterize sexual violence and other gender-​based crimes. This chapter makes practical recommendations focused at the institutional level for addressing the gaps in understanding, and resistances to embedding, gender in ICL, and especially the importance of a thoughtful and informed gender strategy to achieving gender competency in ICL. In Chapter 2, Michelle Jarvis and Judith Gardam explore how gendered concepts of IHL have influenced the development and practice of international criminal law. The authors identify a gender hierarchy in IHL based on misconceptions and gender stereotypes and use examples from ICL to show how these gendered features of IHL are replicated or have gendered consequences when applied to ICL. This chapter highlights and suggests remedies for areas of ICL in which little progress has been made or where ICL has reinforced problematic assumptions. Moving from the broader discussions in Chapters 1 and 2, in Chapter 3, Kirsten Campbell and Gorana Mlinarević forensically examine the treatment of sexual violence charges by the International Criminal Tribunal for the former Yugoslavia (ICTY). They analyse the ICTY as a case study of the gendered framework of international criminal justice. They use ICTY decisions on rape and sexual violence to argue that gendered power relations and structures produced these crimes, rendering them gender-​based, but that the ICTY failed to recognize them as such. They contend that by focusing on individual responsibility, rather than the gendered structures responsible for these crimes, and overemphasizing ethnicity, the ICTY obscured their gender dimensions. The authors suggest that a feminist gender analysis of ICL requires the recognition of gender as a social structure and process that produces gendered patterns of criminality as seen in the conflict in the former Yugoslavia. Part II, titled Expanding Approaches to Gender in International Criminal Law: Beyond ‘Gender =​Women’ and ‘Gender =​Crimes of Sexual Violence’, explores the reality of ICL beyond these ubiquitous assumptions. The authors in this Part examine the limitations in recognition of gender-​based harms under ICL, and the failure to understand and reflect the gendered aspects of the harms that have been recognized, such as rape. In so doing, they reveal and discredit the most persistent misconceptions of gender—​that it is binary and based on biological sex or synonymous with female, and that gender-​based crimes or gendered harms are limited to, or synonymous with, sexual violence.

4  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto The authors address the impact of this reductionist understanding of gender on males, children, and LGBTIQ+​individuals.4 This chapter also considers the treatment by ICL of certain gendered harms, such as slavery crimes, persecution, forced marriage, reproductive crimes, and state-​ordered or tolerated sex/​ gender discriminatory regimes. While there has been an increased acknowledgment of the fact that males are subjected to sexual violence, these crimes are rarely acknowledged as gendered, and there is still a need to identify the full range of gendered harms experienced by males and to ensure accountability for these crimes. In Chapter 4, Dubravka Žarkov considers the motivation for sexual violence against men, what makes that violence (in)visible, and the implications of both its visibility and its invisibility for ICL. Žarkov argues that contemporary, modern masculinities are produced in different ways than femininities, and that war and sexual violence are social processes in which these differences come to the forefront. The gender dimensions of child victims/​survivors and perpetrators of crimes under international law is also underdeveloped in ICL. While some work has been done in relation to the use of female child soldiers in highly gendered roles (for example, as ‘bush wives,’ domestic slaves, or sex slaves), wider gender issues concerning children remain largely unexplored. Gloria Atiba-​Davies and Leo C Nwoye aim to fill this gap in Chapter 5. They stress that ICL jurisprudence has generally treated girls and boys as belonging to a homogenous group, thereby failing to address the fact that girls and boys are subject to differing gender norms, which impact on their experiences of crimes. This chapter explores existing and evolving approaches to crimes against children, finding that international criminal courts have tended to focus on a very narrow set of violations: the crime under international law of enlisting or conscripting child soldiers or using them in hostilities, and acts of forced marriage or sexual violence. This chapter aims to encourage both deeper analysis of these crimes, and recognition of differential gender impacts on children of other crimes by international and national criminal justice mechanisms. In Chapter 6, Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum reconceptualize the crimes of enslavement and the slave trade to recognize the historic sexual practices that were and continue to be an integral part of these crimes. They discuss a variety of sexual practices and their role in the subjugation of slaves, as well as the gendered underpinnings of the historic 4 This acronym refers to people who identify as lesbian, gay, bisexual, trans, intersex, queer, non-​ binary, and gender diverse.

Introduction  5 and contemporary slave trade. Slavery and the slave trade are among the oldest crimes recognized under international law and continue to be widely practised. While ICL recognizes some forms of modern-​day slavery crimes, it still has a long way to go to understand and effectively address their gendered aspects. From some of the oldest crimes under international law to the newest, the volume moves to consider the crime against humanity of gender-​based persecution. The ICC is the first and, so far, only international criminal court or tribunal with jurisdiction over this potentially game-​changing crime. In Chapter 7, Lisa Davis and Danny Bradley examine the scope of targeted persons potentially covered under the definition of ‘gender’ in the Rome Statute of the ICC. They trace a successful activist campaign to remove the Rome Statute definition, which they see as ambiguous and outdated, from a new draft treaty on crimes against humanity in order to avoid replicating the ambiguity in another treaty. The authors reaffirm the concept of gender as an evolving social construct by examining international law on sexual orientation, gender identity and expression, and sex characteristics. Using ISIS as a case study, they show how socially constructed gender norms have been used as a basis for oppression and violence. Chapters 8 and 9 analyse gendered criminal conduct that has only recently been addressed in ICL: forced marriage and reproductive crimes. In Chapter 8, Melanie O’Brien discusses the gendered dimensions of forced marriage, first as understood in international human rights law and then as explicated in ICL. O’Brien examines how forced marriage has been understood by international criminal courts and tribunals considering atrocities in Sierra Leone, Cambodia, Uganda, and Mali. This chapter concludes that the crime of forced marriage is reliant on socially-​constructed ideas of female servitude and roles in human reproduction, ideas that are planned and carried out largely by men within a patriarchal structure. This chapter also concludes that the work to date of the ICC in describing and defining forced marriage sets the stage for adding this violation into the Rome Statute as a standalone crime against humanity and war crime. Reproductive violence is often mistakenly viewed as synonymous with sexual violence in ICL. In Chapter 9, Rosemary Grey aims to draw attention to reproductive crimes as a distinct category; she argues that the violation of the right to reproductive autonomy is distinct from the violation of the right to sexual autonomy, and that this distinction is important for the purposes of accountability. She then provides strategies for prosecuting these crimes within existing ICL frameworks, seeking to incentivize greater attention to reproductive violence in ICL.

6  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto This part concludes, in Chapter 10, with a consideration of how the crimes against humanity category of ICL might capture forms of state-​tolerated discriminatory practices against women. Antonia Mulvey uses female genital mutilation (FGM) as a case study to examine the frontiers of ICL, arguing that the gendered harms of FGM satisfy the various components of the legal definition of torture as an international crime within the Rome Statute and under customary international law. She discusses the advantages of such a reclassification for victims and the broader goal of accountability in ICL. Part III is the final part of the volume and is titled Engendering Justice: The Future of International Criminal Law. This part considers the future development of the relationship between gender and ICL, looking at emerging issues such as reparations and the evolving and expanding use of national courts to address sexual violence and other gender-​based crimes. This part also considers how other areas of international law—​particularly international human rights law and IHL—​could help to shape and make ICL’s jurisprudence more gender-​sensitive and gender-​competent. At the same time, the authors in this part recognize the limits of ICL, whether these are limits stemming from a lack of understanding by practitioners in this field, limits arising from a lack of legal imagination as to how to incorporate a sophisticated understanding of gender into ICL, or in-​built limits to ICL’s capacity as a field of law to incorporate gender analysis and undertake feminist reform. In Chapter 11, Jonathan O’Donohue and Rosemary Grey examine reparations at the ICC from a gender perspective. In its first cases, the ICC developed principles for ordering reparations that commit to applying ‘gender-​inclusive’ procedures to ensure reparations are accessible to all victims. Gendered barriers often exclude victims from participating in reparation processes and accessing full and effective reparations to address the harm they have suffered. This, in turn, reinforces patterns of gender-​based discrimination. Reflecting on the measures taken by the ICC in cases in which it has ordered reparations, Lubanga, Katanga, Al-​Mahdi, and Bemba, as well as academic literature on gender and reparations, this chapter proposes a conceptual and practical framework for assessing the gender inclusivity of the ICC’s procedures. Chapter 12, by Daniela Kravetz, analyses the challenges and opportunities presented by the ICL framework when it comes to national implementation of gendered harms in Latin America. National prosecutions are a key element of international criminal justice. For instance, under the principle of complementarity, the ICC is conceived as a court of last resort, with national prosecutions taking precedence. With a focus on insights from her extensive work in national systems in Latin America, the author discusses the challenges associated

Introduction  7 with addressing gender-​based crimes, including overcoming many of the same misconceptions of gender evident in the international arena, along with their specific national manifestations. The chapter concludes with concrete strategies for addressing such challenges. In Chapter 13, Catherine O’Rourke observes that article 21(3) of the Rome Statute allows for potential interaction between international human rights law and ICL, especially in the area of gender jurisprudence. Through a case study of the ICC’s child soldier jurisprudence emerging from the conflict in the Democratic Republic of the Congo (DRC), this chapter illustrates that this interaction has been limited to date and the ICC has interpreted article 21(3) narrowly. The author then contextualizes these findings within broader debates on fragmentation of international law and on women’s rights in armed conflict. She also proposes strategies for the pursuit of more productive interactions between ICL and international human rights law in order to enhance the overall protection of women’s rights in conflict under international law. In Chapter 14, Helen Durham and Laura Green consider the gendered effects of violence within armed conflict through the lens of IHL. With the goal of bringing IHL field experiences into ICL’s discourse on war crimes, they explore four specific developments: (1) protracted urban conflict and undefined battlefields, (2) shifting parties to conflict, (3) new technology, and (4) counterterrorism. The link between gender and IHL is examined under each of these themes, which in turn is intended to support and enrich the broader dialogue on how war crimes prosecutions in ICL can be more gender-​informed and how gendered harms can be better understood and more fully redressed under ICL. Finally, in Chapter 15, Dianne Otto focuses on the many resistances to feminist judging in ICL courts and tribunals. She canvasses the history of feminism and criminal law, referencing a number of cautionary critiques and their resonance with feminist reform efforts in ICL. Otto then examines the responses to feminist interventions by judges in three cases from the ICTY, ICTR, and the ICC, highlighting the corrosive charges of judicial activism and lack of impartiality that they have elicited. Finally, the author addresses critiques of judicial methods and procedures adopted by several NGO-​organized women’s tribunals, which nevertheless remain hopeful about the prospects for justice. Ultimately, this chapter highlights the conflict between ICL and feminism, while also recognizing that feminist engagement with ICL remains necessary because of law’s power to shape our realities. Taking this deep introspection on the theme of gender and ICL forward, the challenge now is to operationalize the ideas of the authors in this volume and to move toward a more profound and accurate understanding of gender that is

8  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto reliably and thoughtfully applied in international, regional, and domestic accountability and evidence-​gathering mechanisms. Gender issues are not marginal to the development or practice of ICL. They remain live and are likely to be of increasing importance in the coming years, including, for example, in any negotiations for a new treaty on crimes against humanity5 and in prosecutions of the crime against humanity of gender-​based persecution before the ICC. In a world in which gender norms continue to animate, permeate, and impact the harms flowing from persistent and often systematic violations against people in all parts of the world, justice cannot be advanced without a true understanding of gender.

5 International Law Commission (ILC), ‘Draft Articles on the Prevention and Punishment of Crimes Against Humanity’ in ILC, Report of on the Work of Its Seventy-​First Session (2019) UN Doc A/​74/​10.

PART I

MIS C ONC E P T IONS A ND MISUNDE R STA N DING S A B OU T GENDE R IN IN T E R NAT IONA L C R IMINA L L AW

1 What Is ‘Gender’ in International Criminal Law? Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto

It makes a difference for that one.1

A. Introduction ‘Gender’ has emerged as a key issue in international criminal law (ICL) since the early 1990s, when widespread media reports of atrocities being committed in the conflict in the former Yugoslavia revealed the extent of the use of rape and other sexually violent attacks against women and girls.2 Outrage at these reports galvanized demands for action and eventually led the United Nations Security Council (UNSC) to establish the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR respectively). The focus since then has been primarily on reversing aeons of neglect of those crimes for which women and girls are disproportionately affected and targeted, and with which they are most often associated, namely sexual violence and other

1 From a fable: A person walking on a beach after a storm starts picking up stranded starfish, one at a time, and throwing them back into the sea. Another person asks, ‘Why do you do this? Every time there’s a storm, this happens. You can’t save them all, so what difference does your attempt make?’ The starfish thrower throws another one into the water and responds, ‘It makes a difference for that one’. 2 In this chapter, we adopt a feminist theory of gender that refers to socially constructed norms. Our approach is reflective of lived experience and therefore is necessarily intersectional. It acknowledges that people may be targeted for, or have differential experience of, international crimes because of intersecting and inextricably linked identity factors, of which gender may be one among several (eg disability, race, socio-​economic status, indigenous status, sexual orientation and gender identity, caste, age, etc.). As the following discussion reveals, this understanding of gender is not universal. On intersectionality, see generally Kimberlé 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 31.

12  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto gender-​based crimes, especially rape.3 To a significant extent, this effort has paid off. Although given only very limited express jurisdiction over sexual and other gender-​based crimes,4 both the ICTY and ICTR ultimately created a body of novel jurisprudence on crimes of sexual violence, recording a number of firsts for ICL. These included finding that rape can be used to commit genocide,5 that rape is not limited to penile penetration of a vagina, but includes oral and anal penetration,6 that sexual violence can amount to torture in relation both to the person against whom the act is perpetrated and those forced to watch;7 and that sexual crimes against men can and should be prosecuted.8 Their experience was influential in the creation of the world’s first permanent International Criminal Court (ICC) and in determining the scope of its criminal jurisdiction, the broadest in respect of sexual violence and other gender-​based crimes of any international criminal court or tribunal.9 Most of these crimes were copied into the statute of the Special Court of Sierra Leone (SCSL)10 and the Draft Articles for a proposed treaty on the Prevention and Punishment of Crimes Against Humanity.11 They have undoubtedly now entered the canon of crimes considered the most grave, crimes that ‘deeply shock the conscience of humanity . . . which must not go unpunished’.12

3 We use the term ‘sexual violence and other gender-​based crimes’ rather than the more common ‘sexual and gender-​based crimes’ to indicate that sexual violence crimes are gendered, but they are not the only gendered crimes. Any crime can be gendered whether it has a sexual element or not. 4 The ICTY had explicit jurisdiction over the crime against humanity of rape: UN Security Council (UNSC), Statute of the International Criminal Tribunal for the former Yugoslavia (as amended on 17 May 2002) (25 May 1993) art 5(g) (hereafter ICTYSt). The ICTR had jurisdiction over the crime against humanity of rape and the war crimes of outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault: UNSC, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) (8 November 1994) arts 3(g), 4(e) (hereafter ICTRSt). 5 Prosecutor v Akayesu (Trial Judgment) ICTR-​96-​4 (2 September 1998) [731]–​[732] (hereafter Akayesu Trial Judgment). 6 Prosecutor v Furundžija (Trial Judgment) ICTY-​95-​17/​1 (10 December 1998) [174], [185]. 7 ibid [87], [127], [163]–​[164], and [267(ii)]. 8 Prosecutor v Tadić (Trial Judgment) ICTY-​94-​1-​T (7 May 1997) [198], [206], [238]. 9 Namely, crimes against humanity and war crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, and persecution on gender grounds. Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 arts 7(1)(g), (h), 8(2)(b)(xxii) (hereafter ICCSt). The Rome Statute and the ICC’s Rules also support the prosecution of these crimes in several ways. See eg ibid arts 21(3), 42(9), 54(1)(b), 68; ICC, Rules of Procedure and Evidence (2nd edn, ICC 2013) rr 70, 71. 10 Two of the Rome Statute crimes against humanity were excluded, namely enforced sterilization and persecution on the ground of gender: UNSC, Statute of the Special Court for Sierra Leone (16 January 2002) art 2 (hereafter SCSLSt). 11 International Law Commission (ILC), ‘Draft Articles on the Prevention and Punishment of Crimes Against Humanity’ in ICL, Report of on the Work of Its Seventy-​First Session (2019) UN Doc A/​74/​10 (hereafter ILC, ‘Draft Articles on the Prevention and Punishment of CAH’). 12 ICCSt (n 9) Preamble.

What is ‘Gender’ in International Criminal Law?  13 Further, as expertise in investigating and prosecuting sexual crimes has developed, prosecutions have gathered apace. In the space of little more than two decades, ‘by any legal measure, the speed of light’,13 a whole class of crimes and class of victims that had been systematically ignored or dismissed throughout time, even in the face of overwhelming evidence,14 have been named, acknowledged as serious, and, in a small number of cases relative to the prevalence of these crimes, punished. This truncated survey of what has been a major shift in the acknowledgement and treatment of sexual violence and other gender-​based crimes under ICL suggests a narrative of progress.15 However, despite the gains made, and the fact that the language of ‘gender’—​‘gender-​based crimes’, ‘gender perspectives’, ‘gender balance’, and so on—​has become commonplace in ICL, the concept remains poorly understood and subject to numerous misconceptions and discriminatory stereotypes. This is apparent in a range of decisions, both judicial and prosecutorial, from the post-​1990 international criminal courts and tribunals and domestic courts applying ICL,16 as well as in some media

13 Catharine A MacKinnon, ‘Creating International Law: Gender and Leading Edge’ (2013) 36 Harvard Journal of Law and Gender 105. 14 Taking only incidences from World War II as examples: the many thousands of so-​called ‘comfort women’ sexually enslaved by Japan across Asia and the Pacific throughout World War II; the mass rapes by Japan in Manchuria; Nazi rapes and sexual and reproductive violence, including ‘experimentation’ on concentration camp inmates; and the mass rape of German women by USSR forces. For a catalogue of these, other forms of sexual violence, and other gender-​based crimes committed during World War II, see eg Kelly Dawn Askin, War Crimes Against Women, Prosecution in International War Crimes Tribunals (Martinus Nijhoff 1997) 49–​95 (hereafter Askin, War Crimes Against Women). 15 This transformation is the result of the work of feminist lawyers, activists, and scholars engaged in norm creation, critique, and advocacy as advisors, expert witnesses, and amicus curiae in proceedings, as well as ICL practitioners in international criminal courts and tribunals and the occasional judge engaged in feminist judging, especially at the ICTY, ICTR, and ICC. For a list of some of these women, see Women’s Initiatives for Gender Justice, ‘Gender Justice Legacy Wall’ (Women’s Initiatives for Gender Justice, December 2017) accessed 23 October 2021. It is also the result of women and others willing to bear witness to the crimes committed against themselves and others in criminal trials, transitional justice processes, and the documentation of human rights violations by NGOs and others. 16 See Michelle Jarvis and Kate Vigneswaran, ‘Challenges to Successful Outcomes in Sexual Violence Cases’ in Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 33 (hereafter Jarvis and Vigneswaran, ‘Challenges to Successful Outcomes’); Susana SáCouto and Katherine Cleary, ‘Importance of Effective Investigation of Sexual Violence and Gender-​ Based Crimes at the International Criminal Court’ (2009) 17 American University Journal of Gender, Social Policy and the Law 337 (hereafter SáCouto and Cleary, ‘Importance of Effective Investigation’); Valerie Oosterveld and Patricia Viseur Sellers, ‘Issues of Sexual and Gender-​Based Violence at the ECCC’ in SM Meisenberg and I Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia (Springer 2016) 321, 319–​23, 345–​48; Valerie Oosterveld, ‘The Construction of Gender in Child Soldiering in the Special Court for Sierra Leone’ in Mark A Drumbl and Jastine C Barrett (eds), Research Handbook on Child Soldiers (Edward Elgar 2019) 74; Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (Oxford Scholarship Online 2015). See also Chapter 12 by Daniela Kravetz in this volume on misconceptions in courts and tribunals in the Latin American region.

14  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto reporting,17 and other avenues of ICL discussion. In our experience, this lack of understanding is undermining accountability for crimes under international law. Without a sophisticated understanding of how gender operates in the commission, experience, impact, investigation, prosecution, and adjudication of sexual violence and other gender-​based crimes under international law, practitioners ‘remain vulnerable to mischaracterizing, overlooking, or under-​ prioritizing sexual violence and other gendered harms in their work’.18 They may also miss the impact of gender in relation to other categories of crimes that do not have a sexual component, potentially undercutting efforts to prove individual culpability for those crimes as well. The most enduring misconceptions are that ‘gender’ equates to ‘female’, and ‘gender-​based crimes’ refers only to rape and perhaps other forms of sexual violence. These misapprehensions reinforce a series of stereotypical, sexist and heterosexist associations of sexual violence with women and girls as victims that excludes consideration of their other experiences, for example, of other gender-​based crimes or as perpetrators.19 These assumptions also lead to a failure to recognize the incidence of sexually violent and other gendered attacks against males and people who are lesbian, gay, ­bisexual, transgender, intersex, queer, non-​ binary, or otherwise gender-​­ non-​ con20 forming (LGBTIQ+​). The incorrect idea that ‘gender’ equals ‘female’ is based, however unconsciously, on the misunderstanding that ‘gender’ refers to biological sex identities/​characteristics rather than to socially constructed norms of behaviour associated with maleness and femaleness. The notion that ‘gender-​based crime’ refers only to rape or sexual violence flows from this narrow view of gender. As a result, the gender dimensions of crimes without a sexual element, such as many

17 See eg media coverage of the Pauline v Nyiaramasuhuko trial by the ICTR, discussed in Mark Drumbl, ‘ “She Makes Me Ashamed to be a Woman”: The Genocide Conviction of Pauline Nyiramasuhuko’ (2013) 34 Michigan Journal of International Law 559, 583–​93 (hereafter Drumbl, ‘She Makes Me Ashamed to be a Woman’). 18 Michelle Jarvis, ‘Overview: The Challenge of Accountability for Conflict-​Related Sexual Violence Crimes’ in Serge Brammertz and Michelle Jarvis, Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 13 (hereafter Jarvis, ‘The Challenge of Accountability’). 19 Indeed, these misconceptions make it difficult to recognize women’s agency and participation in international crimes. The failure to recognize the various roles women have had in times of conflict, repression, or mass violence—​and their particular circumstances of vulnerability and privilege—​ can also lead to essentializing women as victims and powerless. See eg Mark A Drumbl and Solange Mouthaan, ‘ “A Hussy Who Rode on Horseback in Sexy Underwear in Front of the Prisoners”: the Trials of Buchenwald’s Ilse Koch’ (2021) 21(2) International Criminal Law Review 1; Drumbl, ‘She Makes Me Ashamed to be a Woman’ (n 17) 561. 20 Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2005) 18(2) European Journal of International Law 253 (hereafter Sivakumaran, ‘Sexual Violence Against Men’). See also Chapter 4 by Dubravka Žarkov and Chapter 7 by Lisa Davis and Danny Bradley in this volume.

What is ‘Gender’ in International Criminal Law?  15 war crimes (eg pillaging, attacking civilian objects, and deportation), are often missed, misunderstood, or misidentified. At the same time, there are gaps in the understanding of the gendered nature of sexual violence and the gendered harms it can cause, as sexually violent conduct is often conceived of narrowly and without reference to victims’ experiences and cultural understandings of what makes violence ‘sexual’.21 Critically, narrow conceptions of gender ignore both the underlying structural causes for gender-​based crimes and their impact on efforts by victims to secure truth, justice, and reparation. They result in insufficient attention paid to, and understanding of, the role that gender plays in shaping conflict and situations in which atrocities are committed, as well as the kinds of crimes perpetrated, who commits them, why and how, and who is targeted. Understanding gender and its impact, therefore, ‘is not an esoteric matter that can be left to gender theorists,’22 but is critical to the proper and full characterization of the crimes and their harms in criminal charges and, upon conviction, in sentencing and victim reparation. Further, investigating and prosecuting international crimes are the bread and butter of ICL, its raison d’être. If ICL is to be credible, effective, and fair, and have any chance of meeting, however imperfectly, its objective of holding individuals accountable for their criminal conduct under international law, it cannot continue to exclude certain victims or classes of crimes. It must be responsive to gendered experiences of armed conflict and other situations in which atrocities are committed. In our view, this is not possible without a nuanced understanding of what ‘gender’ is and how gender norms permeate and affect all aspects of the situations in which these acts occur. It is for these reasons that our focus in this chapter is on ‘gender’ in relation to crimes under international law—​their recognition, investigation, and prosecution. We view the discussion in this chapter as part of the broader, long-​running feminist project23 to expose the ‘gendered commitments that underpin the 21 Note the civil society-​led campaign, ‘Call It What Is’, which aims to improve accountability by identifying what makes violence ‘sexual’, and the adoption of The Hague Principles on Sexual Violence 2019, discussed in Section C.1, drawn from input from hundreds of survivors, NGO experts, and others: Women’s Initiatives for Gender Justice, ‘The Hague Principles on Sexual Violence’ (Women’s Initiatives for Gender Justice) accessed 23 October 2021 (hereafter Hague Principles on Sexual Violence). 22 Jarvis, ‘The Challenge of Accountability’ (n 18) 13. 23 We refer to ‘feminist project’ loosely to describe the broad church of feminist engagement with law at the national and international level. By using this term, we do not suggest that there is one feminist project or only one feminist theory of law. On the contrary, feminists engaged in international law bring a rich diversity of voices—​approaches, theories, expression—​to the task. We include feminist engagement with international humanitarian law (IHL), eg Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law (Kluwer 2001); Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women and War (Brill 2005); Askin, War Crimes Against Women (n 14), as well as with

16  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto discipline of international law’.24 To this end, we use feminist analysis to expose how misconceptions regarding gender reflect the masculinist bias inherent in ICL, as in all fields of law. Feminist analysis reveals how this bias affects the perception by ICL actors of criminal conduct, perpetrators, and victims,25 and consequently the narrative they create, and whether and how the crimes are investigated and prosecuted. Nonetheless, we acknowledge that focusing on a gender analysis of the treatment of crimes is not sufficient, on its own, to fully uncover all of the ways in which gender misconceptions might plague ICL. Although beyond the scope of this chapter, we recognize that a thorough feminist analysis of all aspects of ICL is needed, one that interrogates, for example: how ICL norms are created and by whom; who decides and on what basis certain conduct is criminalized and how it is to be defined; who decides the circumstances in which that conduct will be criminalized; and, in the investigation and prosecution of cases, whose stories are told, who gets to tell them, and in what manner. Lastly, such analysis would need to address the ways in which ICL, as part of an international legal system that is orientated towards the protection and augmentation of the power of male elites, may be immune to feminist challenge.26 The valid question arises of whether it is worthwhile to effect a feminist accounting of ICL, including of the way in which gender is misconceived in relation to crimes. As has been well-​documented, feminists have long held mixed views on the capacity and utility of using law reform as a strategy to improve women’s situation, including in relation to ICL.27 Some conclude that the law international law more generally, eg Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester UP 2000) 38–​61 (hereafter Charlesworth and Chinkin, The Boundaries of International Law); Karen Engle, Vasuki Nesiah, and Dianne Otto, ‘Feminist Approaches to International Law’ in Jeffrey Dunoff and Mark Pollack (eds), International Legal Theory: Foundations and Frontiers (CUP forthcoming April 2022). 24 Dianne Otto, ‘The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade’ (2009) 10 Melbourne Journal of International Law 11, 13. 25 Dianne Otto, ‘Feminist Approaches to International Law’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2015) 488, 497. 26 The same question, of course, arises in relation to anti-​racist, anti-​colonial, and queer challenges to law, amongst others. 27 See eg Charlesworth and Chinkin, The Boundaries of International Law (n 23); Karen Engle, ‘Feminism and Its Discontents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 Americal Journal of International Law 778; 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 1; Doris Buss, ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’ (2011) 11 International Criminal Law Review 409; Fionnuala Ní Aoláin, Dina Francesca Haynes, and Naomi Cahn, ‘Criminal Justice for Gendered Violence and Beyond’ (2011) 11 International Criminal Law Review 425; Judith Gardam, ‘A New Frontline for Feminism and International Humanitarian Law’ in Vanessa E Munro and Margaret Davies (eds), The Ashgate Research Companion to Feminist Legal Theory (Routledge 2013) 217; Catherine O’Rourke, ‘Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions’ (2017) 28 European Journal of International Law 1019.

What is ‘Gender’ in International Criminal Law?  17 simply may not be fit for this purpose, or warn of the dangers for feminists of relying on the law to accomplish social change.28 However, we share the view that ‘feminist engagement with international criminal law remains necessary because of law’s power to shape our realities’29 while, at the same time, acknowledging the limitations of this strategy and the potential dangers inherent in it, including that ‘in accepting law’s terms in order to challenge law, feminism always concedes too much’.30 This chapter is organized into four sections. Section B is an overview, including a history of the use of the term ‘gender’, the main theories of gender and the contestation between them, and how the term has been defined, in ICL. As much of this has been recorded and analysed in detail elsewhere,31 we include only a brief description. In Section C, we examine in detail examples from ICL practice in international and national criminal courts and tribunals that illustrate the undermining effect of misunderstandings about gender and, conversely, where a more sophisticated and nuanced understanding of gender has advanced justice. Specifically, we look at examples from international criminal courts—​the ICC, ICTY, SCSL, and Extraordinary Chambers in the Courts of Cambodia (ECCC), as well as national proceedings in Colombia—​ in relation to three areas where misunderstandings about gender arise again and again: (1) understanding what makes sexual violence ‘sexual’; (2) distinguishing sexual violence and other gender-​based crimes by ‘surfacing’32 and addressing non-​sexual gendered crimes; and (3) recognizing that context is critical to accurately characterizing and prosecuting sexual violence and other gender-​based crimes. In the final section of the chapter, Section D, we make some practical recommendations, focused primarily at the institutional level, for addressing the gaps in understanding, and resistance to embedding, gender in ICL. In particular, we consider the importance of a thoughtful and informed gender strategy to achieving gender competency in ICL. 28 See eg Carol Smart, Feminism and the Power of Law (Routledge 1989) (hereafter Smart, Feminism); Diane Otto, ‘Power and Danger: Feminist Engagement with International Law through the UN Security Council’ (2010) 32 Australian Feminist Law Journal 97. 29 Chapter 15 by Dianne Otto in this volume, 390. See also Charlesworth and Chinkin, The Boundaries of International Law (n 23); Rosa Brooks, ‘Feminism and International Law: An Opportunity for Transformation’ (2002) 14 Yale Journal of Law and Feminism 345, 354. 30 Smart, Feminism (n 28) 5. 31 See eg Barbara Bedont and Katherine Hall-​Martinez, ‘Ending Impunity for Gender Crimes under the International Criminal Court’ (1999) 6 The Brown Journal of World Affairs 65; 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, 66–​71 (hereafter Oosterveld, ‘The Definition of “Gender” ’). 32 ‘Surfacing gender’ in ICL is a term coined by American feminist legal scholar and activist Rhonda Copelon in 1994: Rhonda Copelon, ‘Surfacing Gender: Re-​Engraving Crimes Against Women in Humanitarian Law’ (1994) 5 Hastings Women's Law Journal 243.

18  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto

B.  ‘Gender’ in International Law Use of ‘gender’ as a term and concept in ICL has been victim, as with international law more generally, to misreadings and over-​simplification. Further, its use and meaning have been challenged and rejected with increasing regularity and ferocity over the past couple of decades. This section briefly explores the way in which the term is used, the meanings ascribed to it, and the principal ways in which it remains poorly understood and contested.

1.  Gender: Usage and Meanings in the International System The term ‘gender’ was used in the UN system by member states without definition for nearly two decades. For example, it was used throughout the 1995 Beijing Declaration and Platform for Action without being defined.33 The UN Sustainable Development Goals (SDGs) adopted in 2015 do not define gender, despite the fact that gender equality is a stand-​alone Goal and one of three identified priorities for the UN’s Sustainable Development Agenda underpinning all of the other Goals.34 In contrast, the term has been defined by the programmatic UN agencies. For example, UN Women defines ‘gender’ as referring to: [T]‌he social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys, as well as the relations between women and those between men. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes. They are context/​time-​specific and changeable.35

This definition has been taken up with minor variation by other UN agencies.36 It is an example of the way in which ‘gender’ is formally understood 33 UN, ‘Beijing Declaration and Platform for Action’ (UN 1995) accessed 23 October 2021. However, there was pressure to define it in the Platform for Action, which led the President of the World Conference to make a statement about the commonly understood meaning of the term ‘gender’ that was included in an annex to the conference report: UN, ‘Annex IV: Statement by the President of the Conference on the Commonly Understood Meaning of the Term “Gender” ’ in Report of the Fourth World Conference on Women, Beijing, 4–​15 September 1995 (1996) UN Doc A/​CONF.177/​20/​Rev.1. See also Oosterveld, ‘The Definition of “Gender” ’ (n 31) 63. 34 UN, ‘Sustainable Development Goals’ (UN) accessed 23 October 2021. 35 UN Women, ‘Concepts and Definitions’ (UN Women) accessed August 2021 (hereafter UN Women, ‘Concepts and Definitions’). 36 See eg UNICEF, ‘Gender Equality: Glossary of Terms and Concepts’ (UNICEF Regional Office for South Asia, November 2017) accessed 23 October 2021; UN AIDS, ‘Gender and HIV/​AIDS’ (UN AIDS, September 1998) accessed 23 October 2021. 37 Oosterveld, ‘The Definition of “Gender” ’ (n 31). 38 See eg in the European Union (EU): World Health Organization (WHO) Regional Office for Europe, ‘Gender: Definitions’ (WHO Regional Office for Europe) accessed 23 October 2021. 39 UN Women, ‘Concepts and Definitions’ (n 35). 40 Global Health 50/​50, ‘The Global Health 50/​50 Report 2020: Power, Privilege and Priorities’ (2020) 98 accessed May 2020. 41 ibid. Note the important discussion on the fact that even the socially constructed theory of gender is premised on a dualistic understanding of sex/​gender. See eg Diane Otto, ‘Queering Gender [Identity] in International Law’ (2015) 33(4) Nordic Journal of Human Rights 299. 42 ICC OTP, ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) 3 (hereafter ICC OTP, ‘SGBC Policy Paper’). 43 Hilary Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’ (2005) 18 Harvard Human Rights Journal 1, 14.

20  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto crimes, as well as sexual violence against males or gender non-​conforming people, remains hidden.44 A third understanding of ‘gender’ elides the term, defining it with reference to the biological sexes of male and female only. There is no place for cultural or temporal variation, nor for intersex, non-​binary, and other gender diverse people in this understanding. This theory of gender is only openly advocated in relation to ICL by a small, but active, minority of conservative voices, as explained directly below.

2.  Gender in International Criminal Law The only definition of ‘gender’ in ICL, found in article 7(3) of the Rome Statute, is the result of a hard-​fought negotiation between two ideologically opposed groups of states. On one side were the small, but vocal, minority of conservative states and the Holy See, with the support of a number of similarly conservative NGOs, primarily from North America. In general, they oppose the use of the term as they associate it ‘with ideas they [view] as transgressive, such as women’s empowerment, equality between the sexes, and the end of discrimination against people who are [LGBTIQ]’.45 In the Rome Diplomatic Conference on the ICC, they especially feared that including the new crime against humanity of persecution on the ground of gender would become a back door through which discrimination against LGBTIQ+​people would be criminalized46 and sought to severely restrict the definition.47 On the other side 44 See eg Sivakumaran, ‘Sexual Violence Against Men’ (n 20); Sandesh Sivakumaran, ‘Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict’ (2010) 877 International Review of the Red Cross 259; Chapter 4 by Dubravka Žarkov in this volume. 45 Rosemary Grey and others, ‘Gender-​based Persecution as a Crime Against Humanity: The Road Ahead’ (2019) 17 Journal of International Criminal Justice 957, 958. See also Valerie Oosterveld, ‘Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court’ (2014) 16 International Feminist Journal of Politics 563 (hereafter Oosterveld, ‘Constructive Ambiguity’); Oosterveld, ‘The Definition of “Gender” ’ (n 31); Cate Steains, ‘Gender Issues’ in Roy SK Lee (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International 1999) 357, 372–​75 (hereafter Steains, ‘Gender Issues’); 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. 46 Steains, ‘Gender Issues’ (n 45) 372. 47 Those holding this minority view, such as the Holy See, have been very active throughout the UN and international human rights system over many years, seeking to exclude reference to ‘gender’ or to confine its interpretation to the narrowest meaning. Their impact, at times, has been chilling. The US, during the Trump presidency, joined their efforts: eg Sarah Friedman, ‘The US Is Reportedly Trying To Dilute UN Women’s Rights Documents & Remove “Gender” ’ (Bustle, 18 March 2019) accessed 23 October 2021; Julian Borger, ‘Trump Administration Wants to Remove

What is ‘Gender’ in International Criminal Law?  21 were the majority of states which insisted the term be included and defined as socially constructed femaleness and maleness, consistent with established usage in the UN. The resulting definition states: For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

This definition is a study in constructive ambiguity, an oft-​used diplomatic move in which a term or definition is deliberately left unclear in order to reconcile polarized positions.48 The result is that the actual definitive interpretation of the term is left to another day and another decision-​maker.49 The Rome Statute definition of ‘gender’ has not been adopted in any other treaty or statute of an international criminal court or tribunal.50 It has been criticized by some as intentionally opaque,51 which is not surprising given its use of constructive ambiguity. Others have expressed the view that it is outdated in its reference to biological sex.52 On the other hand, by deliberately avoiding the clear prioritization of one theory of gender over the other in order to ensure wide support for the treaty, the drafters arguably provided ‘a broad definition that covers all manifestations of socially constructed gender norms, and is flexible enough to embrace future developments in international law’.53 The ICC OTP views the definition as referring to socially constructed norms. Its Policy Paper on Sexual and Gender-​based Crimes (SGBC Policy) states that the Rome Statute definition of gender ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and “Gender” from UN Human Rights Documents’ (The Guardian, 25 October 2018) accessed 23 October 2021; Dianne Otto, ‘Holding up Half the Sky, but for Whose Benefit?: A Critical Analysis of the Fourth World Conference on Women’ (1996) 6 Australian Feminist Law Journal 7. 48 Oosterveld, ‘Constructive Ambiguity’ (n 45). 49 ibid. 50 The one exception is the 2001 Durban Declaration and Programme of Action, which incorporated the Rome Statute definition. See Report of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance: Durban, 31 August–​8 September 2001 (2001) UN Doc A/​CONF.189/​12 5, 75, fn 1. 51 See eg Chapter 7 by Lisa Davis and Danny Bradley in this volume. 52 ibid. See also Sean Murphy (Special Rapporteur on Crimes Against Humanity), Fourth Report on Crimes Against Humanity (2019) UN Doc A/​CN.4/​725 (hereafter Murphy, Fourth Report). 53 Indira Rosenthal and Valerie Oosterveld, ‘Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity’ (2020) 6 African Journal of International Criminal Justice 214, 216 (hereafter Rosenthal and Oosterveld, ‘Gender and the ILC’s 2019 Draft Articles’).

22  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto attributes assigned to women and men, and to girls and boys’.54 This understanding underpins the Policy and the guidance it gives to staff on the effective investigation and prosecution of sexual violence and other gender-​based crimes.55 Nonetheless, the definition remains controversial. A proposal by the UN’s International Law Commission (ILC) to copy the Rome Statute definition into its Draft Articles for a crimes against humanity treaty drew criticism and expressions of concern.56 Many states provided comments on the Draft Articles, as did numerous UN human rights procedures and civil society members, criticizing the Rome Statute definition’s reference to biological sex as archaic.57 However, proponents of that part of the definition in Rome, such as the Holy See, responded in favour of using the definition.58 In the end, the ILC dropped the definition from the Draft Articles submitted to the UN General Assembly in response to the ongoing contention.59 Clearly, the definition of gender remains contested, and the term’s lack of clarity has follow-​on effects on the way in which gender-​based crimes are understood, conceptualized, investigated, and prosecuted. The next section examines those impacts on accountability for ICL crimes.

54 ICC OTP, ‘SGBC Policy Paper’ (n 42) 3. 55 The ICC SGBC Policy Paper was the first of its kind issued by an international criminal court or body. See Valerie Oosterveld, ‘The ICC Policy Paper on Sexual and Gender-​Based Crimes: A Crucial Step for International Criminal Law’ (2018) 24 William and Mary Journal of Race, Gender, and Social Justice 443; ‘Recent Policy Paper, International Criminal Law-​Sexual and Gender-​Based Crimes—​ICC Outlines Policies to Help Improve Prosecutorial Outcomes—​The Office of the Prosecutor of the ICC, Policy Paper on Sexual and Gender-​Based Crimes’ (2014) 128 Harvard Law Review 793. Significantly, the ‘International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011’ (commonly known as the ‘IIIM’) has drafted a Gender Strategy and Implementation Plan that arguably moves beyond the ICC SGBC Policy Paper. The IIIM Gender Strategy not only underscores a structural and intersectional understanding of gender and its impact on the Syrian conflict, but also adopts a proactive implementation plan intended to dismantle prejudicial stereotypes, build a gender competent institutional environment, and integrate gender into all aspects of its work. See IIIM, Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (11 February 2022) UN Doc A/​76/​690, [39]–​[42]. 56 ILC, ‘Draft Articles on the Prevention and Punishment of CAH’ (n 11); Murphy, Fourth Report (n 52) [80]–​[86]. 57 ibid. 58 Sixth Committee, Summary Record of the Twenty-​Fourth Meeting (2019) UN Doc A/​C.6/​74/​ SR.24. 59 ibid. It was also responding to a civil society campaign: see Chapter 7 by Lisa Davis and Danny Bradley in this volume; Rosenthal and Oosterveld, ‘Gender and the ILC’s 2019 Draft Articles’ (n 53).

What is ‘Gender’ in International Criminal Law?  23

C.  What Happens When Gender Is Misunderstood in ICL and Why It Matters That We Get It Right Under the ICC’s first Prosecutor, Luis Moreno Ocampo, charges relating to sexual and other gender-​based crimes were brought in twelve out of seventeen cases, against eighteen of thirty-​one suspects or accused.60 Under its second Prosecutor, Fatou Bensouda, charges for these crimes were brought in three out of six new cases, against three out of seven suspects or accused.61 Taken together, charges for sexual and gender-​based crimes have been brought in 18 out of 26, or 69 per cent of, cases, against 22 out of 38, or 58 per cent of, suspects or accused.62 This reflects the charging patterns of the ICTY, in which 93 out of 161, or 58 per cent of, indicted individuals faced sexual violence charges.63 At the trial stage at the ICC, three out of the 18 cases involving sexual and gender-​ based charges, or 17 per cent, have resulted in conviction thus far, with one, Bemba, overturned on appeal.64 At the ICTY, 32 out of a total of 78 indictees charged with sexual violence, or 41 per cent, were convicted.65 And yet, one would expect the ICC to improve over the ICTY, given the ICC’s comparatively more gender-​sensitive statute and ability to learn from the past mistakes and challenges of earlier tribunals. The Women’s Initiatives for Gender Justice reported in 2013 that charges of sexual and gender-​based violence within the ICC were uniquely susceptible to being dismissed or recharacterized as non-​gendered crimes in the early stages of ICC proceedings (including issuance of an arrest warrant and confirmation of charges).66 This began to change after the Prosecutor issued her SGBC Policy, the implementation of which has led to a steady increase in the proportion of sexual and gender-​based crimes confirmed for trial.67 Even so, there 60 FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for Sexual and Gender-​Based Crimes at the ICC: An Analysis of Prosecutor Bensouda’s Legacy’ (18 June 2021) 10 accessed 23 October 2021 (hereafter FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for SGBC at the ICC’). 61 ibid. 62 ibid. 63 Jarvis, ‘The Challenge of Accountability’ (n 18) 4. 64 FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for SGBC at the ICC’ (n 60) 11. 65 ICTY, ‘In Numbers’ (ICTY, September 2016) accessed 23 October 2021. 66 Women’s Initiatives for Gender Justice, ‘Gender Report Card of the International Criminal Court 2013’ (Women’s Initiatives for Gender Justice, March 2014) 66 accessed 23 October 2021. See also Rosemary Grey, Prosecuting Sexual and Gender-​Based Crimes at the International Criminal Court: Practice, Progress and Potential (CUP 2019) (hereafter Grey, Prosecuting SGBC at the ICC). 67 FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for SGBC at the ICC’ (n 60) 11, citing Grey, Prosecuting SGBC at the ICC (n 66) 273–​74, plus charges confirmed in the Al-​Hassan and Yekatom and Ngaïssona cases.

24  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto are still significant challenges, seen, for example, in the Pre-​Trial Chamber’s rejection of the Prosecutor’s request to add rape charges in the Yekatom and Ngaïssona cases.68 Many of these challenges relate to erroneous assumptions about sexual violence and about what qualifies as a gender-​based crime. These misconceptions manifest in ways that undermine efforts to accurately characterize the conduct, investigate and prosecute the crimes, and hold criminally responsible those who commit, enable, or contribute to the crimes. The following examples—​on what makes violence sexual, what makes a crime gender-​based, and the importance of contextualizing gender—​illustrate both the undermining effect of these misconceptions, as well as how more gender-​competent approaches have resulted in better justice outcomes.

1.  What Makes Sexual Violence Sexual? The Rome Statute of the ICC and the statutes of other international and ‘internationalized’ criminal tribunals include the crime against humanity, and sometimes war crime, of ‘any other form of sexual violence’.69 This phrase comes at the end of a list of gendered acts of violence.70 The phrase ‘any other form of sexual violence’ was inserted as a ‘basket’ or ‘residual’ clause, to capture 68 Prosecutor v Alfred Yekatom and Patrice-​Edouard Ngaïssona (Decision on the Prosecution’s Request to Amend Charges pursuant to art 61(9) and for Correction of the Decision on the Confirmation of Charges, and Notice of Intention to Add Additional Charges) [2020] ICC-​01/​14-​01/​18-​517 [14]–​[36]; Prosecutor v Alfred Yekatom and Patrice-​Edouard Ngaïssona (Consolidated Decision on filings ICC-​01/​ 14-​01/​18-​524-​Corr and ICC-​01/​14-​01/​18-​545 (Prosecutor’s requests for leave to appeal the decisions pursuant to art 61(9) of the Rome Statute dated 14 May 2020 and 1 June 2020)), [2020] ICC-​01/​14-​01/​ 18-​560. 69 ICCSt (n 9) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi); SCSLSt (n 10) art 2(g); Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990 (2013) art 6(a) (EACSt) accessed 23 October 2021; United Nations Transitional Authority for East Timor (UNTAET), ‘Regulation No 2000/​15 of 6 June 2000 on the establishment of panels with exclusive jurisdiction over serious criminal offences’ (6 June 2000) UNTAET/​ REG/​2000/​15 [5.1(g)]. An ‘internationalized’ criminal tribunal is a ‘metanational’ court in which ICL is applied through an international-​domestic partnership. Examples include the SCSL, the ECCC, the UNTAET Panels, and the Kosovo Specialist Chambers and Specialist Prosecutor’s Office. The term ‘metanational’ is from Antonio Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in Cesare PR Romano, André Nollkaemper, and Jann K Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (OUP 2004) 3, 5. 70 ICCSt (n 9) art 7(1)(g): ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’; ibid arts 8(2)(b)(xxii) and 8(2) (e)(vi): referring to war crimes in international and internal armed conflict respectively, using similar language but ending in ‘or any other form of sexual violence also constituting a grave breach of the Geneva Conventions’ and ‘any other form of sexual violence also constituting a serious violation of art 3 common to the four Geneva Conventions’ respectively.

What is ‘Gender’ in International Criminal Law?  25 forms of sexual violence (apart from rape, sexual slavery, and forced prostitution) that the drafters had not explicitly named but which may occur in armed conflict or situations of mass atrocity.71 While earlier proposals had referred to ‘serious assaults of a sexual nature’,72 ‘sexual violence’ was ultimately used to denote a wider array of acts, particularly given the variance in what is included and excluded from the term ‘sexual assault’ in national systems.73 The term ‘sexual violence’ is not defined in these Statutes. However, the ICC’s Elements of Crimes document indicates that the perpetrator must have ‘committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion . . . against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent’.74 International criminal jurisprudence defines ‘sexual violence’ in a similar manner.75 This jurisprudence indicates that sexual violence ‘is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact’ such as forced nudity.76 Other examples of sexual violence provided in the jurisprudence include sexual molestation, sexual mutilation, certain aspects of forced marriage, and forced abortion.77 While these definitions help to explain the meaning of the term ‘violence’ and provide guidance on what types of behaviour fall within the term ‘sexual violence’, they do not directly define ‘sexual’. International criminal tribunals have been approaching the term on a ‘we’ll know it when we see it’ basis.78 This

71 William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 174–​75. This was confirmed by the SCSL: Prosecutor v Brima, Kamara, and Kanu (Trial Judgment) SCSL-​04-​16-​T (20 June 2007) [720] (hereafter AFRC Trial Judgment). 72 UN, ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume II’ (13 September 1996) UN Doc A/​51/​22 65, 68. 73 Eve La Haye, ‘Article 8(2)(b)(xxii)—​Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence’ in Roy S Lee and Hakan Friman (eds), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence (Transnational 2001) 184, 197–​98. 74 ICC, Elements of Crimes (ICC 2011) art 7(1)(g)-​6. 75 The ICTR defined ‘sexual violence’ as ‘any act of a sexual nature which is committed on a person under circumstances which are coercive’: Akayesu Trial Judgment (n 5) [688]. This definition was not challenged on appeal. 76 ibid. 77 Prosecutor v Kvočka et al (Trial Judgment) ICTY-​98-​30/​1-​T (2 November 2001) [180] (endorsing the Akayesu definition) (hereafter Kvočka et al Trial Judgment). 78 Valerie Oosterveld, ‘Sexual Violence Directed Against Men and Boys in Armed Conflict or Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals’ (2014) 10 Journal of International Law and International Relations 107, 125 (hereafter Oosterveld, ‘Sexual Violence Directed Against Men and Boys’).

26  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto has led to serious failures to hold certain perpetrators accountable. The ICC’s consideration of Kenyan post-​election violence in late 2007 and early 2008 is a clear example. In the case of Prosecutor v Muthaura, Kenyatta, and Ali at the ICC, the accused were charged with the crime against humanity of ‘other forms of sexual violence’. This charge reflected evidence of forced nudity, forced circumcision, and genital mutilation of men and boys of Luo ethnicity who were perceived supporters of the opposition Orange Democratic Movement, by Party of National Unity supporters of Kikuyu ethnicity.79 The Prosecutor relied on evidence that Luo men and boys had their pants forcibly removed and their foreskins cut, or their penises cut off, in the post-​election violence.80 The Pre-​ Trial Chamber rejected the categorization of these acts as ‘sexual’ violence, finding that they are ‘more properly’ categorized under the crime against humanity of ‘other inhumane acts’.81 In other words, the alleged violent acts were not ‘sexual’ enough for the Chamber. The Prosecutor disagreed with this re-​ categorization and, at the next stage of the proceedings, again argued that these acts—​and other acts such as rape, forced nudity, and sexual mutilation directed against Luo men and boys—​should be categorized as sexual violence.82 The Pre-​Trial Chamber again rejected the argument that there was a sexual component to the violence: ‘it appears from the evidence that the acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other’.83 In coming to this conclusion, the Pre-​Trial Chamber clearly failed to consider ‘the specific role that norms around circumcision (as a [socially constructed] trigger for sexual and cultural manhood) played

79 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (Decision on Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali) [2011] ICC-​01/​09-​02/​11 [27] (hereafter Muthaura et al Decision on Prosecutor’s Application for Summonses). 80 Prosecutor v Muthaura, Kenyatta, and Ali [2011] ICC-​01/​09-​02/​11-​T-​5-​Red-​ENG [63(9)–​10)] and [88(22)]–​[89(5)]. There was evidence that boys were targeted, including some as young as five and eleven years old, to have their genitalia cut with blunt objects such as broken glass: Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (Transcript) ICC-​01/​09-​02/​ 11-​T-​5-​Red-​ENG CT WT 22-​09-​2011 1/​108 NB PT (22 September 2011) 89 (lines 21–​23) (hereafter Muthaura et al Transcript of 22 September 2011). 81 Muthaura et al Decision on Prosecutor’s Application for Summonses (n 79) [27]. The Prosecutor was denied leave to appeal this finding: Prosecutor v Muthaura, Kenyatta, and Ali (Decision on the ‘Prosecution’s Application for Leave to Appeal the ‘Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohamed Hussein Ali’) [2011] ICC-​01/​09-​02/​11-​27. 82 Muthaura et al Transcript of 22 September 2011 (n 80) 87 (lines 5–​12), 88 (lines 9–​12), 89 (line 3), and 91 (lines 15–​20). 83 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to art 61(7)(a) and (b) of the Rome Statute) [2012] ICC-​01/​09-​02/​11 [266].

What is ‘Gender’ in International Criminal Law?  27 within the political and ethnic context of the acts’,84 or the likelihood that the Luo males were targeted on the basis of intersecting sex, gender, ethnicity, and political identities. The ICC also re-​ characterized blatantly sexualized violence when the Prosecutor requested authorization to open an investigation into alleged crimes against humanity committed in Burundi between 2015 and 2017. The Prosecutor argued that men held in detention by the Burundian security forces or who were under the control of members of the Imbonerakure, the youth wing of the ruling political party in Burundi, were subjected to ‘violent acts of a sexual nature’, which ‘targeted the sexuality of the victims, including forced nudity, tying of cords to detainees’ genitals, beating, cutting and burning of genitals, and hanging heavy objects from genitals’.85 The Pre-​Trial Chamber recast these acts as torture because they were committed by representatives of the state against civilians who opposed or were perceived to oppose the ruling party.86 This was done even though sexual violence can be both a form of torture and also satisfy the elements of ‘other forms of sexual violence’.87 The Pre-​ Trial Chamber instead used the term ‘sexual violence’ to refer only to ‘rape’.88 In another example of misunderstanding, the ICC’s Pre-​Trial Chamber failed to recognize sexual violence as a serious act in Prosecutor v Bemba. In Bemba’s Warrant of Arrest, the Prosecutor included a charge of ‘other forms of sexual violence’ as a crime against humanity and a war crime to capture forced public undressing by Bemba’s militia for the purpose of humiliation.89 The Pre-​ Trial Chamber did not accept the Prosecutor’s argument that this type of act was sufficiently grave to constitute a crime against humanity.90 The Pre-​Trial Chamber indicated that these facts were instead better characterized as the war crime of outrages upon personal dignity.91 This is contrary to jurisprudence

84 Oosterveld, ‘Sexual Violence Directed Against Men and Boys’ (n 78) 124–​25. 85 Situation in Burundi (Public redacted version of ‘Request for authorisation of an investigation pursuant to art 15’, 6 September 2017, ICC-​01/​17-​5-​US-​Exp) [2017] ICC-​01/​17 [129]. 86 Situation in Burundi (Public Redacted Version of ‘Decision Pursuant to art 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-​01/​17-​X-​ 9-​US-​Exp, 25 October 2017) [2017] ICC-​01/​17-​X [95], [99], [102], [104], [105], [106], [188] (hereafter Situation in Burundi (Decision Pursuant to art 15)). 87 Sexual violence and other gender-​based violence can be charged not only as rape, sexual slavery, etc., but also potentially as torture, enslavement, and other offences. This practice is widely accepted within international criminal tribunals: American University Washington College of Law War Crimes Research Office, ‘The Practice of Cumulative Charging at the International Criminal Court’ (ICC Legal Analysis and Education Project, May 2010) 6–​9. See also ICC OTP, ‘SGBC Policy Paper’ (n 42) 29–​30. 88 Situation in Burundi (Decision Pursuant to art 15) (n 86) [111], [119]. 89 Prosecutor v Jean-​Pierre Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean‐Pierre Bemba Gombo) [2008] ICC‐01/​05‐01/​08 [29], [39]–​[40]. 90 ibid [40]. 91 ibid [63].

28  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto from the ICTR, which held that sexual violence need not include physical contact and could include forced nudity.92 These cases93 indicate that some ICC judges have not grappled with what makes violence ‘sexual’, relying on discriminatory stereotypes about the nature of sexual violence, who is targeted for it and why, including that ‘sexual violence’ is about sexual gratification and not power, is perpetrated against females only, and mostly manifests in the form of rape. Their record ‘suggest[s]‌the need for improved explanation and contextualization of the crime to the Chambers’94 and for the selection of judges who can demonstrate gender competency.95 While international criminal tribunals have not directly addressed the meaning of ‘sexual’, including the ICC Prosecutor’s SGBC Policy Paper,96 there is guidance from international sources. For example, the UN Special Rapporteur on systematic rape, sexual slavery, and slavery-​like practices identified three ways in which violence may be considered to be sexual: first, if the violence targets body parts that are associated with sex (such as testicles, penises, vaginas, and breasts); second, if the violence involves forcing victims to perform sexual acts; and third, if the violence targets sexuality.97 Additionally, the Hague Principles on Sexual Violence define sexual violence as ‘acts which, in context, are perceived by the victim, the perpetrator, and/​or their respective communities as sexual in nature’.98 The Principles list a number of indicia of ‘sexual’, including: the act involved exposure of, or physical contact

92 Akayesu Trial Judgment (n 5) 688. It also stands in stark contrast to the testimony of some survivors of sexual violence about their experiences. Women’s Initiatives for Gender Justice, Call It What It Is, ‘Summary Report: Consultations with Survivors of Sexual Violence’ (May 2019) 4–​5 accessed 23 October 2021. 93 The ICC’s Prosecutor brought specific charges of ‘other forms of sexual violence’ in: Prosecutor v Laurent Gbagbo (Public redacted version of ‘Decision on the Prosecutor’s Application Pursuant to art 58 for a warrant of arrest against Laurent Koudou Gbagbo’) [2011] ICC-​02/​11-​01/​11-​9-​Red 30 [58]–​ [59]; Prosecutor v Simone Gbagbo (Warrant of Arrest for Simone Gbagbo) [2012] ICC-​02/​11-​01/​12 [7]‌; but these charges have not been litigated. 94 FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for SGBC at the ICC’ (n 60) 18. 95 There are allegations of sexual violence in ICC preliminary examinations, so there will be opportunities for the ICC to examine the meaning and content of the term ‘sexual violence’: ibid. See eg Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Request for authorisation of an investigation pursuant to art 15) [2019] ICC-​01/​19-​7 [116(a)]. 96 ICC OTP, ‘SGBC Policy Paper’ (n 42) [17]. 97 UN Commission on Human Rights, Systematic Rape, Sexual Slavery and Slavery-​like Practices Pursued during Armed Conflict: Final Report Submitted by Gay J McDougall, Special Rapporteur (22 June 1998) UN Doc E/​CN.4/​Sub.2/​1998/​13 [21]. The WHO has also defined the term ‘sexual violence’: WHO, Responding to Intimate Partner Violence and Sexual Violence Against Women: WHO Clinical and Policy Guidelines (1 January 2013) vii ; WHO, World Report on Violence and Health (2002) 149–​50 accessed 23 October 2021. 98 Hague Principles on Sexual Violence (n 21) 7.

What is ‘Gender’ in International Criminal Law?  29 with, a sexual body part,99 including over clothing; the act was intended to be sexual by the perpetrator or was perceived as such by the affected person or their community; or the act was intended to impact the affected person’s sexual autonomy or sexual integrity.100 These Principles stemmed from widespread civil society concerns that international courts and tribunals did not adequately understand or capture how victims experience sexual violence. The lack of focused attention within the ICC on the meaning and breadth of other forms of sexual violence beyond rape, sexual slavery, and forced prostitution has resulted in under-​developed jurisprudence, missed opportunities to name and recognize sexual violence, and an impunity gap within ICL. Misconceptions and resistance related to the broader concept of gender-​based violence have widened this gap further.

2.  Not All Gender-​Based Violence is Sexual Since the creation of the ICTY in 1993 and the ICTR in 1994, ICL has slowly come to recognize the fact that not all gender-​based violence is sexual in nature. The Rome Statute names three crimes that do not necessarily involve sexual violence but are considered to be gender-​based crimes.101 Two are properly characterized as reproductive crimes: forced pregnancy and enforced sterilization.102 The third, gender-​based persecution, potentially encompasses sexual, reproductive, and all manner of other gendered violations.103 Additionally, several international criminal tribunals have recognized forced marriage as a gendered crime against humanity of ‘other inhumane acts’.104 99 The Principles note that what is considered a sexual body part varies ‘across societies, cultures, religions, and other factors’, but that ‘[i]‌n most, if not all cultures, sexual body parts are understood to include the anus, breasts, penis, testicles, vagina, and vulva, including the clitoris. In certain cultures, other body parts that are regarded as sexual include the back, especially the lower back, buttocks, ears, hair, hips, lips, mouth, neck, thighs, waist, and wrists’: ibid. 100 ibid. 101 The ICC Prosecutor’s SGBC Policy Paper defines this term as: ‘those [crimes] 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’: ICC OTP, ‘SBGC Policy Paper’ (n 42) 3. Grey explains that ‘gender-​based’ is a meaningful label if victims are targeted because of their gender, if the perpetrator is seeking to affirm their own gender identity, and/​or if the crime is intended as punishment for defying socially constructed gender norms: Grey, Prosecuting SGBC at the ICC (n 66) 50. 102 ICCSt (n 9) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi). 103 ibid art 7(1)(h). 104 See eg Prosecutor v Domenic Ongwen (Trial Judgment) [2021] ICC-​02/​04-​01/​15-​1762-​Red [2256]–​[2309] (hereafter Ongwen Trial Judgment). See also the cases described by Melanie O’Brien in Chapter 8.

30  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto The recognition of reproductive crimes lags considerably behind the surfacing of sexual violence, especially rape violations. This is in part because the statutes of the ICTY, ICTR, the ECCC, and the SCSL only explicitly refer to rape, and not to forced pregnancy, forced sterilization, or other reproductive violations. While the Rome Statute does refer to reproductive crimes, forced pregnancy is the only reproductive crime that has been litigated to date, and only in one ICC case, Ongwen, of which he was convicted.105 Rosemary Grey notes that ‘[m]‌ost forms of reproductive violence, such as being forced to impregnate another person, or being forced to conceive, to breastfeed, to use contraception, to procure an abortion, or to continue with an extant pregnancy, are yet to be expressly criminalized in international instruments’.106 The ICC’s Rome Statute is the first and only statute to list gender-​based persecution as a crime against humanity. Given the potential breadth of conduct that could amount to gender-​based persecution, the ICC is well-​placed to undertake leading-​edge analysis of this crime.107 However, the Prosecutor has rarely charged this type of persecution, even when the facts appeared to call for it.108 At the time of writing, this initially underutilized charge was being pursued in two trials at the ICC—​Al-​Hassan and Abd-​Al-​Rahman—​both of which could substantially expand ICL’s understanding of this form of persecution. These cases present an important opportunity for ICL. It is a chance to probe how discriminatory gender norms can motivate and influence the commission of any crime under international law. In the Al-​Hassan case, the accused is alleged to have served as the de facto head of the Islamic police under two Islamist extremist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb, during their occupation of Timbuktu, Mali, between April 2012 and January 2013.109 In this role, he is charged with the discriminatory treatment of women and girls, including by enforcing strict dress code rules for females under threat of severe punishment, and permitting forced marriages and therefore rape and sexual slavery.110 The ICC Prosecutor has also charged Abd-​Al-​Rahman, an alleged senior leader of the Janjaweed militia in Darfur, Sudan, with gender-​based persecution intersecting with persecution on other grounds. The Prosecutor argues that ‘[t]‌he victims’ Fur 105 Ongwen Trial Judgment (n 104) [2217], [3116]. Ongwen is appealing this conviction: Prosecutor v. Dominic Ongwen (Defence Notification of its Intent to Appeal the Trial Judgment) [2021] ICC-​02/​ 04-​01/​15-​1826. 106 Chapter 9 by Rosemary Grey in this volume, 234. 107 See Chapter 7 by Lisa Davis and Danny Bradley in this volume. 108 Grey, Prosecuting SGBC at the ICC (n 66) 278–​83. 109 Prosecutor v Al-​Hassan (Warrant of Arrest for Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) [2018] ICC-​01/​12-​01/​18 [6]‌–[​ 10]. 110 ibid [7]‌–​[9].

What is ‘Gender’ in International Criminal Law?  31 ethnicity, combined with the socially constructed gender role presuming males to be fighters, underpinned the perpetrators’ perception of them as rebels or rebel sympathisers’.111 Abd-​Al-​Rahman will face this charge at trial.112 Importantly, these cases could also help to demonstrate the intersection of gender-​based persecution with other types of persecution.113 The ICC Prosecutor is also pursuing examinations and investigations into gender-​based persecution which may lead to future charges. For example, the Prosecutor’s request for authorization to initiate an investigation in Afghanistan alleges that the Taliban and affiliated armed groups targeted civilians based on their gender.114 The Prosecutor is also examining gender-​based persecution in Nigeria. For example, Boko Haram is alleged to have targeted female and male civilians ‘based on gender and perceived traditional social roles’, including through rape, forcing females into forced marriage and sexual slavery, attacking girls’ schools, forcing females to act as suicide bombers, and forcing males into combat fighting.115 Perhaps the most fulsome unpacking of gender-​based crimes has occurred in the jurisprudence on forced marriage.116 These charges were first brought in the SCSL, which also became the first international court to convict individuals for this crime.117 In the Sierra Leone context, forced marriage was carried out by rebel groups through the direct targeting of women and girls to serve as so-​ called ‘bush wives’ with two purposes: first, to provide forced sexual, domestic, 111 Prosecutor v Ali Muhammad Ali Abd-​Al-​Rahman (‘Ali Kushayb’) (Public redacted version of ‘Second Corrected Version of ‘Document Containing the Charges’, 29 March 2021, ICC-​02/​05-​01/​20-​ 325-​Conf-​Anx1’, 22 April 2021, ICC-​02/​05-​01/​20-​325-​Conf-​Anx1-​Corr2) [2021] ICC-​02/​05-​01/​20-​ 325-​Anx1-​Corr2-​Red [93]. 112 Prosecutor v Ali Muhammad Ali Abd-​Al-​Rahman (Decision on the Confirmation of Charges against Ali Muhammad Ali Abd-​Al-​Rahman (‘Ali Kushayb’)) [2021] ICC-​02/​05-​01/​20 70 (Count 31). This trial is scheduled to open on 5 April 2022. 113 Grey, Prosecuting SGBC at the ICC (n 66) 279. 114 Situation in the Islamic Republic of Afghanistan (Public redacted version of ‘Request for authorisation of an investigation pursuant to art 15’, 20 November 2017, ICC-​02/​17-​7-​Conf-​Exp) [2017] ICC-​ 02/​17-​7-​Red [72], [115]–​[121]. Note that the Appeal Chamber overturned a decision by a Pre-​Trial Chamber rejecting this request, thus permitting the OTP to pursue the investigation: Situation in the Islamic Republic of Afghanistan (Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan) [2020] ICC-​02/​17-​138. 115 ICC OTP, ‘Report on Preliminary Examination Activities 2018’ (5 December 2018) [225] accessed 23 October 2021; ICC OTP, ‘Report on Preliminary Examination Activities 2019’ (5 December 2019) [186] accessed 23 October 2021; ICC OTP, ‘Report on Preliminary Examination Activities 2020’ (14 December 2020) [254], [256] accessed 23 October 2021. 116 See Chapter 8 by Melanie O’Brien in this volume, considering forced marriage in detail. 117 SCSL Office of the Prosecutor, ‘Press Release: Special Court Prosecutor Hails RUF Convictions’ (25 February 2009) accessed 23 October 2021; SCSL Office of the Prosecutor, ‘Press Release: Prosecutor Welcomes Convictions in RUF Appeals Judgment’ (26 October 2009) accessed 23 October 2021.

32  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto and reproductive labour to rebel fighters and commanders; and second, to terrify and subjugate the civilian population in areas controlled by the rebels.118 The SCSL adopted a legal definition under the crimes against humanity category of ‘other inhumane acts’, an approach which informed the consideration of forced marriage under the Khmer Rouge by the ECCC and by the ICC in the Ongwen trial judgment.119 While this recognition of forced marriage has expanded the understanding of the role of gender norms in gender-​based violence, it has also prompted discussion of the correct characterization of forced marriage conduct, specifically whether it should be categorized as a form of enslavement, as suggested by the Taylor Trial Chamber in the SCSL and some academic commentators.120 International criminal courts and tribunals have acknowledged, albeit infrequently, the gendered nature of some potentially non-​sexual crimes other than reproductive crimes, gender-​based persecution, and forced marriage. For example, the ICTY recognized that enslavement may be carried out in a gendered manner. The ICTY’s Kunarac case identified indicia of enslavement—​‘control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’121—​acknowledging that the methods of control and the forms of mistreatment could be gendered.122 In another example, the SCSL identified gendered patterns within different forms of enslavement. For example, the SCSL’s explanation of forced diamond

118 Prosecutor v Sesay, Kallon, and Gbao (Trial Judgment) SCSL-​04-​15-​T (2 March 2009) [460], [1154]–​[1155], [1211]–​[1213], [1293], [1295]–​[1296], [1347]–​[1352], [1413], [1460], [1466], [1472] (hereafter RUF Trial Judgment). 119 The Special Court’s Appeals Chamber defined forced marriage as ‘a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim’: Prosecutor v Brima, Kamara, and Kanu (Appeal Judgment) SCSL-​04-​16-​A (22 February 2008) [195]. This was endorsed in the RUF appeals judgment: Prosecutor v Sesay, Kallon, and Gbao (Appeal Judgment) SCSL-​04-​15-​A (26 October 2009) [735]. See also Case 002/​02 against Nuon Chea and Khieu Samphan (Trial Judgment) [2019] 002/​19-​09-​2007/​ ECCC/​TC [744]; Ongwen Trial Judgment (n 104) [2744]. 120 Prosecutor v Taylor (Trial Judgment) SCSL-​03-​01-​T (18 May 2012) [427]–​[428] (hereafter Taylor Trial Judgment); Patricia Viseur Sellers, ‘Wartime Female Slavery: Enslavement?’ (2011) 44 Cornell International Law Journal 115, 130 fn 97, 142. See also Chapter 6 by Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum in this volume. 121 Prosecutor v Kunarac et al (Trial Judgment) ICTY-​96-​23-​T and ICTY-​96-​23/​1-​T (22 February 2001) [543]. 122 In this case, the two accused, Kunarac and Kovać, asserted control through gendered forms of mistreatment: the victims were raped, sexually assaulted in other ways, threatened, beaten, forced to dance naked for entertainment, forced to do household chores, and sold for cash: ibid [739]–​[742], [749]–​[752], [754]–​[759], [761]-​[765], [772], [779]–​[783].

What is ‘Gender’ in International Criminal Law?  33 mining included recognition that the rebels largely targeted male civilians—​ particularly young men—​for this type of forced labour.123 While ICL has revealed and labelled a limited number of gender-​based crimes, it has yet to truly turn an in-​depth gender lens onto all crimes. For example, non-​sexualized war crimes—​such as intentionally directing attacks against the civilian population,124 intentionally using starvation of civilians as a method of warfare,125 or destruction of cultural property126—​have not been subjected to gender analysis, their gendered causes and harms, and therefore possibly whole categories of perpetrators and victims remain submerged. Exposing the gendered dimensions of all crimes and consequently expanding understanding of how conduct may be gendered, requires deliberate, targeted analysis. The ICC Prosecutor’s SGBC Policy Paper recognizes this fact and directs the Office to ‘apply a gender analysis to all of the crimes within its jurisdiction’.127 As discussed in Section D below, this kind of analysis, essential to fully expose all gender-​based crimes, has yet to become embedded in ICL practice.

3.  Context is Key: Understanding Gender in ICL Misconceptions about sexual violence and other gender-​based crimes also manifest in whether and how investigators, prosecutors, and judges view such crimes in relation to other crimes committed against a targeted community. This has a direct impact on accountability for those crimes. There is still a perception, for instance, that sexual violence—​particularly sexual violence against females—​is a private, sexual matter rather than a violent crime, and therefore is different and less serious than other forms of violence.128 This misperception has often led to the assumption that sexual violence is an isolated act, personally motivated or opportunistic, rather than connected to a broader pattern of 123 On the rebels’ preference for young men as forced diamond miners, see eg RUF Trial Judgment (n 118) [1258]. Sometimes females were forced to mine: ibid [1089]. The wives of the captured male civilians were often required to do other (socially constructed female) work for the rebels: Taylor Trial Judgment (n 120) [1639]. See also Valerie Oosterveld, ‘Gender, Enslavement and War Economies: A Case Study from the Special Court for Sierra Leone’ in Solange Mouthaan and Olga Jurasz (eds), Gender and War: International and Transitional Justice Perspectives (Intersentia 2019) 147, 158. 124 ICCSt (n 9) arts 8(2)(b)(i), 8(2)(e)(i). 125 ibid art 8(2)(b)(xxv). 126 ibid arts 8(2)(b)(ix), 8(2)(e)(iv). For example, the ICC did not consider the gendered aspects or the gendered impact of the destruction of cultural property in the Al-​Mahdi case: Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) [2016] ICC-​01/​12-​01/​15-​171. 127 ICC OTP, ‘SGBC Policy Paper’ (n 42) [20] (emphasis added). 128 See eg Mohammed Ayat, ‘Quelques apports des Tribunaux internationaux, ad hoc et notamement le TPIR, à la lute contre les violences sexualles subies par les femmes Durant les génocides el les conflits armés’ (2010) 10 International Criminal Law Review 787, 796–​97.

34  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto violent and criminal conduct.129 The result has been that international criminal courts often have treated sexual violence and other gender-​based crimes separately and differently from other categories of crime, even when they are committed alongside each other by the same perpetrators and against members of the same group of victims. This limited understanding of the connections between sexual violence and other gender-​based crimes, and the broader context in which they occur,130 has undermined efforts to analyse and characterize sexual and other gender-​based crimes appropriately, and hold criminally accountable all perpetrators, including those who order, orchestrate, plan, or facilitate their commission. Indeed, as described in more detail below, there are numerous examples from international criminal trials that demonstrate how this misconception deeply undermines accountability. One way this misconception manifests is in the belief that only sexual violence crimes that are committed on a mass scale (in the sense of a large number of victims or the geographical spread of the crimes) qualify as international crimes.131 This position is based in the erroneous belief that sexual violence and other gender-​based crimes are less serious than other crimes and, therefore, only warrant prosecution when they are committed en masse. However, this characteristic is not necessary to prosecute sexual violence, or indeed any other crime, under ICL. For example, a few incidences of rape could form part of a pattern of violent conduct intended, for instance, to forcibly displace a targeted group from their homes, which can be a war crime or a crime against humanity. If viewed in context with the other forms of violence committed against the same group, such as beatings, killings, and lootings, the rapes are appropriately seen as contributing to creating the atmosphere of fear and terror used to displace the targeted group. Examined in context then, the rapes are rightly understood—​as with the other forms of violence and mistreatment—​as an integral part of the forcible displacement campaign, regardless of scale. Similarly, there is a tendency to treat sexual violence and other gender-​ based crimes differently from other crimes—​and to demand more evidence than is legally required—​when applying legal theories, or ‘modes of liability’, designed to allocate criminal responsibility to individuals.132 For instance, 129 Jarvis and Vigneswaran, ‘Challenges to Successful Outcomes’ (n 16) 38. Even if acts (such as sexual violence) are committed for personal reasons (such as sexual gratification), they can still be committed as part of a political or military strategy or a larger criminal campaign against a targeted group. See eg Prosecutor v Kunarac (Appeal Judgment) IT-​96-​23& IT-​96-​23/​1-​A (12 June 2002) [103]. 130 Chapter 3 by Kirsten Campbell and Gorana Mlinarević in this volume discusses this in relation to the ICTY. 131 Jarvis and Vigneswaran, ‘Challenges to Successful Outcomes’ (n 16) 40. 132 See Susana SáCouto and Patricia Viseur Sellers, ‘The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-​Based Crimes?’ (2019) 27 William and Mary Bill of Rights Journal 599 (hereafter

What is ‘Gender’ in International Criminal Law?  35 international criminal tribunals have held perpetrators responsible for crimes that typically involve the efforts of many individuals acting in concert, especially crimes against humanity or genocide, through modes of liability such as ‘joint criminal enterprise liability’ (at the ICTY and ICTR), ‘co-​perpetration’, and ‘common purpose liability’ (at the ICC). These theories hold individuals responsible for their role in collective criminal conduct and require proof of the commission of a crime by a group of persons acting with a ‘common purpose’.133 For these types of liability, international courts consider whether the particular crimes at issue form part of a ‘common criminal plan’.134 At times, courts have insisted that evidence of large-​scale sexual violence or gender-​ based crimes is necessary to prove that they were part of such a plan. While evidence of crimes committed on a large-​scale might help to demonstrate that they were part of a common plan, this is not required to prove an accused’s liability under these legal theories.135 When viewed in context, even a small number of gender-​based crimes could form part of a criminal campaign or plan intended, for instance, to forcibly displace a targeted group from their homes. Indeed, the connection between sexual violence and the common plan can be established by means other than scale, such as ‘identifying the role that sexual violence played in . . . [the] situation, accurately seeing the connections between sexual violence and other violent crimes and fully understanding the true nature of the harm experienced by the victims as a result of the crime’.136 The failure to do this, again, reflects the gendered misconception that sexual violence and other gender-​based crimes are less serious than other crimes and, therefore, only warrant prosecution when they are committed on a large scale. This has been particularly apparent in cases in which there is an absence of evidence of an unequivocal order by a military or civilian leader to commit the crimes.

SáCouto and Sellers, ‘The Bemba Appeals Chamber Judgment’): discussing this trend in relation to command responsibility; SáCouto and Cleary, ‘Importance of Effective Investigation’ (n 16) 341–​ 47: discussing this tendency in relation to ordering, instigation, and command responsibility. 133 See Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012); Héctor Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes (Hart 2009); Albin Eser, ‘Individual Criminal Responsibility’ in Antonio Cassese and others (eds), The Rome Statute of the Criminal Court: A Commentary (OUP 2002). 134 See eg Prosecutor v Germain Katanga (Trial Judgment pursuant to art 73 of the Statute) [2014] ICC-​01/​04-​01/​07-​3319 [1630] (hereafter Katanga Trial Judgment). 135 See Jarvis, ‘The Challenge of Accountability’ (n 18) 6. See also Michelle Jarvis, ‘Prosecuting Conflict-​Related Sexual Violence Crimes: How Far We Have Progressed and Where Do We Go From Here: Some Thoughts Based on ICTY Experience’ in Dale Stephens and Paul Babie (eds), Imagining Law: Essays in Conversation with Judith Gardam (University of Adelaide Press 2016) 105, 121. 136 Jarvis, ‘The Challenge of Accountability’ (n 18) 6–​7.

36  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto As the examples that follow demonstrate, analysing the conduct in context—​ or contextualizing the conduct—​can be critical to both accurately characterizing the conduct as an international crime and holding accountable all perpetrators who contribute to the crime, not only the physical perpetrators or those who clearly order the crimes. Indeed, understanding and taking into account the connections between sexual and other forms of gender-​based violence and other crimes can make the difference between accountability and impunity. a) Ignoring the context: Failing on gender Unfortunately, time and again international criminal tribunals have treated sexual violence and other gender-​based crimes as separate and different from other crimes. They have not asked the broader questions about the role these crimes may have played in the overall criminality perpetrated by the accused, fully explored the connection between these crimes and other crimes, or considered the full extent of the harms caused by the crimes. For instance, in the Katanga case, Germain Katanga, the commander of a militia group in the Democratic Republic of the Congo, was convicted by the ICC as an accessory for all crimes with which he was charged except for rape and sexual slavery and the war crime of using child soldiers.137 His acquittal on the sexual violence charges was not due to an absence of credible evidence regarding the commission of sexual violence. In fact, the Chamber recognized that rape and sexual slavery had been committed by Katanga’s fighters on the day of the attack.138 Yet, the Chamber had trouble finding Katanga criminally responsible for these crimes. Katanga had not been accused of physically perpetrating or ordering them. Rather, he had been charged with a form of the ‘common purpose’ theory of liability,139 which attaches criminal liability to anyone who, ‘[i]‌n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose’.140 The Chamber found that, unlike the crimes of directing an attack against a civilian population, pillage, murder, and destruction of property, of which Katanga was convicted, the sexual violence crimes were not part of 137 Katanga Trial Judgment (n 134). 138 ibid [988]–​[999], [1002]–​[1019]. 139 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons) [2012] ICC-​01/​04-​01/​07-​3319 (hereafter Katanga and Chui Decision on the Implementation of reg 55). 140 ICCSt (n 9) art 25(3)(d). The contribution must ‘be intentional’ and made either with the aim of furthering the criminal activity or criminal purpose of the group, or in the knowledge of the intention of the group to commit the crime. ibid.

What is ‘Gender’ in International Criminal Law?  37 the ‘common purpose’ of the attack.141 Oddly—​and somewhat illogically—​ it concluded that ‘although rape and enslavement formed an integral part of the militia’s design to attack the predominantly Hema civilian population of Bogoro’,142 these crimes did not form part of the group’s common purpose.143 The Chamber’s approach contradicted its own interpretation of the law, which it laid out in an earlier part of the same judgment. There, the Trial Chamber adopted an approach that excluded from the common purpose only those ‘crimes ensuing . . . from opportunistic acts by members of the group’.144 It is hard to see how the Chamber could have concluded that the rape and sexual enslavement of Hema women were merely opportunistic when these crimes were committed by the same militia, on the same day, and in the same location as the crimes committed against other members of the Hema community in Bogoro.145 Further, as mentioned earlier, by the Chamber’s own assessment, the sexual violence crimes ‘formed an integral part of the militia’s design to attack the predominantly Hema civilian population of Bogoro’.146And yet the Chamber’s analysis ignored ‘the way in which sexual violence has been used in other conflicts to achieve the very kind of purpose the Chamber indicated Katanga’s militia wanted to accomplish, that is to forcibly displace or wipe out a rival ethnic group’.147 Indeed, although the Chamber stated that it would consider the common purpose liability jurisprudence of the ICTY and the ICTR,148 it failed to cite relevant cases from these tribunals.149 In particular, it did not reference the ICTY decision in Stakić, which had found that sexual violence had been used effectively, in combination with other crimes, in the service of the accused’s common plan, which was to persecute Bosnian Muslims and Bosnian Croats and deport them from the town of Prijedor in Bosnia in order to establish Serbian control over that territory.150

141 Katanga and Chui Decision on the Implementation of reg 55 (n 139) [657]–​[1664]. 142 ibid [1664] (emphasis added). 143 This conclusion was particularly surprising in light of the Pre-​Trial Chamber’s earlier findings that Katanga knew ‘that, as a consequence of the common plan, rape and sexual slavery of women and girls would occur in the ordinary course of the events’: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the Confirmation of Charges) [2008] ICC-​01/​04-​01/​07-​717 [567]. 144 Katanga Trial Judgment (n 134) [1630]. 145 Susana SáCouto and others, ‘Collective Criminality and Sexual Violence: Fixing a Failed Approach’ (2020) 33 Leiden Journal of International Law 207, 226 (hereafter SáCouto and others, ‘Collective Criminality’). 146 Katanga Trial Judgment (n 134) [1664]. 147 SáCouto and others, ‘Collective Criminality’ (n 145) 227. 148 Katanga Trial Judgment (n 134) [1625]. 149 SáCouto and others, ‘Collective Criminality’ (n 145) 227. 150 Prosecutor v Stakić (Trial Judgment) IT-​97-​24-​T (31 July 2003) [470]–​[471], [475]–​[477], [806], [818], [826].

38  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto In essence, ‘the Chamber in Katanga isolated and treated the [rape and sexual slavery charges] differently, both factually and legally, from the other charged crimes. Rather than viewing the evidence in the record as linking the sexual violence with the broader context in which it occurred, the Chamber analysed these crimes separately, requiring more evidence than its own findings on common purpose liability suggested is legally required to show that the sexual violence was part of the common plan’.151 The result in Katanga arguably reflects what happens when judges perceive sexual violence as primarily a sexual matter, or as isolated, private, personally motivated, or opportunistic conduct. When seen through this lens, sexual violence becomes difficult to conceptualize as part of the broader violent methodology used by perpetrators against a targeted group, rendering it more difficult to attribute responsibility for such crimes to perpetrators beyond those who physically commit or order the crime. The tendency to analyse sexual violence crimes separately from other charged crimes can also be seen in domestic prosecutions of international crimes,152 for instance, by the Colombian Special Jurisdiction for Peace (known by its Spanish acronym JEP), a tribunal emanating from the 2016 peace accords that ended the fifty-​year civil war in that country. The JEP issued an indictment153 in January 2021 holding that kidnappings committed by the Revolutionary Armed Forces of Colombia (FARC) constitute ‘war crimes’ and ‘crimes against humanity’.154 Significantly, the JEP found that the kidnappings had created the conditions for other crimes, including sexual violence, to be committed against the captives.155 Nevertheless, when assessing the criminal responsibility of the accused, the JEP analysed the sexual violence crimes separately from other crimes flowing from the same kidnappings, such as killings and enforced disappearances. It found that the latter crimes were integrally 151 SáCouto and others, ‘Collective Criminality’ (n 145) 228. Despite Stakić, the ICTY also treated sexual violence and gender-​based crimes separately from other crimes in some cases, accepting that ‘violent acts such as murder and property damage carried out in the midst of a violent ethnic cleansing campaign were foreseeable to senior officials—​invoking their criminal responsibility—​but that acts of sexual violence were not’. Jarvis and Vigneswaran, ‘Challenges to Successful Outcomes’ (n 16) 38 citing Prosecutor v Djordević (Trial Judgment) ICTY-​05-​87/​1 (23 February 2011) [2139]–​[2147], [2149]–​ [2153]; Prosecutor v Milutinović et al (Trial Judgment) ICTY-​05-​87 (26 February 2009) [470]–​[473], [476]–​[477], [1134]–​[1136], [1139]–​[1140]. 152 See also Chapter 12 by Daniela Kravetz in this volume. 153 We use this term as a shorthand for what is essentially an assessment and legal characterization of the facts intended to give perpetrators an opportunity to accept responsibility for their conduct, part of the transitional justice process embodied by the JEP. 154 Case No 01: Toma de rehenes y graves privaciones de la libertad cometidas por las FARC-​EP (Auto No 19 de 2021, Jurisdicción Especial para La Paz, Salas de Justicia, Sala de Reconocimiento de Verdad, de Responsabilidad y de Determinación de los Hechos y Conductas, Bogotá) (26 January 2021). 155 ibid [814].

What is ‘Gender’ in International Criminal Law?  39 connected to the kidnappings and, therefore, part of the common plan,156 while the sexual violence crimes were not.157 Accordingly, while it found that the accused could be held liable for their direct contributions to the kidnappings as well as the killings and enforced disappearances,158 it analysed their liability for the sexual violence and related crimes of mistreatment under an indirect form of liability known as command responsibility.159 This form of liability holds the perpetrator responsible not for their own participation in the commission of the crimes, but for failing to control the acts of others.160 Therefore, it does not fully capture the culpability of a perpetrator whose very actions contributed to, or created the conditions for, the crimes to occur. The JEP acknowledged that the conditions of mistreatment in which the captives were held were the result of the decision of commanders ‘to hand over absolute control of the captive’s body to the front commanders’ and that there was no ‘instruction, follow-​up or punishment’ intended to ensure dignified treatment of the captives.161 Further, it dismissed the accused’s pleas of ignorance that the sexual violence crimes had occurred, highlighting their ‘repetition over time and space’ and the availability of records of the captives’ mistreatment to commanders leading military units.162 Yet, this was not sufficient for the JEP to see the sexual violence and other forms of mistreatment as integrally connected to the kidnappings such that they could be considered part of the common plan. Importantly, even if those crimes were not part of the accused’s original common plan, the JEP could have analysed their repeated occurrence with the accused’s knowledge as indicating an acceptance by the accused of an expanded common plan that included these crimes. This was the approach taken, for instance, in the Krajišnik case tried by the ICTY. While sexual violence was not part of the accused group’s original plan to forcibly remove Bosnian Muslims and Bosnian Croats from areas of Bosnia, the Trial Chamber found the plan had expanded to include such violence after the prosecution showed that the accused had been informed of the violence, did nothing to prevent its 156 ibid [790]. 157 ibid section E.2. (dealing with these crimes not as part of the common plan, but under the separate mode of command responsibility). 158 ibid [771]–​[791]. 159 ibid [792]–​[804]. The JEP found the accused could be held directly liable under a form of ‘commission’ liability, known as autoría mediata or indirect perpetration, that holds accused principally liable for crimes, just as if they had physically committed the crime: ibid section E.1. In contrast, indirect liability is a kind of ‘omission’ liability, known as responsabilidad de mando or command responsibility: ibid section E.2. 160 ibid [796]. 161 ibid [814] (authors’ translation). 162 ibid [812] (authors’ translation).

40  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto recurrence, and persisted in pursuing the group’s plan.163 A similar approach would have allowed the JEP to have attributed ‘commission’ (direct) liability to the accused for the sexual violence crimes.164 The failure to do so meant those crimes were treated differently from the others and reflects an unwillingness to acknowledge the way in which the kidnappings facilitated the commission of the sexual violence crimes, with the result that the accused’s actual contribution to those crimes was not fully recognized. b) Paying attention to context: A better approach There have been cases in which international tribunals have appropriately recognized the importance of context, including cases in which they analysed sexual violence and gender-​based crimes alongside other crimes when assessing whether they constituted international crimes or whether an accused could be held responsible for them under a common purpose theory of liability. For instance, in the Prosecutor v Issa Hassan Sesay, Morris Kallon, and Augustine Gbao case,165 also known as the Revolutionary United Front (RUF) case, the Trial Chamber of the SCSL recognized that rape, sexual slavery, and conduct amounting to forced marriage committed by the RUF were ‘not intended merely for personal satisfaction or a means of sexual gratification for the fighter’.166 Rather, when viewed in the context of the society in which they were committed—​where stigma attached to sexual violence effectively resulted in the destruction of the family unit and undermined the norms which held society together167—​these acts were appropriately understood as intended to terrorize the civilian population.168 Thus, analysing the conduct and the harm it generated in context allowed the Chamber not only to surface the gendered dimensions of how the accused terrorized the

163 Prosecutor v Krajišnik (Trial Judgment) IT‑00‑39‑T (27 September 2006) [1105], [1117]–​[1119]. The Appeals Chamber overturned the conviction for crimes forming part of the expanded plan for lack of evidence, but confirmed that the means of achieving a common purpose can evolve over time if the members of the plan agreed on the expansion: Prosecutor v Krajisnik (Appeal Judgment) IT‑00‑39‑A (17 March 2009) [163]. 164 See also Molina Theissen Case (Judgment, C-​01077-​1998-​00002, Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos Contra el Ambiente de Mayor Riesgo Group ‘C’ de la ciudad de Guatemala) (23 May 2018), 1033: finding that ordering military checkpoints and allowing the victim’s illegal detention created the conditions for her torture and sexual violence, and holding the accused responsible for his contributions to those crimes, not merely for failing to exercise control over the physical perpetrators of the crimes. 165 RUF Trial Judgment (n 118). 166 ibid [1348]. 167 ibid [1349]. 168 ibid.

What is ‘Gender’ in International Criminal Law?  41 population, but also to conclude that the accused had committed the war crime of terrorism.169 The ICTY Trial Chamber took a similarly contextual approach in the Krstić case when assessing if the accused could be held liable for acts of sexual violence as part of an extended form of ‘joint criminal enterprise’ (JCE),170 known as ‘JCE III’, which holds accused liable for the natural and foreseeable consequences of a group’s common criminal plan.171 Krstić was charged with genocide for the massacre committed in Srebrenica, as well as other killings and sexual violence which occurred just prior to the massacre and during the forcible displacement of Bosnian Muslims into a UN compound located in the Bosnian town Potočari.172 In finding Krstić liable under JCE III for the rapes committed in the UN compound, the Trial Chamber focused on Krstić’s awareness of the ‘the lack of shelter, the density of the crowds, the vulnerable condition of the refugees, the presence of many regular and irregular military and paramilitary units in the area and the sheer lack of sufficient UN soldiers to provide protection’.173 In the Chamber’s view, that context—​the ‘catastrophic humanitarian situation’ created by the forcible displacement—​made it foreseeable to the accused that crimes such as killings and rapes might occur and thus held him liable for those crimes.174 The failure to analyse sexual violence and other gender-​based crimes in context—​or to appropriately contextualize the conduct—​can lead to an inaccurate characterization of the conduct and a failure to fully capture the culpability of the perpetrators of such crimes, leading to continuing impunity for them. That failure stems from deeply held misconceptions about sexual violence, its victims and perpetrators, as well as a lack of understanding of the way in which certain non-​sexual crimes—​such as murders, kidnappings, or other attacks against civilians—​create the conditions for sexual or other gender-​ based crimes to occur. When seen in context, it is often quite clear that those crimes are part of, or enabled by, the broader violent methodology used by perpetrators against a targeted group, and should be characterized and appropriately prosecuted as such. Gender-​competent contextualization is therefore 169 ibid [1356]. Compare the RUF Trial Judgment with the earlier AFRC Trial judgment, where the SCSL found that sexual violence had been committed for the sexual gratification of the fighters and had taken place outside of the context of the campaign of terror: AFRC Trial Judgment (n 71). 170 See discussion of JCE at nn 143, 144 and accompanying text. 171 Prosecutor v Tadić (Appeal Judgment) IT-​94-​1-​A (15 July 1999) [228]. 172 Prosecutor v Krstić (Trial Judgment) IT-​98-​33-​T (2 August 2001) [38]–​[40], [150]–​[154]. 173 ibid [616]. 174 ibid [155], [616]. See also Prosecutor v Šainović et al (Appeal Judgment) IT-​05-​87-​A (23 January 2014) [1550]–​[1592]; Prosecutor v Đorđević (Appeal Judgment) IT-​05-​87/​1-​A (27 January 2014) [904]–​[929].

42  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto a key aspect of gender analysis, which, in turn, is a central aspect of gender strategy, which we consider next.

D.  Understanding Gender Is Not a Luxury Former Adviser on Gender to the ICC Prosecutor, Patricia Viseur Sellers has critiqued a number of prosecutorial and judicial decisions from international criminal courts and tribunals to demonstrate how a lack of ‘gender strategy’, as she called it, has led to very poor investigations and judicial decision-​making on sexual violence and other gender-​based crimes.175 ‘Gender strategy’ requires incorporating gender perspectives into the planning and carrying out of investigations and prosecutions. Sellers’ thesis, with which we agree, is that gender strategy, while not a cure for ‘all the ills of a judicial institution’, is not a ‘luxury’, but a necessity for sound prosecutorial and judicial decision-​making in ICL.176 Its absence, she argued, ‘borders on a grant of impunity for conduct that is criminal’.177 Effective gender strategies rely on an understanding that gender is a socially constructed phenomenon that defines and enforces unequal power dynamics between females and males and operates intersectionally with other identities, such as race, age, socio-​economic status, disability, indigeneity, sexual orientation, and gender identity. In this way, it affects all aspects of society and social structures. Therefore, understanding that sexual violence and other gender-​ based crimes are based in gendered power differentials is critical to an accurate understanding of gender in ICL. It requires exposing gender dimensions of crime allegations as a central concern to investigators and prosecutors rather than as an afterthought. This demands conscious and deliberate effort: investigators and prosecutors must engage in a gender analysis from the outset and must be held accountable when they fail to do so. Some of this work has begun, including through legacy projects intended to capture lessons learned from the work of the ICTY178 and 175 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 (hereafter Sellers, ‘Gender Strategy is Not Luxury’). Sellers references cases from the ICTR (Cyangugu, Kamuhanda, Kajelijeli), ICTY (Lukić) and SCSL (CDF, AFRC), among others. She defined ‘gender strategy’ as ‘the legal ability to prosecute crimes committed against women and girls under humanitarian law’: ibid 341. Sellers is currently Special Adviser on Slavery Crimes to the ICC’s Prosecutor. 176 ibid. 177 ibid 325. 178 Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016).

What is ‘Gender’ in International Criminal Law?  43 ICTR179 in this area and efforts at the IIIM Syria.180 The breakthrough elaboration and adoption of a progressive Policy Paper on Sexual and Gender-​Based Crimes by former ICC Prosecutor, Fatou Bensouda, in 2014 took these lessons one step further. If fully and consistently implemented, the SGBC Policy could go a long way towards embedding gender strategy into the ICC’s work. Significantly, during Bensouda’s tenure and since 2014 in particular, the OTP has advanced more sophisticated analyses of gendered crimes.181 Nonetheless, the Policy’s impact remains unclear, given that there have been both significant advances,182 as well as serious setbacks183 in the ICC’s jurisprudence on sexual violence and other gender-​based crimes since it was adopted.184 Developing a high degree of gender competence, including a sound understanding of gender as a social construction and the implications of this in relation to the commission of crimes under international law, is an essential part of implementation. Those who investigate, prosecute, defend, support victims, and adjudicate crimes under international law, including their staff, need to be trained and have ongoing support to develop a high level of gender competence.185 In the context of prosecution offices, however, developing a general level of gender competence amongst all staff will be insufficient without also appointing dedicated, senior, and properly resourced experts on gender and ICL. Sole reliance on general staff for the effective development and implementation of gender strategies, no matter how much gender-​sensitivity training they may have received, does not work. Senior management-​level gender experts on staff, who have the express mandate and sufficient authority and resources to

179 ICTR, ‘Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-​Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda’ (30 January 2014) accessed 23 October 2021. 180 See n 55, above. 181 For a discussion of this point, see eg Grey, Prosecuting SGBC at the ICC (n 66). 182 See eg Ongwen Trial Judgment (n 104); Prosecutor v Bosco Ntaganda (Trial Judgment) [2019] ICC-​01/​04-​02/​06-​2359. 183 See eg the discussion of the Yekatom and Ngaïssona case in n 68, above. See also SáCouto and Sellers, ‘The Bemba Appeals Chamber Judgment’ (n 132). 184 FIDH and Women’s Initiatives for Gender Justice, ‘Accountability for SGBC at the ICC’ (n 60) 10. In any event, the SGBC Policy applies only to the ICC’s OTP and not to other ICC organs, such as the judiciary, or to other criminal justice mechanisms dealing with crimes under international law. 185 Gender competence training does happen to some extent, eg the IIIM Syria reports to the UN General Assembly on the provision of periodic ‘bespoke foundational’ and advanced gender training for staff. See IIM, Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (12 February 2021) UN Doc A/​75/​ 743 [33].

44  Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto work across investigation and prosecution teams, are necessary to ensure that gender strategies are implemented and are viewed as indispensable.186 Unfortunately, states and donor institutions generally have not been willing to fund the appointment of senior gender experts to the staff of offices of the prosecution at international criminal tribunals. This is despite the fact that it would strengthen all prosecutions, provide helpful guidance to judges and potentially assist countries by providing an example of effective practices. An essential determinant of gender competence is the ability to carry out sophisticated gender analysis. Gender analysis is the number one tool for ‘surfacing’ gender in crimes and the contexts in which they are committed. It is essential for identifying the perpetrators’ intent as well as the reasons—​ political, military, socio-​economic—​behind the commission of such crimes. In turn, this understanding is necessary to appreciate sexual violence and other gender-​based crimes as acts of ‘political violence . . . not random opportunistic crimes’.187 Embedding gender analysis into the investigation, prosecution, and adjudication processes of ICL requires that gendered biases, assumptions, stereotypes, and blind spots be directly confronted. Through this process, misconceptions and stereotypes about the gender dimensions of crimes under international law can be cast off in favour of a more profound and accurate understanding of gender in ICL. Again, thoughtful and methodical effort is needed to translate this into an effective framework that can be applied to the everyday demands of investigating and prosecuting crimes under international law. Calls for women’s experiences of conflict-​related harms to be integrated (not merely added) into ICL norms and practice, and for gender in international crimes to be ‘surfaced’, have entered the mainstream. Yet, it seems that many ICL actors, states, and institutional funders of ICL mechanisms remain to be convinced that a deeper understanding of gender and its role in the commission

186 The early Prosecutors of the ICTY and ICTR, Richard Goldstone and Carla Del Ponte, did appoint advisors within their Offices, but not at a senior level: Patricia Sellers, the first such advisor, has recorded some of the challenges she and her successors faced as a result of their place in the hierarchy of the Office. Sellers was Legal Advisor for Gender at both the ICTY and ICTR from 1995 to 1999. She was not part of senior management, being appointed below the P-​5 designation in the UN system. See Sellers, ‘Gender Strategy is Not Luxury’ (n 175) 308, fn 17. At the ICC, the first two Prosecutors appointed Special Advisers on Gender, but none were full time or paid staff. At the time of writing, the current Prosecutor, Karim Khan, had not appointed a dedicated Special Adviser on gender, although he had appointed two Special Advisers on gender-​related topics, namely conflict-​related sexual violence and gender-​based persecution: ICC, ‘ICC Prosecutor Mr Karim A.A. Khan QC Appoints Seventeen Special Advisers’ (ICC, 17 September 2021) accessed 23 October 2021. 187 Sara E Davies and Jacquie True, ‘Reframing Conflict-​ related Sexual and Gender-​ based Violence: Bringing Gender Analysis Back In’ (2015) 46 Security Dialogue 495, 497.

What is ‘Gender’ in International Criminal Law?  45 of, and responses to, international crimes is critical to the effectiveness and legitimacy of ICL. Further, as this chapter has demonstrated, despite some gains, the term ‘gender’ remains poorly understood, while gender perspectives are far from being at the core of the practice of ICL. Some of this is competence-​based and can be addressed as we have suggested here. However, some is ideological. There is still powerful resistance to the very idea that ‘gender’ is a social construct, or that it is important to surface, and attend to, in crimes. This chapter was written at the time the Taliban re-​took Afghanistan and began to reassert its profoundly misogynistic, sexist, and homophobic control system,188 access to abortion was prohibited or under grave threat in many parts of the world,189 hate crimes against LGBTIQ+​people continued unabated across the globe,190 many countries were reporting an ‘epidemic’ of violence against women and girls,191 and there was a backlash against ‘gender’ discourse.192 Only some of these grave human rights violations may amount to international crimes, but they are reflective of the same deeply ingrained gender discriminatory beliefs about the roles of males and females in societies that underlie all gendered crimes, as well as the misunderstandings about, and opposition to, ‘gender’ as a concept and a strategy in ICL. It can be difficult to maintain optimism for the feminist ICL project in the face of these kinds of seemingly relentless, gendered attacks and the obstacles to embedding a commitment to sound gender strategies in ICL that we have outlined in this chapter. However, for us, this situation makes continued feminist engagement with ICL as important and urgent as ever. Experience has shown that this engagement can make the difference between some measure of justice and no justice for a person targeted for sexual violence or other gender-​based crimes. And, even if it makes a difference for only one person, that matters.

188 See eg Heather Barr, ‘List of Taliban Policies Violating Women’s Rights in Afghanistan’ (Human Rights Watch, 29 September 2021) accessed 23 October 2021. 189 eg in the USA: Center for Reproductive Rights, ‘Supreme Court Case Explained: Dobbs v. Jackson Women’s Health’ (Center for Reproductive Rights, 21 October 2021) accessed 23 October 2021; and around the world: Center for Reproductive Rights, ‘The World’s Abortion Laws’ (Center for Reproductive Rights) accessed 23 October 2021. 190 See eg Human Dignity Trust, ‘Map of Countries that Criminalise LGBT People’ (Human Dignity Trust) accessed 23 October 2021. 191 See eg Phumzile Mlambo-​Ngcuka, ‘Violence Against Women and Girls: The Shadow Pandemic’ (UN Women, 6 April 2020) accessed 24 October 2021. 192 Judith Butler, ‘Why Is the Idea of “Gender” Provoking Backlash the World Over?’ (The Guardian, 23 October 2021) accessed 28 October 2021.

2 The Gendered Framework of International Humanitarian Law and the Development of International Criminal Law Michelle Jarvis* and Judith Gardam

A.  Introduction The aim of this chapter is to analyse how the concept of gender operated in international humanitarian law (IHL) at the time of the emergence of modern international criminal law (ICL) and the extent to which those gendered concepts from IHL have been replicated in that regime. IHL is the natural starting point for any consideration of gender in ICL. Along with crimes against humanity and genocide, the crimes that make up ICL are derived from both treaty and customary IHL.1 With the development of ICL, IHL emerged from being viewed as a little understood, arcane discipline of no real interest except to the military2 and the International Committee of the Red Cross (ICRC),3 * The views expressed are the personal views of the author and do not necessarily reflect the views of the International and Independent Mechanism (IIM) Syria or the United Nations (UN). 1 eg UN Security Council (UNSC), Statute of the International Criminal Tribunal for the former Yugoslavia (ICTYSt) (established 25 May 1993) art 1 (giving the Tribunal competence to prosecute ‘serious violations of international humanitarian law’), arts 2–​3 (providing jurisdiction over grave breaches of the Geneva Conventions of 1949 and violations of the laws or customs of war, respectively); UNSC, Statute of the International Tribunal for Rwanda (hereafter ICTRSt) (established 8 November 1994) arts 1, 4; Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) arts 5, 8; UNSC, Statute of the Special Court for Sierra Leone (established 16 January 2002) arts 1, 3; The lex specialis status of IHL during conflict means that IHL remains an overall reference point for interpreting and applying all aspects of ICL: eg Prosecutor v Gotovina et al (Decision on Ante Gotovina’s Interlocutory Appeal against Decision on Several Motions Challenging Jurisdiction) ICTY-​06-​90-​AR72.1 (6 June 2007) 12. 2 Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law (Kluwer Law International 2001) 112–​22 (hereafter Gardam and Jarvis, Women, Armed Conflict). 3 The ICRC is the Swiss based association with a unique and influential mandate regarding IHL recognized by states. As promoter and guardian of IHL it disseminates, monitors compliance with and contributes to its development: Jean-​Philippe Lavoyer and Sylvain Vité, ‘The International Committee of the Red Cross: Legal Status, Privileges and Immunities’ in Dieter Fleck (ed), The Handbook of the Law of Visiting Forces (2nd edn, OUP 2018) 545.

​

​

48  Michelle Jarvis and Judith Gardam to be of fundamental interest to a whole range of actors. These included those concerned with the treatment of women in times of armed conflict. There is no single prevailing understanding of ‘gender.’ The term is frequently juxtaposed against the word ‘sex’ as referring to ‘the socially constructed roles of women and men that are ascribed to them on the basis of their sex, in public and private life’, whereas ‘ “sex” refers to the biological and physical characteristics of women and men. Gender roles are learned and vary widely within and between cultures. As social constructs they can change’.4 The gender project in IHL has been very much the work of feminist international law scholars. Their understanding of gender has been centred on the traditional feminist idea of a hierarchy, namely that there is an imbalance of power between men and women derived from their socially constructed gender roles and that women and girls are at the bottom of this hierarchy.5 In the early 1990s, these feminist scholars commenced the task of identifying how the discrimination experienced by women at some level throughout society operates to both determine their experience of armed conflict and the extent to which the provisions of IHL acknowledge this.6 This wide-​ranging analysis of IHL has continued over the years.7 However, the widespread international outrage over the sexual violence against women in the conflict of the former Yugoslavia triggered another major but more narrowly focused strand of feminist critique of the provisions of IHL. Against this background of events, a coalition of feminist scholars and activists were at the forefront of raising awareness that gender mattered in ICL and played an unprecedented role in its formative days.8 Their approach to gender was also the hierarchical model described above but was limited to ensuring that the breach of the provisions of IHL relating to sexual violence against women in times of armed conflict did not go unpunished.9 4 UN Secretary-​General, ‘Integrating the Gender Perspective into the Work of United Nations Human Rights Treaty Bodies: Report of the Secretary-​General’ (3 September 1998) UN Doc HRI/​ MC1998/​6 16; One school of thought within feminism takes a broader view and sees gender as ‘any social construction having to do with the male/​female distinction, including those constructions that separate “female” bodies from “male” bodies’ (eg sex): Linda Nicholson, ‘Interpreting Gender’ (1994) 20 Signs 79. 5 eg Sally Baden and Anne Marie Goetz, ‘Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing’ (1997) 56 Feminist Review 3 (hereafter Baden & Goetz, ‘Who Needs [Sex]’). 6 eg Judith Gardam, ‘A Feminist Analysis of International Humanitarian Law’ (1990) 12 Australian Yearbook of International Law 265. 7 eg Gardam and Jarvis, Women, Armed Conflict (n 2). 8 For a description of the contribution of feminist ideas to developing ICL, see Christine Chinkin, ‘Feminist Reflections on International Criminal Law’ in Anton Zimmermann (ed), International Criminal Law and the Current Development of Public International Law (Duncker and Humblot 2003) 125. 9 The approach to gender and the focus on sexual violence in this campaign was controversial amongst feminists; Janet Halley and others, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/​Sex Work, and Sex Trafficking: Four Studies in Contemporary

Gendered Framework of IHL and Development of ICL  49 The focus of this chapter is the relationship between the gendered characteristics of IHL and ICL. Not all the gendered aspects of ICL are derived from IHL. Both systems of law are themselves the product of constructs, values, and priorities that emanate from the patriarchal system more generally. Consequently, ICL would no doubt have reflected many of these features, even without its historical relationship with IHL. This is confirmed by the fact that other components of ICL that cannot be traced directly to IHL, such as crimes against humanity and genocide protections, have also developed along gendered lines. Additionally, areas of international law other than IHL, where the integration of gender perspectives has taken a different and more dynamic trajectory, have also positively influenced ICL. The development of gender-​based violence as a framework within international human rights law (IHRL)10 and humanitarian response programming11 is one example. Similar concepts have been imported into the ICL landscape, exerting pressure, with some success, for a more progressive approach to gender. National criminal law principles have also had an impact on the substance of ICL.12 Since the beginnings of the modern era of ICL, time has not stood still for ideas about gender. ICL itself has played a major role in developments, given the opportunities presented by ongoing case law and the creation of new accountability-​related institutions that have incorporated increasingly progressive mandates when it comes to gender.13 In contrast, multilateral treaties and customary international law that form the basis of IHL are comparatively Governance Feminism’ (2006) 29 Harvard Journal of Law and Gender 335 (hereafter Halley, ‘From the International to the Local’): criticising the approach taken to gender. See also Karen Engle, ‘Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99(4) American Journal of International Law 778 (hereafter Engle, ‘Feminism and Its (Dis)Contents’): criticising the limited focus of these initiatives and their failure to acknowledge intersecting issues of ethnicity and race. See also the further discussion at n 116 and accompanying text. 10 UN General Assembly, ‘Declaration of the Elimination of Violence against Women’ (20 December 1993) UN Doc A/​Res 48/​104: an early use of the term ‘gender-​based violence’. 11 Inter Agency Standing Committee, ‘Inter-​Agency Standing Committee Guidelines for Gender-​ Based Violence Interventions in Humanitarian Settings’ (September 2005) accessed 28 May 2020; Inter-​Agency Standing Committee, ‘Guideline for Integrating Gender-​Based Violence Interventions in Humanitarian Action’ (August 2015) accessed 19 May 2020. 12 eg Prosecutor v Kunarac et al (Judgement) ICTY-​96-​23-​T/​ICTY-​96-​23-​1-​T (22 February 2001) [437]–​[460]: drawing on national law approaches to derive the elements of the crime of rape. 13 eg ICCSt (n 1) arts 7(g), 8(2)(b)(xxii), 8(2)(e)(vi); UNGA, ‘Implementation of the Resolution Establishing the International Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, Report of the Secretary-​General’ (2017) UN Doc, A/​ 71/​755 [19], [31], [32], [33] (hereafter UNGA, ‘IIIM Terms of Reference’); ‘Terms of Reference of the Independent Investigative Mechanism for Myanmar’ (21 January 2019) UN Doc A/​73/​716 [22], [25], [26], [28], [30], [31].

50  Michelle Jarvis and Judith Gardam inflexible vehicles in terms of responding to change. Nevertheless, IHL has responded to developments in ICL and from human rights initiatives generally and we explore some examples in this chapter. In addition, the ICRC, a very influential actor in terms of the development and application of IHL, has also responded to progress in the international arena relating to gender. That other important actor with respect to IHL, the military establishment of states, who are in the main responsible for the operational aspects of IHL, have shown little indication that the issue of gender will lead to the re-​thinking of its fundamental rules.14 Another development in our understanding of gender since the development of modern ICL in the early 1990s has been a shift of focus away from gender being primarily about women and girls in many of the international strategies to address the impact of armed conflict. In some quarters, it is now argued that it is time to consider how gender constructions create and obscure harms not only against women and girls but also against men and boys. This trend finds expression in the promotion by some of the idea of so-​called gender neutrality. A gender-​neutral approach ‘entails determining if women and men are treated equally under the law in practice’.15 The effect of such a perspective for women is to strip gender of its association with pervasive inequality and discrimination.16 In the case of IHL, gender in this sense is now increasingly used to argue that men and boys have not been accorded equal treatment in the enforcement of its provisions through the international criminal justice system.17 The structure of the discussion is, first, to consider how gender manifested itself in IHL prior to the development of ICL. We identify a number 14 In recent times, the concern about civilian casualties generally has led to disquiet in some military quarters as to its potential for further restrictions on operational freedom. This would indicate, for example, that suggestions as to a re-​thinking of the proportionality rule to take account of gender would be resisted: Bryan Frederick and Bernard Johnston, The Continued Evolution of US Law of Armed Conflict Implementation (Rand 2015). 15 Cecilia Tengroth and Kristina Lindvall (eds), IHL and Gender—​Swedish Experiences (Swedish Red Cross and Swedish Ministry for Foreign Affairs 2015) 8 accessed 19 May 2020. See also Karen Engle, ‘Feminist Governance and International Law: From Liberal to Carceral Feminism’ in Janet Halley and others, Governance Feminism: Notes from the Field (University of Minnesota Press 2019) 3. 16 Human Rights Council, ‘Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Rashida Manjoo’ (28 May 2014) UN Doc A/​HRC/​26/​38 [61]–​[62] (hereafter HRC, ‘Rashida Manjoo’s Report’); Jeanne Ward, ‘It’s Not about the Gender Binary, it’s About the Gender Hierarchy: A Reply to “Letting Go of the Gender Binary” ’ (2016) 98 International Review of the Red Cross 275 (hereafter Ward, ‘Gender Binary’). 17 Refugee Law Project, ‘Comments on the ICC Draft Policy Paper on Sexual and Gender Based Crimes’ (23 February 2014) accessed 17 March 2020; Leila Ullrich, ‘ “But what about men?” Gender disquiet in international criminal justice’ (2019) 28 Theoretical Criminology 1.

Gendered Framework of IHL and Development of ICL  51 of fundamental criticisms of IHL that demonstrate the failure of the regime to address the distinctive experience of women and girls in armed conflict as both combatants and non-​combatants. We focus here primarily on women, as the original gender critique of IHL, as noted above, was from a feminist perspective based on the shortcomings of IHL in addressing the experience of women during times of armed conflict. We also primarily limit our discussion to women, not girls, as this is the category used in the IHL provisions. Girls are subsumed under the general IHL categories of either children or civilians. Second, taking these criticisms as our basis, we consider how, over the past twenty-​five years of practice, ICL has approached issues of gender. We assess the extent to which ICL has been constrained by the limitations of IHL or has moved beyond them. Our priority in this section is again on women. Our view is that the first goal of the gender project in ICL should not only be to seek out and celebrate progress but also to highlight and address what remains to be achieved in responding to the continuing catastrophic levels of gender violence experienced by women in times of armed conflict. This requires a continuing emphasis on the link between gender and endemic inequality and discrimination against women.

B.  The Gender of IHL in the Early 1990s Modern IHL can be conveniently divided into the Law of Geneva, those rules that govern the protection of victims of armed conflict, and the Law of The Hague, the provisions of which govern the conduct of hostilities.18 The idea that IHL could be gendered and the implications of this insight for the regime was far from the minds of law and policy makers when the bulk of the Law of Geneva was adopted by states in the period between 1945 and 1977. The Law of The Hague has also rarely attracted scrutiny from a gender viewpoint.19 This silence as to gender and IHL is hardly surprising. The concept of gender and the idea of gender discrimination were little understood at this time. Furthermore, over the years, women have played a minimal role in the formulation, development, and application of IHL. They have been almost entirely absent from

18 Although the term IHL is more commonly used nowadays when describing this area of international law, it can be useful for purposes of clarity to refer to ‘The Law of The Hague’ when describing the rules that govern the means and methods of warfare, such as the prohibition against the use of certain weapons. ‘The Law of Geneva’ in contrast refers to those rules that protect combatants who are not or no longer taking part in the fighting and persons not actively involved in hostilities, particularly civilians. 19 However, see Gardam and Jarvis, Women, Armed Conflict (n 2) 125–​26.

52  Michelle Jarvis and Judith Gardam Diplomatic Conferences and other proceedings that negotiate the rules and are under-​represented in the ICRC and the military establishment of states that play such a vital role in relation to IHL.20 What was appreciated at the time, and is reflected in provisions of the four 1949 Geneva Conventions, are the concepts of equality and non-​discrimination on the basis of sex.21 The Geneva Conventions (and their two 1977 Additional Protocols: AP I and AP II) establish a distinctive system of equality in the sense that no adverse distinction can be drawn in the application of its provisions between individuals on the basis of, inter alia, sex.22 This prohibition of adverse distinction is along the same lines as the human rights law principle of non-​discrimination.23 Differentiation based on sex is thus permissible as long as its impact is favourable. This allows for the so-​called special provisions or system of special protection for women to be consistent with the IHL concept of equality. There are provisions dealing specifically with women in all of the four 1949 Geneva Conventions and both the Protocols.24 The starting point of the system of special protection for women is the set of provisions that deal with the ‘regard’ or ‘consideration due to women on account of their sex’, requiring that they be accorded special respect and protection.25 These provisions were

20 Anna Crowe ‘ “All the regard due to their sex”: Women in the Geneva Conventions of 1949’ (2016) Human Rights Project Research Paper 16-​001, 4 accessed 19 May 2020; Caroline Moorhead, ‘A Woman’s Place’ (The Magazine of the International Red Cross and Red Crescent Movement) accessed 19 May 2020. 21 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (First Geneva Convention); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 Aug 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 Aug 1949, entered into force 21 October 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 Aug 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention); These rules are also reflected in customary international: see Jean-​Marie Henckaerts and Louise Doswald-​Beck, Customary International Humanitarian Law, Volume I: Rules (CUP 2005) 308 (hereafter Henckaerts and Doswald-​Beck, Customary International Humanitarian Law). 22 eg First, Second, Third and Fourth Geneva Conventions (n 21) art 3 (hereafter common art 3) First Geneva Convention (n 21) art 12(2); Second Geneva Convention (n 21) art 2(2); Third Geneva Convention (n 21) art 16; Fourth Geneva Convention (n 21) arts 13, 27(3); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I) arts 9(1), 69(1), 70(1), 75(1); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (AP II) arts 2(1), 4(1). 23 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law (n 21) 309. 24 Gardam and Jarvis, Women, Armed Conflict (n 2) 62–​68. 25 First Geneva Convention (n 21) art 12; Second Geneva Convention (n 21) art 12; Third Geneva Convention (n 21) art 14; AP I (n 22) art 76.

Gendered Framework of IHL and Development of ICL  53 originally described as having the purpose of ensuring respect for the ‘honour’ and ‘modesty’ of women as ‘beings who are weaker than oneself ’.26 Standing alone, the provisions in relation to ‘regard’, ‘consideration’, or ‘special respect’ are statements of general principle and impose no concrete obligations. These are supplemented by more detailed rules, such as those (1) mandating separate quarters and sanitary conveniences for women internees and prisoners of war, (2) directly protecting women from sexual assault, and (3) dealing with pregnant women.27 The ambit of the special provisions of IHL for women is restricted. They are intended to address what are perceived as the biological differences of women and their vulnerability to sexual violence. Consequently, the rules address the situation of pregnant women, maternity cases, and women as victims of, or at risk of, sexual violence. Apart from these provisions, the system is one of formal equality in that women are entitled to the protection of all the other provisions of IHL relating to civilians and combatants.28 The word gender is absent from IHL and remains so today. However, it has always been a significant factor (along with, for example, ethnicity and class) in an individual’s experience of armed conflict. IHL fails to acknowledge this fact. Gender operates in IHL on several levels. Its role can be better understood if set against the background against which IHL operates, the interests the regime serves and what it is designed to achieve. The name ‘IHL’ itself is relatively recent in adoption and tends to mislead the uninitiated as it suggests that the purpose of IHL is—​at least primarily, if not solely—​humanitarian in nature. However, this is not the reality and such a perception serves to disguise the overriding demands of military necessity and the influence of the military in its rules and their application and interpretation.29 As this institution is renowned for its patriarchal underpinnings, IHL inevitably reflects this influence.30

26 Jean Pictet and others (eds), Commentary on the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (ICRC 1952) 92: providing an indication of what is intended by such phrases; A revised commentary to this convention was published in 2016 that recognizes the problematic nature of these concepts: Knut Dôrmann and others, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (CUP 2016) fn 161. 27 Third Geneva Convention (n 21) art 25: mandating separate quarters for women prisoners of war; Fourth Geneva Convention (n 21) art 27(2): protecting women from sexual violence; Gardam and Jarvis, Women, Armed Conflict (n 2) 62–​68. 28 Gardam and Jarvis, Women, Armed Conflict (n 2) 93–​94. 29 Chris Jochnick and Roger Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’ (1994) 35 Harvard International Law Journal 49. 30 Frederic Mégret, ‘The Laws of War and the Structure of Masculine Power’ (2018) 19(1) Melbourne Journal of International Law 200, 203 (hereafter Mégret, ‘Structure of Masculine Power’).

54  Michelle Jarvis and Judith Gardam Fundamentally, IHL serves the interests of the security of the state through the use of military force. The international relations theorist, Ann Tickner, well describes the masculinity of war which underlies IHL: ‘[l]‌egitimizing war requires the perpetuation of the myth that certain people (usually gendered feminine) are being protected by others (always gendered masculine). Consistent with the prioritizing of the security of combatants, this protector/​protected relationship is one of inequality: those who are protected lack agency or the ability to provide for their own protection’.31 This fundamental division of which she speaks is at the heart of IHL. In IHL we find the masculine warrior, the defender of the security of the state whose interests it serves. Those who do not take up arms are equated with the gendered feminine and their protection is ancillary to that of the combatant.32 To analyse IHL from the perspective of gender, therefore, requires an appreciation not only of the sex-​based distinction between men and women, but also the gendered distinction created in the rules between combatants and non-​combatants, and the fact that the system privileges the protection of the former. However, the impact of a gendered hierarchy does not end here; its influence is also apparent within the rules protecting all civilians in IHL. These rules take the experience that male civilians have of armed conflict as their starting point on which to construct the regime. There is very limited recognition that women experience armed conflict differently from men and that IHL operates against a background of systemic inequality and discrimination against women.33 Therefore, to talk only in terms of sex or gender disaggregated civilian casualties, as is the usual practice, in so many cases obscures and renders invisible the particular effects of warfare on women and girls. Specifically, IHL fails to take into account that the application of the provisions of the Law of The Hague determining lawful targets in armed conflict have gendered consequences. The application of one of these provisions, the rule of proportionality, which determines the lawful level of collateral civilian casualties that may be anticipated from an attack, requires a complex, subjective analysis. What is not required to 31 J Ann Tickner, ‘Feminist Approaches to Issues of War and Peace’ in Dorinda Dallmeyer (ed), ‘Reconceiving Reality: Women and International Law’ (1993) 25 Studies in Transnational Legal Policy 267, 271 (hereafter Tickner ‘Feminist Approaches’). See also Judith Stiehm, ‘The Protected, the Protector, the Defender’ (1982) 5 Women’s Studies International Forum 367; Mégret, ‘Structure of Masculine Power’ (n 30) 203. 32 Judith Gail Gardam, ‘Gender and Non-​Combatant Immunity’ (1993) 3 Transnational Law and Contemporary Problems 345. 33 UN Women, Preventing Conflict Transforming Justice Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325 (UN Women 2015) accessed 20 May 2020 (hereafter UN Women, Preventing Conflict).

Gendered Framework of IHL and Development of ICL  55 be taken into account in that process is the potential of the differing impact of particular attacks on male and female civilians. The problem has become more acute in today’s conflict where the civilian population—​and women and girls, in particular—​are more often than not at the centre of hostilities.34 A related gendered feature of IHL that has a distinctive impact on women civilians is its narrow scope of application. The centre of the regime is protecting men and women from threats of violence from the enemy. The protections applicable to prisoners of war and civilians reflect this narrow scope, applying respectively to persons in the power of the enemy and in the hands of a party or occupying power of which they are not nationals.35 This is not to say that components of IHL do not support a broader approach. In particular, the wounded, sick, and shipwrecked are protected ‘in all circumstances’ and the protections of common article 3 in non-​international armed conflicts are regarded as applicable to all who are not actively taking part in hostilities at the material time.36 However, IHL is, in essence, a regime primarily concerned with harms inflicted by the other side. It does not effectively address the reality that, due to endemic discrimination, during these times female civilians are at increased risk of violence from their own family, members of the community, government forces, and militia. Much depends on the particular societal structure. For example, the Women’s International League for Peace and Freedom has observed that the disproportionate impact of the armed conflict in Syria on women and girls has to be set against the violence and discrimination in law and practice that they have experienced for decades.37 A further illustration of a hierarchy based on gender is the system of accountability in IHL. None of the treaty provisions specific to women impose

34 Jody Prescott, ‘The Law of Armed Conflict and the Operational Relevance of Gender: the Australian Defence Force’s Implementation of the Australian National Action Plan’ in Dale Stephens and Paul Babie (eds), Imagining Law: Essays in Conversation with Judith Gardam (University of Adelaide Press 2016) 195, 202 (hereafter Prescott, ‘Operational Relevance of Gender’); UN Women, Preventing Conflict (n 33). 35 Third Geneva Convention (n 21) art 4(A); Fourth Geneva Convention (n 21) art 4(1). See also Prosecutor v Bosco Ntaganda (Judgment on the Appeal of Mr Ntaganda against the Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9) [2017] ICC-​01/​ 04-​02/​06 OA5 [58] (hereafter, Ntaganda Jurisdictional Appeal Judgement). 36 First and Second Geneva Convention (n 21) art 12: protecting the wounded and sick on land and wounded, sick and shipwrecked at sea in all circumstances and not only when in the hands of the adverse party; common art 3 (n 22); Ntaganda Jurisdictional Appeal Judgement (n 35) [59]. 37 See Laila Alodaat and Sarah Boukhary (eds), Violations against Women in Syria and the disproportionate impact of the conflict on them-​Universal Periodic Review of the Syrian Arab Republic submission to the Human Rights Council (Women’s International League for Peace and Freedom 2016) 7 accessed 20 May 2020.

56  Michelle Jarvis and Judith Gardam obligations the breach of which are designated as grave breaches.38 So, for example, rape—​which in the Fourth Geneva Convention is conduct against which women are ‘especially protected’—​is not expressly designated as a grave breach of the rules. Women consequently suffer under a double disability in comparison with typically male combatants: their status and treatment is not only inferior as civilians but doubly so as women civilians. Moreover, any suggestion that there might be other victims of armed conflict who do not fit into the male/​female binary is quite absent from the regime. This is not an unexpected feature of the system given the era of the adoption of the Conventions, but it undermines the ability of IHL to fulfil its mission to deliver ‘non-​adverse’ protection. When IHL does address women, the operation of gender is apparent in the assumptions throughout its special provisions that female subjects have certain so–​called natural characteristics, such as modesty and weakness that help to constitute their honour. All the provisions of IHL dealing with women are based on these two characteristics. For example, article 27(2) of the Fourth Geneva Convention expressly articulates rape as a crime against the honour of women, stating that ‘women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault’. The common theme of the special provisions is the protection of women in terms of their relationship with others and not as individuals in their own right.39 Even within these special provisions there is an absence of detail. While there is an obligation to provide women and girls with separate dormitories and separate latrines, there is no obligation to provide what might be required to safeguard women’s reproductive health and autonomy, such as contraception or sanitary supplies.40 This stands in stark contrast, for example, to the detailed provisions in the Third Geneva Convention regulating the entitlements of prisoners of war, down to the number of Swiss Francs to be advanced by the detaining power and the obligation to issue soap and sports equipment.41 Apart from the protections contained in the special provisions, which do seek to address valid concerns, women are largely invisible in IHL. Any indication that women’s experience of armed conflict is distinctive and encompasses 38 The four 1949 Geneva Conventions and AP I employ a system of grave breaches to identify those breaches of IHL considered most serious. States parties are under special obligations in relation thereto; Fourth Geneva Convention (n 21) art 146. 39 Gardam and Jarvis, Women, Armed Conflict (n 2) 95–​101; Louise Doswald-​Beck, Human Rights in Times of Conflict and Terrorism (OUP 2011) 502 (hereafter Doswald-​Beck, Human Rights). 40 Prescott, ‘Operational Relevance of Gender’ (n 34) 201–​2. 41 Third Geneva Convention (n 21) art 25–​29.

Gendered Framework of IHL and Development of ICL  57 wider issues than their roles as mothers and objects of sexual violence, is not discernible. The assumption is that the general provisions in relation to combatants and civilians perform this function. The way the regime is interpreted, disseminated, and applied reinforces these limiting and destructive gender stereotypes. One particular example illustrates this failure. ‘International humanitarian law protects the right of the wounded and sick to the medical care required by their condition’ . . .; thus, the ‘[e]‌xclusion of one medical service, abortion, from the comprehensive medical care provided to the wounded and sick in armed conflict, where such service is needed by only one gender, is a violation not only of the right to medical care but also of the prohibition on “adverse distinction” found in common Article 3, the Additional Protocols to the Geneva Conventions and customary international law’.42 To a certain extent, the limitations of a system of formal equality were appreciated at the time of the adoption of the four 1949 Geneva Conventions. The influential 1958 Pictet Commentary on the Fourth Geneva Convention observes that ‘equality might easily become injustice if it is applied in situations that are essentially unequal’.43 Today, this would be clearly understood by most as encompassing, amongst other things, indirect gender discrimination.44 In those days, however, the unequal position of women and girls in society as a result of gender discrimination was not generally acknowledged. The construction of the masculine in IHL is also deeply problematic from a gender perspective. The familiar feminist theme of hierarchy is once again apparent in the regime, in this instance, in the case of masculinity. As one scholar notes, ‘[t]‌he production of masculinity “in war, through law” [ . . . ] involves not only a simple opposition to the feminine but also the competition between different shades of the masculine, the domination by certain men of other men as a conduit for the oppression of women and the upholding of a certain form of virtuous masculinity as the linchpin of a deeply masculine order’.45 Generally speaking, however, the project of identifying how the masculine is constructed

42 UN Women, Preventing Conflict (n 33) 77; Also consider the disproportionate impact on women of systematic and extensive air strikes by government forces on populated areas and the proliferation of small arms. 43 Jean Pictet and others (eds), Commentary Geneva Convention Relative to the Protection of Civilian Persons in Time of War (ICRC 1958) 206. 44 Indirect discrimination arises when women and men are treated the same without any acknowledgment of the different impact on women of policies or laws that result from their subordinate situation in society generally: Doswald-​Beck, Human Rights (n 39) 53–​54. 45 Mégret, ‘Structure of Masculine Power’ (n 30) 203. See also Ward, ‘Gender Binary’ (n 16).

58  Michelle Jarvis and Judith Gardam in IHL is in its infancy. In contrast there is prolific interdisciplinary work on the gender of warfare and the warrior.46 The gender factors we identified in IHL have a range of consequences. IHL takes the experience of the white, western, male combatant as its central reference point. The extent to which individuals meet this description determines the extent to which their experiences and needs will be recognized and valued in the allocation of scarce resources during armed conflict.47 Secondly, the provisions of IHL may serve to further entrench the problematic gender stereotypes upon which they are based and which entail adverse social consequences for those affected.48 Third, the priority accorded to the needs and interests of different categories of persons affected by armed conflict will be affected by gendered value judgements.49 These factors all impact on the effectiveness of IHL in addressing the suffering and humanitarian needs of different categories of individuals caught up within conflict.50 Our analysis of IHL so far has shown that gender is an integral component of the legal framework regulating armed conflict. Despite the ongoing prevalence of armed conflict and the important role played by IHL in addressing its consequences, prior to the 1990s, there was little acknowledgement that gender was of any relevance to IHL. In all probability the fledgling interest in gender and IHL at that time, evident in the work of a few feminist scholars and a developing awareness on the part of the ICRC, would have remained of little practical importance. However, it was to find a broader base as a natural offshoot of the wider developments in human rights law through the UN and its agencies as to the effects of gender discrimination and violence against women and girls. The new era of ICL was part of this process. Having demonstrated some of the practical implications of gendered biases in IHL, we now reflect on the evolving relationship between IHL and ICL and the impact of gender. 46 Cynthia Enloe, Does Khaki Become You? The Militarisation of Women’s Lives (South End Press 1983); Tickner, ‘Feminist Approaches’ (n 31); Robin Morgan, The Demon Lover: The Roots of Terrorism (2nd edn, Washington Square Press 2001). 47 Doris Buss, ‘Women at the Borders: Rape and Nationalism in International Law’ (1998) 6 Feminist Legal Studies 171, 172, 191 (hereafter Buss, ‘Women at the Borders’): noting that IHL ‘has rendered women invisible’. 48 See below nn 107–​20 and accompanying text. 49 See below nn 51–​62 and accompanying text (grave breaches) and nn 73–​80 and accompanying text (unlawful attacks). 50 The objective of IHL is to limit the suffering caused by warfare and to alleviate its effects. Its rules are the result of a delicate balance between the exigencies of warfare (military necessity) on the one hand and the laws of humanity on the other’: Hans-​Peter Gasser, ‘International Humanitarian Law and the Protection of War Victims’ in Gasser, International Humanitarian Law: and Introduction (Henry Dunant Institute/​Paul Haupt 1993) accessed 20 May 2020.

Gendered Framework of IHL and Development of ICL  59

C.  The Gendered Relationship Between IHL and ICL In this part, we take some specific examples of gendered features of IHL and consider the extent to which they are replicated in ICL. The first three examples relate to specific aspects of IHL that potentially create gendered consequences when applied in ICL (1) the system of grave breaches, (2) limited protection against harms inflicted by perpetrators on the same side to the conflict as the victim, (3) and the application of The Law of The Hague principles, particularly proportionality. In the case of the first two examples, ICL has operated as a site for challenging and, to varying degrees, progressively overcoming potentially adverse consequences from a gender perspective. By contrast, the Law of The Hague principles have proved largely impervious to gender insights in ICL. The next three examples concern gendered features of the overall IHL framework that ICL has replicated: limited recognition of gender as a structural factor driving conflict-​related violence and other discriminatory harms; reinforcement of negative and restrictive gender stereotypes; and the absence of the perspective of women and girls in identifying the consequences of armed conflict. In both IHL and ICL, these features reflect ingrained patriarchal norms and biases and overcoming them presents a significant future challenge for both regimes.

1.  Specific Aspects of IHL that Potentially Create Gendered Consequences when Applied in ICL a) The omission of sexual violence as a grave breach of the Geneva Conventions In the early 1990s, as news of pervasive rape and other forms of sexual violence during the conflicts in the former Yugoslavia captured international attention, the gendered nature of IHL promptly emerged as a potential barrier to criminal prosecution of individuals under the ICL framework. In particular, the failure of IHL to expressly recognize rape and other forms of sexual violence as grave breaches of the 1949 Geneva Conventions and Additional Protocols51 led to concerns that these harms did not have the status of war crimes and, therefore, could not be prosecuted.52 The failure to expressly name sexual violence among the harms considered most grave, giving rise to the responsibility to prosecute, reflects the historical perception of sexual violence as a matter of 51 Fourth Geneva Convention (n 21) arts 147, 148; AP I (n 22) art 85. 52 Christine Chinkin, ‘Rape and Sexual Abuse in International Law’ (1994) 5 European Journal of International Law 326.

60  Michelle Jarvis and Judith Gardam honour and dignity, rather than a grave violent crime.53 The failure to appreciate the gravity of sexual violence is particularly apparent when the absence of sexual violence as a grave breach is viewed against the other harms listed, such as property damage or being forced to serve a hostile power. The initial concern that sexual violence could not be considered a grave breach also reflected a gender bias in the historical interpretation of some of the harms expressly listed, such as torture and serious injury to body and health. Consequently, when the Statute for the International Criminal Tribunal for the former Yugoslavia (ICTY) was adopted, sexual violence was not expressly mentioned in the articles dealing with grave breaches of the Geneva Conventions of 1949 or violations of the laws or customs of war.54 The only express reference to sexual violence was the inclusion of rape as a crime against humanity in article 5 of the Statute. This provision drew on the precedent set by Control Council Law No 10, enacted by the Allied Control Council immediately after World War II authorizing occupying powers to try suspected war criminals in their respective zones.55 This was a slim statutory basis for addressing the pervasive and diverse forms of sexual violence that occurred in the former Yugoslavia. In practice, concerns were largely allayed through progressive approaches to interpretation by ICTY prosecutors and judges over time. The ICTY prosecuted sexual violence, not only as a crime against humanity in accordance with article 5, but also by interpreting more general language in other provisions, including torture,56 enslavement,57 persecution,58 and genocide,59 so as to include sexual violence crimes. The Rome Statute of the International Criminal Court (Rome Statute) consolidated these advances by clearly identifying ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions’, as war crimes in both international and non-​international armed conflicts,60 as well as a crime against

53 See n 30 above: Fourth Geneva Convention (n 21) art 27(2): protecting women from sexual violence. See also Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 35–​36 (hereafter Brammertz and Jarvis, Prosecuting Conflict-​Related Sexual Violence). 54 UNSC, ‘Report of the Secretary-​General Pursuant to Paragraph 2 of Security Council Resolution 808’ (3 May 1993) UN Doc S/​25704 36, Annex arts 2, 3. 55 ICTYSt (n 1) art 5; ‘Control Council Law No 10, Punishment of Person Guilty of War Crimes, Crimes against Peace and Against Humanity’ (20 December 1945) 3 Official Gazette Control Council for Germany 50–​55. 56 Brammertz and Jarvis, Prosecuting Conflict-​Related Sexual Violence (n 53) 187–​94. 57 ibid 194–​98. 58 ibid 202–​9. 59 ibid 209–​16. 60 ICCSt (n 1) art 8(2)(b)(xxii), (e)(vi).

Gendered Framework of IHL and Development of ICL  61 humanity.61 Over time, these developments have positively influenced interpretations of corresponding IHL provisions, with the ICRC’s customary international law study referencing the classification of sexual violence as a grave breach in the Rome Statute.62 b) Limited recognition of harms inflicted by the victim’s own side As noted above, the framework of IHL overwhelmingly rests on the assumption that, during conflict, the threat of violence or harm comes primarily from the opposing side. This assumption, however, reflects a largely male orientation in overlooking the different experience of women in these situations. In fact, during such times, women are not only vulnerable to violence from the opposing party but are also frequently the target of a considerable level of violence perpetrated by their own armed forces or from increased levels of domestic violence within their own communities. For many years, ICL has reflected this assumption from IHL, with a majority of the war crimes cases prosecuted before courts and tribunals focused on war crimes committed by the opposing side.63 However, the limitations of this approach arose in the Ntaganda case before the International Criminal Court (ICC). Adopting a more progressive approach than historically seen before courts and tribunals, the Prosecution charged Mr Ntaganda with war crimes based on rape and sexual slavery committed against child soldiers recruited by the UPC/​FLPC in the Democratic Republic of the Congo, of which he was the Deputy Chief of the General Staff.64 The defence objected, arguing that ‘crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law’.65 Ultimately, the ICC Appeals Chamber upheld the charges, finding that the Rome Statute imposes no status requirements on victims of the war crimes of rape and sexual slavery.66 In reaching this conclusion, the Appeals Chamber 61 ibid art 7(g). See also ICC, Elements of Crimes (ICC 2011) art 6(b) fn 3 (hereafter ICC, Elements of Crimes): recognizing that serious bodily or mental harm may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. 62 Henckaerts and Doswald-​Beck, Customary International Humanitarian Law (n 21) rr 93, 323–​27. 63 Prosecutor v Sesay et al (Judgment) SCSL-​04-​15-​T (2 March 2009) [1453]: ruling that IHL ‘was never meant to criminalise acts of violence committed by one member of an armed group against another’; Prosecutor v Prlić (Judgment) IT-​04-​74-​A (29 November 2017) 347–​60; Antonio Cassese, International Criminal Law (OUP 2008) 82. 64 Prosecutor v Bosco Ntaganda (Document Containing the Charges) [2014] ICC-​01/​04-​02/​06-​203-​ AnxA [100] ff; Prosecutor v Bosco Ntaganda (Updated Document Containing the Charges) [2015] ICC-​ 01/​04-​02/​06-​458-​AnxA. 65 Prosecutor v Bosco Ntaganda (Transcript) ICC-​01/​04-​02/​06-​T-​10-​Red-​ENG (13 February 2014) 27, lines 15–​17. 66 Ntaganda Jurisdictional Appeal Judgement (n 35).

62  Michelle Jarvis and Judith Gardam specifically stated that the broader IHL framework ‘does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group’.67 The Appeals Chamber acknowledged that, generally, IHL protects persons who are hors de combat and in the power of an adverse party and that it was unaware of any case in which the grave breaches regime had previously been applied in relation to same-​side conduct.68 Nevertheless, the Appeals Chamber did not consider this a bar to broader protections. Critics of the decision have expressed concern that the Appeals Chamber has sanctioned a war crimes charge in circumstances where no alleged violation of IHL is in issue.69 Nevertheless, it has paved the way for deeper thinking about the extent to which war crimes protections could be used to address same side harms during conflict, including harms inflicted on civilians by their own party to the conflict. This development has a significant gender dimension given the particular vulnerability of women and girls to such harms during conflict. According to the rationale of the Ntaganda Appeals Chamber, so long as a sufficient nexus to the armed conflict is proved, such harms can be prosecuted as war crimes.70 However, questions remain as to possible gendered biases impacting upon the assessment of what harms have a sufficient nexus to the armed conflict to support a war crimes charge. In particular, the extent to which violence against civilian females and other discriminatory harms inflicted at the hands of their own side would be considered sufficiently linked, remains to be seen. For example, Syrian civil society actors have reported that females who are released from detention have been subjected to a continuing pattern of violence upon return to their families and communities due to assumptions that they have been subjected to sexual violence while imprisoned, regardless of whether, in fact, this is the case.71 If such reports are substantiated, this may raise questions as to whether the post-​release violence is sufficiently connected to the conflict to justify a war crimes charge.72 67 ibid [63], [67]. 68 ibid [64]. 69 Kevin Jon Heller, ‘ICC Appeals Chamber says a War Crime does not have to Violate IHL’ (OpinioJuris, 15 June 2017) accessed 20 May 2020. 70 Ntaganda Jurisdictional Appeal Judgement (n 35) [68]. 71 Lama Kannout, ‘Gender-​Sensitive Transitional Justice in Syria’ (The Day After 2019) 114–​16

accessed 20 May 2020. 72 Brammertz and Jarvis Prosecuting Conflict-​Related Sexual Violence (n 53) 178: setting out factors to consider in whether the required nexus is established, including that the conflict played a substantial role in the perpetrators’ ability to commit the crime; their decision to commit it; the manner in which it was committed; or the purpose for which it was committed.

Gendered Framework of IHL and Development of ICL  63 c) The difficulty of prosecuting disproportionate attacks There has been, to date, a paucity of prosecutions in ICL for launching a disproportionate attack in violation of the applicable IHL provisions.73 When prosecutions for unlawful attacks have been brought, as in the Gotovina case before the ICTY, the courts have shown some reluctance to consider whether the IHL rule of proportionality has been breached.74 Certainly, it is not easy to prove such a breach in a criminal law context, as the determination of proportionality involves the exercise of discretion by decision-​makers in complex circumstances.75 Overall, the preference has been for charges that do not involve such difficulties.76 The reluctance to bring prosecutions for disproportionate attacks has gendered consequences, given the reality that women are most likely to experience conflict as civilians rather than as combatants and therefore to be particularly affected by disproportionate (and other unlawful) attacks directed against the civilian population. Even as civilians, they are vulnerable in distinct ways. For example, given their primary role in protecting and caring for family members they are frequently less able to flee attacks and, even if they succeed, they face the risk of sexual violence and harassment from all sides. Despite this reality for women, the few ICL cases prosecuted to date have not shown any recognition of the need to factor gender considerations into the application of proportionality principles and the impact of targeting decisions has never been gender disaggregated.77 Consistent with the absence of a gender focus regarding the Law of The Hague in ICL case law, the ICC’s public Policy Paper on Sexual and Gender-​Based Crimes of June 2014 (ICC SGBC Policy Paper) does not deal with gendered aspects of this area of the law.78 The work of military experts such as Jody Prescott offer some practical examples of how this situation could be addressed in the future. Prescott has argued that there should be a positive obligation on military actors to inform themselves about the potential gender differentiated consequences of a 73 A disproportionate attack is one that may be expected to result in ‘excessive’ civilian damage and is unlawful under IHL: Roee Ariav, ‘Hardly the Tadić of Targeting: Missed Opportunities in the ICTY’s Gotovina Judgments’ (2015) 48 Israel Law Review 329 (hereafter Ariav, ‘Hardly the Tadić of Targeting’). 74 Prosecutor v Gotovina (Judgment) IT-​06-​90-​T (15 April 2011) [1910] (hereafter Gotovina (Trial Judgment)); cf Prosecutor v Gotovina (Judgment) IT-​06-​90-​A (16 November 2012). 75 Ariav, ‘Hardly the Tadić of Targeting’ (n 73) 355. 76 Serge Brammertz and Michelle Jarvis, ‘Lessons Learned in Prosecuting Gender Crimes Under International Law: Experiences from the ICTY’ in Chile Eboe-​Osuji (ed), Protecting Humanity, Essays in International Law and Policy in Honour of Navanethem Pillay (Martinus Nijhoff 2010) 95, 98–​99. 77 Gotovina (Trial Judgment) (n 74); Prosecutor v Prlić et al (Judgment) IT-​04-​74-​T (29 May 2013) [1284]ff; Prosecutor v Prlić et al (Judgment) IT-​04-​74-​A (29 November 2017) [405]–​[412]. 78 ICC OTP ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) (hereafter ICC OTP ‘Policy Paper on SGBC’).

64  Michelle Jarvis and Judith Gardam proposed military action and to factor these into the proportionality assessment.79 This may be particularly important in conflicts where the very objective of using force is ‘building stability through influencing the perceptions, attitudes and behaviours of the population’.80 This is a topic of considerable future importance for ICL and one in urgent need of further attention by all stakeholders.

2.  Gendered Features of the Overall IHL Framework that ICL has Replicated a) Slow and limited recognition of gender as a cause of violence As mentioned above, IHL does not recognize the increased risk of systemic violence and discrimination during conflict directed towards those occupying an inferior place in the gender hierarchy. Similarly, ICL’s recognition of gender as a structural factor contributing to violence and other discriminatory harms has been slow and limited to date. In ICL, gender has historically been absent from the catalogue of factors contributing to violence.81 While progress has been made in prosecuting crimes of sexual violence that have historically been overlooked, the underlying causes of this violence have been seen as stemming from factors other than gender, in particular, nationality, ethnicity, race, and/​ or religion.82 Consequently, the intersection between gender and these factors has not been accurately reflected in the cases, thereby masking a key structural factor underpinning violence and weakening pressure for transformative change arising from the accountability process.83 The language of gender as part of the regular discourse of ICL emerged only in the mid-​1990s during the negotiations leading to the Rome Statute.84 The word ‘gender’ does not appear in the Statutes of the two ad hoc criminal tribunals, the ICTY and the International Tribunal for Rwanda (ICTR),85 created by the Security Council in 1993 and 1994 respectively. By way of contrast, 79 Prescott, ‘Operational Relevance of Gender’ (n 34) 202. 80 ibid. 81 Doris Buss, ‘Women at the Borders’ (n 47); Doris Buss ‘Performing Legal Order: Some Feminist Thoughts on International Criminal Law’ (2011) 11 International Criminal Law Review 409, 415. 82 See Chapter 3 by Kirsten Campbell and Gorana Mlinarević (hereafter Campbell and Mlinarević, Ch 3). 83 Rosemary Grey, Prosecuting Sexual and Gender-​Based Crimes at the International Criminal Court: Practice, Progress and Potential (CUP 2019) 278–​83 (hereafter Grey, Prosecuting); Sara Davies and Jacqui True, ‘Reframing Conflict-​Related Sexual and Gender-​Based Violence: Bringing Gender Analysis Back In’ (2015) 46 Security Dialogue 495. 84 See Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacies (OUP 2016) (hereafter Chappell, Gender Justice). 85 ICTYSt (n 1); ICTRSt (n 1).

Gendered Framework of IHL and Development of ICL  65 the Rome Statute refers to the term ‘gender’ nine times and specifically refers in various places to ‘sexual and gender violence’ and ‘gender violence’.86 Significantly, the Rome Statute expressly provides jurisdiction for the Court to prosecute persecution on the basis of gender.87 This opens up the possibility for addressing, for the first time, harms inflicted on the discriminatory grounds of gender, although to date, no conviction by an international court or tribunal has been secured for gender-​based persecution.88 Efforts to expand the group characteristics for the crime of genocide in the Rome Statute to include gender were rejected on the basis that it would be a departure from the more restrictive formulation in the Genocide Convention and corresponding customary international law.89 The disappointing progress may be partly explained by a lack of clarity in ICL around the meaning of key terms such as ‘gender violence’.90 This mirrors similar confusion over these terms in the human rights and humanitarian sectors where they originated.91 In the latter context, competing definitions range from a narrow approach encompassing men’s violence against women and girls92 to a broad approach encompassing violence directed against an individual, male or female, based on his or her specific gender role in society.93 Commentators caution against this broad definition in the humanitarian context, as it risks obscuring the causes and consequences of violence against women and girls, and undermining program objectives.94 In the ICL context, there is limited guidance as to where the term ‘gender violence’ sits on this spectrum. ‘Gender violence’ is not a label that is used in the Rome Statute to categorize criminal acts. Rather, it is used in provisions that deal with the types of expertise to be integrated into the Office of the Prosecutor (OTP), as well as in relation to the protection of victims and witnesses. The term ‘gender violence’ (as opposed to the term ‘gender’) is undefined in the 86 ICCSt (n 1) arts 7(1)(h), 7(3), 21(3), 42(9), 54(1)(b), 68. 87 ibid art 7(1)(h); Chappell, Gender Justice (n 84) 96–​97. 88 Grey, Prosecuting (n 83) 282. 89 Chappell, Gender Justice (n 84) 94, 100. 90 This confusion was not assisted by the ambiguous compromise definition of ‘gender’ included in: ICCSt (n 1) art 7(3). See also Valerie Oosterveld, ‘Constructive Ambiguity and the Meaning of ‘Gender’ for the International Criminal Court’ (2014) 16 International Feminist Journal of Politics 563; Grey, Prosecuting (n 83) 280. 91 The first use of the term ‘gender-​based violence’ was in the 1993 Declaration of the Elimination of Violence against Women and it was adopted by humanitarian actors as a programmatic framework for dealing with violence against women and girls: see Sophie Read-​Hamilton, ‘Gender-​Based Violence: A Confused and Contested Term’ (2014) 60 Humanitarian 2014 < https://​odi​hpn.org/​magaz​ine/​gen​der-​ based-​viole​nce-​a-​confu​sed-​and-​contes​ted-​term/​> accessed 20 May 2020 (hereafter Read-​Hamilton, ‘Gender-​Based Violence’). 92 This definition focuses on the structural nature of male violence against women across a lifespan and highlights the gendered power relations that perpetuate it. 93 This definition focuses on violence used to assert and reproduce gender roles and norms. 94 Read-​Hamilton, ‘Gender-​Based Violence’ (n 91). See also Ward, ‘Gender Binary’ (n 16).

66  Michelle Jarvis and Judith Gardam Rome Statute.95 The same absence of definition applies to similar language that has been replicated in the mandates of accountability-​related mechanisms subsequently established.96 The ICC SGBC Policy Paper gives some guidance regarding definitions, taking a broad and inclusive approach by defining sexual and gender-​based crimes as ‘those committed against persons, whether males or females, because of their sex and/​or socially constructed gender roles’.97 Notions of the discriminatory gender hierarchy are not expressly encompassed in the definition.98 However, the ICC SGBC Policy Paper also commits the OTP to applying a ‘gender analysis to all crimes within its jurisdiction’, which includes understanding how crimes are ‘related to inequalities between women and men, and girls and boys, and the power relationships and other dynamics which shape gender roles in a specific context’.99 The reasons why such an analysis is important to the outcomes of cases and specific methodologies for implementing it, however, are not addressed in the SGBC Policy Paper.100 ICC cases to date have generally not reflected such an analysis.101 However, the Syria Commission of Inquiry’s report on sexual and gender-​based violence sets a strong precedent for understanding the gendered context within which international crimes have occurred.102 From an early stage of its work, the IIIM has also undertaken to ensure a contextual understanding of the role of gender in its analysis of crimes committed in Syria.103 These developments generate hope that practical strategies and positive precedents accurately reflecting the role that discriminatory gender structures and attitudes play in violent crime will become a reality in the near future. 95 The ICC’s Elements of Crimes do not address what constitutes ‘gender violence’, beyond the specific exception of gender-​based persecution. See also n 97. 96 eg UNGA, ‘IIIM Terms of Reference’ (n 13). 97 ICC OTP ‘Policy Paper on SGBC’ (n 78) 3. 98 Arguably, the ICC SGBC Policy Paper is consistent with the approach taken to defining persecution on the basis of gender, which requires that the perpetrator targeted the victim based on their gender: ICC, Elements of Crimes (n 61) art 7(1)(h)(3). 99 ICC OTP, ‘Policy Paper on SGBC’ (n 78) Executive Summary [4]‌; see also [5], [14], [19], [20], [21], [29]. 100 The ICC SGBC Policy Paper indicates that the OTP’s confidential Operations Manual sets out guidelines and standards for operations: ICC OTP ‘Policy Paper on SGBC’ (n 78) [11]. 101 Valerie Oosterveld, ‘Prosecuting Gender-​Based Persecution as an International Crime’ in A De Brouwer and others (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Intersentia 2013) 57; Grey, Prosecuting (n 83) 278–​83. 102 Human Rights Council, ‘ “I Lost my Dignity”: Sexual and Gender-​Based Violence in the Syrian Arab Republic, Conference Room Paper of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (13 March 2018) UN Doc A/​HRC/​37/​CRP.3. 103 UNGA, ‘Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (22 August 2019) UN Doc A/​74/​ 313 [48].

Gendered Framework of IHL and Development of ICL  67 Future strategies will likely be influenced by ongoing debates regarding the relevance of gender analysis for males. Some commentators have argued the centring of women and girls in humanitarian responses to gender-​based violence and the focus on the punishment of such violence in times of armed conflict has prevented an appreciation of the extent and ways in which men experience such violence during these times.104 Others point to the negative implications of such a shift of focus when so little progress has been achieved towards eliminating endemic discrimination against women and girls.105 There is also pressure for gender analysis to engage more effectively with the experiences of non-​binary LGBTQI victims.106 Regardless of whether the term gender is formally interpreted to encompass these issues, it is true that discriminatory stereotypes have historically operated to obscure the conflict-​related harms of people falling within these categories, limiting their prospects of redress. Moving forward, that is something that ICL must address. b) Negative stereotyping: honour, modesty, weakness, and vulnerability We have described above how the woman of IHL reflects certain constructed gender characteristics, such as honour (including sexual purity), modesty, weakness, and vulnerability. These stereotypes find direct expression in some of the provisions of the 1949 Geneva Conventions and the Commentaries thereto. There is evidence that such stereotypes have been replicated in ICL practice. The ICTY OTP identified misconceptions that cast rape as a crime against the honour of women and girls rather than a violent crime, as a major barrier to improved justice outcomes.107 While it is likely that such stereotypes are imported into ICL from patriarchal norms more generally, the fact that they have been expressly reinforced in IHL does not assist. In addition to being problematic for women and girls, stereotypes have made it more difficult to surface and address issues such as male sexual violence. The fact that, as explained above, IHL provisions specifically link the 104 eg Chris Dolan, ‘Letting Go of the Gender Binary: Charting New Pathways for Humanitarian Interventions on Gender-​Based Violence’ (2014) 96(894) International Review of the Red Cross 485. See also Sandesh Sivakumaran, ‘Lost in translation: UN Responses to sexual violence against men and boys in situations of armed conflict’ (2010) 92(877) International Review of the Red Cross 259. 105 eg Baden & Goetz, ‘Who Needs [Sex]’ (n 5) 6–​8; HRC, ‘Rashida Manjoo’s Report’ (n 16) 17[61]; Mégret, ‘Structure of Masculine Power’ (n 30) 293. 106 Karen Engle and Dianne Otto, ‘International Human Rights Law: Towards Rethinking Sex/​ Gender Dualism’ in Margaret Davies and Vanessa Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate 2013) 197; Doris Buss, ‘The Curious Visibility of Wartime Rape: Gender and Ethnicity in International Criminal Law’ [2007] 25 Windsor Yearbook of Access to Justice 3. See also Chapter 15 by Dianne Otto. 107 Brammertz and Jarvis, Prosecuting Conflict-​Related Sexual Violence (n 53) 35–​36.

68  Michelle Jarvis and Judith Gardam crime of rape with women has reinforced historical misconceptions that rape is a female crime and that men are not affected. Negative stereotypes have also generated reluctance on the part of men to be identified as sexual violence victims, because of the perceived emasculating consequences and the associated stigma.108 Admittedly, these are not easy problems for ICL practitioners to navigate. Many cultures perpetuate gendered stereotypes that sexual violence destroys the honour of women and girls and that it emasculates male victims. ICL practitioners and judges must approach cases in a way that acknowledges the full extent of the harm suffered, without validating prejudicial stereotypes.109 Stigma is an issue that warrants deeper reflection by practitioners. Automatic assumptions should not be made about the existence and nature of stigma without understanding if, or how, it operates in a specific context. There is also a risk that too much focus on stigma will obscure other very real barriers to bringing forward evidence of sexual violence. There are some signs of progress in ICL towards a classification of sexual violence as a violent crime rather than a crime of honour. In particular, the use of crime categories to prosecute sexual violence that require articulation of the violent nature of the crime (such as torture, persecution, and genocide), while not obscuring the sexualized nature of the violence, have helped to dismantle problematic stereotypes.110 It is also a positive development that the ICRC has included a statement in its updated 2016 Commentary to the First Geneva Convention that the concept of women’s honour is no longer ‘considered appropriate’.111 It will not be an easy task, however, to undermine the outmoded vision of women and girls that is so entrenched in the ancient regime and it will require a major change in perceptions.112 When it comes to stereotypes based on the perceived inherent weakness and vulnerability of women, there is a continuing tendency to subsume women and children into one category of analysis and to label all women as inherently vulnerable. In this regard, some feminist scholars have argued that ICL reproduces the defects of IHL in categorising women as weak, vulnerable, and incapable of looking after themselves.113 Some feminist critique in this regard 108 ibid 41–​42. 109 ibid 13, 77. 110 ibid 189, 199–​201. 111 Dôrmann and others, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (n 26). 112 Doswald-​Beck, Human Rights (n 39) 503. 113 Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/​Postcolonial Feminist Legal Politics’ (2002) 15 Harvard Human Rights Journal 15, 1; Engle, ‘Feminism and Its (Dis)Contents’ (n 9) 778, 794–​97, 806–​7.

Gendered Framework of IHL and Development of ICL  69 has been very far reaching, arguing that the approach in rape cases of inferring the absence of consent from inherently coercive circumstances diminishes women’s capacity to engage in sexual activity ‘with men involved in armed conflict’.114 This may be largely a theoretical concern. Looking at the facts at issue in most sexual violence cases prosecuted under ICL to date, it is difficult to see a realistic argument that the victims were genuinely consenting, and unlikely that a Prosecutor would devote scarce resources to bringing such a case if they were.115 Aligned with these criticisms are those that go far beyond issues of consent and sexual autonomy. There is the view in some quarters that ICL, with its focus on sexual violence, has continued the narrow characterization of women in IHL. In doing so, it has deflected attention from the myriad other pressing issues that women face during and after armed conflict that are caused or exacerbated by endemic discrimination.116 As one writer observes in the context of the work of the UN on the situation of women in times of armed conflict, ‘according to successive UN Security Council resolutions, the rape of a local woman by a local man, during a war, is a threat to international security’ [and a war crime] ‘[b]‌ut demolishing her home, destroying her water source, stealing her land, and expelling her from her ancestral territory are not’.117 Furthermore, this focus on sexual violence against women may have contributed to the failure both within ICL and in the broader international context to recognize that the so-​called operational aspects of IHL, the means and methods of armed conflict, such as targeting, are gendered.118 The general concern that there is a tendency to stereotype women as inherently weak and vulnerable and that this has carried over into the practice of ICL, is valid and deserves deeper reflection. Developments towards a more rights-​based approach for victims may provide a way forward.119 Nowadays, 114 See Halley, ‘From the International to the Local’ (n 9) 381 cf Maria Grahn-​Farley, ‘The Politics of Inevitability: An Examination of Janet Halley’s critique of the Criminalisation of Rape as Torture’ in Sari Kouvo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart 2010) 109. 115 The jurisprudence on coercive circumstances does not accept the mere fact of detention as being sufficient but conducts a contextual analysis on a case-​by-​case basis: Prosecutor v Kunarac et al (Judgment) ICTY96-​23 & ICTY T-​96-​23/​1-​A (12 June 2002) [129]–​[132]. See also ICC, Elements of Crimes (n 61) art 7(1)(g)-​1: recognizing ‘taking advantage of a coercive environment’ as sufficient to meet the requirement of force, threat of force or coercion. 116 As Engle writes, ‘[f]‌eminist advocates and the Tribunals alike participated in obfuscating other harms that women might have suffered in the war’: Engle, ‘Feminism and Its (Dis)Contents’ (n 9) 813. 117 Dubravka Žarkov, ‘From Women and War to Gender and Conflict? Feminist Trajectories’, in Fionnuala Ní Aoláin and others (eds), Oxford Handbook of Gender and Conflict (OUP 2018) 17, 28. 118 Prescott, ‘Operational Relevance of Gender’ (n 34) 215. 119 eg Tyrone Kirchengast, Victimology and Victim Rights: International Comparative Perspectives (Routledge 2017).

70  Michelle Jarvis and Judith Gardam there is growing pressure to ensure that ICL adopts a survivor/​victim-​centred approach, although considerable thought is still needed as to what that means in practice and how to put it into operation.120 Certainly though, empowerment of females must be a core part of an effective survivor/​victim-​centred approach. c) Failure to hear the experiences of females in ICL As described above, IHL takes the experience of the male combatant as the reference point around which the protections of the regime are constructed. Those who do not fit this male norm, particularly females, frequently find the harms they experience unaddressed. This is not surprising, given the limited role that women have historically played in the development and enforcement of IHL and the lack of opportunity for them to contribute their unique perspectives to articulating the humanitarian impact of conflict. In ICL too, there is a discernible trend of female experiences and voices being significantly under-​represented. For example, throughout the ICTY’s twenty-​five years of work, women represented only 13 per cent of the witnesses brought forward to testify.121 The IIIM’s work also identifies a similar trend in existing documentation regarding crimes in Syria. The IIIM is mandated to collect and consolidate evidence already collected by other actors and to use its own investigative mandate to fill gaps. In the initial phase of its work, the IIIM has identified a significant under-​representation of statements by females in the materials it has collected from the actors who have been documenting crimes committed in the Syrian Arab Republic since the outbreak of conflict.122 The under-​representation of the perspectives of women in ICL processes appears particularly skewed, given the reality that women often make up a significant majority of post-​conflict affected communities.

120 UNGA, ‘Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (22 August 2019) UN Doc A/​74/​313. 121 Kimi King and others, ‘Echoes of Testimony—​A Pilot Study into the Long-​Term Impact of Bearing Witness Before the ICTY’ (University of North Texas and ICTY—​Victims and Witnesses Section 2016) 123 accessed 20 May 2020. 122 UNGA, ‘Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic since March 2011’ (3 August 2018) UN Doc A/​73/​295 [10]; UNGA, ‘Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic since March 2011’ (13 February 2019) UN Doc A/​73/​ 741 [40].

Gendered Framework of IHL and Development of ICL  71 There are likely to be many factors contributing to this imbalance. In the early phase of ICL, particularly low numbers of female investigators may have reduced the prospects of female experiences being prioritized or effectively surfaced during investigations.123 The fact that many females in conflict affected zones do not operate in the public sphere also makes it less likely that investigative strategies focusing on information sources linked with official structures and public functions will lead to female witnesses. Related to this, gender biases in concepts of who might be an insider witness and therefore in a position to provide probative evidence about the nature and functioning of systems linked to patterns of crimes, may play a role. For example, for military or police structures it may be tempting to assume that insider witnesses will invariably be male, since operative personnel in such structures are typically male. However, it may often be the case that women can be located inside such structures, sometimes in less operational roles, such as secretaries, but who nevertheless have crucial evidence to give about key factual issues forming part of a case. This gender bias in identifying witnesses and bringing their evidence forward has largely been unacknowledged in ICL. For example, the ICC’s SGBC Policy Paper does not address this issue. The consequences that result from such a systematic failure to hear female voices and to record and address their experience of conflict are significant. It means that the experiences and perspectives of females in a given conflict are largely absent from the historical record created by justice processes. It also reduces the prospect of these experiences being taken into account in any subsequent reparations proceedings and weakens the effectiveness of ICL as a site for identifying and challenging gender biases, including those embedded in IHL. There are signs of change. As noted above, the IIIM has identified this issue from an early stage of its work and is developing strategies to address the witness gender imbalance reflected in the large volume of documentation amassed by other actors since 2011. The recognition that evidentiary gaps may also result from the under-​representation of female perspectives among the conflict-​related documentation is an important precedent to build on for the future.



123

Brammertz and Jarvis Prosecuting Conflict-​Related Sexual Violence (n 53) 81–​82.

72  Michelle Jarvis and Judith Gardam

D.  Conclusions Our analysis has shown that the operation of gender in IHL and ICL is linked and creates challenges to effective outcomes in both regimes. Certain technical features of IHL have been incorporated into ICL, which are restrictive from a gender perspective. In some cases, initial concerns that they would present barriers to accountability have been overcome through progressive approaches to interpretation and statutory development in ICL. The omission of an express reference to rape and other forms of sexual violence as a grave breach of the Geneva Conventions and AP I is a clear example. The overall focus on harms inflicted by the opposing side is another gendered characteristic of IHL that has influenced the content of ICL. Here too, progressive approaches within ICL have come some way in addressing this limitation, although the overall significance of these nascent developments remains to be seen. Little progress has been made in recognising and addressing the gendered features of that part of IHL that deals with the means and methods of combat. The paucity of prosecutions for disproportionate attacks and the absence of progress towards integrating gender perspectives into the interpretation of the relevant principles are examples. Future developments will depend, in large part, on the attitude of the military establishments of states. There is some evidence of greater receptiveness by the military to concepts of gender, driven by their national obligations to implement the Security Council’s Women Peace and Security Agenda.124 Nevertheless, application of Hague Law, and particularly the proportionality principle, remains a priority area for more fully integrating gender perspectives into both IHL and ICL and a compelling reason for urgently moving the gender analysis beyond the narrow issue of sexual violence. Overall, ICL has provided a site for exposing and progressively developing specific IHL principles that, from the 1990s, could obviously no longer withstand scrutiny from a gender perspective. However, less progress has been made in ICL towards correcting the gendered features of IHL that are not necessarily visible in a single provision but emerge from an overall appreciation of the gendered assumptions, omissions, and stereotypes upon which the regime is constructed. Instead, ICL has tended to reinforce such problematic assumptions and stereotypes, across the board and not just those parts directly 124 eg Nordic Centre for Gender in Military Operations accessed 20 May 2020: established in 2012 as part of efforts by the Nordic countries in implementing UN Security Council Resolution 1325 and related resolutions on Women, Peace and Security into military peace support operations.

Gendered Framework of IHL and Development of ICL  73 derived from IHL. So, for example, ICL has struggled to address in any significant way the role that gender plays in driving violence and other harms inflicted during conflict. Such harms have typically been cast as stemming from other factors such as nationality, ethnicity, race, and/​or religion, and recognition of any intersection with gender has largely been absent.125 The inclusion of gender-​based persecution in the ICC’s jurisdiction provides promise but is yet to result in a conviction. Confusion over the meaning of terms introduced into ICL, such as gender violence, is a key stumbling block. Greater clarity for practitioners over how, and why, such terms should be applied would facilitate the development of more effective practical methodologies. Our view is that the term ‘gender violence’ should be used in ICL in a way that seeks to expose and address the structural gender violence that females experience due to their subordinate place in the gender hierarchy. That does not, however, foreclose the need for ICL to more effectively address other types of harm that have historically been obscured due to discriminatory stereotypes, such as male sexual violence and violence directed towards the LGBTQI+​population. Greater clarity for practitioners over how terms such as ‘gender violence’ should be applied and why it matters would facilitate the development of practical case methodologies and adjudication techniques. More effective engagement between practitioners and gender-​theorists, as well as some engaged mutual thinking on how best to teach the concept of gender to practitioners, would also assist. Part of this should involve redefining what constitutes gender expertise in ICL.126 There has been a worrying trend in recent years to equate gender expertise with experience in interviewing sexual violence victims. Similarly, ICL practice has tended to perpetuate restrictive stereotypes of females as weak, passive actors who are primarily visible as mothers and sexual violence victims—​stereotypes that are also embedded in the IHL framework. This is exacerbated by the fact that women’s voices are severely under-​ represented in ICL proceedings, meaning the multifaceted other aspects of their experience during conflict are not well reflected in the record of proceedings. We have to keep asking what is happening to the women and the girls and ensure that our responses to conflict accurately reflect that reality.

125 See Campbell and Mlinarević, ch 3 (n 82). 126 Chappell, Gender Justice (n 84) (2016); Louise Arimatsu and Sheri Labenski, ‘Integrating a Gender Perspective into Commissions of Inquiry’ (Women, Peace and Security, 20 December 2019) accessed 20 May 2020.

3 A Feminist Critique of Approaches to International Criminal Justice in the Age of Identity Politics A Case Study of Conflict-​Related Sexual Violence Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia Kirsten Campbell and Gorana Mlinarević*

A.  The ‘Problem’ of Gender in CRSV Prosecutions Before the ICTY Feminists have struggled for decades to make the gendered operation and effects of war visible in international law. They have also long struggled against a highly patriarchal international legal system.1 It is unsurprising, then, that the problem of ‘gender’ has also emerged in the context of prosecutions of conflict-​related sexual violence (CRSV) as international crimes. This chapter undertakes a feminist analysis of the problem of ‘gender’ in CRSV prosecutions before the International Criminal Tribunal for the former Yugoslavia (ICTY). In this analysis, we use ‘gender’ as an analytic category to capture the operation of hierarchical power relations between men and women. We understand this operation of hierarchical power as a ‘gendering process’ of ‘masculinization’ and ‘feminization’, which privileges and values the masculine over the * The research is part of a project that has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/​2007-​2013)/​ERC Grant Agreement No 313626, The Gender of Justice Project. We would like to thank Marina Veličković for her excellent research for this paper and Ms Veličković, Jasenka Ferizović, Lisa Gabriel, and Maria O’Reilly for their comments on earlier drafts. 1 Hilary Charlesworth, Christine Chinkin, and Shelly Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613 (hereafter Charlesworth, Chinkin, and Wright, ‘Feminist Approaches’).

76  Kirsten Campbell and Gorana Mlinarević feminine.2 As such, ‘gender’ is a system of cultural and economic structures and social processes. Following this approach, we use ‘gender’ as an analytical category to capture the processes of ‘gendering’ persons, institutions, and legal norms in international criminal justice. We analyse the ICTY as a case study of the gendered framework of international criminal justice. Our analysis examines the ‘gendering process’ within CRSV prosecutions before the ICTY. We define CRSV prosecutions as those in which CRSV allegations are expressly charged, or are the factual basis underlying charges.3 Drawing on international jurisprudence, we define ‘CRSV’ as sexual acts that were committed in the coercive circumstances of the conflicts in the former Yugoslavia.4 Examining CRSV prosecutions by the ICTY offers a unique picture of the construction of ‘gender’ in international criminal justice for three key reasons. First, the ICTY prosecutions constitute the most significant body of CRSV jurisprudence.5 Second, these prosecutions were explicitly linked to accountability for crimes against women and wider international feminist efforts to establish gender equality and peace.6 Third, following feminist work in this area, we understand CRSV as a gender-​based crime that is, crimes in which gender is an integral component.7 For the purposes of this analysis, we follow the United Nations (UN) Committee for the Elimination of All Forms of Discrimination against Women’s (CEDAW) General Recommendations 19 and 35, and characterize gender-​based crimes as those ‘directed against a woman because she 2 See Cynthia Enloe, Globalization and Militarism: Feminists Make the Link (2nd edn, Rowman and Littlefield 2016) 1–​15. 3 This definition of CRSV was developed as part of the Gender of Justice research project. For further discussion see Jasenka Ferizović and Gorana Mlinarević, ‘Applying International Experiences in National Prosecutions of Conflict-​related Sexual Violence’ (2020) 18 Journal of International Criminal Justice 325; Kirsten Campbell, ‘Producing Knowledge in the Field of Sexual Violence in Armed Conflict Research: Objects, Methods, Politics, and Gender Justice Methodology’ (2018) 25 Social Politics 469 (hereafter Campbell, ‘Producing Knowledge’). 4 Prosecutor v Jean Paul Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998) [688]. 5 While the International Criminal Tribunal for Rwanda (ICTR) has provided leading decisions, such as Akayesu, overall its record on CRSV prosecutions has been highly criticized: Hilmi Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-​Based Crimes at the International Criminal Tribunals (OUP 2014). See also OTP, ‘Best Practices Manual for the Prosecution of Sexual Violence in Post-​ Conflict Regions’ (ICTR 2014) accessed 1 February 2021. While of clear significance, the International Criminal Court (ICC) is still relatively new and does not yet provide the depth of cases or established court practice to serve as the basis for analysis of the wider field of international criminal justice. 6 Judith Gardam and Michelle Jarvis, Women, Armed Conflict and International Law (Springer 2001) 148. 7 This ‘gender’ component distinguishes CRSV from other crimes, such as murder, which may have gendered effects (such as more men are murdered) or reflect hierarchical gender norms (such as the privileging of murder as harm in the IHL system, reflecting the greater protection to male combatants). In these crimes, unlike in CRSV, gender is not integral to the shaping and understanding of the criminal act itself.

FEMINIST CRITIQUE OF APPROACHES  77 is a woman or that affect[s]‌women disproportionately’.8 These crimes (1) use gendered means and methods, (2) have gendered causes and impacts, and (3) reflect and produce gendered inequalities and hierarchies in social, political, and economic structures.9 Gender-​based crimes express the gendered hierarchies that privilege masculinities over femininities, and reflect ‘structural disadvantages that exist in all societies for women’.10 For this reason, we emphasize the importance of understanding how ‘power relations and structures’ produce gender-​based crimes.11 CRSV crimes committed in the former Yugoslavia clearly show how CRSV is a gender-​based crime. This is because CRSV disproportionately affected women or was directed against women as women in the conflict in the former Yugoslavia.12 It is also because CRSV operated as a process of ‘gendering’, in which women (and some men) were targeted to produce their subordinate position in the hierarchical (social, political, and economic) structures of the war. We analyse these prosecutions to capture how cases, positive law, and institutional practices construct CRSV as international crimes. We use this feminist socio-​legal methodology to examine how ICTY CRSV prosecutions construct ‘gender’. This methodology enables an understanding of how norms, practices, and jurisprudence work together to shape CRSV as an international crime.13 Rather than focusing on the individual impact of judicial decisions, prosecutorial discretion, or institutional policies, our methodology takes a wholistic approach that considers the outcome of these combined elements in the formation of CRSV as an international crime before the ICTY. This feminist framework also captures how this body of CRSV cases represent women, conflict, and society in particular ways.14 Capturing this representation is important

8 CEDAW, ‘General Recommendation 19: Violence Against Women’ (1992) UN Doc A/​47/​38 (hereafter CEDAW, ‘GR19’). 9 The recommendations characterize discrimination against women as including gender-​based violence: ibid; CEDAW, ‘General Recommendation 35 on gender-​based violence against women, updating general recommendation 19’ (26 July 2017) UN Doc CEDAW/​C/​GC/​35. 10 Judith Gardam, ‘Feminist Interventions Into International Law: A Generation On’ (2019) 40 Adelaide Law Review 219, 223. 11 Dubravka Žarkov, ‘Intersectionality: A Critical Intervention’ in Gaby Zipfel, Kirsten Campbell, and Regina Muhlhauser (eds), In Plain Sight: Sexual Violence in Armed Conflict (Zubaan Books 2019) 223, 224 (hereafter Žarkov, ‘Intersectionality’). 12 Vesna Kesic, ‘A Response to Catherine MacKinnon’s Article ‘Turning Rape Into Pornography: Postmodern Genocide’ 5(2) (1994) Hastings Women’s Law Journal 267. 13 For further discussion of why this integrated approach is needed, see Kirsten Campbell, ‘The Gender of Justice’ (2007) 1(3) International Journal of Transitional Justice 411 (hereafter Campbell, ‘The Gender of Justice’). 14 Doris Buss, ‘Performing Legal Order’ (2011) 11 International Criminal Law Review 409.

78  Kirsten Campbell and Gorana Mlinarević because these prosecutions have a social impact upon victims and their societies.15 Our analysis describes the formation of CRSV in the ICTY jurisprudence within the paradigm of contemporary international criminal justice. We argue that this paradigm has two key conceptual components: the ‘individual’ and ‘identity’. These components are most visible in the ICTY’s concepts of individual criminal responsibility and identity-​based conflict. We trace how this paradigm frames the gendered understanding of conflict, criminality, and victimization in the CRSV jurisprudence. We argue that the shaping of CRSV jurisprudence through this paradigm blocked the development of the legal conception of CRSV as a gender-​based crime.

B.  The ICTY and the Shaping of Prosecutions of Sexual Violence as International Crimes The ICTY was created to prosecute serious violations of international humanitarian law (IHL) committed during the conflicts in the former Socialist Federal Republic of Yugoslavia (SFRY) in the 1990s, including the rape of women.16 Rape as a crime against humanity was the only enumerated offence of sexual violence in the ICTY Statute.17 Nevertheless, rape and other forms of sexual violence were also prosecuted as other serious violations of IHL.18 According to the official figures of the ICTY, sexual violence was charged against more than seventy-​eight accused, with thirty-​two of those accused being convicted on the basis of individual or superior responsibility.19 This indicates both a significant increase in CRSV prosecutions at the international level, and the increasing recognition of the importance of addressing these crimes.20 The ICTY established that sexual violence can be successfully prosecuted as war crimes, crimes against humanity, and genocide. Through the successful 15 For discussion of these social functions of ICTY judgments, see Dubravka Žarkov and Marlies Glasius (eds), Narratives of Justice In and Out of the Courtroom: Former Yugoslavia and Beyond (Springer 2014). 16 UNSC Resolution 827 (25 May 1993) UN Doc S/​RES/​827. 17 UNSC, Statute of the International Criminal Tribunal for the former Yugoslavia (hereafter ICTYSt) (established 25 May 1993) art 5(g). 18 See Kate Vigneswaran, ‘Charges and Outcomes in ICTY Cases Involving Sexual Violence’ in Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Violence at the ICTY (OUP 2016) 429. 19 ICTY, ‘In Numbers’ (ICTY, September 2016) accessed 28 April 2020. 20 For the prior neglect of sexual violence prosecutions, see Susan Brownmiller, Against Our Will: Men, Women and Rape (Fawcett Columbine 1975).

FEMINIST CRITIQUE OF APPROACHES  79 prosecution of these crimes, the ICTY established the legal basis of sexual violence as a category of international crimes, and showed that the commission of these crimes was an integral part of illegal conduct in the conflict in the former SFRY. In doing so, the ICTY, together with the International Criminal Tribunal for Rwanda (ICTR), shifted conflict-​related sexual violence from being an ‘invisible crime’ to being seen as prosecutable as an international crime as such.21 The record of the ICTY shows the importance of focusing upon sexual violence prosecutions. This focus was necessary because of the difficulty of establishing accountability for these crimes within rigid and patriarchal institutions. The Office of the Prosecutor (OTP) described ‘operationalising this objective’ of prosecuting sexual violence crimes as ‘one of the most significant tests . . . in the discharge of its mandate’.22 As a result of this early focus on CRSV, the ICTY led significant jurisprudential and procedural developments in this area.23 However, this record also shows the limitations of focusing on CRSV prosecutions when these are undertaken without a wider engagement with the concept of gender and the operation of gender in legal norms and practices as a whole. This focus had the effect of concentrating time and resources on these crimes, while neglecting the gender component of CRSV, as well as other gender-​based crimes. The ICTY did not develop comprehensive or consistent written policies, strategies, or review processes for prosecuting CRSV or other gender-​based crimes.24 Initially the ICTY confronted particular challenges in developing a comprehensive approach because of its ad hoc nature. Nevertheless, the Tribunal did not adequately address CRSV as a gender-​based crime in particular, or ‘gender’ in general, over the twenty-​five years of its operation. Furthermore, the ICTY did not sustain its early focus on building accountability for CRSV, which continued to be a struggle throughout the life of the Tribunal.25 As a result of these issues, the ICTY did not develop the legal concept of CRSV as a gender-​based crime. Instead, there was a ‘mainstreaming of sexual 21 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217 (hereafter Copelon, ‘Gender Crimes as War Crimes’). 22 Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Violence at the ICTY (OUP 2016) 2 (hereafter Brammertz and Jarvis, Prosecuting Conflict-​Related Violence). 23 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester University Press 2000) 308–​9 (hereafter Charlesworth and Chinkin, Boundaries). 24 See Michelle Jarvis and Najwa Nabti, ‘Policies and Institutional Strategies for Successful Sexual Violence Prosecutions’ in Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 73, 80. By contrast, the OTP of the ICC adopted a public Policy Paper on Sexual and Gender-​Based Crimes in 2014: ICC OTP ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014). 25 See Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 97–​98, 103–​4.

80  Kirsten Campbell and Gorana Mlinarević violence crimes’ in prosecutions,26 which situated sexual violence in broader categories of substantive international crimes.27 In the next two sections, we explore how the emerging paradigm of contemporary international criminal justice shaped the development of these substantive international crimes, and prevented the development of a feminist approach to CRSV as a gender-​ based crime.

C.  The Concept of the ‘Individual’ in the International Criminal Justice Paradigm The ICTY Statute only provided for individual criminal responsibility.28 This was the result of the explicit decision by the UN that membership in criminal associations or organizations should not give rise to criminal responsibility under the ICTY Statute.29 This was in contrast to the approach taken at the Nuremberg war crimes trials of Nazi leadership in 1945, which treated the SS, Gestapo, and other groups as criminal organizations, as well as providing for individual criminal responsibility.30 However, at the time of establishment of the ICTY, the UN made an explicit decision that natural persons who carried out the criminal acts set out in the ICTY Statute were to be subject to the jurisdiction of the Tribunal irrespective of membership in groups. As a consequence, the concept of the ‘individual’ underpins the model of criminal liability at the ICTY. Because of this doctrinal focus on individual responsibility, and rejection of any notion of organizational or systemic criminal responsibility, the ICTY confronted a crucial problem concerning its prosecutions of mass atrocities. On the one hand, it focused on the individual, to the exclusion of the systems, structures, and collectivities that enabled mass atrocities to occur. On the other hand, it needed to account for the collective nature of these crimes. As a result of this problem, the ICTY addressed what it called ‘collective criminality’ through the doctrine of joint criminal enterprise (JCE) from the

26 Copelon, ‘Gender Crimes as War Crimes’ (n 21) 229. 27 Michelle Jarvis and Kate Vigneswaran, ‘Challenges to Successful Outcomes in Sexual Violence Cases’ in Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 33, 58. 28 ibid. See also ICTYSt (n 17) art 7. 29 UNSC, ‘Report of the Secretary-​General Pursuant to Paragraph 2 of Security Council Resolution 808’ (3 May 1993) UN Doc S/​25704 [51]. 30 See eg ‘Trial of the Major War Criminals Before the International Military Tribunal at Nuremberg’, 14 November 1945–​1 October 1946, vol I (1947) 255–​73 accessed 5 April 2021.

FEMINIST CRITIQUE OF APPROACHES  81 Tadić case onwards.31 According to the Tribunal jurisprudence, JCE consists of: (1) a plurality of persons; (2) the existence of common plan, design, or purpose; and (3) participation of the accused in the common design of the crimes under the Statute.32 Like all other forms of collective participation in international criminal law (ICL) (such as aiding or abetting), JCE is conceptualized as a form of individual liability for participation in group criminality. JCE should be distinguished from ideas of organizational or ‘system criminality’ as developed in the post-​World War II war crimes trials in Nuremberg, Germany. This is because JCE does not criminalize groups or organizations as such (organizational criminality),33 nor the ‘whole pattern of criminality . . . encompassing large-​scale crimes perpetrated to advance the war effort, at the request of, or with the encouragement or toleration of government authorities’ (system criminality).34 The concept of ‘system criminality’ refers to ‘collective entities [that] order or encourage international crimes to be committed, or permit or tolerate the committing of international crimes’.35 The idea of system criminality captures the structural and systemic nature of the crimes of the Nazi State.36 In contrast, JCE does not address how collective criminal participation is part of an organized system of criminality, and so it does not address the structural nature of these crimes. Instead, its conceptualization focuses on the individual accused as a member of a plurality of persons, rather than considering how that group of persons formed systems of criminality in waging war.37 Without addressing system criminality, it was neither possible to adequately address the patriarchal nature of the conflict, criminality, and victimization, nor to properly prosecute gender-​based crimes. In the case of CRSV 31 Prosecutor v Dusko Tadić (Appeal Judgment) IT-​94-​1-​A (15 July 1999) [195] (hereafter Tadić). The judgment draws on World War II war crimes jurisprudence to set out three forms of JCE: ibid [195] ff. However, it does not consider that certain groups—​such as the SS, Gestapo, and the Corps of the Political Leaders of the Nazi Party—​were themselves recognized as criminal organizations: ibid. 32 Tadić (n 31) [227]. 33 Prosecutor v Milutinović et al (Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction—​ Joint Criminal Enterprise) IT-​99-​37-​AR72 (21 May 2003) [25]. 34 Prosecutor v Dusko Tadić (Judgment in Sentencing Appeals) IT-​94-​1-​A and IT-​94-​1-​Abis (26 January 2000) [14]. While the idea of a ‘system’ appears in JCE II, where it is understood as ‘an organised system of ill treatment’, it still focuses upon the participation in the organized system, rather than criminalizing the organized system as such: Tadić (n 31) [202]–​[203]. 35 Andre Nollkaemper, ‘Systemic Effects of International Responsibility for International Crimes’ (2010) 8(1) Santa Clara Journal of International Law 313, 316. 36 Andre Nollkaemper, ‘Introduction’ in Andre Nollkaemper and Hermen Van der Wilt (eds), System Criminality in International Law (CUP 2009) 1, 5. These structures and systems include the judiciary, doctors, industrialists and others prosecuted under Council Council Control Law No 10. 37 Our concern with JCE here is to show that it provides a limited understanding of organizational and system criminality because of its focus on individual criminal responsibility, rather than providing a critique of JCE as such.

82  Kirsten Campbell and Gorana Mlinarević prosecutions before the ICTY, we can see that the individualized conceptualization of criminal responsibility hides the gender ‘dimension’ of crimes by obscuring (1) the gendered patterns and effects of CRSV and (2) the gendered structures that create these crimes. The first problem is that the ICTY’s conceptualization of individual responsibility disconnects individual acts of CRSV from the wider gendered patterns and effects of CRSV that occurred in the conflict, as can be seen in the Karadžić and Mladić judgments.38 These cases focus on rape as persecution against a given ‘ethnic’ group in detention settings and the ‘take-​over’ of particular municipalities. They focus on individual acts of sexual violence, which are only characterized as gender-​neutral acts of persecution and do not show other gendered patterns of CRSV, such as gendered patterns of torture or sexual enslavement. The ICTY had established in earlier cases that these different forms of sexual violence were part of the criminal conduct for which Karadžić and Mladić were charged. Consequently, both the Karadžić and Mladić cases could have adopted a more accurate legal characterization of these crimes that acknowledged their gendered nature, rather than charging them solely as persecution as a crime against humanity. For example, Kunarac and Kvočka establish and make visible that sexual violence occurred under the conditions of enslavement and in the form of torture.39 However, the patterns of sexual violence of torture and enslavement established in these cases disappear in Karadžić, and, instead, are understood as being solely part of the persecutory conduct, with the focus on the ethnic rather than the gender dimension of these crimes. This approach hides the different forms and crimes of sexual violence, and the connections between them that were part of the organizational and systemic criminality in the conflict. Taking a broader perspective on patterns of sexual violence across the conflict enables a holistic gender analysis of these crimes. It shows how gender shapes patterns of victimization and perpetration, both in terms of who become victims and perpetrators and what crimes are committed. It also shows that these patterns of victimization and perpetration are connected to the wider gendered power relations of war, in that it reveals that the majority of perpetrators of CRSV were men participating in patriarchal masculinized (valued) military, police, and political groups, and the majority of the victims

38 Prosecutor v Radovan Karadžić (Judgment) IT-​95-​5/​18-​T (24 March 2016) (hereafter Karadžić); Prosecutor v Ratko Mladić (Judgment) IT-​09-​92-​T (22 November 2017). 39 Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Trial Judgment) IT-​96-​23-​ T&IT-​96-​23/​1-​T (22 February 2001) (hereafter Kunarac et al, Trial Judgment); Prosecutor v Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić & Zoran Žigić (Trial Judgment) IT-​98-​30/​1 (2 November 2001) (hereafter Kvočka et al, Trial Judgment).

FEMINIST CRITIQUE OF APPROACHES  83 were women who were unarmed, feminized (devalued) civilians. Understood as such, patterns of sexual violence are an important aspect of understanding how CRSV is a gender-​based crime, and how those crimes are connected to gender power relations. The second problem of this model of individual responsibility, with its related idea of individualised cases, is that it hides the wider structures that enable gender-​based crimes. For example, the Kunarac case established the existence of a system of enslavement and the individual responsibility of each perpetrator for their participation in sexual violence.40 However, it did not establish liability for (sexual) enslavement as part of the wider structures of the war. It connected enslavement of women and CRSV against them to the attack on the civilian population committed in the town of Foča where the crimes prosecuted in the Kunarac case took place. However, it did not connect enslavement and sexual violence in Foča to other cases of sexual enslavement and other forms of sexual violence in other parts of Bosnia or even other parts of the former Yugoslavia that comprised attacks on civilian populations, and which were committed as part of the wider conflict. Consequently, it did not characterize enslavement and CRSV committed under circumstances of enslavement as a part of wider systems of gender-​based crimes that were an integral part of the whole war. In the later leadership cases of Karadžić and Mladić, the criminal conduct in Foča that had been previously charged as enslavement in Kunarac appears as individual cases of rape charged under the umbrella charge of persecution, but not as enslavement.41 Despite Karadžić and Mladić being charged as leaders of the criminal group that included the accused in the Kunarac case, these rapes were not characterized as being part of a gendered system of enslavement involving political, military, and administrative structures. Rather, they were disconnected from other crimes of enslavement, and the perpetrators were not connected to other individuals and groups in organizational and systemic structures across the conflict as a whole. In the later leadership cases of Karadžić and Mladić, which should capture the overall criminality of the war, because of this approach we only see that sexual violence is committed against all persons (‘men and women, boys and girls’).42 We do not see that it has specific gendered patterns, such as the sexual enslavement of women (and not men). Nor do we see that these patterns are produced by 40 Kunarac et al, Trial Judgment (n 39). 41 Prosecutor v Radovan Karadžić (Third Amended Indictment) IT-​ 95-​ 5/​ 18-​ PT (19 October 2009) [60(c)] (hereafter, Karadžić, Third Amended Indictment); Prosecutor v Ratko Mladić (Fourth Amended Indictment) IT-​09-​92-​PT (16 December 2011) [59(c)]. 42 Karadžić (n 38) [2506].

84  Kirsten Campbell and Gorana Mlinarević gendered political, military, and administrative structures, which were dominated by militarized masculinities and patriarchal values. In this way, this model of individual criminal responsibility hides those structures that enable gender-​ based crimes. The focus on individual criminal responsibility thereby further deepened the challenge of situating rape in collective participation, and in the structured and systemic organization of collective violence in the war. Patricia Viseur Sellers points out that the development of modes of liability in CRSV cases can capture ‘manifestations of collective criminality’, insofar as they describe group participation in the criminal conduct.43 However, it can only capture those manifestations (torture in the Tadić case, the detention camp in the Mucić case, and so on). It does not capture how that torture or that detention camp are part of military, political, and economic systems that are an integral part of the criminal conduct of the conflict. Nor does it capture how these systems create the entities or organizations (such as armed groups, political parties, or war profiteers) that engaged in this criminal conduct. For example, in the region of Prijedor, the local police force was subject to ‘ethnic cleansing’ in which all non-​Serbs were removed from their positions. Subsequently, in this way ‘ethnically cleansed’ police played an integral part in establishing and running the detention camps in the area, which were key sites of sexual violence.44 The ‘ethnically cleansed’ local police force also participated in rape and enslavement in Foča.45 Both local forces were part of the same police organization, which was under the command of the Bosnian Serb Ministry of the Interior. As a result, it does not show how ‘ethnically cleansed’ police enabled and participated in rapes, and that this organization created a system of sexual violence as part of system criminality. The focus on individual criminal responsibility thereby obscures how rape as a gender-​based crime is enabled by these criminal military, political, and economic systems and, as such, is part of the criminal conduct of the conflict itself. Furthermore, reducing rape and enslavement to individual criminal responsibility still conceptualizes sexual violence as opportunistic or incidental. It is seen as individual perpetrators taking advantage of the opportunities in a particular place (such as a municipality), which are provided by the context of conflict, an attack on a civilian population, or the intention to destroy a protected group. It is not seen as a system of rape and enslavement of civilian 43 Patricia Viseur Sellers, ‘Individual(s’) Liability for Collective Sexual Violence’ in Karen Knop (ed), Gender and Human Rights (OUP 2004) 153, 176. 44 Kvočka et al, Trial Judgment (n 39). 45 Kunarac et al, Trial Judgment (n 39).

FEMINIST CRITIQUE OF APPROACHES  85 women by militarized men that exists across the conflict as a whole (that is, across municipalities), and that this system is created by the gendered entities or organizations, such as military forces or local police organizations, that were an integral part of the criminality of the war. It is only by addressing the structural and systemic nature of criminality that these patriarchal elements of the war become visible. Finally, the focus on the individual makes it more difficult to address the structural and systemic nature of the gender dimensions, not only of sexual violence, but also of the crimes themselves. Understanding these gender dimensions is crucial for understanding the structural nature of these crimes as such.46 For example, the Krstić case is commonly characterized as recognizing the ‘gender dimension’ of genocide because it addressed the harm of genocide to women.47 However, it does not address CRSV in relation to the charges of genocide at Srebrenica, but only in relation to persecution as a crime against humanity, where it is described as ‘incidental’ to the criminal enterprise at Potočari.48 Consequently, the Krstić judgment does not offer a gender analysis of the systemic criminality of the Srebrenica genocide. Rather, the only ‘gender dimension’ provided in the Krstić judgment is an orientalist and unfounded description of the ‘traditionally patriarchal’ Muslim community in Srebrenica.49 This is because the Krstić judgment treats ‘ethnicity’ as a pre-​existing group identity, such as ‘Serb’ and ‘Muslim’, rather than seeing how ‘ethnic identity’ was constructed as a category of group belonging in war-​time violence.50 It does not examine how such ethno-​nationalist ideas of ‘ethnic identity’ are integral to the organizational and systemic criminality of the crimes committed in Srebrenica.51 As a result, this approach cannot see how gender operates within those structures, and cannot develop a gender analysis of criminal organizations and systems. If, instead, the ascription of legal responsibility included the organizational and systemic context that enable international crimes, it would

46 Mark A Drumbl, ‘Accountability for System Criminality’ (2010) 8(1) Santa Clara Journal of International Law 373. 47 eg Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 14–​15. 48 Prosecutor v Krstić (Judgment) IT-​98-​33-​T (2 August 2001) [617]: as were other acts of murder and mistreatment. Potočari was the location of the UN compound on the outskirts of Srebrenica, where Bosnian Muslims fled after the Bosnian Serb forces entered Srebenica: ibid [37]. 49 ibid [595]. See also Doris Buss, ‘Knowing Women: Translating Patriarchy in International Criminal Law’ (2014) 23(1) Social & Legal Studies 73 (hereafter Buss, ‘Knowing Women’). 50 Dubravka Žarkov, ‘Ontologies of International Humanitarian and Criminal Law: “Locals” and “Internationals” in Discourses and Practices of Justice’ in Dubravka Žarkov and Marlies Glasius (eds), Narratives of Justice In and Out of the Courtroom (Springer 2014) 3, 8. 51 In the context of the ICTY, the ideology of ethno-​nationalism refers to the promotion of one ethnic group over all other ethnic groups. See Anthony Smith, Ethno-​Symbolism and Nationalism (Routledge 2009) 108 (hereafter Smith, Ethno-​Symbolism).

86  Kirsten Campbell and Gorana Mlinarević then be possible to identify the gendered nature of crimes in terms of structures of collective criminal participation.

D.  The Concept of ‘Identity’ in the International Criminal Justice Paradigm of CRSV This individualized model of criminal responsibility holds the individual responsible only for his or her actions. However, the ICTY still needed to account for collective criminality to prosecute the crimes before it. To account for the collective dimensions of mass atrocity, it used ideas of ‘identity’ to stand in for organizational or systemic criminality and the social and political structures that enable this collective criminality. These ideas understand ‘identity’ as the fixed and essential characteristics of individuals, which derive from group and cultural belonging, and explain war as the conflict between identities. In this approach, these ideas of identity become the dominant explanatory framing of criminal culpability and victimization. In the ICTY CRSV jurisprudence, we see the construction of victims and perpetrators as belonging to pre-​existing and distinct identities that are in conflict. For example, in Karadžić the ‘overarching’ JCE of persecution in the municipalities results in the characterization of ‘Bosnian Serbs’ as the perpetrator ethnic group and ‘Bosnian Muslim and Bosnian Croat civilian populations’ as the victim ethnic group.52 In this framing, the siege of Sarajevo cannot be conceptualized as part of the ‘overarching’ persecution because it cannot be framed in these ethnic terms.53 During the siege, the population of Sarajevo was targeted because they lived in Sarajevo. As such, it was an attack on the civilian population that resided in Sarajevo, and not on a particular ethnic group, which would be characterized as persecution on ethnic grounds. However, because of this approach, women do not become visible as victims to the ICTY unless they are recognized as belonging to a pre-​existing and distinct ethnic identity that is different from that of the perpetrator group. As a result, the ICTY sees women through the identity that the perpetrator assigns to them, regardless of how the women saw themselves or which dimension of identity they privileged before and at the time of the crime. 52 Note that for the genocide charges, the protected groups were characterized as the ‘Bosnian Muslims and Bosnian Croats’ because the protected group in genocide cannot be defined negatively, that is, as ‘non-​Serb’: Karadžić (n 38) [2573]. 53 eg the separate treatment of the area of Sarajevo as a municipality as distinct from the Sarajevo siege component: Karadžić, Third Amended Indictment (n 41) [48], [76ff], [88].

FEMINIST CRITIQUE OF APPROACHES  87 Because the ICTY understood the conflict in terms of warring ethnic identities, it privileges ethnicity as the primary dimension of identity. This conceptualization of identity assumes the prior existence of the ‘ethnic’ group as such, together with its masculine and feminine norms. However, this approach defines the targeted ethnic group by the perpetrator, and not by the victim. Such an approach reproduces the perpetrator’s ‘gendering’ of sexual violence victims, and their hierarchical ‘feminization’ of these victims.54 Consequently, the ICTY jurisprudence understands CRSV as directed towards the identity of the group, and reduces that identity to, and characterizes it by, one dimension: ethnicity.55 It ignores other relevant axes of social differentiation and subordination, such as gender, class, sexuality, and disability, that structure victimization,56 or frames them within dominant ethnic discourses. In the context of the ICTY CRSV prosecutions, these ideas of ethnic identity are constructed within the hierarchy of international crimes, which traditionally understands genocide as the ‘crime of crimes’.57 In this hierarchy, the protection of the ethnic (national, racial, religious) group is one of the highest interests of international criminal justice. In the context of the ICTY, the hierarchy of protected interests can be seen in the privileging of harm to the ethno-​ national group. This is evident, for example, in Karadžić, where CRSV was charged in the first count of genocide in the municipalities as serious bodily and mental harm to Bosnian Muslims and Bosnian Croats, as well as conditions of life calculated to bring about their destruction.58 As a result, gendered harm became invisible. That rape is a condition of life calculated to bring about the destruction of women as a group is not able to be considered within this doctrinal and conceptual framing.

54 Žarkov, ‘Intersectionality’ (n 11) 227. 55 Prosecutor v Radoslav Brđanin (Judgment) IT-​ 99-​ 36-​ T (1 September 2004) [55] (hereafter Brđanin). 56 Chiseche Salome Mibenge, Sex and International Tribunals: The Erasure of Gender from the War Narrative (University of Pennsylvania Press 2013) 82 (hereafter Mibenge, Sex and International Tribunals). 57 Payam Akhavan, Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime (CUP 2012) 47. Genocide consists of the intent to destroy a national, ethnical, racial, or religious group in whole or in part: Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art 2. Although the ICTY jurisprudence established that there is no hierarchy of crimes under international law, it should be noted that genocide remains the only such crime for which there is positive duty to punish and prevent that is enforceable before the ICJ. Further, this hierarchy is evident in the conceptualization of the gravity of the core crimes in relation to sentencing: Robert Cryer, Darryl Robinson, and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (CUP 2019) 470 (hereafter Cryer, Robinson, and Vasiliev, An Introduction). At a conceptual level, the patriarchal nature of this hierarchy is indicated by the omission of ‘gender’ as a protected group in genocide. 58 Karadžić (n 38) [40].

88  Kirsten Campbell and Gorana Mlinarević The privileging of the protection of the ethno-​national group can be also seen in the characterization of the dolus specialis of genocide as expressive of its conceptual status as ‘an exceptionally grave crime’.59 Such a hierarchical privileging is also evident within crimes against humanity, which characterize persecution as being of higher gravity than other underlying acts of crimes against humanity because of the additional element of discrimination against racial, religious, and political groups.60 For example, in Kvočka, the ICTY Trial Chamber characterized the protected group in terms of their ethnic identity, even though it recognized on the facts that the grounds of discrimination were political.61 It also described sexual violence in ‘ethnic’ and not ‘gender’ terms. This was despite the fact that rape was charged as a distinct offence and, as such, had been appropriately situated in the context of the systematic attack on a civilian population.62 This approach is also evident in the high number of CRSV charges characterized as underlying acts of persecution against ethnic groups.63 This problematic notion of identity can also be seen in the concept of discrimination in substantive international crimes. First, discrimination is not recognized as an element of all international crimes. Rather, it is a prohibited ground of torture as a war crime and as a crime against humanity, which includes discrimination on gender grounds.64 It is also a discriminatory ground of persecution as a crime against humanity, which does not however include discrimination on gender grounds.65 Second, where discrimination is recognized by the ICTY, it is understood through the prism of identity. Because of the ICTY’s focus on ethnicity, it understands discrimination through ideas of ethnic identity and ethnic belonging, rather than the power relations that construct that ‘identity’.66 As a result, the ICTY’s one-​dimensional understanding 59 See Prosecutor v Krstić (Judgment) IT-​98-​33-​T (2 August 2001) [553]. See generally Diane Amann, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2(2) International Criminal Law Review 93; on the ICTY jurisprudence, see Michelle Jarvis and Alan Tieger, ‘Applying the Genocide Convention at the ICTY’ (2016) 14 Journal of International Criminal Justice 857. 60 Kvočka et al, Trial Judgment (n 39) [187]. 61 ibid [195]. 62 See findings on cumulative convictions in Kvočka et al Trial Judgment (n 39) [232]–​[234]. 63 Laurel Baig and others, ‘Contextualizing Sexual Violence: Selection of Crimes’ in Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 205 (hereafter Baig and others, ‘Contextualizing Sexual Violence’). 64 Under customary international law, the elements of torture as a war crime (when connected to armed conflict) or crimes against humanity (when committed as part of an attack on a civilian population) include the infliction of pain and suffering for the purposes of obtaining information or a confession, punishment, intimidation, or coercion or for any reason based on discrimination of any kind: Cryer, Robinson and Vasiliev, An Introduction (n 57) 280, 247 [emphasis added]. 65 The elements of persecution are the deprivation of fundamental rights on discriminatory grounds: ibid 253. Under the ICTY Statute, these grounds include political, racial, and religious but not gender: ICTYSt (n 17) art 5. 66 On the production of identity by power, see Žarkov, ‘Intersectionality’ (n 11).

FEMINIST CRITIQUE OF APPROACHES  89 of the concept of discrimination does not capture its intersectional nature.67 Regardless of how CRSV is charged, it is not understood as gender-​based discrimination by the ICTY.68 In Mucić, for example, in relation to the charge of rape as torture, the ICTY established the discriminatory ground of this crime and granted legal status as a protected person on the basis of the victim’s ethnic identity. However, the Trial Chamber recognized as a matter of fact that she was victimized because of her gender identity.69 This approach is patriarchal because it reduces women to their apparent membership and role in ethnic collectives, rather than recognizing them as rights-​holders as such. Similarly, in Kvočka, the ICTY acknowledged that the sexual violence was committed on gender as well as ethnic identity grounds in its factual findings.70 However, it also subsumed charges of rape in charges of persecution of non-​Serbs, on the grounds that persecution contained an additional discriminatory element of ethnic discrimination that the offence of rape did not.71 This resulted in rape not being legally characterized as such in the judgement. Despite the acknowledgement of gender identity in Kvočka, the identity model of discrimination did not capture CRSV as a gender-​based crime. The Trial Chamber found that ‘rape and other forms of sexual violence were committed only against the non-​Serb detainees in the camp and that they were committed solely against women, making the crimes discriminatory on multiple levels. Radić did not rape any of the male non-​Serb detainees’.72 This characterization of CRSV implies that if the accused raped both ‘non-​Serb’ men and women, then these assaults would not be discriminatory on gender identity grounds. In these terms, rape becomes seen as an ethnic-​based crime, and not a gender-​based crime, with the corollary that rape must be committed against a specific protected ethnic group to be recognized as an international crime, as we discuss below. These cases show the problematic logic of discrimination understood through the ‘identity’ model. The concept of ‘identity’ is integral to the charging of rape as torture or as persecution as a crime against humanity because the elements of discrimination inherent to these crimes are 67 This issue reflects long-​standing feminist concerns about liberal models of national law to capture the intersectional nature of identity and discrimination, that is, that they are based in intersecting axes of oppression of race, class, and gender: Kimberlé Crenshaw, ‘Race, Reform and Retrenchment: Transformation and Legitimation in Anti Discrimination Law’ (1988) 101 Harvard Law Review 1331. 68 See Doris Buss, ‘Sexual Violence, Ethnicity, and the Limits of Intersectionality in International Criminal Law’ in Emily Grabham and others (eds), Intersectionality and Beyond: Law, Power and the Politics of Location (Routledge 2008) 105. 69 Prosecutor v Mucić et al (Judgment) IT-​96-​21-​T (16 November 1998) [265], [941]. 70 Kvočka et al, Trial Judgment (n 39) [560]. 71 ibid [187]. 72 ibid [560].

90  Kirsten Campbell and Gorana Mlinarević understood in terms of fixed and essential characteristics of persons, defined by their national, religious, or ethnic group belonging. Where the ICTY jurisprudence uses discrimination to characterize the prohibited grounds of conduct, it does so using these patriarchal identity categories.73 Furthermore, the concept of identity does not capture the structural dynamics of the conflict, and how the conflict itself constructs groups of victims and perpetrators. In the context of the ICTY’s privileging of ethnic identity, the concept obscures the ideology of ethno-​nationalism,74 and its patriarchal nature (that is, how only certain women are recognized as victims and only certain men recognized as perpetrators). As a result, an important patriarchal dimension of the conflict as a whole is lost. This is because patriarchal structures are integral to the organizational and systemic criminality that produces and sustains CRSV in conflict. An accused is most often a man who seeks hegemonic status within the construction of militarized masculinity,75 and often uses CRSV against women to establish himself within the hegemonic masculinity of the highly militarized group he identifies himself with.76 However, this status is not seen by the ICTY as part of the patriarchal structures that enabled the mass atrocities in the wars in the former Yugoslavia.77 This problem is evident in the Kunarac judgment, for example. The ICTY does not ‘see’ the connection between the ‘Serb’ perpetrators and their roles as police or soldiers, which were gendered as masculine (both in the former Yugoslavia and globally).78 It also does not see the connection between those roles and the gendered structures of police forces and military forces (or in other cases, political or media organizations) that are part of the structures that enabled the perpetrators to commit gendered crimes.79 Because the ICTY does not see these gendered connections, it cannot see how the patriarchal values of Yugoslav society became rearticulated through ethno-​nationalist dynamics in the conflict.80 As a result, it was not possible for the ICTY to develop an adequate gender analysis

73 For explanation of ethnicity as a patriarchal category, see Nira Yuval-​Davis, Gender and Nation (Sage 1997). 74 Smith, Ethno-​Symbolism (n 51) 108. 75 On hegemonic masculinity, see Raewyn Connell and James Messerschmidt, ‘Hegemonic Masculinity: Rethinking the Concept’ (2005) 19 Gender & Society 829. On militarized masculinity, see Cynthia Cockburn, ‘War and Security, Women and Gender’ (2013) 21(3) Gender and Development 433. 76 Cynthia Enloe, ‘All the Men are in the Militias, All the Women are Victims: The Politics of Masculinity and Femininity in Nationalist Wars’ in Lois Ann Lorentzen and Jennifer Turpin (eds), Women and War Reader (New York University Press 1998) 50. 77 See Žarkov, ‘Intersectionality’ (n 11) 78 See Joshua Goldstein, Gender and War (CUP 2001). 79 On masculinities and war, see RW Connell, The Men and the Boys (Allen and Unwin 2000) Ch 12. 80 In this regard, Yugoslav society was not dissimilar from other European societies and should not be viewed through orientalist characterizations of a ‘traditional Muslim’ society.

FEMINIST CRITIQUE OF APPROACHES  91 of how social structures and systems produced CRSV in conflict, nor did it attempt to do so. This key failure to address patriarchal systems and structures obscures CRSV as a gender-​based crime. Moreover, it also obscures other gender-​based harms, such as the disproportionate impact of particular means and methods of warfare upon women as members of the civilian population, and how they are part of the collective nature of criminality. The logic of this concept of identity reduces ‘gender’ to imagined ideas of the gender identity within a constructed ‘ethnic’ group, when that idea of the group is at stake in the conflict itself. For example, the earlier direct perpetrator cases, such as Kunarac, characterize rape and sexual enslavement as ‘ethnicity-​based aggression of the Serbs against the Muslim civilians’.81 It also characterizes victimization in terms of ethnic group belonging, describing the victim group as ‘the Muslims, in particular its women and girls’.82 However, seeing women in such patriarchal terms means that CRSV ‘surfaces’ as an international crime only where it is characterized as a crime against the nation or ethnic community. Because of this patriarchal interpretation, CRSV is not understood as a gender-​based crime. Instead, it reduces gendered violence to ethnic persecution. Because of this logic, for example, the judgment in Karadžić reduces the discussion of sexual violence to descriptions of specific incidents of sexual violence that establish ethnic persecution, but do not acknowledge their specific gender dimensions, such as women being disproportionally affected by rape and (sexual) enslavement.83 This privileging of ethnicity occurs because women are seen as carrying ‘the “burden of representation” . . . of the collectivity’s identity and future destiny’,84 including their roles as cultural and biological reproducers of their given ‘ethnic community’.85 As such, the construction of victims and perpetrators through ethnic identity carries with it heteronormative ideas, apparent in the emphasis in the Krstić and Karadžić judgments on the ‘severe procreative implications’ of the killing of men, rather than, for example, the violation of the reproductive rights of women themselves.86 Consequently, rape is also framed through ideas of ethnic heteronormativity. For example, judgments typically evidence discriminatory intent of sexual violence by referring to statements by perpetrators as to their intention to impregnate their victims 81 Kunarac et al, Trial Judgment (n 39) [592]. 82 ibid [654]. 83 Karadžić (n 38) [2506]. 84 Mibenge, Sex and International Tribunals (n 56) 82. 85 Nira Yuval Davis, ‘National Projects and Gender Relations’ (2003) 40(1) Narodna Umjetnost 9, 18. 86 Karadžić (n 38) [552], [5569]. See also Baig and others, ‘Contextualizing Sexual Violence’ (n 63) 215.

92  Kirsten Campbell and Gorana Mlinarević to create perpetrator group children.87 They also frame rape through a heteronormative prism, by understanding rape as sexual intercourse between men and women without consent, and not considering how other sexualities (lesbian, gay, bisexual) might be targeted or expressed in these acts.88 These ideas of ethnicity presume the heterosexual reproduction of the ethnic group, and so reject other sexualities from communal belonging. Within this frame, women are seen only as sexual and reproductive bodies, rather than as political or social actors. As in IHL, these ideas of ethnic identity focus upon ‘women’s sexual and reproductive capacities, and on harms committed by opposing forces’.89 However, this heteronormative idea of ethnicity has the effect of positioning women as ethnic subjects with sexual and reproductive roles, rather than as political subjects with human rights, or as social subjects with economic, political, and social roles in their society. While this concept of identity reifies women’s reproductive roles, crucially it also misses the integral gender component of these crimes. For example, the Kvočka et al judgment describes a typical detention situation in which women were detained because of their perceived membership of an ethnic group.90 However, it does not address the power that perpetrators exercised over these women, or how the exercise of this power was gendered and sexual, insofar as it ranged from forced domestic labour to rape.91 In other cases, such as Kunarac, this gendered component included targeting specific females, such as children under the age of consent.92 This identity model fails to engage with gender as a structural category, that is, as a product of hierarchical power relations between men and women. Because this model reduces gender to gender identity within ethnic patriarchal identity, it does not engage with gender as a system of power. Accordingly, the identity model in the ICTY jurisprudence cannot provide an analysis of the gendered (and heteronormative) dynamics of harm, power, and social position of perpetrators and/​or victims. It also does not engage with how war itself produces ‘gender’ as patriarchal and heteronormative categories of identity, such as militarized perpetrators and feminized victims. 87 Brđanin (n 55) [10], [11]; Prosecutor v Milan Lukić and Sredoje Lukić (Judgment) IT-​98-​32/​1-​T (20 July 2009) [695]. 88 As evidenced by the failure to charge penetrative male rape as such: See Valerie Oosterveld, ‘Sexual Violence Directed Against Men and Boys in Armed Conflict or Mass Atrocity’ (2014) 10 Journal of International Law and International Relations 107, 110–​12. 89 Charlesworth and Chinkin, Boundaries (n 23) 334. 90 Kvočka et al, Trial Judgment (n 39) [21]. 91 ibid. Examples of this gendered labour include cleaning and serving food. Similar examples can be found in the Kunarac et al, Trial Judgment (n 39) and Karadžić (n 38) cases. 92 Kunarac et al, Trial Judgment (n 39) [42]. This issue was recognized as an aggravating circumstance in sentencing, but was not recognized in the characterization of the crime.

FEMINIST CRITIQUE OF APPROACHES  93 Accordingly, it cannot provide an analysis of the wider ideological and political context of the conflict that is necessary to build a gender analysis of collective criminality itself.93 The problematic approach to ‘gender’ in the identity component raises the question of whether it is possible to understand sexual violence as a gender-​ based crime within this frame. Patriarchal norms have historically shaped the narrative of war (and ICL) and the application of the concept of identity in the ICTY jurisprudence reproduces this problematic framing in relation to crimes of sexual violence. The jurisprudence views sexual violence as the only crime that happens to women in war. It ‘sees’ this violence against women only when they have been targeted by the perpetrator as members of an opposing ethnic group, and so can only ‘see’ them as homogenous members of that group.94 This frame only makes women visible as victims of violence through crimes seen as ‘sexual’, and by recognizing those crimes through patriarchal and heteronormative ideas of ethnic identity. As a consequence, this ideological structure makes the profoundly gendered nature of sexual violence invisible. It hides the process of the ‘gendering’ of entire ‘ethnic’ groups, both in terms of targeting of men and women in the ‘enemy’ group, and of the invisibility of war-​time rape within the ‘non-​enemy’ group. The problems of this concept of identity are not resolved by simply shifting the privileging of ‘ethnic’ identity, and adding or substituting another category of identity, namely, ‘women’. As we can see in the context of the ICTY, simply adding gender identity, i.e. ‘women’, to prosecutions does not shift the patriarchal frame. For example, women are highly visible as victim-​witnesses to sexual violence, but are under-​represented as witnesses to other crimes committed in the conflict.95 This presents women as passive objects of the war. In contrast, men are highly visible as active agents of the conflict (as perpetrators, victims, and witnesses of all crimes), while the sexual violence against them is recognized as political war violence.96 93 The ICTY judgments do provide an historical account of the conflict, but this is framed through ideas of ethnic conflict. 94 See Buss, ‘Knowing Women’ (n 49). Note that the OTP attempted to bring forward arguments on gender as a ground for discrimination, but these were not considered by the Court: Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Appeal Judgment) IT-​96-​23 & IT-​96-​23/​1-​A (12 June 2002) [141] fn 192. 95 See Brammertz and Jarvis, Prosecuting Conflict-​Related Violence (n 22) 57, 79. 96 On gendered patterns of charging and witnessing, see Campbell, ‘The Gender of Justice’ (n 13); Gabi Mischkowski and Gorana Mlinarević, ‘And That It Does Not Happen to Anyone Anywhere in the World: The Trouble with Rape Trials’ (Medica Mondiale 2009) accessed 5 April 2021.

94  Kirsten Campbell and Gorana Mlinarević This patriarchal framing can also be seen in charging patterns. An important example of such a charging pattern is that where CRSV is made visible, it appears as numerated charges of CRSV against women, while CRSV against men disappears under umbrella charges. In this gendering process, CRSV is ‘feminized’ and devalued, and as such, is still understood as a lesser crime. While having enumerated charges for both CRSV against men and against women is an important condition for the analysis of the gendered patterns and structures of war, it still does not capture how CRSV is a gender-​based crime. This is because it does not capture the different gendered patterns of victimization and of perpetration and the gendered power relations that underlie them. This problem derives from the very concept of identity itself, which constructs women as a homogenous group that is ‘penetrable’ (‘rape-​able’), in opposition to ‘proper’ men (who are not). Our analysis of the identity component within the international criminal justice paradigm shows why ‘instead of simply studying identity and identity politics, and especially—​instead of studying them as given, fixed, essential properties of some(!) women and men, we should approach them as products of social histories and power relationships’.97 To develop such an approach requires a feminist gender analysis of conflict, criminality, and victimization.

E.  Building Feminist Gender Analysis for International Criminal Justice The ICTY conducted its CRSV prosecutions within an existing legal framework shaped by individualist masculine and heterosexual norms. Because the ICTY utilized a paradigm based on the individual and identity, it further entrenched these patriarchal norms. As a result, it produced a problematic understanding of sexual violence that is reflected in the doctrinal underdevelopment of rape as a gender-​based crime. At the same time, it overemphasized ‘ethnicity’ as the primary condition of the recognition of sexual violence under international law. The struggles with ‘gender’ in international criminal justice that we have described were shaped by the historical period in which the ICTY was established and operated. It is this historical and geopolitical context from which the international criminal justice paradigm emerges, and which shapes its understanding of gender and ethnicity through ideas of the individual and identity.

97 Žarkov, ‘Intersectionality’ (n 11) 227.

FEMINIST CRITIQUE OF APPROACHES  95 This historical period is marked by the increasing influence of neoliberal ideology, with its focus on identity and the individual, in international law and international relations in the 1990s.98 The influence of neoliberal ideologies spread globally in the context of the new post-​Cold War and post-​socialist politics, and the rise of so-​called Western hegemonic power. The hallmarks of contemporary neoliberalism are the ‘primacy of individual action and responsibility’, and a rejection of the state, ‘society’, and political economy.99 Thus, contemporary neoliberalism hides structural oppression, and instead places responsibility upon the individual. Moreover, neoliberalism privileges identity, understood as a form of belonging to a culture, rather than as an effect of political and economic structures.100 Nancy Fraser argues that this ‘identity model’ has emerged in contemporary politics since the end of the Cold War. For Fraser, the identity model understands justice through the recognition of identity, belonging, and culture, rather than through political and economic structures.101 In this model, justice claims are understood as a form of identity politics, based in individual claims arising from membership of a group having unequal status.102 These ideas also framed the perception of the successor states of Yugoslavia as post-​socialist countries, which were in transition from socialism to neoliberal economies and from an ethnic war to multi-​ethnic ‘peace’. That understanding of Yugoslavia also included the important prism of the Dayton Peace Agreement of 1995, with its ‘ethnic’ settlement of Bosnia into three constituent ‘peoples’.103 The identity politics of neoliberal ideologies at the international level also reified certain feminist ideas concerning the necessity of the recognition of gender.104 Through these neoliberal ideas of rights, earlier feminist arguments concerning women’s rights as human rights became increasingly framed through neoliberalism, reducing the understanding of gender to fixed and essential identities of individuals (rather than being understood as a historical and social category). This neoliberal framework shaped the legal problem of CRSV in international criminal justice. However, as our analysis shows, 98 On the influence of neoliberalism, and its impact on feminist politics, at the international level, see Charlesworth, Chinkin, and Wright, ‘Feminist Approaches’ (n 1) 29. 99 Pierre Minn, ‘Humanitarianism after the Cold War’ in Marian Burchardt and Gal Kirn, In Beyond Neoliberalism (Palgrave Macmillan 2017) 201, 208. 100 Nancy Fraser ‘Rethinking Recognition’ (2000) 3 New Left Review 107, 108. 101 ibid. 102 Nancy Fraser, Fortunes of Feminism (Verso 2013) 4–​5 (hereafter Fraser, Fortunes). 103 UNSC, ‘General Framework Agreement for Peace in Bosnia and Herzegovina’ (30 November 1995) UN Doc A/​50/​79C. See also Women Organizing for Change in Syria and Bosnia and Herzegovina, ‘Feminist (Re)Interpretation of the Dayton Peace Agreement’ accessed 1 February 2021. 104 Fraser, Fortunes (n 102).

96  Kirsten Campbell and Gorana Mlinarević criminality and victimization are not reducible to the individual and to identity as such. If we are to capture the criminality of CRSV, then it is necessary to understand the relationships between patriarchal heteronormative structures (such as military, police, and economic organizations) and social stratifications (such as gender, sexuality, class, ethnicity, race, and age). These relationships are made invisible by the neoliberal shaping of international criminal justice as individual and identity, and this invisibility traps us in a heteronormative and patriarchal framework. Ultimately, this paradigm of international criminal justice obscures how gendered systems of power and domination, together with gendered structural inequalities and political economies, shape sexual violence, gender, and armed conflict as such. Now that neoliberalism is in crisis, as Nancy Fraser describes, this allows the possibility of reflecting on these ideological assumptions and building other frameworks.105 To escape the neoliberal international criminal justice paradigm requires building a feminist gender analysis. A feminist gender analysis emphasizes social systems and structures, rather than identity and individualism. A structural analysis of gender-​based crimes requires developing a concept of gender as a dynamic system of ideas and relationships in different sites and through different types of power.106 Building this feminist gender analysis involves dealing with a number of challenges. The first of these challenges involves moving the focus from sexual violence to further developing our understanding of gender-​based crimes. This involves both reconceptualizing sexual violence as a gender-​based crime, as well as further developing our understanding of gender-​based crimes as such. The current understanding of how sexual violence is a gender-​based crime is significantly underdeveloped. International human rights standards recognize that structural gendered inequalities are contributory causes of these crimes, and that they represent violations of fundamental rights of women, which reinforce and deepen gender inequalities in post-​conflict contexts.107 However, the gender component of international crimes has yet to be fully explored. At the level of prosecutions, more fully developed models of ‘gender analysis’ are required to capture different patterns of sexual violence in a given conflict, and to socially and legally contextualize sexual violence within that conflict. This challenge includes developing a fuller understanding of gender norms (that is, norms of masculinity and femininity), and how their relationship to 105 ibid 12. 106 Cynthia Enloe, The Big Push (University of California Press 2017). 107 See CEDAW, ‘GR19’ (n 9); CEDAW, ‘General Recommendation 30 on women in conflict prevention, conflict and post-​conflict situations’ (1 November 2013) UN Doc CEDAW/​C/​GC/​30.

FEMINIST CRITIQUE OF APPROACHES  97 power in particular societies and conflicts produces particular forms and patterns of conflict-​related sexual violence. Simply adding male victims of sexual violence or female perpetrators to the groups of persons to be protected or prosecuted does not provide an adequate basis for the development of such a ‘gender analysis’.108 Such additions do not shift the patriarchal frame of international criminal justice, but instead remain within its heteronormative, patriarchal, and ethno-​nationalist boundaries. Part of the challenge in developing a ‘gender analysis’ is that it should include an analysis of the power dynamics of sexuality that does not reinforce existing social identities and hierarchies of ‘masculinity’ and ‘femininity’, with their attached meanings of embodiment and social roles. The second challenge is how to develop more adequate legal concepts of gender-​based crimes as such. This involves addressing how to incorporate ‘gender’ into the protective and penal regimes of IHL and ICL. This, in turn, requires a more thorough consideration of different aspects of ‘gender’ in these regimes. We suggest distinguishing between (1) gender elements of ‘core crimes’,109 (2) gendered international crimes, and (3) gender-​based crimes. The first category concerns gender elements of existing core crimes. This involves developing the gender dimension of international crimes, so that they can capture where those crimes affect both men and women, but in different ways. For example, this would mean elaborating how attacks directed towards women—​ and not only men—​on the basis of their gender can be an element of genocide, as suggested by numerous feminist scholars.110 The second category concerns gendered international crimes, which can capture the disproportionate gendered effect of conflict on groups of persons, and requires developing the criminalization of other distinctive harms experienced by women in war. For example, this would mean capturing the disproportionate impact of particular means and methods of warfare upon women as members of the civilian population, such as the disproportionate impact of siege upon women.111 The third category concerns gender-​based harms in conflict. This is the targeting of 108 See Campbell, ‘Producing Knowledge’ (n 3). 109 ‘The “core” crimes set out in the International Criminal Court’s Rome Statute—​the crime of genocide, war crimes, crimes against humanity, and aggression—​are overwhelmingly assumed to be the most important international crimes.’ See Christine Schwöbel-​Patel, ‘The Core Crimes of International Criminal Law’ in Kevin Jon Heller and others (eds), The Oxford Handbook of International Criminal Law (OUP 2020). 110 See eg Valerie Oosterveld, ‘Prosecution of Gender-​Based Acts of Genocide under International Law’ in Samuel Totten (ed), Plight and Fate of Women During and Following Genocide (Transaction Publishers 2009) 205. 111 Judith Gardam, ‘The Silence in the Rules That Regulate Women During the Times of Armed Conflict’ in Fionnuala Ní Aoláin and others (eds), The Oxford Handbook of Gender and Conflict (OUP 2017).

98  Kirsten Campbell and Gorana Mlinarević persons on the basis of gender, such as forced domestic labour, forced mobilization, forced pregnancy, forced marriage, or persecution on the basis of sexuality. To develop adequate legal concepts of gender-​based crimes in all three categories requires developing models of gender-​based harms that recognize gender as a social structure and process. Because the legal concepts of gender-​ based crimes require significant development, it is not sufficient to implement existing legal frameworks, contrary to the position of the International Committee of the Red Cross (ICRC).112 While implementation is crucial, we need to move beyond existing legal norms, whether protective or penal, and create new obligations under international law. The third challenge involves further developing our existing models of ‘gender analysis’. To date, ‘gender analysis’ has been typically focused upon gender representation and gender policies in courts, understood as the ‘consideration of whether, and in what ways, crimes, including sexual and gender-​ based crimes, are related to gender norms and inequalities’ in prosecutorial practice.113 This is a necessary, but not sufficient, step. The next crucial step is developing models of the organizational and systemic criminality of gender-​ based crimes, and the gendered structures that produce them. Only then can we identify how crimes against men and women take different forms—​that is, provide a gendered analysis of conflict—​and how justice mechanisms address these different patterns of harms—​that is, provide a gendered analysis of prosecutions. Without having an adequate gender analysis of conflict, it is not possible to see gendered patterns of criminality, whether in relation to (1) existing crimes, (2) criminality that is not captured by existing norms, or (3) the connection of gender crimes to other crimes. Without a gender analysis of prosecutions, it is not possible to see gendered patterns of justice, and to examine whether existing prosecutions adequately capture the gendered harms of war. Our outline of these challenges is intended to be indicative, rather than conclusive. We intend it to indicate future directions in building feminist approaches to gender-​based crimes, and to generate wider discussions in this area. This work can only be fully realized as part of collective feminist efforts to change ICL.

112 ICRC, ‘Resolutions of the 32nd International Conference of the Red Cross and Red Crescent (2015)’ (2016) 900 International Review of the Red Cross 1389. 113 See Louise Chappell, The Politics of Gender Justice at The International Criminal Court: Legacies and Legitimacy (OUP 2016); ‘Policy Paper on Sexual and Gender-​Based Crimes’ (n 24).

PART II

EX PAN DING A PPROAC H E S TO GENDE R IN IN T E R NAT IONA L C R IMINA L L AW Beyond ‘Gender =​Women’ and ‘Gender =​Crimes of Sexual Violence’

4 Sexual Violence Against Men in Contemporary Warfare Dubravka Žarkov

A.  Introduction This chapter aims to offer answers to a specific set of questions: what inspires sexual violence against men; what makes that violence (in)visible; and what are the implications of both its visibility and its invisibility for international criminal law (ICL), including feminist scholarship and feminist politics within that field? This chapter argues that the answers can be found by following a specific hypothesis: that contemporary, modern masculinities are produced in quite different ways than femininities, and that war and sexual violence therein are social processes in which these differences come to the forefront. Unlike other authors in this book, I approach these questions from a non-​ legal perspective through the disciplines of social science and humanities, including sociology, anthropology, conflict studies, refugee studies, and cultural studies. Feminist scholarship within and across these disciplines has offered a huge body of knowledge about gendered dynamics of violence in wars, and in doing so pointed to the social, (geo)political, economic, and symbolic contingencies within which legal practices, including the practices of ICL, operate. It has shown that war violence and its meanings—​including acts and meanings of sexual violence in war—​are related to time—​and space-​specific notions of femininity and masculinity, within racialized, sexualized, class, and ethnic dynamics of given societies. This makes feminist perspectives in social science and humanities research findings highly relevant for ICL. My examination in this chapter rests on a few assumptions about gender, sexuality, and armed conflict that need to be explained. First, gender—​and thus femininity and masculinity—​as a category, and as a relation of power, is constitutive of other social categories such as sexuality, religion, ethnicity, caste, and class. In stating that these social categories help to create each other, I do

​

​

102  Dubravka Žarkov not assume a neat, balanced, or fixed relationship. Rather, I assume that these categories produce each other in ways that are often ambiguous, contradictory, and conflicting. Second, femininities and masculinities are not simply symmetrical, parallel, or complementary, nor are their meanings produced only, or always, in relation to each other. As gender is constitutive of other social relations, in any society, at any given time, there are always a number of different, unequal, and hierarchical femininities and masculinities. Each of these masculinities and femininities, and the variety of their relationships to each other, as well as to other social categories of power, require a thorough investigation. Third, norms and practices of sexuality constitute different femininities and masculinities, and the hierarchical relations between them. The hierarchy here does not refer only to gender—​with male and female sexualities and sexual capacities (from desire to procreation)—​being socially sanctioned and controlled. It refers also to heteronormativity: the institutionalizing, sanctioning, and privileging of heterosexuality, and specific relations of homo/​heterosexuality to different masculinities and femininities. This brings to the foreground the urgent need for analysing links between masculinities and homo/​ heterosexualities with other organizing principles of social life such as caste, class, religion, and ethnicity. Finally, my conceptualization of gender and sexuality does not refer simply to men and women, or even only to existence of different sexualities, masculinities, and femininities, but to the processes through which these are produced. I define war as a productive process, in which identities and social places of specific groups of men and women, as well as notions and practices of sexuality, masculinities, and femininities, are continuously produced and meanings are attributed to them. However, wars do not only produce specific sexualities, masculinities, and femininities, but are also produced by them. This means that a particular political context and its violent expressions are in themselves products of specific socio-​cultural practices of gender and sexuality, and not only the other way around. In other words, we know much about what wars do to various social groups of men and women and what men and women do in wars. But an equally important question is: what do notions and practices of sexuality and gender, and their intersections with other power relations, do to wars? In particular, how do specific sexualities, masculinities, and femininities produce very identifiable forms of violence in wars and what are theoretical and political consequences of the links between certain sexualities, masculinities, and femininities with violence in war?

Sexual Violence Against Men in Contemporary Warfare  103 It is fair to say here that feminist scholarship has been focused—​and with good reason—​on the first set of questions rather than on the second.1 This is particularly true when it comes to masculinities, although masculinity studies in the last few decades have turned to the investigation of violence, war, and masculinity with vigour.2 These studies—​and especially Connell’s and Theweleit’s work—​certainly form the background upon which I build my analysis.3 However, I approach the issue of sexual violence in war in a rather specific manner. Unlike the mentioned authors, I start from the male victim of war, and not from the male perpetrator. I analyse sexual violence, and, more specifically, rape as a war practice by focusing on the violated male body and argue that different meanings of war rapes for male and female victims and their different (in)visibilities indicate differences in the ways modern masculinities and femininities are produced.

B.  Modern Masculinities: On Power and Heteronormativity In the last two centuries, most Western societies have seen dominant forms of masculinity being reshaped and redefined through a nexus of power and heteronormativity. As Connell states, Western masculinities, in the modern sense, have been marked not only by men’s ‘location in the social order’ but also by a ‘gendered individual character’ and personal identity.4 Modern masculine identity, endowed by power and heteronormativity, became firmly linked to the male body, with unity—​as in wholeness of the body—​and permanence—​as in remaining unchanging—​as its most important aspects.5 This means that the 1 eg Jean Elshtain, Women and War (Basic Books 1987); Jacklyn Cock, Women and War in South Africa (Open Letters 1992); Miriam Cooke and Angela Woollacott (eds), Gendering War Talk (Princeton University Press 1993) (hereafter Cooke and Woollacott, Gendering War Talk); Meredeth Turshen and Clotilde Twagiramariya (eds), What Women do in Wartime: Gender and Conflict in Africa (Zed Books 1998); Rita Manchanda (ed), Women, War and Peace in South Asia: Beyond Victimhood to Agency (Sage Publications 2001) (hereafter Manchanda, Women, War and Peace in South Asia). 2 eg Harry van Tienhoven, ‘Sexual Torture of Male Victims’ (1993) 3(4) Torture 133 (hereafter van Tienhoven, ‘Sexual Torture of Male Victims’); Joanna Bourke, Dismembering the Male: Men’s Bodies, Britain, and the Great War (University of Chicago Press 1996); Adam Jones (ed), Gendercide and Genocide (Vanderbilt University Press 2004) (hereafter Jones, Gendercide). 3 RW Connell, Masculinities (1st edn, Polity Press 1995) (hereafter Connell, Masculinities); RW Connell and James W Messerschmidt, ‘Hegemonic Masculinity: Rethinking the Concept’ (2005) 19 Gender and Society 829; Klaus Theweleit, Male Fantasies (University of Minnesota Press 1987) (hereafter Theweleit, Male Fantasies); Klaus Theweleit, ‘The Bomb’s Womb and the Genders of War’ in Cooke and Woollacott, Gendering War Talk (n 1) 283 (hereafter Theweleit, ‘The Bomb’s Womb’). 4 Connell, Masculinities (n 3) 188. 5 Anthony Easthope, What a Man’s Gotta Do: The Masculine Myth in Popular Culture (Routledge 1992) 53 (hereafter Easthope, What a Man’s Gotta Do).

104  Dubravka Žarkov bodies, social identities produced through heteronormativity, race, religion, ethnicity, etc, and social and economic power of the most dominant men in any society stand to represent dominant forms of masculinity in that society. In Western societies, white, heterosexual men of upper classes have thus been the dominant social group, and their masculinity has been afforded the dominant status in the West. This notion of masculinity has then been exported around the globe through colonialism and imperialism and used as a measure of other masculinities, acquiring hegemonic status. All other masculinities have been measured and ranked lower, in comparison to the Western/​hegemonic masculinity. As will be explained subsequently, because power and heteronormativity are essential elements of hegemonic masculinity, being associated with powerlessness and homosexuality through man-​to-​man sexual violence—​and being exposed as a sexually violated man—​jeopardizes both the individual’s and the group’s status of dominance and thus needs careful consideration. Classical works of Connell and Theweleit have shown that, in wars, virility, aggression, and violence are indispensable to and celebrated as militarized masculine power.6 In the context of modern masculinities, such a power is not only a symbolic element of manliness but also a very tangible system of political, economic, or military means that allow men (as individuals and as members of social groups) to protect as well as to attack others. Being victimized in a war as a man in such a context, even without sexual violence, brings multiple losses. It not only deprives men of symbolic and actual power by destroying their ability to protect themselves and others, it exposes this inability in a public manner. Often, it also deprives men of the social as well as very material means through which their power is built and sustained. In many parts of the world, power and powerlessness are among the major elements of recruitment of men in armies and (para)militaries. As civilians during war, men are exposed to numerous losses and victimization. As soldiers during war, they assume they could better protect themselves and also acquire property, status, and networks.7 Sexual victimization of men brings other kinds of losses and threats to their masculinities. I highlight three here. First, men’s sexual performance and

6 RW Connell, ‘Masculinity, Violence, War’ in Paul Patton and Ross Poole (eds), WAR/​Masculinity (Intervention Publications 1985) 4; Connell, Masculinities (n 3); Theweleit, Male Fantasies (n 3); Theweleit, ‘The Bomb’s Womb’ (n 3). 7 See Chris Dolan, ‘Gender as Women, Men as the Problem: Winning the Battle and Losing the War?’ in APRODEV, Gender and Violence Conflict: GOOD Conference Report (Uppsala, September 2002) 8, 9 (hereafter Dolan, ‘Gender as Women’): on men in Northern Uganda.

Sexual Violence Against Men in Contemporary Warfare  105 fertility are obviously threatened in the situation of injury to sexual and reproductive organs, genital mutilation, or castration. Medical and psychological literature indicate that it is often because of men’s concerns for their sexual performance and reproductive capacity that they open up about sexual violence.8 They go to urologists and other medical doctors or counsellors with these concerns and, eventually, some of them admit that their worries and their conditions stem from experiences of sexual violence.9 In other words, the masculinity of a man whose body cannot perform sexually and/​or produce offspring is under question within his society, at best, or denied, at worst. Second, in the situation of war, the consequences of violence inflicted on individual male victims are also consequences for the social group to whom the assaulted men (are seen to) belong. Genital mutilation seems to be especially significant in this respect. As already noted, Easthope asserted that the ‘most important meaning[s]‌that can be attached to the idea of the masculine body are unity and permanence’.10 He relates this meaning to the construction of human ego which ‘identifies its unity above all in an image of the body as a unified whole and fears above all the image of the body in pieces’.11 Sharpe has shown that, in the British press in the nineteenth century, bodies of colonial men were never represented as mutilated, while the bodies of colonial women and native women and men were.12 She asserts that the absence of the colonial Englishmen from the narrative of mutilation reflects the fact that the white colonial master is the one who objectifies both the natives and the white women, thus cannot be in the position of an object himself.13 Mutilated, dead bodies are dehumanized objects, testimony to an absence of power. Easthope’s observations also find support in an analysis of mutilated male bodies of British soldiers after World War I. Bourke writes about social discomfort with the public presence of soldiers missing limbs in Britain.14 She points out that, immediately after the war, the absent male body parts held a special, if ambiguous, public appeal of male sacrifice, as well as a ‘special patriotic power’. However, this changed as the country strived to forget the war and 8 eg Olivera Simic, ‘Wartime Rape and its Shunned Victims’ in Amy Randall (ed), Genocide and Gender in the Twentieth Century: A Comparative Survey (Bloomsbury Academic 2015) 237 (hereafter Simic, ‘Wartime Rape’): on men who survived sexual assault during the war in Bosnia. 9 ibid. 10 Easthope, What a Man’s Gotta Do (n 5) 53. 11 ibid 41. 12 Jenny Sharpe, ‘The Unspeakable Limits of Rape: Colonial Violence and Counter-​Insurgency’ (1991) 10 Genders 25, 34. 13 ibid. 14 Joanna Bourke, ‘Fragmentation, Fetishization and Men’s Bodies in Britain’ (1996) 7 Women: A Cultural Review 240.

106  Dubravka Žarkov move forward by relying on the labouring capacities of the male population.15 However, mutilated male bodies could not compete in the labour market with whole and healthy ones, and the amputees were pushed to the social margins.16 The British State acknowledged the patriotic power of almost every missing limb by providing mutilated men with artificial limbs, as well as state pensions according to the value-​estimates of each lost limb. Each part of men’s bodies was allocated a moral weight, as well as measured by a degree to which they ‘incapacitated a man from “being” a man’.17 However, there was one body part not mentioned in the carefully assembled list of parts for which the British State dispatched compensation to war veterans, penises. Bourke did not mention it either. The silence of and about the men who lost their penises—​and were, in this way, incapacitated as men—​is hardly surprising. In a phallocentric culture, one man losing a penis symbolically emasculates every man. When masculinity is constructed through particular collective identities, and not only through power and heteronormativity, the violated male body becomes an issue of collectivity, and not only of an individual man’s manhood. Emasculation in that case carries multiple forms of symbolism because masculinity epitomizes specific aspects of other collective identities. The power to control and define who belongs to a social group is symbolically vested in men. If there is a marker of male control of this belonging, then it is in the body part that has rarely been acknowledged as missing in action, and thus, seldom appears as a reason for honourable retirement from the military or as appropriate for financial compensation. For within collective identities, the phallic power of the penis defines not only the virility of a single man, but also virility of his community and there can hardly be an appropriate restitution for its loss or destruction. Loss of a penis of a single man through castration by the enemy, rather than through an accidental mutilation of the body (in a bomb or mine blast, for example), symbolizes appropriation of masculinity of the whole group to which that man belongs, or is seen to belong.18 Emasculation and disempowerment of a man from another ethnic, religious, or racial group is, thus, proof not only

15 ibid 244. 16 ibid 245–​48. 17 ibid 243 (emphasis in original). 18 This was, in part, the argument of the Prosecutor in the Kenya case: Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to art 61(7)(a) and (b) of the Rome Statute) [2012] ICC-​01/​09-​02/​11 [264]–​[266]. See also Dubravka Žarkov, ‘The Body of the Other Man: Sexual Violence and the Construction of Masculinity, Sexuality and Ethnicity in Croatian Media’ in Caroline Moser and Fiona Clark (eds), Victims, Perpetrators or Actors: Gender, Armed Conflict and Political Violence (Zed Books 2001) 69, 78 (hereafter Žarkov, ‘The Body of the Other Man’).

Sexual Violence Against Men in Contemporary Warfare  107 that he is less a man, but also that his ethnicity, religion, or race are of a lesser kind.19 Colonial studies authors have shown that men in armed conflict are ultimately seen as representatives of their respective communities and, as such, their masculinity is the very symbol of their collective belonging, be it nation, race, or religion. For example, Sinha analysed the colonial constructions of ‘manly Englishman’ and ‘effeminate Bengali’ in the context of English colonial politics in India in the late-​nineteenth century.20 She asserted that the colonial constructions of different masculinities were elements of specific practices of ruling, crucial for substituting a straightforward defence of racial exclusivity with a ‘supposedly more “natural” gender hierarchy between “manly” and “unmanly” men’.21 It is precisely this symbolic function of the male body and masculinity within the collectivity that motivates sexual assault and mutilation of men of the presumed enemy. Jones argues that genital damage to men ‘constitutes the kind of “serious bodily or mental harm to members of the group” specified by the Genocide Convention as contributing to the destruction of group cohesion and identity’ and could be considered as genocidal practice.22 Third, emasculation as a consequence of sexual violence is not related only to disempowerment of individual men and their social group through the inability of both to reproduce or defend themselves from violence. It is also directly related to heteronormativity. The linkages of modern masculinity with power and heteronormativity produce an assumption that sexual violence exists only within a heterosexual context—​meaning men assaulting women. Violence between two men presumed to be heterosexual—​as all men are presumed heterosexual within the hegemonic notions of masculinity—​is not perceived as sexual (including within some international criminal tribunals).23 If 19 Žarkov, ‘The Body of the Other Man (n 18) 78; Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18 European Journal of International Law 18 253, 274 (hereafter Sivakumaran, ‘Sexual Violence’); Mervyn Christian and others, ‘Sexual and Gender Based Violence Against Men in the Democratic Republic of Congo: Effects on Survivors, Their Families and the Community’ (2011) 27 Medicine, Conflict and Survival 227, 241 (hereafter Christian, ‘Sexual and Gender Based Violence Against Men’); Simic, ‘Wartime Rape’ (n 8) 242. 20 Mrinalini Sinha, Colonial Masculinity: The ‘Manly Englishman’ and the ‘Effeminate Bengali’ in the Late Nineteenth Century (Manchester University Press 1995) 1. 21 ibid 5. 22 Adam Jones, ‘Straight as a Rule: Heteronormativity, Gendercide, and the Noncombatant Male’ (2008) 8 Men and Masculinities 451, 461; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 art 2(b). 23 See Sivakumaran, ‘Sexual Violence’ (n 19) 256; Sandesh Sivakumaran, ‘Prosecuting Sexual Violence Against Men and Boys’ in Anne-​Marie de Brouwer and others (eds), Sexual Violence as an International Crime: Interdisciplinary Approaches (Intersentia 2013) 79, 92–​95 (hereafter Sivakumaran, ‘Prosecuting Sexual Violence’); Valerie Oosterveld, ‘Sexual Violence Directed Against Men and Boys in Armed Conflict and Mass Atrocity: Addressing a Gendered Harm in International Criminal Tribunals’

108  Dubravka Žarkov the violence is perceived as having a sexual nature, then the men—​at least the assaulted men—​are no longer seen as heterosexual.24 For men who survive rape, or any form of assault that can be associated with a sexual act (such as being fondled, forced to perform fellatio, or rape another man) what is at stake is not only emasculation through disempowerment, but also emasculation through homosexualization. This seems to be confirmed by the way raped and sexually assaulted men, and men forced to assault each other sexually, talk about their experiences.25 Frequently, they link their experience of sexual violence to homosexuality and ‘perversion’, as well as to the sense of not being ‘real men’ any longer. In these statements, the victims position themselves as heterosexual, and express fear of being homosexualized through the act of sexual violence by another man.26 The issue of actual victim/​perpetrator homosexuality is understudied. Some prisoners of war camps in Bosnia reported that they were raped by prison guards in secret.27 In the heteronormative context of the region, such an act would be perceived to homosexualize both the perpetrator and the victim, which may explain why these violations were committed surreptitiously. Peteet indicated links between sexual violence against individual men and collective identities in her analysis of the role of violence in the imprisonment of young Palestinian boys and men in Israeli prisons.28 She argues that young Palestinian men—​and by extension their communities—​experience their exposure to torture in, and survival of, Israeli prisons as evidence of their (2014) 10 Journal of International Law and International Relations 107, 120–​26, esp 123–​25 (hereafter Oosterveld, ‘Addressing a Gendered Harm’). 24 In some cultures, a man who sexually assaults another man is not necessarily homosexualized, while the assaulted man is. See Sandesh Sivakumaran, ‘Male/​ Male Rape and the “Taint” of Homosexuality’ (2005) 27 Human Rights Quarterly 1274, 1290, 1292–​93 (hereafter Sivakumaran, ‘Male/​Male Rape’): the victim of male/​male rape ‘may consider himself tainted with homosexuality as a result of the rape’ in a social context within which homophobia and discrimination on the basis of sexual orientation is rampant. 25 For Uganda, Sudan, and the DRC in the context of war, and the USA in the peace-​time context, see testimonies gathered in: Şahika Yüksel, ‘Therapy of Sexual Torture’ (XI World Sexology Congress, Amsterdam, June 1991) (hereafter Yüksel, ‘Therapy of Sexual Torture’); van Tienhoven, ‘Sexual Torture of Male Victims’ (n 2); Mladen Lončar and Petra Brecic, ‘Characteristics of Sexual Violence Against Men During the War in Croatia and Bosnia-​Herzegovina’ (Engendering Violence: Terror, Domination, Recovery Conference, Zagreb, October 1995) (hereafter Lončar and Brecic, ‘Characteristics of Sexual Violence’); Dolan, ‘Gender as Women’ (n 7); Karen Weiss, ‘Male Sexual Victimization: Examining Men’s Experiences of Rape and Sexual Assault’ (2008) 12 Men and Masculinities 275; Mukasa Nassaka, ‘Masculinity and Experiences of Sexual Violence: Case Study of Male Congolese Refugees in Kampala Uganda’ (MA Thesis, Institute of Social Studies 2012). 26 Sivakumaran, ‘Male/​Male Rape’ (n 24) 1275: ‘Given the prevalence of homophobia in society, [male/​male coercive sexual conduct] amounts to a “taint” on the part of the victim of rape.’ 27 Dubravka Žarkov, The Body of War: Media, Ethnicity and Gender in the Break-​Up of Yugoslavia (Duke University Press 2007) 166 (hereafter Žarkov, The Body of War). 28 Julie Peteet, ‘Male Gender and Rituals of Resistance in the Palestinian Intifada: A Cultural Politics of Violence’ (1994) 21 American Ethnologist 19.

Sexual Violence Against Men in Contemporary Warfare  109 endurance, thereby contributing to their sense of heroic masculinity and social prestige.29 Thus, although the Israeli system of imprisonment is meant to bring humiliation to Palestinian men, it has, instead, been turned into the basis for heroic masculinity in the narrative of collective Palestinian resistance. Learning this, Israeli jailers seem to have changed tactics: Peteet notes that some interrogations now seem to include sexual assault, such as fondling of prisoners, photographing the assault and then threatening that those photos will be distributed to the community.30 She rightly asserts that sexual torture serves to deprive imprisoned men ‘of claims to manhood and masculinity’ within their community.31 Others also point to the multiple, diverse, and grave consequences of sexual violence against men to themselves as well as their communities. According to Zawati, the impact of rape ‘can damage the victim’s psyche and cause him to lose his pride, break him down, and perhaps even extend this feeling to his entire family and society’.32 Sivakumaran asserts that forms of sexual violence such as rape against an individual man belonging to a particular group ‘suggest not only empowerment and masculinity of the offender’ but also ‘a means of emasculating [the] entire group’ to which the victimized man belongs.33 Christian and others suggest that ‘sexual violence against men is a strategy to show that men within the attacked community are weaker than the rebels/​ soldiers, thus destroying their authority and status in the family and community’.34 In the case of the Democratic Republic of Congo, they argue that sexual violence, and particularly rape, creates shock and fear within the community.35

C.  Victimized Bodies: Collective Identities, Different Visibilities The attribution of collective identities to a specific, individual, victimized body is not news for feminism. Nor is the fact that some violated bodies remain invisible. We know this from studies on war rapes of women. The extensive rapes of Rwandan women during the 1994 genocide remained invisible in the West/​ 29 ibid 33, 38. 30 ibid 45. 31 ibid. 32 Hilmi Zawati, ‘Impunity or Immunity: Wartime Male Rape and Sexual Torture as a Crime Against Humanity’ (2007) 17(1) Journal on Rehabilitation of Torture Victims and Prevention of Torture 27, 33. 33 Sivakumaran, ‘Sexual Violence’ (n 19) 268, 275. 34 Christian, ‘Sexual and Gender Based Violence Against Men’ (n 19) 241. 35 ibid.

110  Dubravka Žarkov North for a couple of years,36 while the rapes of women during the 1990s war in the former Yugoslavia were on the front pages of almost every major international magazine.37 However, in the former Yugoslavia not all women were perceived as being equally ‘rapable’, either before the eyes of their apparent communities, or before the eyes of the world.38 The international community, including the community of feminists, has rather persistently disregarded the fact that Serb women were also (gang-​)raped (in detention, systematically, repeatedly) during the wars in Bosnia and Croatia. It is as if admitting that they were also raped would pardon the rapes of Muslim and Croat women committed by Serb forces.39 The rapes of Croat women, on the other hand, while regularly mentioned internationally (in mainstream and feminist texts alike), were systematically silenced in the Croatian media.40 It seemed that allowing visibility of a raped Croat woman within Croatia would pollute the ethnic and sexual purity of the newly emerging nation-​state.41 Thus, a Croat woman in Croatian media appeared most often as an emancipated, professional care provider to the raped Muslim refugee woman, or as an anonymous, collective victim.42 Muslim women, on the other hand, all but lost any other identity once the Rape Victim Identity was thrust upon them by the Bosnian Government, international organizations, and feminists alike. In the Croatian media, the raped Muslim woman was the most minutely described and the most often portrayed rape victim, and always through references to the traditionalism and patriarchal values of the Muslim community.43 In the Serbian press, she had a rather different image. Similar to images of Black women in racist discourses: the Muslim woman is a survivor full of sexual and life energy, for whom the experience of 36 This changed with the release of: Human Rights Watch/​Africa, Human Rights Watch Women’s Rights Project and Fédération Internationale des Ligues des Droits de L’Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (Human Rights Watch 1996) accessed 15 July 2020. 37 eg Paul Lewis, ‘Rape Was Weapon of Serbs, UN Says’ The New York Times (New York, 20 October 1993) 1; The Globe and Mail, ‘Refugees Raped, Killed, Driven from Srebrenica, Muslims Face Harrowing Journey’ The Globe and Mail (Toronto, 14 July 1995) 1. 38 For detailed account of Serbian and Croatian media’s uneven representations of rapes of Muslim, Croat, and Serb women in war through which Yugoslavia disintegrated see Žarkov, The Body of War (n 27). 39 eg Alexandra Stiglmayer (ed), Mass Rape: The War Against Women in Bosnia-​Herzegovina (1st edn, University of Nebraska Press 1994): as one of the blatant examples of ignoring rapes of Serb women. For an attempt of righting this invisibility see Olivera Simic, Silenced Victims of Wartime Sexual Violence (1st edn, Routledge 2018). 40 For a detailed discussion of feminist literature on war rapes in former Yugoslavia see Žarkov, The Body of War (n 27). 41 ibid 131. 42 ibid 129–​35. 43 ibid.

Sexual Violence Against Men in Contemporary Warfare  111 rape is far from devastating.44 In the Serbian media, the real devastation caused by rape is preserved for the raped Serb woman—​but only if the consequence of rape was also forcible impregnation by a Muslim man.45 The centrality of sexual violence against women in producing collective identities is also well known in South Asia, as is the differential visibility of violated femininity as a cradle of collective values, histories, and traditions. As Butalia, Menon, and Bhashin convincingly show in their sophisticated analyses of sexual violence during the 1947 Partition of India, the violated female body is not just one of the primary sites of communal violence, it is also one of the most selectively commemorated victims.46 The so-​called ‘martyred’ women—​ those who were murdered by members of their own families and communities to avoid the dishonour associated with rape by the ‘enemy’—​were given the right to be remembered by their communities, often by individual name and place of residence, precisely because they were not raped.47 The lives of those who were raped were not written about in the popular booklets celebrating ‘martyrdom’ sold to schoolchildren on the street corners.48 They have been largely hidden from public memory, anonymous victims whose individuality has been erased, translated into numbers within official history. Selective visibility of the victim of war rape also has relevance in Sri Lanka. Tamil civilian women or Tamil Tiger militant women who were raped by Sri Lankan Government forces are awarded a public space—​and with it all the glory of the martyr—​but only if and when the women were killed or had died.49 The same women were systematically silenced when alive, trying to talk about 44 ibid 124–​25. 45 ibid 120–​24. 46 Urvashi Butalia, ‘Community, State and Gender: On Women’s Agency during Partition’ (1993) 28 Economic and Political Weekly WS12, WS16 (hereafter Butalia, ‘Community, State and Gender’). See also Urvashi Butalia, ‘A Question of Silence: Partition, Women and the State’ in Ronit Lentin (ed), Gender and Catastrophe (Zed Books 1998) 92 (hereafter Butalia, ‘A Question of Silence’); Urvashi Butalia, The Other Side of Silence: Voices from the Partition of India (Penguin Books 1998) (hereafter Butalia, The Other Side of Silence); Ritu Menon and Kamla Bhasin, ‘Recovery, Rupture, Resistance: Indian State and Abduction of Women during Partition’ (1993) 28 Economic and Political Weekly WS2 (hereafter Menon and Bhasin, ‘Recovery, Rupture, Resistance’); Ritu Menon and Kamla Bhasin, ‘Abducted Women, the State and Questions of Honour: Three Perspectives on the Recovery Operation in Post-​ Partition India’ in Kumari Jayawardena and Malathi de Alwis (eds), Embodied Violence: Communalising Women’s Sexuality in South Asia (Kali for Women 1996) 1 (hereafter Menon and Bhasin, ‘Abducted Women’); Ritu Menon and Kamla Bhasin, Borders and Boundaries: Women in India’s Partition (Kali for Women 1998) (hereafter Menon and Bhasin, Borders and Boundaries). 47 Butalia, ‘Community, State and Gender’ (n 46) WS15. See also Butalia, ‘A Question of Silence’ (n 46); Butalia, The Other Side of Silence (n 46); Menon and Bhasin, ‘Recovery, Rupture, Resistance’ (n 46); Menon and Bhasin, ‘Abducted Women’ (n 46); Menon and Bhasin, Borders and Boundaries (n 46). 48 Butalia, ‘Community, State and Gender’ (n 46) WS24. 49 Neloufer De Mel, ‘Agent or Victim? The Sri Lankan Woman Militant in the Interregnum’ in Neloufer De Mel, Women and the Nation’s Narrative: Gender and Nationalism in Twentieth Century Sri Lanka (SSA 2001) 203, 220–​21.

112  Dubravka Žarkov their experience of sexual violence.50 Even so, the symbol of the sexually violated woman was regularly used for propaganda and other purposes by both the Sri Lankan Government and the Tamil separatist movement, and so was the practice of sexual violence.51 These analyses of sexual violence against women in conflicts in the former Yugoslavia and South Asia show that the rape of women in wars and armed conflicts does not have a fixed or single meaning. The meanings of the rapes of different women are constantly reproduced, and notions of femininity and definitions of collective identities (be it ethnicity or religion) are highly significant, but certainly not the only relevant factors. The ambiguity about visibility of the victims shows that, in armed conflict, sexual violence against women in general, and rape in particular, gains significance in relation to a very specific political context and particular cultural norms within which the woman, and her respective group, are positioned. In Croatia, the context of nation-​state building and Orientalist discourse made it possible to publicly expose the Muslim woman as a primary rape victim because she was not perceived as belonging to the newly risen Croatian State—​a state for Croats—​with the assumption that she belongs to Bosnia.52 Violence against women during Partition shows that Sikh women were ‘martyred’ not only because they could be raped, but because the prospective rapist was a Muslim man—​a man of a community defined as the chief enemy. Thus, in the context of an armed conflict, sexual violence—​its practice, its visibility, as well as its interpretation—​is placed within very concrete, and often very localized politics, translations of dominant social and cultural codes of collective identities and their intersections with notions and practices of femininity and female sexuality. To a certain extent, the same mechanisms work when sexual violence against men is in question. As already elaborated, men’s bodies also exemplify collective identities. They too, are symbols of ethnic or religious groups. In the conflict in Bosnia and Croatia, the issue of visibility of the male rape victim proves this point. The Bassiouni Report on war crimes in the former

50 ibid. 51 See also Darini Rajasingham-​Senanayake, ‘Ambivalent Empowerment: The Tragedy of Tamil Women in Conflict’ in Manchanda, Women, War and Peace in South Asia (n 1) 102; S Peries, ‘Metamorphosis of the Tamil Woman in the Nationalist War for Elam’ (Women in Conflict Zone Network Conference, Toronto, 1998). 52 The same can be said for the visibility of the perpetrator. The visibility of Muslim men as rapists of Croat women shifted, depending on the state of the Croat-​Muslim coalition in the war (the stronger the coalition, the less Muslim men as rapists was mentioned). The visibility of Serb men as rapists was, however, a constant. See Žarkov, The Body of War (n 27) 131.

Sexual Violence Against Men in Contemporary Warfare  113 Yugoslavia describes men—​especially those detained in war camps—​stripped naked, beaten across genitalia, assaulted or forced to assault each other by foreign objects, being raped and castrated by prison guards, or being forced to rape and castrate each other.53 Despite this, my analysis of the newspaper texts about sexual violence in former Yugoslavia shows that, for a very long time, the rape of men was a taboo topic in the media.54 The Serbian daily Politika and weekly Nin, for example, never mentioned that any man, of whatever ethnicity or religion, was a victim or a perpetrator of sexual violence during the wars in Bosnia and Croatia.55 The Croatian daily Vjesnik and weekly Danas made only a few reports in which the sexual assault of men was mentioned, compared to over 100 reports on war crimes in general and on the rape of women in particular.56 Furthermore, when mentioned, sexual violence against men was given only a few short lines.57 Even these few short lines were enough to produce both the victim and the perpetrator of male rape in a very specific way. All the victims whose dead, naked, sexually mutilated bodies were described in the examined Croatian press were identified as Muslim men. All the perpetrators were identified as Serb men, described as sodomist and homosexual perverts, or as madmen.58 Significantly, Croat men, in the examined Croatian press, were never mentioned either as among the victims of sexual crimes or among the villains who perpetrated them.59 The effect of these particular media representations of victims and villains of sexual assault on men is the production of ethnicities. Different ethnicities are produced through the images of different masculinities and sexualities. The prerogatives of ‘proper’ masculinity—​power and heterosexuality—​are preserved only for the men belonging to dominant ethnicity. In Croatia, these men are obviously Croat men. Their very exclusion from the narrative of male

53 See M Cherif Bassiouni and Marcia McCormick, ‘Sexual Violence: An Invisible Weapon of War in the Former Yugoslavia’ (Occasional Paper No 1, International Human Rights Law Institute, DePaul University College of Law, 1996) 18, 20; UNSC, ‘Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’ (27 May 1994) UN Doc S/​1994/​67 55–​56, 60 accessed 15 July 2020 (hereafter UNSC, ‘Final Report’). 54 Žarkov, ‘The Body of the Other Man’ (n 18) 72. See also Dubravka Žarkov, ‘War Rapes in Bosnia: On Masculinity, Femininity and Power of the Rape Victim Identity’ (1997) 39(2) Tijdscrift voor Criminologie 140 (hereafter Žarkov, ‘War Rapes in Bosnia’); Žarkov, The Body of War (n 27); Dubravka Žarkov, ‘Exposures and Invisibilities: Media Masculinities and the Narratives of Wars in an Intersectional Perspective’ in Helma Lutz and others (eds), Celebrating Intersectionality (Ashgate 2011) 105 (hereafter Žarkov, ‘Exposures and Invisibilities’). 55 Žarkov, The Body of War (n 27) 168. 56 ibid 155–​69. 57 ibid. 58 ibid 138. 59 ibid 160.

114  Dubravka Žarkov rape preserved the unity and permanence of their manly bodies and their manhood, and, symbolically, the unity, permanence, and manhood of the newly emerging state to which they belong. The men who were perceived as not belonging to the new Croat and Croatian State—​Muslim and Serb men—​were denied these prerogatives. It is clear that, in the examples mentioned above, the individual male bodies carried attributes of specific collective identities and functioned as collective symbols in nationalist or communal politics, just as female bodies do. However, this is where the similarities between meanings of rape of women and rape of men in nationalist and communal violence stop, and parallels between masculinities and femininities disappear. There were very few media references to the rape of men in the war in the former Yugoslavia.60 The rape of men has seldom, if ever, been used to support or mobilize masses for the collective cause anywhere in the world as the rapes of women have been: this fact indicates that there must be some difference in the meaning of rape in relation to masculinity and femininity. The constitutive nature of the relationship between power, heteronormativity, and dominant masculinity is broken by man-​to-​man rape. Disempowered and homosexualized, the raped man loses the prerogatives of dominant modern masculinity, and consequently ceases to be a man. For women, the consequences of rape are different. Modern forms of femininity, especially in the North/​West are not produced through power but through vulnerability in general, and through sexual vulnerability in particular. In other words, ‘woman’ is already defined—​socially and culturally—​as ‘rapable’. Thus, the rape of a woman does not destroy her femininity in the same way it destroys man’s masculinity. In a most cynical way, it actually confirms it. Furthermore, the issue of homosexuality is totally absent here, because the rape of a woman by a man remains completely within the dominant norms of heteronormativity. This means that the relationship between power, heteronormativity, and masculinity does not have a female counterpart, because female homosexuality does not carry the same social relevance and meaning as male homosexuality. This seems to have been confirmed in the media visibility of the sexual torture of Iraqi men in Abu Ghraib prison, when their photographs appeared in the United States (US) media in 2003. The most visible torturers in these photos have been female members of the US military police, not the male members. Thus, while the naked, sexually tortured bodies of the Iraqi men were highly exposed to the eyes of the media consumers, the male perpetrators were rendered



60 ibid 156.

Sexual Violence Against Men in Contemporary Warfare  115 invisible.61 I argue that this absence from the photos preserved the heterosexuality of the male torturers just in case someone viewing these photos assumed that the male assailants derived sexual pleasure from sexually torturing the prisoners. Such associations of sexual pleasure and sexual torture would homosexualize, and thus emasculate, not only the victims, but also the perpetrator. The US military, as a symbol of power, virility, and manhood of the US State and nation could not afford such associations. Female torturers, on the other hand, were already an aberration, an abnormality easy to expose and throw into the basket of ‘a few bad apples’.62 Sexual violence against men during and outside of armed conflict is not totally unknown to providers of medical and psycho-​social services to political prisoners and refugees. It has been addressed in some specialized literature on medical and psycho-​social treatment of victims of torture and refugees since the 1970s, although it started gaining attention in social science scholarship only in the 1990s. Lunde and Ortman (1990), for example, published their research reviewing data collected by Amnesty International (AI) from victims of torture during the period 1975–​9, and similar data from the International Rehabilitation and Research Centre for Torture Victims (RCT) during 1984–​ 7.63 In a sample of 283 torture victims (135 from AI and 148 from RCT), an average of 56 per cent of men reported that they experienced some form of sexual violence.64 At the XI World Sexology Congress in 1991, research findings on therapy of sexually tortured men and women were presented by a researcher from the University of Istanbul. She indicated a widespread practice of the application of electrodes to the genitals of political prisoners in Turkey.65 Medical doctors Lončar and Brecic presented the results of their treatment of men who suffered sexual assault during the war in Bosnia and Croatia in the early 1990s at an international conference in Zagreb, while the Bassiouni report and various UN fact-​finding mission reports on sexual violence in the war

61 Seymour M Hersh, ‘Torture at Abu Ghraib’ The New Yorker (New York, 10 May 2004) accessed 15 July 2020. See also Rebecca Leung, ‘Abuse of Iraqi POWs by GIS Probed’ 60 Minutes (27 April 2004) accessed 15 July 2020. 62 Laura Sjoberg, ‘Agency, Militarized Femininity and Enemy Others: Observations From the War in Iraq’ (2007) 9 International Journal of Feminist Politics 82. 89–​90; Human Rights Watch, ‘The Road to Abu Ghraib’ (8 June 2004) accessed 21 July 2020. 63 Inge Lunde and Jorgen Ortman, ‘Prevalence and Sequelae of Sexual Torture’ (1990) 336(8710) The Lancet 289. This mirrors reports of sexual violence committed against males outside of armed conflict, eg Lana Stermac and others, ‘Sexual Assault of Adult Males’ (1996) 11 Journal of Interpersonal Violence 52. 64 Lancet and Ortman note that the RCT sample had more men reporting sexual violence than the Amnesty International sample: ibid 1. 65 Yüksel, ‘Therapy of Sexual Torture’ (n 25).

116  Dubravka Žarkov in former Yugoslavia also asserted that the detained men suffered systematic sexual assault.66 While these and similar reports suggest that men coming from wars or situations of political violence are exposed to sexual violence, there was, initially, little recognition of that fact. For example, DelZotto and Jones’ research of sixty NGO reports on sexual violence in wartime highlighted the almost exclusive focus on women and the resulting invisibility of men.67 Fifty-​eight of the NGOs referred to women or girls as the victims of sexual violence, without mention of men and boys.68 Furthermore, they noted that, out of 4,076 non-​ governmental groups that addressed sexual violence during wartime, only 3 per cent mentioned males and approximately one quarter denied sexual violence against men was even an issue.69 More significantly, sexual torture of women and men was often seen differently, or not seen at all. During research in refugee centres, the care providers were asked directly whether they were familiar with the problem of sexual violence against men and their impression about the extent of the problem among the refugee population with which they worked.70 However, neither the staff nor the refugees were able to recognize—​literally—​certain forms of sexual violence against men, and to name them as such. Beating men across genitalia, even when this resulted in grave injuries, was seen simply as a beating and not as a sexual assault. Attaching electrodes to a penis was described as torture, but not as sexual torture. The findings of van Tienhoven further indicate that men expressed great reluctance in reporting experience of sexual torture and did so only after many months of contact with medical or psycho-​social care workers.71 This 66 Lončar and Brecic, ‘Characteristics of Sexual Violence’ (n 25); ‘Annexes to the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780, Volume V: Annexes IX–​XII’ (28 December 1994) UN Doc S/​1994/​674/​Add.2 Annex IX, [20]: ‘Men are also subject to sexual assault. They are forced to rape and sexually assault women, they are forced to perform fellatio on guards and on each other, they are forced to perform other sex acts on each other, and they suffer castrations, circumcisions, and other sexual mutilations.’ 67 Augusta DelZotto and Adam Jones, ‘Male-​on-​Male Sexual Violence in Wartime: Human Rights’ Last Taboo?’ (Annual Convention of the International Studies Association, March 2002) accessed 30 July 2020 (hereafter DelZotto and Jones, ‘Male-​ on-​Male Sexual Violence’). See also Dara Kay Cohen, Amelia Hoover Green, and Elisabeth Jean Wood, ‘Wartime Sexual Violence: Misconceptions, Implications, and Ways Forward’ (United States Institute of Peace Special Report, February 2013) 7 accessed 4 August 2020; Lara Stemple, ‘Male Rape and Human Rights’ (2009) 60 Hastings Law Journal 605; Heleen Touquet and Ellen Gorris, ‘Out of the Shadows? The Inclusion of Men and Boys in Conceptualisations of Wartime Sexual Violence’ (2016) 24(47) Reproductive Health Matters 36. 68 DelZotto and Jones, ‘Male-​on-​Male Sexual Violence’ 69 ibid. 70 van Tienhoven, ‘Sexual Torture of Male Victims’ (n 2) 133. 71 ibid 134.

Sexual Violence Against Men in Contemporary Warfare  117 research demonstrates that sexual violence against men has been consistently underreported, unrecognized, and unnamed as such. Women and girls also underreport sexual violence, whether it takes place in the context of ‘peace’ or war.72 However, the experience of prosecution of war rapes in the former Yugoslavia indicates that parallels between men and women should not be drawn too readily. According to expert witnesses at the International Criminal Tribunal for the former Yugoslavia (ICTY) and members of the UN fact-​finding mission,73 the knowledge about sexual violence against men was seldom obtained from those directly affected.74 As a rule, it was gathered from female witnesses, not from the male victims.75 Women, on the other hand, did testify about their own experiences.76 The lack of attention to male sexual violence has been replicated in international criminal tribunals. As Sivakumaran has noted, ‘there has been a dearth of prosecutions for the crime of male rape’ within international criminal tribunals.77 The jurisprudence of international criminal tribunals has rarely considered sexual violence committed against men and boys.78 When the tribunals have considered this form of sexual violence, they have tended to take one of three different approaches. First, the tribunals have sometimes mentioned, but not characterized this violence as sexual violence, instead categorizing it more generically as torture or as physical assault.79 Second, they have mentioned this form of violence as sexual violence, but without attaching consequences:80 for example, observing that sexual violence directed against males has occurred, but using this information for background evidence only or without it leading to a criminal conviction.81 Third, sometimes international criminal tribunals 72 eg MINUSCA and others, ‘Report of the Mapping Project Documenting Serious Violations of International Human Rights Law and International Humanitarian Law Committed Within the Territory of the Central African Republic Between January 2003 and December 2015’ (May 2017) 206–​ 7, 214 accessed 16 July 2020; UN Women, Handbook: Addressing Violence and Harassment Against Women in the World of Work (UN Women Headquarters 2019) 3, 26, 47 accessed 16 July 2020. 73 UNSC, ‘Final Report’ (n 53). 74 Žarkov, The Body of War (n 27) 155. 75 ibid. 76 ibid 147. 77 Sivakumaran, ‘Prosecuting Sexual Violence’ (n 23) 88. 78 Sandesh Sivakumaran, ‘Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict’ (2010) 92 International Review of the Red Cross 259, 272 (hereafter Sivakumaran, ‘Lost in Translation’). 79 ibid 273. See also Prosecutor v Blagoje Simić et al (Judgment) ICTY-​95-​9-​T (17 October 2003) [728], [772], [719]–​[730]. 80 Sivakumaran, ‘Lost in Translation’ (n 78) 274. 81 For example, sexual violence directed against males was used as background evidence in Prosecutor v Bagosora et al (Judgment) ICTR-​98-​41-​T (18 December 2008) [1908]. Sexual violence directed against

118  Dubravka Žarkov have recognized and characterized sexual violence directed against males as such, and it has formed the basis of criminal convictions of the perpetrators.82 There is some hope that this lack of attention to male victims of sexual violence may improve in the context of the International Criminal Court (ICC), with the adoption in 2014 by the Office of the Prosecutor (OTP) of its ‘Policy Paper on Sexual and Gender-​Based Crimes’.83 This policy indicates that the OTP will pay ‘particular attention to the commission of sexual and gender-​based crimes’, including those committed against men and boys ‘because of their sex and/​or socially constructed gender roles’.84 There is some evidence that the Prosecutor is operationalizing this policy in relation to sexual violence against males. For example, in reports of the Office’s detailed inquiries into allegations of crimes in its preliminary investigations phase, the Prosecutor has considered such crimes in a number of situations, including Burundi, Iraq, Ukraine, and Venezuela.85

D.  Attention to Sexual Violence Against Men and International Criminal Law The studies and reports cited above cover many different armed conflicts and situations of political violence from across the globe, from Latin America to Europe, Africa, the Middle East, and South Asia. Based on witness and victims’ testimonies or other kinds of empirical evidence, they attest that men are exposed to sexual violence and rape in situations of war and political violence.86

males was explicitly described but did not form the basis of conviction in Prosecutor v Muhimana (Judgment) ICTR-​95-​1-​T (28 April 2005) [441]–​[444], [448]–​[450]. 82 eg Prosecutor v Stakić (Judgment) ICTY-​97-​24-​T (31 July 2003) [241], [780], [806]. 83 ICC OTP, ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) [16]. 84 ibid [14]. 85 eg ICC OTP, ‘Report on Preliminary Examination Activities 2016’ (14 November 2016) [50], [93]–​ [94] accessed 22 July 2020; ICC OTP, ‘Report on Preliminary Examination Activities 2017’ (4 December 2017) [109] accessed 22 July 2020; ICC OTP, ‘Report on Preliminary Examination Activities 2019’ (5 December 2019) [79] accessed 17 July 2020. 86 For sexual violence in various parts of the world, see eg Sivakumaran, ‘Sexual Violence’ (n 19); Christian, ‘Sexual and Gender Based Violence Against Men’ (n 19); Chris Dolan, ‘Into the Mainstream: Addressing Sexual Violence Against Men and Boys in Conflict’ (Overseas Development Institute Workshop, London, May 2014) 1–​10 accessed 14 July 2020 (hereafter Dolan, ‘Into the Mainstream’); Adam Jones, ‘Gender and Genocide in Rwanda’ (2002) 4 Journal of Genocide Research 65; Jelke Boesten, ‘Marrying Your Rapist: Domesticating War Crimes in Peru’ in Donna Pankhurst (ed), Gendered Peace: Women’s Search for Post-​War Justice and Reconciliation (1st edn, Routledge 2007) 205; Žarkov, ‘The Body of the Other Man’ (n 18).

Sexual Violence Against Men in Contemporary Warfare  119 It has taken a long time for this fact to come to light and for the knowledge about sexual violence against men to become an appreciated research topic in social science, even longer to gain attention within ICL.87 However, over the last two decades, sexual violence against men has become more visible in legal, scholarly, and journalistic work, as well as within national and international organizations.88 Addressing this increased visibility, Philo Gorris (2015) notes that higher visibility of female victims of war rapes since the 1990s, that is since the wars in the former Yugoslavia and the genocide in Rwanda, has been forged by women’s movements, and has forced the introduction of new international legal mechanisms and intervention policies since 2000.89 She argues that one of the indirect outcomes of this visibility of assaulted and raped women has been a higher visibility of sexual violence against men.90 The work of numerous academics testify to the growing interest in and attention to sexual violence against men committed during violent conflict in this time period.91 These 87 Work by Adam Jones on Rwanda and gendercide, and work by Dubravka Žarkov on the war in former Yugoslavia, have been among the early contributions filling the social science empirical and theoretical gaps on prevalence and meanings of specific forms of male sexual victimization in wars and armed conflicts around the globe: Adam Jones, ‘Gender and Ethnic Conflict in Ex-​Yugoslavia’ (1994) 17 Ethnic and Racial Studies 115; Adam Jones, ‘Gender and Genocide in Rwanda’ (2002) 4 Journal of Genocide Research 65; Jones, Gendercide (n 2); Žarkov, ‘War Rapes in Bosnia’ (n 54); Žarkov, ‘The Body of the Other Man’ (n 18); Žarkov, The Body of War (n 27). See also Sivakumaran, ‘Sexual Violence’ (n 19); Sivakumaran, ‘Male/​Male Rape’ (n 24). 88 See ‘Report of the International Commission of Inquiry on Libya’ (2 March 2012) UN Doc A/​HRC/​ 19/​68 [67]–​[68]; ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (5 February 2012) UN Doc A/​HRC/​22/​59 Annex IX, [5]‌, [10]–​[13], [17], [18] and Annex X [6], [13]. See also Divya Shanmugasundaram, ‘Addressing Sexual Violence Against the Male Gender: A Legal Perspective’ (Centre for African Justice, Peace and Human Rights) accessed 15 July 2020; Héloïse Goodley, ‘Ignoring Male Victims of Sexual Violence in Conflict is Short-​sighted and Wrong’ (Chatham House, 10 January 2019) accessed 15 July 2020; Charlotte Vercraeye, ‘ “A Culture of Silence”: Sexual Violence Against Boys and Men in Conflict’ (Mukwege Foundation) accessed 15 July 2020; Women’s Refugee Commission, ‘It’s Happening to Our Men as Well: Sexual Violence Against Rohingya Men and Boys’ (Women’s Refugee Commission, 8 November 2018) accessed 15 July 2020. 89 Ellen Anna Philo Gorris, ‘Invisible Victims? Where are Male Victims of Conflict-​Related Sexual Violence in International Law and Policy’ (2015) 22 European Journal of Women’s Studies 412 (hereafter Philo Gorris, ‘Invisible Victims?’). 90 ibid 413. 91 Rosalind Petchesky, ‘Rights of the Body and Perversions of War: Sexual Rights and Wrongs Ten Years Past Beijing’ (2005) 57(184) International Social Science Journal 301 (hereafter Petchesky, ‘Rights of the Body’); Sivakumaran, ‘Male/​Male Rape’ (n 24); Charli Carpenter, ‘Recognizing Gender-​Based Violence Against Civilian Men and Boys in Conflict Situations’ (2006) 37 Security Dialogue 83; Miranda Alison, ‘Wartime Sexual Violence: Women’s Human Rights and Questions of Masculinity’ (2007) 33 Review of International Studies 75 (hereafter Alison, ‘Wartime Sexual Violence’); Sivakumaran, ‘Sexual Violence’ (n 19); Lara Stemple, ‘Male Rape and Human Rights’ (2009) 60 Hastings Law Journal 605 (hereafter Stemple, ‘Male Rape’); Sivakumaran, ‘Lost in Translation’ (n 78); Žarkov, ‘Exposures and Invisibilities’ (n 54); Sivakumaran, ‘Prosecuting Sexual Violence’ (n 23); Solange Mouthaan, ‘Sexual Violence Against Men and International Law—​Criminalising the Unmentionable’ (2013) 13 International Criminal Law

120  Dubravka Žarkov studies confirm the crucial importance of heteronormativity and power for the construction of masculinity, as well as of the relevance of collective identities such as ethnicity, race, religion, and caste and their intersections with hegemonic notions and practices of masculinities. This heightened visibility in media and academic works has translated into increased attention to sexual violence against men within ICL. This is evident in the ICC’s consideration of sexual violence against males in the Bemba trial judgment. In this case, Bemba was convicted of rape as a crime against humanity and a war crime for the rapes of almost thirty women and men committed by his soldiers.92 For example, the Trial Chamber made these findings with respect to male victim ‘P23’: The same day that his wife, daughters, and granddaughter were attacked, three armed soldiers forcefully penetrated P23’s anus with their penises in his compound, while family members and his neighbour looked on. . . . After the events, P23 could not walk, as his anus was swollen and he was treated only with traditional leaves. People in his community disrespected him. He considered himself a “dead man”.93

The ICC’s groundbreaking findings on the rape of men were rendered invisible, however, when the entire Bemba verdict was overturned on appeal.94 In a later case, Ntaganda, an ICC Trial Chamber held that acts of sexual violence—​anal penetration by penises or bits of wood—​on male victims satisfied the material elements regarding rape as a crime against humanity and as a war crime.95 This Review 665 (hereafter Mouthaan, ‘Sexual Violence Against Men’); Refugee Law Project, ‘Promoting Accountability for Conflict-​Related Sexual Violence Against Men: A Comparative Legal Analysis of International and Domestic Law Relating to IDP and Refugee Men in Uganda’ (2013) Refugee Law Project Working Paper 24 accessed 15 July 2020 (hereafter Refugee Law Project, ‘Promoting Accountability’); Oosterveld, ‘Addressing a Gendered Harm’ (n 23); Simic, ‘Wartime Rape’ (n 8); Gabrielle Ferrales, Hollie Nyseth Brehm, and Suzy McElrath, ‘Gender-​Based Violence Against Men and Boys in Darfur: The Gender-​Genocide Nexus’ (2016) 30 Gender & Society 565; R Ganzevoort and Srdjan Sremac, ‘Masculinity, Spirituality, and Male Wartime Sexual Trauma’ in Yochai Ataria and others (eds), Interdisciplinary Handbook of Trauma and Culture (1st edn, Springer 2016) 339. 92 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment Pursuant to art 74 of the Statute) [2016] ICC-​01/​ 05-​01/​08 [633]–​[638], [752]. 93 ibid [494]. 94 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to art 74 of the Statute’) [2018] ICC-​01/​05-​01/​08A. 95 Prosecutor v Bosco Ntaganda (Judgment) [2019] ICC-​01/​04-​02/​06 [941]–​[948] (hereafter Ntaganda Trial Judgment). Note, however, that this judgment is on appeal: Prosecutor v Bosco Ntaganda (Mr Ntaganda’s Notice of Appeal against the Judgment pursuant to art 74 of the Statute, ICC-​01/​04-​02/​ 06-​2359) [2019] ICC-​01/​04-​02/​06A.

Sexual Violence Against Men in Contemporary Warfare  121 judgment—​as well as the work of organizations and academics96—​has helped to raise the visibility of sexual violence directed against men and boys within international criminal jurisprudence. At the same time, invisibility is a powerful force, as seen in the Bemba appeal. Studies have shown that international and domestic legal frameworks and mechanisms often fall short in terms of taking into account the specificities of sexual violence against men in comparison to sexual violence against women. It also shows that those frameworks and mechanisms are seriously underutilized in relation to male sexual violence.97 In ICL, the challenge arises when investigators, prosecutors, or judges make assumptions about who comprises sexual violence victims—​in particular, that rape victims are exclusively women and girls.98 This was evident in the ICC case of Prosecutor v Muthaura and Kenyatta, in which the judges rejected the Prosecutor’s characterization of penile amputations and forced male circumcisions as sexual violence and recharacterized these acts as serious injuries to the body and inhumane acts.99 Chappell refers to this as ‘misrecognition’.100 Philo Gorris points to the conflation of ‘sexual violence’, ‘gender-​based violence’, and ‘violence against women’ in UN documents as fuelling ‘the view that sexual violence and gender-​based violence solely refer to female victimization, thus leaving the victimization of men and boys invisible, under-​researched and under-​addressed’.101 Within this framework, men are defined as aggressors, not victims. Jarvis and Vigneswaran describe these misconceptions concerning sexual violence against males as barriers both to successful and fulsome prosecutions of sexual violence by

96 eg All Survivors Project, ‘Checklist On Preventing And Addressing Conflict-​Related Sexual Violence Against Men And Boys’ (All Survivors Project) accessed 15 July 2020 (hereafter All Survivors Project, ‘Checklist’). See also War Child, ‘An Unwanted Truth: Shining a Spotlight on Sexual Violence Against Children in Conflict’ (War Child 2013) 7–​8

accessed 16 July 2020; Save the Children Fund, ‘Unspeakable Crimes Against Children: Sexual Violence in Conflict’ (Save the Children 2013) 4 accessed 15 July 2020. See the academics cited in this chapter, as well as Dolan, ‘Into the Mainstream’ (n 86); and Mouthaan, ‘Sexual Violence Against Men’). 97 Alison, ‘Wartime Sexual Violence’ (n 91); Stemple, ‘Male Rape’ (n 91); Philo Gorris, ‘Invisible Victims?’ (n 89); Sivakumaran, ‘Lost in Translation’ (n 78); Refugee Law Project, ‘Promoting Accountability’ (n 91); All Survivors Project, ‘Checklist’ (n 96). 98 Oosterveld, ‘Addressing a Gendered Harm’ (n 23) 115. 99 Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali) [2011] ICC-​01/​09-​02/​11 [27]; Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali (Decision on the Confirmation of Charges Pursuant to art 61(7)(a) and (b) of the Rome Statute) [2012] ICC-​01/​09-​02/​11 [265]–​[266]. 100 Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (OUP 2016) 122. 101 Philo Gorris, ‘Invisible Victims?’ (n 89) 415.

122  Dubravka Žarkov international criminal tribunals, but also to the development of the content of ICL.102 Such essentialist notions ‘tend to reify the male-​perpetrator/​female victim paradigm’.103 This paradigm makes it difficult to perceive men as victims, especially victims of man-​to-​man sexual violence. In an attempt to remedy these narrow conceptualizations, Petchesky and Stemple suggest that the concept of ‘women’s rights’ needs to be extended to the ‘rights of the body’ and ‘sexual rights’ (respectively) so as to allow attention to the male body and sexual violence against men.104 At the same time, a number of authors are wary of the increased attention to the sexual violence against men, fearing that women, still predominant victims of sexual violence in conflicts, will be sidelined. For example, Alison asks: Do we relinquish the notion of sexual violence as the archetypal women’s human rights abuse, and reframe it as a human rights abuse more generally? This would make room for male victims and female agents. However, would this then mean that the fact that women and girls remain the majority (though not the sole) victims and men and boys the majority (though not the sole) perpetrators will become elided?.105

ICL has largely adopted gender-​neutral definitions of sexual and gender-​based violence,106 thereby mitigating some of these concerns at the level of legal expression. However, the concern about losing recently-​gained investigatory and prosecutorial focus on female sexual violence victims remains.107

E.  Conclusion How best to recognize that women and girls are the predominant victims of sexual violence, while still ensuring that sexual violence directed against men 102 Michelle Jarvis and Kate Vigneswaran, ‘Challenges to Successful Outcomes in Sexual Violence Cases’ in Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 33. 103 Alison, ‘Wartime Sexual Violence’ (n 91) 75. 104 Petchesky, ‘Rights of the Body’ (n 91) 305; Stemple, ‘Male Rape’ (n 91) 632. 105 Alison, ‘Wartime Sexual Violence’ (n 91) 90. 106 However, see the discussion of forced marriage as an ICL violation in Chapter 8 of this volume. 107 Oosterveld argues that ‘This focus [on sexual violence directed against males] should not occur at the expense of attention to female-​targeted sexual violence. Rather, it should occur in addition to an examination of sexual violence against women and girls, especially given the interrelationship between male—​and female-​targeted sexual violence’: Oosterveld, ‘Addressing a Gendered Harm’ (n 23) fn 9.

Sexual Violence Against Men in Contemporary Warfare  123 and boys is properly recognized as a serious violation, without eliding the two? There is no easy answer. The discussion above indicates that the links between masculinities, heteronormativity, and collective identities are different than the links between femininities, heteronormativity, and collective identities. Thus, the male victim is positioned within the collectivity in a different way than the female victim. When it comes to war rapes, for women, the danger lies in the fact that the narrative of an ‘enemy’ is often the only one that gives rape in war social, political, and legal108 relevance. In such a case, rape is accorded a special status—​it is elevated into an ultimate crime against a woman’s community.109 For the community, this may provide justification for committing further violence—​both against their own women, and against the women of other communities. The partition of India shows that, for women, this symbolic elevation of rape into an ultimate crime against her community may have mortal consequences. In South Asia especially, the death of a woman—​whether she had been raped or not—​seems to play the role of ultimate sacrifice to the community, for women are both killed in order not to be raped, and/​or are accepted publicly as raped only if dead.110 For women raped by members of their own ethnic or religious community, before, during or after the conflict, such a communalization of rape results in a lack of social and discursive space within which they could name their experience either as a crime or as a sacrifice. If the punishment for rape reaches only the ‘enemy’ men, then the man defined as ‘one’s own’ may gain impunity, and rape, denied its communal/​collective connotation, is made invisible (or even irrelevant) as a crime. There is a hint, however, of this narrative changing, at least in ICL, with the conviction at trial of Bosco Ntaganda for sexual violence carried out by male troops within his militia against his own female soldiers.111 The perception of women as the only ones vulnerable to sexual violence and rape fixes the constitutive relationship between power, heteronormativity, and hegemonic masculinity. It means that for a man, rape itself, and not death, is 108 See Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 41–​42. 109 eg Prosecutor v Sesay, Kallon & Gbao (Judgment) SCSL-​04-​15-​T (2 March 2009) [1348]–​[1351]. 110 Rape and death are also connected in Western discourses on rape of women. There, however, the death is not literal but rather symbolic (the end of woman’s life as she lived it before the rape). I am not referring here to the individual experiences of a woman but rather to collective discourses and representations of rape as ‘social death’ in the West, in comparison to the collective mortal practice of murdering women in order not to be raped, during Partition. See Sharon Marcus, ‘Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention’ in Judith Butler and Joan Scott (eds), Feminists Theorize the Political (Routledge 1992) for criticism of Western discourses on rape of women. 111 Ntaganda Trial Judgment (n 95).

124  Dubravka Žarkov the ultimate sacrifice for his community. No death will ever redeem the raped man: within his own community, and often also within international and national criminal legal practices, he remains mostly invisible. When he is (made) visible, it often means he does not belong any longer, he is already the Other. By sustaining invisibility and improbability of men as ‘rapable’, the tower of hegemonic masculinity, and sexual violence as one of its practices in war and peace alike, remains intact. This has legal consequences: if left unaddressed, ICL will continue to overlook an entire category of victims and harms. Thinking of social consequences, as long as rape of men is rendered socially invisible, men who experience it will have few tools to cope with it personally, and little, if any, social assistance. Feminists have learned from women who have lived through sexual violence and wars that any situation of victimization, including sexual victimization, does not necessarily produce only victimhood. It also produces agency and transformative capacities. An important example is women rape survivors from Bosnia who started speaking about the war rapes as soon as the practice began, participated in contacting other survivors and witnesses, collected testimonies to be submitted to, and gave their own evidence before the ICTY.112 Legal and social recognition and assistance is needed to assist male victims of conflict-​related sexual violence, which, in turn, may create opportunities for survivor agency and transformative capacity. Furthermore, both our understanding of masculinity and our understanding of the gendered logic of war violence will only deepen if we invest in working with sexually assaulted men. Conflict-​related rape is gender-​specific war violence, thus it is violence embedded and embodied in specific masculinities and femininities and their hierarchies. To date, we have largely applied this knowledge only to the rape of women. Obviously, this has produced some important results. Feminist analyses, together with tireless women’s activists, have not prevented women from being raped in war, but they have put women’s victimization in war (and women’s activism against war) high onto the agenda of some of the most important international agencies and institutions, including international criminal tribunals.113

112 Žarkov, The Body of War (n 27) 147. 113 eg on the agenda of the United Nations Security Council: UNSC Resolution 1325 (31 October 2000) UN Doc S/​RES/​1325; UNSC Resolution 1820 (19 June 2008) UN Doc S/​RES/​1820; UNSC Resolution 1888 (30 September 2009) UN Doc S/​RES/​1888; UNSC Resolution 1889 (5 October 2009) UN Doc S/​RES/​1889; UNSC Resolution 1960 (16 December 2010) UN Doc S/​RES/​1960; UNSC Resolution 2106 (24 June 2013) UN Doc S/​RES/​2106; UNSC Resolution 2122 (18 October 2013) UN Doc S/​RES/​2122; UNSC Resolution 2242 (13 October 2015) UN Doc S/​RES/​2242; UNSC Resolution 2467 (23 April 2019) UN Doc S/​RES/​2467; UNSC Resolution 2493 (29 October 2019) UN Doc S/​RES/​ 2493.

Sexual Violence Against Men in Contemporary Warfare  125 The fact is, the gendered logic of war violence produces both women and men as ‘rapable’, but the gendered logic of the war narrative obscures some victims, while exposing others. These are not two different logics. Both can be traced back to the construction of modern masculinities and both seek to restore social order in which the intact male body, and the powerful, heteronormative masculinity of the dominant social group preserves its hegemonic status at all costs.

5 Children, Gender, and International Criminal Justice Gloria Atiba-​Davies and Leo C Nwoye*

“See that you do not despise or think less of one of these little ones [. . .]”1

A.  Introduction Children,2 whether as eyewitnesses or direct targets,3 are often disproportionately affected4 by human rights abuses occurring during peacetime or conflict, including crimes under international law. They are particularly vulnerable because of their young age and their natural dependence on family and community.5 Violations of their rights can have a deep negative effect on their physical and psychological development, if they survive.6 For instance, during World * The views expressed in this chapter are the personal views of the authors. We are grateful to Dr George W Mugwanya and Dr Yoriko Otomo for their suggestions and comments. We would also like to especially thank Rebecca Orsini for her assistance in the finalization of the chapter. 1 Amplified Study Bible, Matthew 18:10 (Zondervan 2017). 2 Biological, legal, and social definitions of a child vary across jurisdictions and are fraught with debate in IHL and ICL. Under the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (hereafter CRC) art 1, a child is defined as ‘every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier’. Hence, for the purposes of this chapter, ‘child’ or ‘children’ shall be taken to refer to persons under the age of eighteen. 3 See eg UN General Assembly (UNGA), ‘Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children—​Note by the Secretary-​General’ (26 August 1996) UN Doc A/​51/​306 (hereafter UNGA, ‘Impact of Armed Conflict’); Robin Wright, ‘The New Way of War: Killing the Kids’ (The New Yorker, 3 July 2014) accessed 25 June 2020. 4 See eg UNGA and Security Council (UNGASC), ‘Children and Armed Conflict—​Report of the Secretary-​General’ (20 June 2019) UN Doc A/​73/​907-​S/​2019/​509 [5]‌–​[11]. 5 Diane Marie Amann, ‘Children’ in William A Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 253, 253 (hereafter Amann, ‘Children’). 6 Cecile Aptel, ‘Children and Accountability for International Crimes: The Contribution of International Criminal Courts’ (2010) Innocenti Working Papers No 2010-​20, 13 (hereafter Aptel, ‘Children and Accountability’). See also Section E below. Gloria Atiba-​Davies and Leo C Nwoye, Children, Gender, and International Criminal Justice In: Gender and International Criminal Law. Edited by: Indira Rosenthal, Valerie Oosterveld, and Susana SáCouto, Oxford University Press. © Gloria ­Atiba-​Davies and Leo C Nwoye 2022. DOI: 10.1093/​oso/​9780198871583.003.0006

128  Gloria Atiba-Davies and Leo C Nwoye War II, Josef Mengele, an infamous Nazi physician at the Auschwitz concentration camp, is strongly alleged to have performed lethal and abhorrent experiments on numerous children, particularly twin children (and also adults).7 The surviving victims consequently carried ineffable and deep physical/​psychological trauma for the rest of their lives.8 Hence, the protection of children is crucial, not only because of the harms caused to the individuals affected, but also because of the potential impact on future generations and society.9 Gender-​based crimes against children are crimes directed against boys or girls, or violence inflicted on them, because of their sex and/​or socially constructed gender roles. They are not limited to crimes of a sexual nature and can include ‘physical, sexual, verbal, emotional, and psychological abuse, threats, coercion, and economic or educational deprivation, whether occurring in public or private life’.10 Children may be specifically targeted for such crimes on the basis of the combination of their age and gender. At the same time, boys and girls may be targeted for the same crimes (i.e. targeted on the basis of age), but their experiences and the harms they suffer as a result may differ because of their gender. For example, children’s experiences of being conscripted and used as child soldiers can vary because of gender, as we discuss in this chapter. ‘Children’ are not a homogeneous group. While crimes against adults and children may have common elements, they also affect children differently because of their age and their gender. Gendered norms and inequalities exist in every community and affect people of every age. However, the nature of these gendered norms and their impacts on the way in which gender-​based11 and 7 Lucette Matalon Lagnado and Sheila Cohn Dekel, Children of the Flames: Dr. Josef Mengele and the Untold Story of the Twins of Auschwitz (Penguin Books 1992); Gerald Posner and John Ware, Mengele: the Complete Story (Cooper Square Press 2000); Jennifer Rosenberg, ‘A History of Mengele’s Gruesome Experiments on Twins’ (ThoughtCo., 31 July 2021) accessed 9 September 2021. 8 University of California Television (UCTV), ‘Eva Kor: Surviving the Angel of Death’ (YouTube, 6 June 2016) accessed 9 September 2021; 60 Minutes, ‘From the 60 Minutes archives: Survivors of Josef Mengele’s Twin Experiments’ (YouTube, 5 April 2020) accessed 9 September 2021; Jonathan Broder, ‘Auschwitz Survivors Recall Horror of Nazi Experiments’ (Chicago Tribune, 7 February 1985) accessed 8 September 2021; Andy Walker, ‘The Twins of Auschwitz’ (BBC News, 28 January 2015) accessed 8 September 2021. 9 No Peace Without Justice (NPWJ) and UNICEF Innocenti Research Centre, ‘International Criminal Justice and Children’ (September 2002) 30–​ 31; Roos Haer, ‘Children and Armed Conflict: Looking at the Future and Learning from the Past’ (2019) 40 Third World Quarterly 74 (hereafter Haer, ‘Looking at the Future’). 10 Meghan Ott, ‘What Does That Mean? Gender-​based Violence’ (Women for Women International, 21 November 2017) accessed 25 June 2020. 11 Gender-​based crimes usually occur ‘sequentially, simultaneously, consequentially or alternatively’ with other crimes and may overlap or be interconnected with each other: Patricia Viseur Sellers and Leo C Nwoye, ‘Conflict-​Related Male Sexual Violence and the International Criminal Jurisprudence’ in

Children, Gender, and International Criminal Justice  129 other crimes are experienced can differ according to age and other intersecting identities (eg socio-​ economic status, disability, ethnicity, etc). Gender-​ competent analysis is therefore necessary to expose these dimensions. Indeed, accurately acknowledging these gendered dimensions in prosecutions of gender-​based crimes against children is vital. First, it is beneficial from a prosecutor’s perspective, because unearthing motives and patterns of gender-​ based crimes against children, and the connection between these and other crimes, can help the prosecution shape indictments that reflect the full criminality of the accused and the seriousness of the crimes.12 This, in turn, can be reflected in sentencing. Second, acknowledging the gendered dimensions of these crimes can also assist in the identification of their gendered impacts,13 which is particularly useful in designing adequate rehabilitation/​redress measures. Thus, international criminal accountability mechanisms—​and, by extension, national courts applying international criminal law (ICL)—​can play a pivotal role in surfacing and redressing the distinct gendered crimes and harms that children experience.14 This chapter spotlights how international criminal courts and tribunals have acknowledged and addressed gender-​based crimes perpetrated against boys and girls. It explores the existing and evolving approaches to these crimes, finding that these courts have tended to focus on specific types of violations: the crime under international law of enlisting or conscripting child soldiers or using them in hostilities, often referred to as child soldier crimes, and acts of forced marriage or sexual violence. This chapter, therefore, aims to encourage deeper analysis of gender-​based crimes against children—​including enlistment or conscription of children into armed forces or groups, forced marriage, and sexual violence crimes, but also going beyond these—​at both international and national criminal justice mechanisms. The chapter begins by summarizing some of the historical legal approaches to gender-​based crimes against children in general. It then surveys and critiques how international courts and tribunals established prior to the International Criminal Court (ICC) have addressed the intersection of childhood and gender. It turns to an examination of how two more recently established international courts—​the Special Court for Sierra Leone (SCSL) and the Marysia Zalewski and others (eds), Sexual Violence against Men and Boys in Global Politics (Routledge 2018) 211, 229 (hereafter Sellers and Nwoye, ‘Conflict-​Related Male Sexual Violence’). 12 See eg Xabier Agirre Aranburu, ‘Sexual Violence Beyond Reasonable Doubt: Using Pattern Evidence and Analysis for International Cases’ (2010) 23 Leiden Journal of International Law 609. 13 Diane Marie Amann, ‘The Child Rights Convention and International Criminal Justice’ (2015) 84 Nordic Journal of International Law 248, 255 (hereafter Amann, ‘Child Rights’). 14 See Section E below.

130  Gloria Atiba-Davies and Leo C Nwoye ICC—​have navigated this intersection. Finally, it concludes that, while some judicial decisions show an increasing receptivity to recognizing and redressing a broad range of children’s experiences, others reflect limited consideration of the various gendered harms experienced by children. The chapter finds that fuller accountability for gender-​based crimes against children requires ICL practice to better and more consistently recognize gendered harms to children.

B.  Underused and/​or Limited Statutory Focus in International Human Rights Law, International Humanitarian Law, and International Criminal Law on Gender-​Based Crimes Against Children The last century has seen advances in the international legal framework in the specific protection of children from human rights violations. Early human rights instruments, such as the United Nations (UN) Universal Declaration of Human Rights and the 1959 Declaration of the Rights of the Child, recognized certain rights and protections owed to children.15 Those rights were further expounded in the United Nations Convention on the Rights of the Child (CRC) in 1989, and its optional protocols.16 The CRC, the most widely ratified of all UN human rights treaties,17 obliges state parties to respect the rules of international humanitarian law (IHL) relevant to children, to ensure that children under fifteen years of age are not recruited into their armed forces and do not take part in hostilities,18 and to take measures ‘to promote physical and psychological recovery and social reintegration of a child victim of . . . armed conflicts’.19 The Optional Protocol to the CRC on the involvement of children 15 The early human rights instruments commenced with the League of Nations, ‘Geneva Declaration of the Rights of the Child (adopted 26 November 1924) accessed 14 July 2020; UNGA, ‘Declaration of the Rights of the Child’ (20 November 1959) UN Doc A/​ RES/​1386(XIV); UNGA, ‘Universal Declaration of Human Rights’ (10 December 1948) UN Doc A/​ RES/​217(III). 16 CRC (n 2); Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227; Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (adopted 5 May 2000, entered into force 12 February 2000) 2173 UNTS 222 (CRC Protocol II); Optional Protocol to the Convention on the Rights of the Child on a communications procedure (adopted 19 December 2011, entered into force 14 April 2013) 2983 UNTS 131; The CRC is unique among UN human rights treaties for enjoying near universal state ratification: Amann, ‘Child Rights’ (n 13) 254–​55. 17 There are currently 197 ratifications. Only the United States (US) has not ratified, although it signed the CRC on 16 February 1995: UN, ‘Ratification Status for CRC—​Convention on the Rights of the Child’ (UN) accessed 15 September 2021. 18 CRC (n 2) art 38. 19 ibid art 39.

Children, Gender, and International Criminal Justice  131 in armed conflict, adopted in 2000, elaborates on these requirements.20 For example, it requires state parties to take all feasible measures to prevent recruitment and use of children by non-​state armed groups, and to adopt legal measures necessary to prohibit and criminalize such practices.21 The two Additional Protocols to the Geneva Conventions of 1949 (Additional Protocols)22 similarly proscribe recruitment and use of children in armed conflict.23 Although, as will be discussed in Section D.2 below, the Additional Protocols also acknowledge a continuous special respect owed to all children including protection from indecent assault (which encompasses sexual violence) perpetrated by any party to an international armed conflict.24 Yet, these provisions on special respect remain seldom employed.25 Furthermore, in recent years, the international community has adopted several types of measures26 to address violations of children’s rights in armed conflict and/​or other contexts in which mass atrocities may occur (1) the ‘naming and shaming’ of culprit states or groups,27 (2) the sanctioning of violators,28 and (3) the use of ICL mechanisms to hold perpetrators individually accountable and to punish them. While there has been some recognition within ICL of the specific harms inflicted on children as a result of the intersection of their age and gender, that recognition has not been as far-​reaching or widespread as one might expect.29 20 CRC Protocol II (n 16). 21 ibid art 4(2). 22 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1922, entered into force 7 December 1978) 1125 UNTS 3 (hereafter AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (hereafter AP II). 23 Amann, ‘Child Rights’ (n 13) 254–​55. 24 See AP I (n 22) art 77; AP II (n 22) arts 2 and 4(3)(d); Patricia Viseur Sellers, ‘Ntaganda: Re-​ Alignment of a Paradigm’ in Proceedings of the San Remo Round Table on ‘The Additional Protocols 40 Years Later: New Conflicts, New Actors, New Perspectives’ (International Institute of Humanitarian Law 2017) accessed 15 September 2021 (hereafter Sellers, ‘Re-​Alignment of a Paradigm’). 25 eg Sellers, ‘Re-​Alignment of a Paradigm’ (n 24). 26 Haer, ‘Looking at the Future’ (n 9) 82. 27 See eg UN Security Council (UNSC), ‘Report of the Special Representative of the Secretary-​ General for Children and Armed Conflict to the Human Rights Council’ (27 January 2021) UN Doc A/​ HRC/​46/​39; UNSC Resolution 1882 (4 August 2009) UN Doc S/​RES/​1882; UNSC Resolution 1998 (12 July 2011) UN Doc A/​RES/​1998; UNSC Resolution 2068 (19 September 2012) UN Doc A/​RES/​2068; UNSC Resolution 2225 (18 June 2015) UN Doc S/​RES/​2225. 28 See eg The Office of the Special Representative of the Secretary-​General for Children and Armed Conflict (OSRSGARC), ‘Security Council Sanctions Committee Concerning Democratic Republic of Congo Meets with Special Representative for Children and Armed Conflict’ (2015) accessed 15 September 2021. 29 Helen Toquet and Ellen Gorris, ‘Out of the Shadows? The Inclusion of Men and Boys in Conceptualisations of Wartime Sexual Violence’ (2016) 24(47) Reproductive Health Matters 36, 36–​41; Office of the United Nations Special Representative of the Secretary-​General on Sexual Violence in

132  Gloria Atiba-Davies and Leo C Nwoye Neither the post-​World War II international criminal justice mechanisms—​ the Nuremberg and Tokyo International Military Tribunals—​nor the more recent ones—​the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR)—​were granted explicit jurisdiction over crimes against children. Instead, crimes against children were subsumed under general categories, primarily crimes against civilians.30 By contrast, the international criminal courts of the twenty-​first century, the SCSL31 and the ICC,32 were given explicit jurisdiction over child soldier crimes within their mandates. The Rome Statute of the ICC also explicitly proscribes, in article 6(e) the forcible transfer of children from one national, ethnic, racial, or religious group to another and, in article 7(1)(c) and (2)(c), the trafficking of children as a form of enslavement as a crime against humanity.33 Additionally, the ICC’s Element of Crimes document explicitly recognizes that sexual slavery may be carried out through trafficking of children.34 However, at the level of statute, there is little else explicitly mandating that international criminal tribunals acknowledge and address the intersection of gender and age dimensions of the crimes under their jurisdiction.35 There are three potential reasons for these gaps: first, there was a predominant focus on the crime of recruitment and use of children in armed conflict in the Additional Protocols. The result is that ‘the articulation and analysis of the many other wartime wrongs that children endure’ was ‘left to [ . . . ] other Conflict, ‘Report of Workshop on Sexual Violence against Men and Boys in Conflict Situations’ (25–​ 26 July 2013) 8–​10; Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18 European Journal of International Law 253, 257–​58 (hereafter Sivakumaran, ‘Sexual Violence’); Sandesh Sivakumaran, ‘Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict’ (2010) 92(877) International Review of the Red Cross 259. 30 Aptel, ‘Children and Accountability’ (n 6) 17. See also the indictments issued by the prosecution in the RUF case: Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF) (Amended Consolidated Indictment) SCSL-​2004-​15-​PT (13 May 2004) (hereafter RUF Indictment); or the charges regarding sexual and gender-​based crimes against girl soldiers in the Lubanga case: Prosecutor v Thomas Lubanga Dyilo (Warrant of Arrest) [2006] ICC-​01/​04-​01/​06-​2-​tEN. 31 UNSC, Statute of the Special Court for Sierra Leone (16 January 2002) art 4(c) (SCSLSt). 32 Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) arts 8(2)(b)(xxvi), 8(2)(e)(vii). 33 ibid arts 8(2)(b)(ix) and 8(2)(e)(iv) also list the war crimes of attacks against buildings dedicated to education, but this provision does not explicitly reference children. 34 See ICC, Elements of Crimes (ICC 2011) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi): for sexual slavery. 35 However, additionally, the ICC’s OTP has adopted a policy to conduct gender analysis which ‘examines the underlying differences and inequalities between women and men, and girls and boys, and the power relationships and other dynamics which determine and shape gender roles in a society, and give rise to assumptions and stereotypes. In the context of the work of the Office, this involves a consideration of whether, and in what ways, crimes, including sexual and gender-​based crimes, are related to gender norms and inequalities.’ ICC Office of the Prosecutor (OTP), ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) 4 accessed 27 June 2020 (hereafter ICC OTP, ‘SGBC Policy Paper’).

Children, Gender, and International Criminal Justice  133 treaties and other institutions [ . . . ].’36 Informed by these instruments, international criminal mechanisms imported similar limitations. Second, there is relatively little understanding within the field of ICL of the meaning of the term ‘gender’, which is often conflated with the terms ‘biological sex’, ‘women’, or ‘girls’.37 Although the Rome Statute defines the term as ‘the two sexes, male and female, within the context of society’, there is no universally accepted definition of the term ‘gender’ in ICL.38 The meaning of ‘gender’ is contentious and depending on the context, can be misinterpreted and misapplied.39 This raises broader questions, such as whether the term ‘gender’ is simply misunderstood and which definition of the term should prevail. Valerie Oosterveld has identified four meanings ascribed to the term ‘gender’ in ICL at different times and in differing contexts, namely: (1) biological sex;40 (2) as a synonym for women;41 (3) a short form to mean ‘sexual violence’ (such as rape, forced nudity, sexual mutilation, or sexual slavery); and (4) as socially constructed norms of ‘maleness’ or ‘femaleness’.42 The meanings ascribed to

36 Amann, ‘Child Rights’ (n 13) 255. 37 Lara Stemple, ‘Male Rape and Human Rights’ (2006) 60 Hastings Law Journal 605, 627–​28. See also 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, 56 (hereafter Oosterveld, ‘The Definition of Gender’). 38 ICCSt (n 32) art 7(3). Although the Rome Statute defines gender in art 7(3), the term was a contentious issue during the drafting of the Rome Statute: Oosterveld, ‘The Definition of Gender’ (n 37). 39 For example, see Chapter 7 by Lisa Davis and Danny Bradley in this volume. See also Indira Rosenthal and Valerie Oosterveld, ‘Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity’ (2020) 6 African Journal of International Criminal Justice 214. 40 ICCSt (n 32) art 7(3) describes ‘gender’ as referring ‘to the two sexes, male and female, within the context of society’ and that the term ‘does not indicate any meaning different from the above.’ Some have interpreted this as requiring a biological interpretation of the definition. However, the more widely accepted interpretation, including that of the ICC’s OTP, is that art 7(3) is referring to ‘the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’: ICC OTP, ‘SGBC Policy Paper’ (n 35) 3. 41 See eg in the CDF case, where both the Prosecution and trial judges used the term ‘gender’ as a synonym for ‘women’. The Prosecution framed the issue of sexual and gender-​based crimes (whether rape, sexual slavery, other inhumane acts like forced marriages, and outrages upon personal dignity) as something that only happened to females. The Trial Chamber, in turn, regarded such crimes as gender offences: see Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Decision on Prosecution Request for Leave to Amend the Indictment) SCSL-​04-​14-​PT (20 May 2004) (hereafter CDF Prosecution Request). Subsequently, two trial judges referred to evidence by women as ‘gender evidence’, and not evidence of gender-​based crimes: see Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence) SCSL-​04-​14-​PT (24 May 2005) [14], [19], [51], [53], [76], [78] (hereafter CDF Reasoned Majority). Consequently, no males were mentioned with regard to the ‘gender offences’ and evidence of sexual and gender-​based violence against males was regarded as ‘cruel treatment’ or ‘mistreatment’: see Prosecutor v Moinina Fofana and Allieu Kondewa (Appeal Judgement) SCSL-​04-​14-​ A (28 May 2008) [496], [520] (hereafter CDF Appeal Judgment). 42 Valerie Oosterveld, ‘(Mis)Understanding Gender in International Criminal Law’ Oxford Transitional Justice Research Seminar Series (18 November 2015) accessed 18 December 2019.

134  Gloria Atiba-Davies and Leo C Nwoye ‘gender’ by courts oscillate among those identified by Oosterveld, even though the fourth meaning reflects the Rome Statute and United Nations use.43 The way in which ‘gender’ is used as a term can also vary between (and within) institutions at the international level.44 This imprecision in use leads to confusion and a failure to accurately categorize45 or describe gender crimes, particularly as they apply to children. Additionally, there is limited expertise within international courts and tribunals in how to conduct gender analysis, including on how to examine the intersection of age with gendered crimes.46 Third, there has been a tendency to treat children as a homogenous group without accounting for differences in experiences between girls and boys. For example, while Graça Machel’s report on the impact of armed conflict on children identified ‘children as the primary victims of conflict,’47 it overlooked the issue of gender norms and how they affect boys and girls differently, especially child soldiers, during conflict. The application of such misunderstandings to the elaboration of crimes against children within international criminal tribunal statutes led to the formation of an incomplete picture of the gendered harms children suffer. Admittedly, some strides have been made to fill these statutory gaps, particularly following the Machel study and the ten-​year review48 of her report.49 For example, at the ICC, two policies adopted by the OTP have laudably attempted to rectify these issues and misconceptions among its staff. The first, 43 See eg the definition used by the World Health Organization (WHO): ‘Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. As a social construct, gender varies from society to society and can change over time.’ WHO, ‘Gender and Health’ (WHO) accessed 19 September 2021. 44 Various organs of the ICC have used the term ‘gender’ to, at times, mean ‘biological sex’ and, at other times, to mean a socially constructed norm: Valerie Oosterveld, ‘Constructive Ambiguity and the Meaning of ‘Gender’ for the International Criminal Court’ (2014) 16(4) International Feminist Journal of Politics 563, 574. 45 See eg Prosecutor v Thomas Lubanga Dyilo (Separate and Dissenting Opinion of Judge Odio Benito) [2012] ICC-​01/​04-​01/​06 (hereafter Lubanga, Odio Benito Dissent). 46 For discussion of how the intersection of gender and children has been placed ‘at the peripheries of legal protections’, see Solange Mouthaan, ‘Children and Armed Conflict: Pitfalls of a “One Size Fits All” Approach’ in Solange Mouthaan and Olga Jurasz (eds), Gender and War: International and Transitional Justice Perspectives (Intersentia 2019) 119, 120, 129–​43. 47 OSRSGARC, ‘Graça Machel and the Impact of Armed Conflict on Children’ accessed 25 June 2020. The study was commissioned in 1993 by the UNGA on the impact of conflict on children following a recommendation by the Committee on the Rights of the Child: UNGA, ‘Impact of Armed Conflict’ (n 3). 48 UNGA, ‘Report of the Special Representative of the Secretary-​General for Children and Armed Conflict’ (13 August 2007) UN Doc A/​62/​228. 49 Reliefweb, ‘Impact of Armed Conflict on Children—​Twenty Years of Action Following the Publication of Graça Machel Report to the General Assembly’ (Reliefweb, 26 August 2016) accessed 27 June 2020.

Children, Gender, and International Criminal Justice  135 the 2014 Policy Paper on Sexual and Gender-​based Crimes (SGBC Policy Paper),50 aims to ensure that the Office integrates a gender-​competent perspective in all of its work. The second, the 2016 Policy Paper on Children,51 requires the Office of the Prosecutor (OTP) to adopt a child-​sensitive approach when dealing with crimes against children. However, this policy framework applies only to the OTP at the ICC and no other international criminal court or tribunal has adopted similar policies. More recently, a joint and collaborative research study was conducted on, inter alia, the origins of limited answerability for crimes against children, increasing accountability for serious violations and gender-​based crimes against children—​as well as how various national and international actors can prioritize, sustain, and protect children’s rights (see Section E below).52

C.  ‘Invisibilization’ of Gender-​Based Crimes Against Children at the Leipzig Trials, Nuremberg, Tokyo, Yugoslavia, Rwanda, and Cambodia Tribunals Preliminary attempts to utilize international justice to address gender-​based crimes against children occurred following World War I, in a case that was part of the 1921 War Crimes Trials before the German Reichsgericht (Supreme Court) in Leipzig—​however, the efforts proved weak and unsatisfactory, both procedurally and substantively.53 Children were ultimately not the subjects of the Leipzig trials.

50 ICC OTP, ‘SGBC Policy Paper’ (n 35). 51 ICC OTP, ‘Policy on Children’ (ICC 2016) 19–​25 (hereafter ICC OTP, ‘Policy on Children’). 52 Oxford Institute for Ethics, Law and Armed Conflict (ELAC) at the Blavatnik School of Government, and Save the Children, ‘Advancing Justice for Children: Innovations to Strengthen Accountability for Violations and Crimes Affecting Children in Conflict’ (March 2021) accessed 16 September 2021 (hereafter ELAC & Save the Children, ‘Advancing Justice for Children’). 53 The case concerned Max Ramdohr, a Secret Military Police officer in Belgium. Ramdohr was accused of cruelty against certain Belgian children, in the context of an illegal interrogation for alleged railway sabotaging and plundering of provisions. He was subsequently acquitted because no specific charges were brought, the children’s testimony was deemed unreliable, and the evidence did not meet the required threshold to prove guilt. However, the court strongly believed that Ramdohr used ‘legally forbidden’ measures when the children were confined until the questioning had finished: see Claud Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (HF & G Witherby 1921) 141–​43, 149–​50; James F Willis, Prologue to Nuremberg: Politics and Diplomacy of Punishing War Criminals of the First World War (Contributions in Legal Studies) (Greenwood Press 1982) 27–​33, 38–​39; Joseph Rikhof, ‘The Istanbul and Leipzig Trials: Myth or Reality?’ in Morten Bergsmo, Wui Ling Cheah, and YI Ping (eds), Historical Origins of International Criminal Law: Volume 1 (Torkel Opsahl Academic EPublisher 2014) 259, 271.

136  Gloria Atiba-Davies and Leo C Nwoye When specialized ICL mechanisms have considered children as victims of crimes, they have often failed to separately or specifically charge crimes against children, let alone distinguish between boys and girls. This section will demonstrate these failures within the International Military Tribunals for Nuremberg and Tokyo, the ICTY, the ICTR, and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The International Military Tribunals for Nuremberg and Tokyo recognized, to a certain extent,54 that children were targeted for certain crimes during World War II—​for example, when they referred to testimony regarding the killing of young children in concentration camps.55 More specifically, in United States v Karl Brandt et al (‘The Doctors Trial’ or ‘Medical Case’), the Nuremberg Tribunal judges found Brandt guilty of, inter alia, war crimes and crimes against humanity for leading a secret Nazi ‘Aktion T4’ Euthanasia Program between 1939–​45, to kill children (and adults) with mental and physical disabilities—​thereby ‘purging’ the ‘Aryan’ race of people that were deemed genetically flawed and a financial incumbrance to German society.56 However, these tribunals did not include specific charges for crimes against children,57 as their founding charters did not include any child-​specific crimes.58

54 See also the German criminal prosecutions of Kurt Heissmeyer and Arnold Strippel (and Alfred Trzebinski, Wilhelm Dreimann, Max Pauly, Ewald Jauch, Johann Frahm, and Adolf Speck in the Curio-​ Haus trials, Hamburg, where Nazi war crimes were in British Military Courts). The case centred on Heissmeyer and Trzebinski who cruelly experimented on twenty Jewish children (ten boys and ten girls) taken from Neuengamme concentration camp. The children (and others) were subsequently murdered in the Bullenhuser Damm School, Hamburg: Robert Jay Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (Basic Books 1986) 457; Michael H Kater, Doctors Under Hitler (University of North Carolina Press 2000) 123–​25; ‘The Story of the Children of Bullenhuser Damm’ accessed 10 September 2021. 55 Amann, ‘Children’ (n 5) 254–​55. The judgment of the Tokyo Tribunal refers to the mass murders of children, multiple rapes of young girls (and women), as well as sexual violence committed against boys (and men) during the Japanese invasion and occupation of China and the Philippines: International Military Tribunal for the Far East, Tokyo, ‘Judgement of 4 November 1948’ in John Pritchard and Sonia M Zaide (eds), The Tokyo War Crimes Trial vol 22 (Garland Publishing 1981) (hereafter IMTFE Judgment); Iris Chang, The Rape of Nanking (Basic Books 2012); Sellers and Nwoye, ‘Conflict-​Related Male Sexual Violence’ (n 11) 213; Carlos H Conde, ‘Letter from the Philippines: Long afterward, war still wears on Filipinos’ (New York Times, 13 August 2005) accessed 19 September 2020. 56 International Military Tribunal at Nuremberg, United States v Karl Brandt et al (Case 1) (21 November 1946–​20 August 1947) 15, 694–​738, 795–​802, 807, 844–​46, 867–​69. 57 Aptel, ‘Children and Accountability’ (n 6) 15. See also IMTFE Judgment (n 55) [49,664], [49,666]–​[49,667], [49,674]. There is also no indication that any child appeared as a witness during the proceedings. 58 Agreement for the prosecution and punishment of the major war criminals of the European Axis (adopted 8 August 1945, entered into force 8 August 1945) 82 UNTS 279; International Military Tribunal for the Far East Charter (enacted 19 January 1946) accessed 17 September 2021; Amann, ‘Children’ (n 5) 263.

Children, Gender, and International Criminal Justice  137 Sadly, this pattern of relative invisibility continued in the modern ad hoc tribunals for Rwanda and the former Yugoslavia, as well as at the ECCC—​even though children’s status, susceptibility, and/​or experiences were acknowledged (albeit indirectly and inconsistently) as a component of the wider crimes perpetrated against the civilian population, in their adjudication of the cases. The statutes establishing these courts did not delineate any child-​specific crimes,59 with the exception of the genocidal act of forcibly transferring children.60 Accordingly, crimes against children were not systematically or specifically brought before their respective Trial Chambers,61 in spite of evidence that, in some cases, children were directly and indirectly targeted and were also among the perpetrators.62 Rather, crimes directed against children were subsumed into the charges for crimes perpetrated against civilians in general, and opportunities to advance consideration of specific issues related to crimes against children—​such as their gendered aspects—​were missed. One example of a failure to fully recognize the significance of the age and gender components to the crimes committed against children occurred in the ICTY’s Krstić case, which related to the Srebrenica massacre.63 There, the Trial Chamber found that men and ‘military-​aged’64 boys were subjected to different treatment than women, other children, and the elderly. The latter groups were

59 However, the ICTY and ICTR created a rule that enabled children to give testimonial evidence without the formality of making a solemn declaration—​if, in the view of the Trial Chamber, the child understood the responsibility to tell the truth and adequately report on the facts he or she had knowledge about: see ICTR, ‘Rules of Procedure and Evidence’ (ICTR, 13 May 2015) r 90(B) accessed 27 September 2021; ICTY, ‘Rules of Procedure and Evidence’ (ICTY, 8 July 2015) r 90(C) accessed 27 September 2021. The ICTY and ICTR differed in their requirement of corroboration for such testimonies to stand in cases of sexual assault—​with the ICTY requiring corroboration and the ICTR not requiring any: see ibid r 96(i). See also Patricia Viseur Sellers, ‘Rule 89(C) and (D): At Odds or Overlapping with Rule 96 and Rule 95?’ in Richard May and others (eds), Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald: International Humanitarian Law Series (Kluwer Law International 2001) 280, fn 33. 60 UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002) (25 May 1993) art 4(2)(e) (hereafter ICTYSt): ‘Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: . . . (e) forcibly transferring children of the group to another group’; UNSC, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) (8 November 1994) art 2(2)(e) (hereafter ICTRSt); Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (adopted 6 June 2003, entered into force 29 April 2005) 2329 UNTS 117 (ECCCSt) art 4. 61 Aptel, ‘Children and Accountability’ (n 6) 15. 62 In Rwanda, many children under the age of 15 fought in the 1994 civil conflict: Roméo Dallaire, They Fight Like Children, They Die Like Soldiers: The Global Quest to Eradicate the Use of Child Soldiers (Vintage Books 2011) 6–​12, 31, 105–​7. 63 Prosecutor v Radislav Krstić (Judgment) IT-​98-​33-​T (2 August 2001) (hereafter Krstić Trial Judgment). 64 ibid fn 3.

138  Gloria Atiba-Davies and Leo C Nwoye forcibly transferred to Bosnian Muslim territory, while the men and ‘military-​ aged’ boys were killed in mass executions.65 Singling out males for mass execution is ‘rooted in assumptions about male wartime roles,’66 and is therefore highly gendered. Indeed, many older boys were separated from the women, girls, and elderly, and only newborns, infants, toddlers, and very young boys were allowed to live—​potentially because they were not considered a threat. The fact that younger boys were allowed to survive demonstrated the gendered and age-​related assumptions about the ability of older boys to serve as fighters. Considerable forensic evidence and witness testimony supports this hypothesis.67 Despite this, all boys of different ages were grouped as ‘children’ in the trial judgment and treated as one cohort.68 Krstić was convicted of the crime against humanity of persecution for ‘the forcible transfer of all women, children and elderly from Srebrenica’ and of genocide for the killing of the males.69 The Krstić case represents the only case in which the ICTY directly analysed gender-​based crimes committed against children. Admittedly, the Trial Chamber in that case acknowledged that boys and girls who were forcibly transported and therefore survived, suffered psychological and emotional trauma related to their experiences, subsequent unemployment, and the loss of male role models.70 However, the extent to which the court addressed the gendered dimensions of these experiences was limited. Although Krstić contains the only direct analysis, in another case, Prosecutor v Kunarac et al, the Trial Chamber indirectly conducted an intersectional gender analysis with age when it discussed the sexual and domestic slavery of women and girls, including a twelve-​year-​old girl.71 Moreover, it considered the defenselessness and young age of a number of female victims to be aggravating

65 ibid [44], [48], [51], [53], [58], [67], [85]. 66 For example, R Charli Carpenter, ‘Recognizing Gender-​Based Violence against Civilian Men and Boys in Conflict Situations’ (2006) 37(1) Security Dialogue 83 (hereafter Carpenter, ‘Recognizing Gender-​Based Violence’). 67 Krstić Trial Judgment (n 63) [74]. 68 eg ibid [44]. 69 ibid [633]–​[636], [724], [727]. 70 ibid [92]. 71 Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Judgment) IT-​96-​23-​T & IT-​96-​23/​1-​T (22 February 2001) [39]–​[42], [775]–​[780], [864], [874], [879] (hereafter Kunarac Trial Judgment). Likewise, in Prosecutor v Blaškić, the Trial Chamber emphasized that the impact of the crimes on the victims, especially the targeting of women and children in the civilian population, was an aggravating factor: The Prosecutor v Tihomir Blaškić (Judgment) IT-​95-​14-​T (3 March 2000) [786]. In Prosecutor v Ratko Mladić, the Trial Chamber recognized that the age of the victims was one of the considerations taken into account when deciding their status as civilians: Prosecutor v Ratko Mladić (Judgment) IT-​09-​92-​T (22 November 2017) [3194]. See also International Residual Mechanism for Criminal Tribunals, ‘Children in Conflict—​Evidence from the Archives of the International Criminal Tribunals’ accessed 17 September 2021.

Children, Gender, and International Criminal Justice  139 circumstances, and took this into account in the sentencing.72 This approach was subsequently affirmed on appeal.73 A limited approach similar to the Krstić analysis was taken in the ICTR Akayesu case, which is often hailed as the first conviction of rape as an act of genocide and a crime against humanity.74 In that case, the court found that girls, including very young girls,75 were raped and sexually mutilated before they were killed.76 In some cases, they were made to walk naked in public or perform gymnastics while naked.77 The trial judgment extensively refers to women and girls as victims in general,78 especially as victims of sexual violence.79 Men were seldom explicitly mentioned in this respect80 and boys were not mentioned at all.81 While this omission may be attributed to possible investigation, prosecution, and evidentiary limitations,82 it is unlikely, in the context of the mass atrocities committed in the Rwandan genocide, that there were no boy victims of sexual violence among the civilian population attacked in that case.83 Moreover, Rwanda is a patrilineal society, meaning that ethnicity is believed to be passed through males, adding to the likelihood that boys were also targeted for sexual and gendered violations as part of the genocide.84 Thus, the ICTR Trial Chamber missed an opportunity in this and other cases85 to 72 Kunarac Trial Judgment (n 71). 73 Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković (Appeal Judgement) IT-​96-​23-​ A & IT-​96-​23/​1-​A (12 June 2002). 74 Kelly Dawn Askin, ‘Gender Crimes Jurisprudence in the ICTR: Positive Developments’ (2005) 3 Journal of International Criminal Justice 1007, 1008 (hereafter Askin, ‘Gender Crimes’). See also Valerie Oosterveld, ‘Gender-​Sensitive Justice and the International Criminal Tribunal for Rwanda: Lessons Learned for the International Criminal Court’ (2005) 12 New England Journal of International and Comparative Law 119, 120, fn 3. 75 As young as six years old: Prosecutor v Jean-​Paul Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998) [416] (hereafter Akayesu Trial Judgment). 76 ibid [706], [731], [733]; Askin, ‘Gender Crimes’ (n 74) 1008. 77 Akayesu Trial Judgment (n 75) [429], [437]. 78 See eg ibid [111], [128], [159], [160], [161]. 79 See eg ibid [416]–​[460]. 80 ibid [159]–​[161], [128], 81 ibid [450]: The only mention of boys in the judgment is as perpetrators of a rape. 82 Nowrojee discusses some of these limitations in the context of sexual violence prosecutions at the ICTR: Binaifer Nowrojee, ‘Your Justice Is Too Slow: Will the ICTR Fail Rwanda’s Rape Victims?’ (United Nations Research Institute for Social Development, 2005) accessed 6 September 2021. 83 See eg Prosecutor v Eliézer Niyitegeka (Judgment and Sentence) ICTR-​ 96-​ 14-​ T (16 May 2003) [117], [208], [272], [447]; Usta Kaitesi, Genocidal Gender and Sexual Violence: The Legacy of the ICTR, Rwanda’s Ordinary Courts and Gacaca Courts (Intersentia 2014) 77, 87, 89, 92, 174–​83, 194, 241. 84 Akayesu Trial Judgment (n 75) [121]. 85 Although in Prosecutor v Kambanda, the Trial Chamber ostensibly adopted the aforementioned approach of the ICTY that highlighted the vulnerability and age of children as aggravating circumstances in legal findings/​sentencing, when they discussed the murdering of children, despite the fact that children were not mentioned in the indictment. They also observed that that Kambanda had recognized that ‘he failed in his duty to ensure the safety of the children and the population of Rwanda’: Prosecutor v Jean Kambanda (Judgment and Sentence) ICTR 97-​23-​S (4 September 1998) [39(ix)].

140  Gloria Atiba-Davies and Leo C Nwoye conduct a broad analysis of the intersection of age and gender in the context of the crimes committed in Rwanda.86 The ECCC also failed to adequately address gender-​based crimes against children in its cases. For example, in the Kaing Guek Eav (alias Duch) case,87 the accused admitted to ‘killing babies, young children and teenagers’ at the S-​21 prison as part of a Khmer Rouge policy.88 He was found guilty of crimes against humanity including murder and torture. Yet again, because of the limitations of the ECCC Statute, no child-​specific charges were brought,89 and the trial judgment made few references to specific crimes suffered by children.90 In addition, where the Extraordinary Chambers did consider harms perpetrated against children, it did not conduct a gender analysis of those harms. For example, there was no examination of whether, or how, men, women, boys, and girls were treated differently on the basis of their gender. Instead, the ECCC’s consideration of gender is limited to the crime against humanity of other inhumane acts in the form of forced marriage.91 Notwithstanding the limited or dearth of clear recognition and redress of gender-​based crimes against children in the ICTY, ICTR, and ECCC, there has been some encouraging progress—​though with mixed outcomes—​in the twenty-​first century, as will be shown in an examination of cases from the SCSL and ICC in the next section.

D.  Evolving Considerations with Positive Potential: Gender-​ Based Crimes Against Children at the Special Court for Sierra Leone and the International Criminal Court The SCSL and ICC have recognized, and discussed in some detail, certain crimes that exist at the intersection of age and gender, most especially child soldier 86 On the intersection of gender and youth in the Rwandan genocide, see eg Carpenter, ‘Recognizing Gender-​Based Violence’ (n 66) 90. 87 Prosecutor v Kaing Guek Eav (alias Duch) (Judgment) 001/​18-​07-​2007-​ECCC/​TC (3 February 2012) (hereafter Duch Trial Judgment). 88 Prosecutor v Kaing Guek Eav (alias Duch) (Transcript of Trial Proceedings—​Public) 001/​18-​07-​ 2007-​ECCC/​TC (8 June 2009) 21–​22 (hereafter Duch Transcript); Aptel, ‘Children and Accountability’ (n 6) 16–​17. 89 Duch Trial Judgment (n 87) ch VIII, Disposition. 90 Accurate numbers of the children killed at the S-​21 prison may never be known as prisoners were not recorded by age. Also, evidence in the Duch case indicated that prison photographers regarded children to be insignificant and therefore infrequently photographed them: Duch Transcript (n 88) 22–​23; Aptel, ‘Children and Accountability’ (n 6) 17. 91 Rosemary Grey, ‘Seen and Unseen: Sexual and Gender-​Based Crimes in the Khmer Rouge Tribunal’s Case 002/​02 Judgment’ (2019) 25 Australian Journal of Human Rights 466.

Children, Gender, and International Criminal Justice  141 crimes, forced marriage, and sexual slavery. While the SCSL tended to analyse the gender dimensions of these crimes separately, the ICC has, over time, drawn these sometimes interlinked violations together through its gender analysis. Yet, a common pattern of focusing on the child soldier recruitment and their utilization in hostilities, as well as on sexual and gender-​based crimes, is observable between the SCSL and ICC.92

1.  Gender-​Based Crimes Against Children at the SCSL Early in the mandate of the SCSL, the Prosecutor, David Crane, indicated his intention to focus on ‘[t]‌wo of the most egregious uses of children [in Sierra Leone’s conflict,] [ . . . ] sexual slavery and conscription of children into armed conflicts’.93 Indeed, these violations, as well as that of forced marriage, became the focus of the Court’s consideration of crimes directed against children. The SCSL Statute enumerates the war crime of conscripting or enlisting children under the age of fifteen into armed forces or groups and using them to participate actively in hostilities.94 While the Rome Statute was the first ICL instrument to include this as a crime, the SCSL became the first international tribunal to prosecute and enter convictions for it. This is not surprising given the widespread use of child soldiers by the warring parties to the conflict, estimated at 10,000–​15,000 children.95 In three separate trials, the SCSL prosecuted the leaders of three armed groups that were parties to Sierra Leone’s civil war: the Revolutionary United Front (RUF), the Armed Forces Revolutionary Council (AFRC), and the Civil Defence Forces (CDF).96 In the fourth case, the Prosecutor indicted the former Liberian President, Charles Taylor.97 All four

92 ELAC & Save the Children, ‘Advancing Justice for Children’ (n 52) 116. 93 SCSL Office of the Prosecutor, ‘Honouring the Inaugural World Day against Child Labour’ (12 June 2003) accessed 12 September 2021. 94 ibid. 95 Olivia Bradley, ‘10 Facts About Child Soldiers in Sierra Leone’ (The Borgen Project, 5 November 2017) accessed 12 September 2021; Monique Ramgoolie, ‘Prosecution of Sierra Leone’s Child Soldiers: What Message is the UN Trying to Send?’ (2001) 12 Journal of Public and International Affairs 145, 147–​48. 96 Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgement) SCSL-​04-​15-​T (2 March 2009) (hereafter RUF Trial Judgment); Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Judgment) SCSL-​04-​16-​T (20 June 2007) (hereafter AFRC Trial Judgment); Prosecutor v Moinina Fofana and Allieu Kondewa (Judgement) SCSL-​04-​14-​T (2 August 2007) (hereafter CDF Trial Judgment). 97 Prosecutor v Charles Taylor (Judgment) SCSL-​03-​01-​T (18 May 2012) (hereafter Taylor Trial Judgment).

142  Gloria Atiba-Davies and Leo C Nwoye cases considered widespread incidences where child soldiers were utilized to commit crimes. Through its jurisprudence, the SCSL recognized that the prohibition on the recruitment and use of children as child soldiers forms part of customary international law,98 and convicted three leaders of the AFRC,99 one CDF leader (at trial only, overturned on appeal),100 two RUF leaders,101 and Charles Taylor for this crime.102 Additionally, the SCSL recognized the psychological impact of these crimes on child victims.103 This jurisprudence has become an important cornerstone of ICL on child soldier recruitment and use, and has been referred to extensively by the ICC.104 The SCSL’s consideration of evidence related to child soldiering demonstrated a largely gendered division in terms of the roles and expectations on boy and girl soldiers, even though the indictments did not distinguish between their experiences.105 The evidence showed that the AFRC and RUF targeted boys for forced recruitment based on gendered assumptions about their obedience, aggression, and agility, resulting in boys being sent to the frontlines to fight more often than girls.106 The AFRC and RUF targeted girls to serve in a dual function as fighters and domestic workers who cooked, cleaned, laundered

98 Prosecutor v Sam Hinga Norman (Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)) SCSL-​2004-​14-​AR 72(E) (31 May 2004) [52]–​[53]. 99 AFRC Trial Judgment (n 96) [2113], [2117], [2121]; confirmed on appeal: Prosecutor v Brima, Kamara and Kanu (AFRC) (Appeal Judgment) SCSL-​2004-​16-​A (22 February 2008) 105. 100 The original conviction of Allieu Kondewa on this charge was overturned on appeal: CDF Appeal Judgment (n 41) Disposition. 101 RUF Trial Judgment (n 96) [2223]–​[2234], Disposition, 677–​87. 102 Prosecutor v Charles Ghankay Taylor (Judgment) SCSL-​03-​01-​T (26 April 2012). Taylor was sentenced to fifty years of imprisonment, and his conviction and sentence was upheld on appeal: Prosecutor v Charles Taylor (Appeal Judgment) SCSL-​03-​01-​A (26 September 2013) ch XI. Disposition. 103 AFRC Trial Judgment (n 96) [1125], [1347]–​[1351]. See also Prosecutor v Issa Hassan Sesay Morris Kallon and Augustine Gbao (Sentencing Judgement) SCSL-​04-​15-​T (8 April 2009) [181]–​[186] (hereafter RUF Sentencing Judgment). 104 Cecile Aptel, ‘Unpunished Crimes: The Special Court for Sierra Leone and Children’ in Charles Chernor Jalloh (ed), The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (CUP 2014) 340, 344 (hereafter Aptel, ‘Unpunished Crimes’); Noah Benjamin Novogrodsky, ‘After the Horror: Child Soldiers and the Special Court for Sierra Leone’ in Charles Chernor Jalloh (ed), The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (CUP 2014) 361, 368. 105 For example, in the RUF indictment, the prosecution did not identify the nexus between age and gender. Rather, the indictment charged gender-​based crimes against humanity under the general umbrella of crimes against ‘children’ or the ‘civilian population’ rather than against boys and girls specifically: RUF Indictment (n 30) 17. The Trial Chamber, in turn, adopted this generalized rubric. 106 Valerie Oosterveld, ‘The Construction of Gender in Child Soldiering in the Special Court for Sierra Leone’ in Mark A Drumbl and Jastine C Barrett, Research Handbook on Child Soldiers (Elgar Publishers 2019) 74, 80, 90 (hereafter Oosterveld, ‘The Construction of Gender’).

Children, Gender, and International Criminal Justice  143 clothes, and acted as sexual slaves for the fighters.107 While the AFRC, RUF, and Taylor trials highlighted this largely gendered division between boy and girl soldiers (as well as their overlapping experiences in war-​fighting), the CDF trial only included evidence of boy soldiers, rendering the experiences of girl soldiers invisible in that trial.108 Even as the evidence demonstrated a gender difference in the experiences of boy and girl child soldiers, violations against girl soldiers tended to be grouped in with those of civilian women and girls, particularly those serving as so-​ called ‘bush wives’ in ‘forced marriages’.109 ‘Forced marriage’ conduct included the capture or abduction of women and girls and their forcible assignment to RUF and AFRC commanders and soldiers for sexual, domestic, and child-​ rearing services.110 The Court tended to treat ‘women and girls’ as a single category, and also, in the AFRC case, failed to recognize the non-​sexual violence aspects of forced marriage, only focusing on the sexual slavery to the exclusion of the forced domestic labour.111 This eliding of non-​sexual harms into sexual harms was avoided in the RUF and Taylor judgments, both of which recognized the multi-​faceted harms of the ‘bush wife’ system.112 It therefore missed 107 ibid 82, 85. 108 For example, the CDF case followed the narrowest approach. The prosecution was not proactive in introducing gender-​related issues, including sexual and gender-​based charges against the civilian population and particularly against girls. Their attempts to amend the indictment to include such charges were rejected by the Trial Chamber. See CDF Prosecution Request (n 41) [6]‌, [10]; CDF Appeal Judgment (n 41) [428]–​[434]; CDF Reasoned Majority (n 41) 2, [3], [78]–​[79]. See also Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution’s Request for Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana And Allieu Kondewa) SCSL-​04-​14-​T (2 August 2004); Prosecutor v Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa (Decision on Prosecution Appeal against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to file an Interlocutory Appeal) SCSL-​04-​14-​T (17 January 2005). See also Oosterveld, ‘The Construction of Gender’ (n 106) 85–​90 for an explanation of the CDF’s narrow approach; Valerie Oosterveld, ‘The Special Court for Sierra Leone’s Consideration of Gender-​based Violence: Contributing to Transitional Justice?’ (2009) 10 Human Rights Review 73 for a critique of the gender-​related decisions in the CDF case. 109 Oosterveld, ‘The Construction of Gender’ (n 106) 85. 110 See RUF Trial Judgment (n 96) [2307]; AFRC Trial Judgment (n 96) [703]–​[704]. While Charles Taylor was not charged with forced marriage, the Taylor Trial Chamber considered evidence of forced marriage as proof of sexual slavery: Taylor Trial Judgment (n 97) [424]; Ultimately, the Trial Chamber preferred the term ‘conjugal slavery’ to ‘forced marriage,’ which it held encompassed both sexual slavery and enslavement through forced domestic and other forms of labour and thus better described the crime: ibid [427]–​[428]. For a discussion of how the Taylor jurisprudence expanded the understanding of sexual and gender-​based crimes within ICL, see Valerie Oosterveld, ‘Gender and the Charles Taylor Case at the Special Court for Sierra Leone’ (2012) 19 William and Mary Journal of Women and the Law 7, 10. 111 AFRC Trial Judgment (n 96) [701], [711] [713]–​[714]. 112 For an analysis of this, see Valerie Oosterveld, ‘Forced Marriage: Terminological Coherence and Dissonance in International Criminal Law’ (2019) 27 William and Mary Bill of Rights Journal 1263, 1270–​72.

144  Gloria Atiba-Davies and Leo C Nwoye the opportunity to clearly identify girl victims’ (including girl soldiers’) specific experiences and unique harms. It also largely failed to examine sexual violence committed against boys.113 The SCSL helped to introduce a child-​sensitive approach—​especially in the RUF judgments114—​to the prosecution of child soldier crimes, and a gender-​ competent approach to acts of forced marriage and sexual violence (such as sexual slavery).115 This is to be lauded, while recognizing that there was room for improvement. The intersections of age and gender were not always considered in a fulsome manner, such as with respect to sexual violence directed against boys or the gendered experiences of girl soldiers. The end result is that the experiences of training and fighting were highlighted for boys, and the experiences of sexual violence and domestic slavery were highlighted for the category of girls and women. Arguably, this reinforced gender stereotypes about child soldiers’ experiences—​males are active aggressors (fighters) and females are passive victims (enslaved and sexually violated). The SCSL Trial Chambers accepted evidence116 that could have allowed them to more clearly and fully characterize the particular gendered harms experienced by male and female, adult and child victims, but they did not do so.

2.  Gender-​Based Crimes Against Children at the International Criminal Court The ICC, as the only permanent international criminal court, has an influential role to play in developing ICL jurisprudence on gender-​based violations against children, and its prosecutors and judges are uniquely placed to develop and deepen jurisprudence on these crimes. The Rome Statute marks a notable development in ICL’s attention to crimes against children. It refers to children ten times, enumerating crimes committed directly against them, as well as 113 The Trial Chamber did not address conflict-​ related sexual violence perpetrated against males: Taylor Trial Judgment (n 97) [124]–​[134]. The sole exception was the RUF Trial Judgment (n 96) [1194], [1207], [1208], [1210], [1304], [1308]. This lack of attention to sexual violence against boys is regrettable, given how sexual violence against males is often overlooked or classified under other categories, such as torture or inhumane treatment: Sellers and Nwoye, ‘Conflict-​Related Male Sexual Violence’ (n 11). 114 See generally RUF Sentencing Judgment (n 103) ch 1 (Gravity of Offences) [103]–​[205]. See also RUF Trial Judgment (n 96) [1304]–​[1305]. 115 For analysis, see Valerie Oosterveld, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’ (2011) 44 Cornell International Law Journal 49. 116 See eg Taylor Trial Judgment (n 97) [544] [805]–​[807], [813], [830], [839], [859], [867], [876], [1347].

Children, Gender, and International Criminal Justice  145 some that disproportionately affect them.117 The ICC was also the first international criminal tribunal to explicitly bar prosecution of persons who committed crimes when eighteen or under.118 The adoption by the ICC’s OTP of its 2014 SGBC Policy Paper and its 2016 Policy Paper on Children119 are ‘firsts’ for international criminal mechanisms, bringing a unique focus to the intersection between crimes under international law, gender, and children. The impact of these policies is only just beginning to become apparent,120 such as in the Ongwen trial judgment, discussed below. While two of the most relevant cases to date—​Lubanga and Ntaganda121—​ predate the policies, it is worthwhile assessing how well they integrated a gender and child-​centred perspective to investigations and prosecutions of ICC crimes. The first trial at the ICC was that of Prosecutor v Thomas Lubanga Dyilo.122 Lubanga was charged with only one crime, the recruitment and use of children in hostilities. By a unanimous verdict, the Trial Chamber found him guilty.123 However, the case revealed limitations. First, the Trial Chamber tended to consider children collectively as a group, rather than analysing and distinguishing the distinct gendered harms suffered by male and female child soldiers.124 Second, the prosecution was censured for not including charges of gender-​ based violations, despite the availability of evidence.125 The prosecution126 had not included sexual violence in its charges at the pre-​trial phase and the Trial Chamber rejected the Prosecutor’s subsequent attempt to rectify this by arguing that sexual violence committed against girl soldiers was included within 117 These are outlined at nn 28–​30 above. For a description of crimes that especially impact children, and other ways the Rome Statute refers to children, see the ICC OTP, ‘Policy on Children’ (n 51) 19–​25. 118 ICCSt (n 32) art 26; Amann, ‘Child Rights’ (n 13) 262. With the SCSL, the age limit was fifteen, though no persons under eighteen years of age were ever prosecuted: SCSLSt (n 31) art 7. 119 ICC OTP, ‘SGBC Policy Paper’ (n 35); ICC OTP, ‘Policy on Children’ (n 51). 120 It takes many years for ICC cases to progress from investigation through to trial and judgment. 121 Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges) [2007] ICC-​01/​ 04-​01/​06) (hereafter Lubanga Charges Decision); Prosecutor v Germain Katanga and Mathieu Ngudjolo Chiu (Decision on the confirmation of charges) [2008] ICC-​01/​04-​01/​07-​716-​Conf; Prosecutor v Bosco Ntaganda (Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) [2014] ICC-​01/​04-​02/​06; Prosecutor v Dominic Ongwen (Decision on the confirmation of charges against Dominic Ongwen) [2016] ICC-​02/​04-​01/​15. 122 Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to art 74 of the Statute) [2012] ICC-​01/​ 04-​01/​06 [22], [27] (hereafter Lubanga Trial Judgment). 123 ibid ch XII. Disposition, [1358]. Both convictions were affirmed by a majority on appeal: Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) [2014] ICC-​01/​04-​01/​06 A 5 [529] (hereafter Lubanga Appeal Judgment). 124 eg Prosecutor v Thomas Lubanga Dyilo (Decision on Sentence pursuant to art 76 of the Statute) [2012] ICC-​01/​04-​01/​06 [37]–​[44]. 125 Lubanga Trial Judgment (n 122) [16]; Amann, ‘Children’ (n 5) 261; Margaret M deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’ (2012) 33(2) Michigan Journal of International Law 265. 126 Under the ICC’s first chief Prosecutor, Luis Moreno Ocampo.

146  Gloria Atiba-Davies and Leo C Nwoye the child soldier charge of ‘using them to participate actively in hostilities’.127 The Trial Chamber narrowly interpreted this phrase as encompassing only front-​line fighting and situations where the ‘support provided by the child to the combatants exposed him or her to a real danger as a potential target’128 and declined to consider the evidence of sexual violence against the female child soldiers in Lubanga’s armed group.129 In an important dissenting opinion that appeared to be influenced by the expert testimony to the Court of the UN Special Representative of the Secretary-​ General for Children in Armed Conflict,130 Judge Odio Benito considered the child soldier charge from a gender-​competent perspective.131 She highlighted the need to address the ‘invisibility’ of the sexual violence dimensions of the child-​soldier related charges for which Lubanga stood trial and was convicted.132 In her opinion, failing to include ‘sexual violence and other ill-​ treatment suffered by girls and boys’ in the legal analysis rendered the crimes invisible,133 resulting in discrimination against the victims.134 As she noted: It is discriminatory to exclude sexual violence[,]‌which shows a clear gender differential impact from being a bodyguard or porter[,] which is mainly a task given to young boys. The use of young girls[’] and boys[’] bodies by combatants within or outside the group is a war crime and as such encoded in the charges against the accused.135

Judge Odio Benito also indicated that judges in ICC proceedings should not only decide on the guilt or innocence of the accused person, but must also recognize and address the harms suffered by the victims.136

127 Lubanga Trial Judgment (n 122) [577]. See also the submissions of the Victims’ Legal Representative: ibid [589], [598]; Prosecutor v Thomas Lubanga Dyilo (Prosecution’s Closing Brief—​ Public Redacted Version) [2011] ICC-​01/​04-​01/​06 [142]: referring to Prosecutor v Thomas Lubanga Dyilo (Written submissions of Ms Radhika Coomaraswamy) ICC-​01/​04-​01/​06-​1229-​AnxA (EVD-​ CHM-​00007) [17]–​[26]. 128 ibid [627]–​[628]; Amann, ‘Children’ (n 5) 263. 129 Lubanga Trial Judgment (n 122) [16], [629]–​[630]. 130 Aptel, ‘Unpunished Crimes’ (n 104) 347. 131 Lubanga, Odio Benito Dissent (n 45) [16]. 132 ibid. 133 ibid [16]–​[20]. 134 ibid [21]. 135 ibid [21]. 136 ibid [8]‌. Her approach in the case has been criticized on the basis it could result in children losing their civilian status under IHL, and hence the protections it proffers. For a full discussion, see Tilman Rodenhäuser, ‘Squaring the Circle: Prosecuting Sexual Violence against Child Soldiers by their “Own Forces” ’ (2016) 14 Journal of International Criminal Justice 171.

Children, Gender, and International Criminal Justice  147 The Appeals Chamber rejected both the Trial Chamber majority and Judge Odio Benito’s dissent, stating that ‘the crime of using children [in hostilities] depends on proof of a link between the activity for which the child is used and the combat in which the armed force or group of the perpetrator is engaged’.137 The result of this decision is that the ICC’s judges must determine, on a case-​by-​case basis, whether such link exists. There is no single set of factors that can be consistently applied to characterize or determine ‘active participation in hostilities’, and thus whether sexual or gender-​based abuse of child soldiers would always be so considered.138 The threshold that the child soldier activities must meet in order to be considered ‘actively participating in hostilities’ is therefore unclear. Thus, the majority decision sets up a false dichotomy between boy and girl child soldiers who are assigned to different duties on the basis of their sex and accompanying discriminatory gender stereotypes. It recognized as criminal only those activities that are more likely to be performed by boy soldiers. As Judge Odio Benito stated in her dissent, this is discriminatory. The false dichotomy indicates an inability or unwillingness to see the similarity between a child soldier who is used as a bodyguard or porter and a child soldier who is used for forced domestic labour and sex, despite the fact that they may face the same risk of injury or death if they came under attack. The next case in which child-​related issues arose was that of Prosecutor v Bosco Ntaganda. This case presented an opportunity for the ICC to examine the issue of sexual violence committed against girl soldiers by members of the same armed group.139 Ntaganda, the Deputy Chief of Staff in charge of Operations and Organisation in the Union Patriotique des Congolais (UPC)/​Forces Patriotiques pour la Libération du Congo (FPLC) militia group, was convicted as a direct perpetrator and/​or indirect co-​perpetrator of crimes against humanity and war crimes, including murder, rape, sexual slavery, persecution, and enlisting children under the age of fifteen into an armed group and using them to participate actively in hostilities.140 He was also charged under article 8(2)(e)(vi) of the Rome Statute and convicted of the rapes and sexual slavery of UPC/​FPLC girl soldiers under the age

137 Lubanga Appeal Judgment (n 123) [315]–​[320]; Amann, ‘Children’ (n 5) 263–​64. 138 This stands in contrast to the guidance from the International Committee of the Red Cross (ICRC) on direct participation in hostilities: Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (ICRC 2009) accessed 18 September 2021. 139 Prosecutor v Bosco Ntaganda (Judgement) [2019] ICC-​01/​04-​02/​06 (hereafter Ntaganda Trial Judgment). 140 ibid ch VII. Disposition [535]–​[538].

148  Gloria Atiba-Davies and Leo C Nwoye of fifteen by members of his armed group.141 The case is notable for recognizing the different gendered roles female and male UPC/​FPLC members played.142 The case also emphasized the jus cogens standing of sexual slavery (and rape) under international law, particularly from the incidents concerning children—​ thereby underscoring in jurisprudence that such conduct (being peremptory norms) is proscribed at all times against all persons, whether during peacetime or wartime, irrespective of any legal status.143 Moreover, Ntaganda was the first person to be convicted by the ICC of sexual slavery, both as a war crime and a crime against humanity.144 Witness testimonies described the rape of young girl soldiers by their fellow male soldiers and commanders, at times resulting in pregnancy, sexually transmitted diseases,145 or death.146 The Trial Chamber observed that the rapes and sexual violence were unpunished by UPC/​FLPC leaders, who failed to ensure ‘a safe environment for the female members of the UPC/​FPLC, in which they would not be sexually abused by other members of the group’.147 In this case, there was significant debate between the prosecution and defence as to whether ‘sexual violence perpetrated against child soldiers by their commanders can constitute war crimes under the ICC’s governing instrument, the Rome Statute’.148 The prosecution argued that such violence could, indeed,

141 Prosecutor v Bosco Ntaganda (Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) [2014] ICC-​01/​04-​02/​06 [80] (hereafter Ntaganda Charges Decision). This differed from the Lubanga case, where the relevant sexual violence allegations was related to art 8(2)(e)(vii): Lubanga Charges Decision (n 121). See also Ntaganda Trial Judgment (n 139) [545], [579], [623], [633], [806], [873], [876], [899], [940], fn 2011; Prosecutor v Bosco Ntaganda (Sentencing Judgement) [2019] ICC-​01/​04-​02/​06 [79] (hereafter Ntaganda Sentencing Judgment). 142 Ntaganda Trial Judgment (n 139) [398], [403]–​[404], [406]–​[407], [413]. 143 Prosecutor v Bosco Ntaganda (Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9) [2017] ICC-​01/​04-​02/​06-​1707 [51]–​[52] (hereafter Ntaganda Second Decision); Prosecutor v Bosco Ntaganda (Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’) [2017] ICC-​01/​04-​02/​06 OA5 [23], [70]–​[71] (hereafter Ntaganda Second Decision Appeal); Sellers, ‘Re-​Alignment of a Paradigm’ (n 24) 8. 144 Ntaganda Trial Judgment (n 139), [536]. The judgment was recently confirmed by the Appeals Chamber: Prosecutor v Bosco Ntaganda (Appeal Judgment) [2020] ICC-​01/​04-​02/​06A. Moreover, the Trial Chamber has ruled that sexual slavery is a continuing crime—​acknowledging and building on previous jurisprudence where sexual slavery and child enlistment/​conscription were viewed as examples of potentially continuing crimes Lubanga Charges Decision (n 121) [248]; Taylor Trial Judgment (n 97) [118]–​[119]. Notably, the Court limited this ruling to the realm of ICL, excluding its application in IHL: Ntaganda Trial Judgment (n 139) n 112. 145 Ntaganda Trial Judgment (n 139) [1161], fn 1157; Ntaganda Sentencing Judgment (n 141) [111]. 146 Ntaganda Trial Judgment (n 139) [407]–​[412]. 147 ibid [792]. 148 Rosemary Grey, ‘The Ntaganda Confirmation of Charges Decision: A Victory for Gender Justice’ (Beyond The Hague, 12 June 2014) accessed 30 June 2020 (hereafter Grey, ‘A Victory for Gender Justice’). cf Lubanga Trial Judgment (n 122) [16], [629]–​[630].

Children, Gender, and International Criminal Justice  149 qualify as war crimes.149 Ntaganda’s defence counsel argued that ‘the crimes of rape and sexual slavery against these persons are not foreseen by the Statute, as IHL does not protect persons taking part in hostilities from crimes committed by other persons taking part in hostilities on the same side of the armed conflict,’150 and, as such, the crimes of rape and sexual slavery against female child soldiers are not covered by the Statute. Both IHL and ICL prohibit the use of ‘child soldiers.’ Yet, while ICL does not address their use for sexual services (save for sexual violence against children who are part of a civilian population or a genocide targeted sub-​set of a group), IHL in the form of article 77 of Additional Protocol I (AP I), and articles 2 and 4(3)(d) of Additional Protocol II (AP II) address the perpetual special respect afforded to all children, including protection from indecent assault (which includes sexual violence) committed by any party to an international armed conflict within the territory of the states that are at war, whether or not they are affected by the conflict.151 However and notwithstanding, the Pre-​Trial Chamber’s unanimous decision (affirmed by the Trial Chamber152 and Appeals Chamber,153 albeit on the basis of different rationales) confirmed the charges on the basis that, while both common article 3 of the Geneva Conventions and article 4(1), (2), and (3)(c) of AP II protect persons not taking part in hostilities,154 the girls who were raped and sexually enslaved could not be considered to be taking active part in hostilities at the time those crimes were committed and therefore retained their protection as civilians under IHL.155 As such, this ruling confirms that war crimes of rape and sexual slavery committed within an armed group fall within the ICC’s jurisdiction. The decision is important and pioneering because ‘it suggests a new receptivity to [ . . . ] the full range of children’s experiences amid armed conflict and analogous violence’.156

149 This argument led the Ntaganda Trial Judgment (n 139) to consider the realities of omnipresent sexual violence within Ntaganda’s troops [406]–​[413]. 150 Ntaganda Charges Decision (n 141) [76]. See also Amann, ‘Children’ (n 5) 267–​68. 151 Sellers, ‘Re-​Alignment of a Paradigm’ (n 24) 12–​16; 152 Ntaganda Second Decision (n 143) [39]: determining that the Court’s statutory framework does not require that the victims of the war crimes of rape and sexual slavery pursuant to arts 8(2)(b)(xxii) and (e)(vi) of the Statute be ‘protected persons’ in terms of the Geneva Conventions or ‘persons taking no active part in the hostilities’ in terms of Common art 3.2. 153 Ntaganda Second Decision Appeal (n 143) [2]‌: holding that ‘members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under art 8(2)(b)(xxii) and (2)(e)(vi) of the Statute when committed by members of the same armed force or group’. 154 Ntaganda Charges Decision (n 141) [74], [77]–​[78], [81]–​[82]. 155 ibid [79]. See also Amann, ‘Children’ (n 5) 268. 156 Amann, ‘Children’ (n 5) 268.

150  Gloria Atiba-Davies and Leo C Nwoye While this ruling is a positive step forward, especially when compared to the earlier Lubanga case, commentators have contended that it may ‘[misrepresent] sexual violence crimes of an ongoing nature’ by creating ‘a binary in which a child soldier is either subjected to sexual violence or taking direct part in hostilities’.157 As the Special Representative of the Secretary-​General for Children and Armed Conflict, Radhika Coomaraswamy, previously pointed out in the Lubanga case, children used in hostilities (particularly girls) ‘play multiple . . . and changing roles’ and that ‘it would just be impossible [to determine] on [which] days she is a combatant and on [which] days she is a domestic aid’.158 The Ntaganda case highlighted multiple overlapping roles and experiences of girls within fighting forces, even as it rejected the idea of sexual slavery of child soldiers as criminal activity that was integral to the conduct of hostilities. Child-​ related issues also arose in Prosecutor v Domenic Ongwen. The Ongwen case is a landmark case for a number of reasons, including that it is the first case of any international criminal mechanism to enter a conviction for the crime against humanity and war crime of forced pregnancy. It is also one of the only cases in which reproductive violence outside the context of genocide has been understood as a crime under international law.159 Significantly, Ongwen is also the first former child soldier to be prosecuted before an international criminal mechanism at the international level, including for some of the same crimes of which he had also been a victim, namely the enslavement, enlistment, and use of child soldiers.160 He was also the first key member of the notorious Ugandan armed group, the Lord’s Resistance Army (LRA), to appear before the ICC. The Ongwen trial judgment examined the intersection of childhood and gender in three significant ways. First, it further developed the discussion on the experiences of girl and boy child soldiers.161 The judgment highlighted evidence 157 Grey, ‘A Victory for Gender Justice’ (n 148). See also Amann, ‘Children’ (n 5) 269. 158 Prosecutor v Thomas Lubanga Dyilo (Official Court Transcript) [2010] ICC-​01/​04-​01/​06-​T-​ 223-​ENG 10, 14, 20, 30, 36. See also Aptel, ‘Unpunished Crimes’ (n 104) 347; Aptel, ‘Children and Accountability’ (n 6) 11. 159 Prosecutor v Dominic Ongwen (Trial Judgment) [2021] ICC-​02/​04-​01/​15 [2317]–​[2318], [2325], [2369] (hereafter Ongwen Trial Judgment). 160 See Nadia Grant, ‘Duress as a Defence for Former Child Soldiers? Dominic Ongwen and the International Criminal Court’ (ICD Brief 21, 2016) 2. 161 Although, the Ongwen Trial Judgment (n 159) seemingly mischaracterizes and narrowly interprets sexual slavery, while misconstruing the complexities of the enslavement of boy and preadolescent girl child soldiers. Additionally, infant children born of the forced pregnancies of the enslaved girls (and women) do not have their crimes of enslavement specifically redressed: see Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum, ‘Conversations under the Rome Statute—​Enslavement and Slave Trade,’ (OpinioJuris, 11 June 2021) and accessed 13 September 2021. See also Chapter 6 by Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum in this volume. 162 This is because of the abductees being forced to brutally kill, witness the beatings or murder of other abductees, or threatened that their home areas would be attacked if they escaped: Ongwen Trial Judgment (n 159) [916]–​[930], [971]–​[998]. 163 ibid [2317]–​[2318], [2325], [2369]. These explanations can be contrasted with the RUF Sentencing Judgment, in which the SCSL’s Trial Chamber indicated that the RUF’s practice of forcibly recruiting child soldiers was vast, but did not explain why the RUF particularly targeted boys and girls: RUF Sentencing Judgment (n 103) [182]–​[184]. 164 Ongwen Trial Judgment (n 159) [2434]–​[2435], [2437]–​[2438], [2440], [2447], [3103]. 165 ibid [2351], [2354], [2359], [2364], [2371]. 166 ibid [2319], [2328], [2332], [2335], [2427]. 167 ibid [2380]–​[2381], [2383]–​[2386], [2388], [2390]–​[2391], [2421]. 168 ibid [2395]–​[2402]. 169 ibid [2383]. 170 ibid [2202]–​[2309]. 171 ibid [2115]. 172 ibid [224]–​[225], [2366]–​[2372], [2373]–​[2379], [2380]–​[2402]. 173 On this, see Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (OUP 2012) 8. 174 Ongwen Trial Judgment (n 159) [2040], [2054], [2138]–​[2142].

152  Gloria Atiba-Davies and Leo C Nwoye Second, the Ongwen trial judgment examined forced marriage of girls as an inhumane act constituting a crime against humanity. The Trial Chamber defined forced marriage as ‘the imposition, against the will of the victim, of duties that are associated with marriage and the consequent social stigma’.175 The girls who provided testimony in the trial were between seven and nineteen years of age at the time they were abducted and forced to join Ongwen’s household.176 They described how the forced marriages were not accompanied by traditional rituals of marriage, and that none of them were given any choice in being conjugally associated with their so-​called ‘husband’.177 They were considered to be the exclusive property of their ‘husband’.178 They were expected to maintain an exclusive conjugal relationship with their ‘husband’, serve their ‘husband’, have sexual intercourse with their ‘husband’ whenever he wanted, bear and look after children, and perform a range of domestic chores.179 These included cooking and serving food, working in the garden, doing laundry, fetching and chopping wood, fetching water, washing, cutting grass, nursing their ‘husband’ when he was injured, and taking things to him.180 If they failed to sufficiently perform these duties, they were beaten.181 By providing contextualized detail of the girls’ experiences, the judgment recognized the gendered physical and psychological harms associated with forced marriage. Third, the judgment implicitly recognized how the intersection of age and gender played an important role in the maintenance of Ongwen’s brigade. His soldiers helped to create a coercive, controlling environment in which the child soldiers’ lives were dominated by the threat and use of physical and sexual violence.182 This use of violence for control was dominated by the expectation of the children’s unwavering commitment to the LRA’s cause. These three cases, Lubanga, Ntaganda, and Ongwen, have expanded understanding of how gender and age intersect during armed conflict and the commission of atrocities, and how that intersection produces specific harms. Nonetheless, certain blind spots continue, especially a lack of gender differentiation in judicial analysis, even when it is possible to make such a differentiation on the evidence adduced. Gender-​competent analysis would assist the 175 ibid [2748]. 176 The Ongwen Trial Judgment indicates that witness P-​0099 was 15 years old, P-​0101 was 15 years old, P-​0214 was 17 years old, P-​0226 was 7 years old, P-​0227 was 19 years old, P-​0235 was 15 years old, and P-​0236 was 11 years old: ibid [2011], [2013], [2014], [2020], [2021], [2025], [2026], [2027]. 177 ibid [2035]. 178 ibid [2037]. 179 ibid [2037], [2039]. 180 ibid [2082]. 181 ibid. 182 ibid [2028]–​[2040], [2312]–​[2447].

Children, Gender, and International Criminal Justice  153 Court to identify gender differences and, in so doing, to expose and address the actual harms caused by the criminal conduct to individual victims and their communities.

E.  Conclusion: The Need for Deeper Recognition of Differential Gendered Impacts on Children The SCSL and ICC have served to significantly develop ICL with respect to the intersection of children and gender, but the jurisprudence still contains some noticeable gaps. First, while there is increasing attention paid to sexual violence directed against female soldiers and civilians, the courts tend to group women and girls together without differentiating between their experiences. As well, there is very little attention paid in this jurisprudence to sexual violence directed against boys. This means that forms of sexual violence suffered by girls and boys largely remain obscured or side-​lined. These harms must be recognized and redressed if there is to be full accountability for sexual violence directed against children. Equally, it is also crucial to eschew creating a hierarchy of victims (eg girl soldiers suffer more than boy soldiers or vice versa, or even that children suffer more than adults, etc.). Second, the courts have sometimes treated ‘children’ as a homogenous group,183 rather than recognizing that the experiences of boys and girls can differ because of the different socially constructed gender roles ascribed to them. For example, courts sometimes refer to ‘children’ when describing child soldier experiences when they mean boy soldiers.184 This has the unfortunate effect of centring boys’ experiences as the paradigmatic child soldier experience, while obscuring girls’ experiences. Third, while both boy and girl soldiers are subjected to a range of violent and degrading acts, including sexual violence by other members of their own group, and are forced to live in arduous conditions, their experiences of these acts vary.185 For instance, boy soldiers are more likely to be subjected to military training and front-​line fighting, accompanied by severe physical hardship and extreme levels of physical and psychological violence, with those unable to bear the strain or who disobey instructions being punished severely or killed.186 183 ICC OTP, ‘Policy on Children’ (n 51) [27]. 184 See note 153 above. 185 UNGASC, ‘Children and Armed Conflict—​Report of the Secretary-​General’ (16 May 2018) UN Doc A/​72/​865–​S/​2018/​465 [9]‌, [25], [38], [65], [67], [79], [147], [189], [227]. 186 eg RUF Sentencing Judgment (n 103) [180], [184]. See also Oosterveld, ‘The Construction of Gender’ (n 106) 77–​81.

154  Gloria Atiba-Davies and Leo C Nwoye Boys are also more likely to be forced to perpetrate extreme violence against others (such as murder, beating, torture, amputation, mutilation, and sexual assault).187 Girls are often targeted to become sexual slaves and domestic servants, even as they may simultaneously also be required to serve as fighters.188 Thus, both must carry the memory of their actions for the rest of their lives,189 and the courts have often failed to recognize these consequences.190 Fourth, courts have not always explicitly recognized that boys and girls may be targeted for genocide, crimes against humanity, and war crimes for different reasons. For example, boys may be attacked on the basis that they represent future combatants/​leaders.191 Girls, on the other hand, may be targeted because they are typically perceived as the mothers of future generations, crucial for the long-​term growth and expansion of their group’s numbers.192 The reasons for differential treatment of girls and boys are gendered, based on and perpetuating discriminatory gender norms.193 This has yet to be fully explored in the jurisprudence of the courts. Fifth, while the SCSL and ICC’s keen focus on child soldier recruitment, their utilization in hostilities and sexual and gender-​based crimes (See Section

187 eg RUF Sentencing Judgment (n 103) [181]; War Child, ‘Tug-​Of-​War: Children in Armed Groups in DRC’ (War Child, May 2018) 10 accessed 18 September 2021 (hereafter War Child, ‘Tug-​Of-​War’). See also War Child, ‘Why Do Children Become Child Soldiers?’ (War Child, 25 May 2018) accessed 21 November 2019 (hereafter War Child, ‘Why Do Children’). 188 Oosterveld, ‘The Construction of Gender’ (n 106) 82, 85. 189 eg RUF Sentencing Judgment (n 103) [181]. 190 Moreover, while courts have gone some way toward recognizing these harms, they have not often distinguished between younger boys and older boys in armed group settings. While older boys are used more actively as soldiers/​combatants, younger boys are more likely to be porters, bodyguards, or infiltrators: War Child, ‘Why Do Children’ (n 187); War Child, ‘Tug-​Of-​War’ (n 187) 10; Haer, ‘Looking at the Future’ (n 9) 76. 191 See eg Prosecutor v Dominic Ongwen (Prosecution’s Pre-​Trial Brief) [2016] ICC-​02/​04-​01/​15 [742] (references omitted). 192 ibid. 193 On the collective level, there is a discernible difference in the behaviour of armed groups towards boy and girl soldiers: Roos Haer and Tobias Böhmelt, ‘The Impact of Child Soldiers on Rebel Groups’ Fighting Capacities’ (2016) 33(2) Conflict Management and Peace Science 153. Some armed groups, for example in Chad and Congo-​Brazzaville, mostly abstain from recruiting girls, particularly for use as combatants: Dyan Mazurana and Susan Mckay, ‘Girls in Fighting Forces in Northern Uganda, Sierra Leone, and Mozambique: Policy and Program Recommendations’ (June 2003) accessed 18 September 2021. Others actively recruit girls for combat roles, as in Colombia: Human Rights Watch, ‘ “You’ll Learn Not to Cry”: Child Combatants in Colombia’ (September 2003) ch 7 accessed 18 September 2021; UNICEF and Coalition to Stop the Use of Child Soldiers, ‘Guide to the Optional Protocol on the Involvement of Children in Armed Conflict’ (UNICEF 2003) 13 accessed 18 September 2021. Reasons for this may stem from the nature of the conflict, ‘characteristics of the armed group’, or ‘the group’s belief system about gender norms among other things’: Haer, ‘Looking at the Future’ (n 9) 80.

Children, Gender, and International Criminal Justice  155 D (including Sections D.1 and D.2)) is commendable, it ostensibly precluded ‘child-​centred’ consideration of other indicted crimes that had grave impacts and long-​term consequences on vast numbers of children (such as murder, torture, persecution, and denial of basic amenities that, for example, led to them dying of starvation, malnutrition, or disease, etc). Rather, such crimes were either prosecuted from adult-​centred perspectives, with the use of testimonies from adults, and/​or not prosecuted entirely.194 It is vital that children’s experiences are not made invisible by adult-​centred perspectives. Global awareness of the consequences of gender-​based crimes against children in armed conflict and situations of mass atrocity, especially within armed groups, has increased since the 1996 Machel study—​and this is crucial given that knowledge of such occurrences (especially in history) can be lost, altered, and/​or placed in the realm of urban myths—​when they are unacknowledged. This may also explain why international criminal accountability mechanisms established prior to 1996 did not have specific and direct focus on gender-​ based crimes against children. Indeed, both the ICC and SCSL (established after the Machel study) have made some progress in the development of gendered considerations in these crimes and the cases adjudicated to date have brought to light some of the gender-​specific horrors suffered by boys and girls during armed conflict. At the same time, more can be done. Prosecution entities should conduct a gender—​and child-​focused analysis when preparing their cases to ensure that the particular needs, experiences, issues, and priorities of boys and girls are identified and addressed. This will, in turn, enable further comprehension of the reasons for their targeting and the seriousness of the harms they experience, whether as victims and/​or perpetrators. The ICC’s OTP has already initiated this through its 2014 SGBC Policy Paper and its 2016 Policy Paper on Children, but such policies should be standard practice at all international criminal tribunals, with the necessary resources allocated. There is also cause for optimism in the future, with the recent publication of the aforementioned joint research study on addressing crimes against children, which also drew on key insights from specialist academics, practitioners, and activists, with the aim of comprehensively identifying and recommending critical and practical approaches/​solutions to surmount or alleviate the barriers (which are structural, attitudinal, and financial) that preclude perpetrators being held to account.195 This research should prove instructive.



194 195

ELAC & Save the Children, ‘Advancing Justice for Children’ (n 52) 119–​20. ELAC & Save the Children, ‘Advancing Justice for Children’ (n 52).

156  Gloria Atiba-Davies and Leo C Nwoye Concurrently, international criminal prosecution teams can address the specific harms caused to children by bringing charges of gender-​based crimes against children as separate crimes and cumulatively where possible, instead of embedding them in other charges. Additionally, other lawyers (defence and victims’ counsel) and judges within international criminal tribunals should have a deep and nuanced understanding of gender. The provision of formal, contemporary, and comprehensive training is invaluable to ensuring that practitioners are equipped with the relevant legal (or investigative, if applicable) skillsets—​thereby ensuring gender-​competent and child-​competent approaches across all facets of legal work, nationally and internationally. A mentoring component to the training can also yield positive effects. Furthermore, the establishment of legally ethical multidisciplinary partnerships with correlative and specialist expertise can assist international criminal accountability mechanisms.196 Indeed, recognizing and appreciating underlying gender norms can explain why certain victims were targeted, the reason for the means of attack, and the harms that accrued to a particular person and community. With these approaches as the starting points, trial and appeal chambers will more easily be able to appreciate the gravity of the gendered nature of the crimes, as they relate to boys and girls. They will therefore be in a better position to further reflect this in sentencing and reparation orders. Overall, deeper intersectional analysis of youth and gender by international and national criminal courts regarding war and mass atrocity contexts benefits victims by more accurately recognizing the harms they have suffered and therefore holding perpetrators accountable for these harms.

196 eg ICC, ‘ICC Prosecutor Mr Karim A.A. Khan QC appoints Seventeen Special Advisers’ (ICC, 17 September 2021) accessed 19 September 2021.

6 The International Crimes of Slavery and the Slave Trade A Feminist Critique Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum

A. Introduction From ancient times, through the Dark Ages, the Medieval era, the Renaissance, the Umayyad, and the Abbasid Caliphates,1 the colonization and independence of the Americas to today, slavery2 and the slave trade3 have existed.4 Similar to their historical antecedents, the East African Slave Trade and the Transatlantic Slave Trade of the seventeenth to nineteenth centuries spared neither females nor males, children nor adults from enslavement. Slaves toiled gruellingly in fields as agricultural labourers and in urban ports as dockhands and sailors. Slaves plied skilled trades as carpenters, blacksmiths, and seamstresses. Slaves manned armies, staffed civil services, and worked as domestic servants for adult and child masters. Rampant, yet barely acknowledged sexual practices were integral to slavery. Females were enslaved as ‘breeding wenches,’ concubines, ‘fancy girls,’ or kept as pleasure objects. Males were enslaved as ‘bucks,’ as bardaj—​sexual ‘kept boy’ slaves—​or harem eunuchs. Berdaches—​Native American individuals of 1 See discussion below in Section B. 2 International law defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’: Convention to Suppress the Slave Trade and Slavery (adopted 25 September 1926, entered into force 9 March 1927) 60 LNTS 253 (1926 Slavery Convention) art 1(1). See discussion in Section C. 3 International law defines the slave trade as ‘all acts involved in the capture, acquisition or disposal of a person with intent to reduce [them] to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging [them]; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves’: ibid art 1(2). See discussion in Section C. 4 Herbert S Klein, The Atlantic Slave Trade (CUP 2010) 2 (hereafter Klein, The Atlantic Slave Trade).

158  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum a third sex—​were captured as prisoners of war, enslaved, raped, and emasculated.5 Enslaved bodies served to inseminate and to birth other slaves, and to breastfeed their masters’ children or their masters’ slave children. Enslaved bodies were also subjected to gynaecological experimentation and anatomical dissection tutorials in medical schools.6 Slaves, including children, constituted sexual war booty in conflict.7 The slave trade, too, undertook multiple guises. Wars reduced captured enemy soldiers or civilians to slavery.8 The corporate transoceanic, trans-​ Sahara, or by internal transport delivered persons into slavery.9 Educational, scientific, and religious institutions engaged in the trade in slaves.10 Slave trading was concluded by commercial contracts, sales on auction blocks, redemption of debts, barter, exchanges, or as collateral on defaulted loans.11 Less 5 Thomas A Foster, ‘The Sexual Abuse of Black Men Under American Slavery’ (2001) 20 Journal of the History of Sexuality 445, 446–​47 (hereafter Foster, ‘Sexual Abuse’). 6 Harriet A Washington, Medical Apartheid: The Dark History of Medical Experimentation from Colonial Times to the Present (Doubleday 2006) 117–​19 (hereafter Washington, Medical Apartheid); Dierdre Cooper Owens, Medical Bondage: Race, Gender, and the Origins of American Gynecology (University of Georgia Press 2017) 17, 26; Daina Ramey Berry, The Price for Their Pound of Flesh: The Value of the Enslaved, from Womb to Grave, in the Building of a Nation (Beacon Press 2018) 72, 149–​55 (hereafter Ramey Berry, The Price for Their Pound of Flesh). 7 Orlando Patterson, Social Death: Slavery and Sexuality (Harvard University Press 1982) 106–​14 (hereafter Patterson, Social Death); Ehud R Toledano, ‘The Imperial Eunuchs of Istanbul: From Africa to the Heart of Islam’ (1984) 20 Middle Eastern Studies 379 (hereafter Toledano, ‘Imperial Eunuchs’). 8 Paul Finkelman and Seymour Drescher, ‘Killing the Vampire of Human Culture: Slavery as a Problem in International Law’ in Olivier Moréteau, Aniceto Masferrer, and Kjell A Modéer, Comparative Legal History (Edward Elgar 2019) 284, 287, 295, 313; Arthur Blech, Toward a New Civilization: Why We Must Tame Our Instincts to Save Our World (Prometheus Books 2005) 36; Patricia Viseur Sellers, ‘Wartime Female Slavery: Enslavement?’ (2011) 44 Cornell International Law Journal 115 (hereafter Sellers, ‘Wartime Female Slavery’). 9 Herbert S Klein and others, ‘Transoceanic Mortality: The Slave Trade in Comparative Perspective’ (2001) The William and Mary Quarterly 93; A compelling study of the US internal slave trade is Steven Deyle, Carry Me Back: The Domestic Slave Trade in American Life (OUP 2006) (hereafter Deyle, Carry Me Back). 10 Stephen Bates, ‘Church Apologises for Benefitting from Slavery’ The Guardian (London, 9 February 2006) accessed 8 December 2019; Stacy M Brown, ‘The Catholic Church Played a Major Role in Slavery’ The Los Angeles Sentinel (Los Angeles, 7 February 2019) accessed 8 December 2019; EJ Dionne Jr, ‘Pope Apologizes to Africans for Slavery’ New York Times (New York, 14 August 1985) accessed 8 December 2019; Severin Careell, ‘Glasgow University to Pay £20 million in Slave Trade Reparations’ The Guardian (London, 23 August 2019) accessed 8 December 2019; Myriam François, ‘It’s Not Just Cambridge University–​All of Britain Benefitted from Slavery’ The Guardian (London, 7 May 2019) accessed 8 December 2019; Sandra Green Thomas, ‘Georgetown Apologizes for 1838 Sale of More than 270 Enslaved, Dedicates Buildings’ Georgetown University News (Washington DC, 18 April 2017) accessed 8 December 2019; Washington, Medical Apartheid (n 6). 11 eg Kate Masur, ‘The World the Abolitionists Made: Reconsidering the Domestic Slave Trade’ (2005) 33 Reviews in American History 518, 519 (hereafter Masur, ‘The World the Abolitionists Made’); Trevor Burnard and Kenneth Morgan, ‘The Dynamics of the Slave Market and Slave Purchasing Patterns in

Slavery & Slave Trade: Feminist Critique  159 recognized was the common practice of the trade in slaves among family members by inheritance or from individuals to organizations through bequests upon death. The slave trade also occurred in the form of donations or gifts.12 Specialized niches developed in the slave trade focused on the sexualized nature of the human goods as, inter alia, future breeders, eunuchs, or concubines.13 Certain slave trade routes included more males than females, others more women and children, largely depending upon their eventual gendered use and sexual stereotypes.14 At the turn of the nineteenth century, influenced by Haiti’s twofold emancipation from French colonization and French slavery,15 the United States (US) and the United Kingdom (UK) hastened to halt the importation of African slaves.16 The UK banned the international slave trade in 1807 and slavery and internal slave trade in its colonies in 1833.17 By 1810, Britain began to enter into bilateral accords with Portugal, France, Spain, Brazil, and other states to outlaw the Transatlantic Slave Trade.18 These accords, enforced by bilateral administrative courts, gradually impeded slave-​laden ships from engaging in the trade.19 The accords, however, were not intended to abolish domestic slavery or any nation’s internal slave trade. North American slaveholders reacted to the declining supplies of ‘human goods’ by intensifying domestic slave breeding and expanding internal slave Jamaica, 1655–​1788’ (2001) The William and Mary Quarterly 205, 210, 216; Alecia McKenzie and Claire Oberon Garcia ‘Fighting for the Right to Remember’ (New African, 12 December 2016). 12 Stephanie Jones-​Rogers, They Were Her Property: White Women as Slave Owners in the American South (Yale University Press, 2019). 13 ibid. See discussion in Section B. 14 Klein, The Atlantic Slave Trade (n 4) 9. 15 CLR James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (Penguin 2001) (recounting the Haitian Revolution of 1794–​1803 and centring on slave uprisings); Robin Blackburn, ‘Haiti, Slavery, and the Age of Democratic Revolution’ (2006) 63 The William and Mary Quarterly 643 (detailing the influence of the Haitian Revolution of 1794–​1803 on abolitionism and democratic revolutions in France and the US). 16 Matthew Mason, ‘Keeping up Appearances: The International Politics of Slave Trade Abolition in the Nineteenth-​Century Atlantic World’ (2009) The William and Mary Quarterly 809; Edward E Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (Basic Books 2014) (hereafter Baptist, The Half Has Never Been Told); Donald R Hicks, ‘America’s Response to the Slave Revolt in Haiti, 1791–​1806’ 2 Journal of the Early Republic 361, 368; Deyle, Carry Me Back (n 9) 19. 17 Abolition of the Slave Trade Act 1807; Abolition of Slavery Act 1833. Abolition of slavery was staggered throughout the past two-​hundred years: ‘Key Dates in the Chronology of Abolitions’ (Mémorial de L’Abolition de L’Esclavage Nantes) accessed 8 December 2019. 18 Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP 2011) 34–​37 (hereafter Martinez, The Slave Trade). See also Wilbur Deveraux Jones, ‘The Origins and Passage of Lord Aberdeen’s Act’ 42 The Hispanic American Historical Review 502 (cataloguing the 1845 Aberdeen Act by the Parliament of the UK’s role in abolishing the Brazilian slave trade). 19 Martinez, The Slave Trade (n 18).

160  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum trading,20 practices which further institutionalized sexualized slavery harms. Slaveholding as an economic, social, and culturally ingrained system further normalized the slave owners’ dominion over the sexual integrity—​reproductive autonomy and capacity—​of enslaved men, women, and children. These sexualized gendered harms became innate to slavery and the domestic slave trade.21 Abolition during the nineteenth and twentieth centuries dismantled domestic institutions of de jure slavery (commonly referred to as ‘chattel slavery’).22 Eventually, global economic and political changes, such as the colonization of Africa and India and decolonization of the Americas, as well as a growing moral aversion to slavery, led to the recognition of slavery and the slave trade as international crimes. The 1926 Slavery Convention to Suppress Slavery and the Slave Trade (1926 Slavery Convention) outlawed slavery and the slave trade in all their forms.23 This chapter offers a critical feminist lens to uncover and examine the sexual practices and sexualized violence inflicted upon the subjects of the 1926 Slavery Convention: the enslaved. Examining the historic, gendered, and sexualized institutions of slavery and the slave trade facilitates a more complete understanding of the Convention’s legal definitions. Similar scrutiny of slave traders’ and slave owners’ economic needs and social customs further deduces the definitional scope of these crimes. Section B presents an historical view of sexualized, gendered slavery and slave trade practices. Section C posits that the 1926 Slavery Convention’s definitions encompassed diverse gendered, sexualized norms that historically have permeated slavery and the slave trade. Section D offers observations on the misguided use and desuetude of the crimes of slavery and the slave trade in the statutes of contemporary international judicial mechanisms. Section E concludes by advancing the application of distilled legal precepts to redress the

20 Masur, ‘The World the Abolitionists Made’ (n 11) 521; Deyle, Carry Me Back (n 9) 4, 17; Ramey Berry, The Price for Their Pound of Flesh (n 6) 149–​55; Baptist, The Half Has Never Been Told (n 16) 47–​ 49 (recounting the Haitian Revolution’s simultaneous influence on halting the international slave trade, yet expanding internal slave trading in the US). 21 Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum, ‘ “Sexualized Slavery” and Customary International Law’ in Sharon Weill, Kim Thuy Seelinger, and Kerstin Bree Carlson (eds), The President on Trial: Prosecuting Hissène Habré (OUP 2020) 366 (hereafter Sellers and Kestenbaum, ‘Sexualized Slavery’). 22 Emancipation from the East African Slave Trade generally occurred from the 1830s to 1880s: Gwyn Campbell, ‘The East African Slave Trade: 1861–​1895: The “Southern” Complex’ (1989) 22 The International Journal of African Historical Studies 1, 3, 6, 19. Emancipation for the Transatlantic Slave Trade began in the late 1700s and continued into the early and mid 1800s: Joseph E Inikori and Stanley L Engerman (eds), The Atlantic Slave Trade: Effects on Economies, Societies, and Peoples in Africa, the Americas, and Europe (Duke University Press 1994) 362–​90. 23 1926 Slavery Convention (n 2) art 1(1).

Slavery & Slave Trade: Feminist Critique  161 sexually saturated and gender-​based practices of slavery and the slave trade that persist today.

B.  East and West African Slavery and Slave Trades At the height of the East and West African Slave Trades, slave traders enslaved more than 100,000 Africans, men, women, and children, every year.24 The Transatlantic Slave Trade shipped Africans westward, across the Atlantic to the Caribbean and the Americas, while the East African Slave Trade transported Africans eastward, to Arabia and South Asia through Zanzibar.25 Low estimates of Africans transported in the Transatlantic Slave Trade stand at about 12 million human beings.26 Although the number of Africans enslaved in the East African Slave Trade remains in dispute,27 estimates range from 8 to 17 million human beings over a period of 400 years.28 Transatlantic slave traders profited from the demand to furnish slaves for agriculture labour on rice, indigo, cotton, sugar, and tobacco plantations. The Portuguese, Spanish, Dutch, and British slave traders introduced Africans into their New World colonies to replace European indentured labour and supplement enslaved indigenous persons.29 New World enslaved populations were 24 James A Rawley with Stephen D Behrendt, The Transatlantic Slave Trade: A History (University of Nebraska Press 2005). Traders brought between 15,000 and 20,000 slaves from mainland Africa each year to Zanzibar: Alastair Hazell, The Last Slave Market: Dr. John Kirk and the Struggle to End the African Slave Trade (Constable & Robinson Ltd 2011) 21 (hereafter Hazell, The Last Slave Market). Experts estimate that only 1 in 5 captured Africans ever made it to Zanzibar, which would equate to 125,000 Africans each year taken: Horace Waller and others, ‘Slavery in Africa’ (1877) 107 Westminster Review 394, 398; David Eltis and David Richardson, ‘The “Numbers Game” and Routes to Slavery’ in David Eltis and David Richardson (eds), Routes to Slavery: Direction, Ethnicity and Morality in the Transatlantic Slave Trade (Routledge 1997) 1, 9 (data suggest at least 15 per cent, or over 1.5 million slaves, died in the crossing). 25 Michael C Howard, Transnationalism and Society (Library of Congress Cataloguing 2011) 38; Klein, The Atlantic Slave Trade (n 4) 198. 26 ‘Trans-​Atlantic Slave Trade: Estimates’ (Slave Voyages) accessed 7 December 2019. 27 Thomas Vernet, ‘Slave Trade and Slavery on the Swahili Coast (1500–​1750)’ in Behnaz A Mirzai, Ismael Musah Montana, and Paul E Lovejoy (eds), Slavery, Islam and Diaspora (Africa World Press 2009) 37 (discussing reasons for dispute in the pre-​Portuguese slave trade) (hereafter Vernet, ‘Swahili Coast’). 28 Lovejoy estimates that there were 8.95 million Africans enslaved in the East African trade: George Pavlu, ‘Recalling Africa’s Harrowing Tale of its First Slavers—​The Arabs—​As UK Slave Trade Abolition is Commemorated’ (NewAfrican, 27 March 2018) accessed 7 December 2019. Senegalese author Tidiane N’Diay estimates that 17 million Africans were enslaved by the East African Trade, while Abdulazizi Lodhi, Emeritus Professor of Swahili and African Linguistics at the University of Uppsala in Sweden, disagrees, arguing that the number is much lower: Silja Fröhlich, ‘East Africa’s Forgotten Slave Trade’ (DW, 22 August 2019) accessed 7 December 2019. 29 Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (Houghton Mifflin Harcourt Publishing Co 2016); Christina Snyder, ‘Indian Slavery’ (Oxford Research

162  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum constituted by African captives and Americans born of the enslaved.30 The East African Slave Trade likewise supplied enslaved labourers to sugar and clove plantations, and enslaved porters to transport ivory from the interior to the coast of Africa.31 East African enslaved persons also replenished military forces, staffed civil posts, guarded harems, served as concubines, or provided domestic labour.32 Hazell’s observation of the East African Slave Trade operations noted that: The Zanzibaris of the interior travelled with large retinues of retainers, servants and fighting men. The more successful leaders had their harems and small armies, while their key supporters also had their women and followers. For all these, slaves were needed–​–​to provide the warriors, the porters and the concubines. As the traders pressed farther into the interior in their search for ivory, they acquired more and more slaves, for their own needs and to exchange for other wealth.33

Slavery and slave trade practices separated the enslaved along gendered divisions of labour. Often, women were sold as domestic slaves, cooks, and field hands. Healthy, able-​bodied men were in higher demand in slave trade destination countries given the economic purposes for which they were purchased, such as field labour and manual work.34 Trade in enslaved women and girls increased, however, in the Caribbean and across the Americas when planters Encyclopedia of American History, 2 December 2014) accessed 8 December 2019 (discussing interface of the African Slave Trade and Indian Slavery). Prior to the Transatlantic trade, African slaves were transported to Europe and European territories (such as Madeira): David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World (OUP 2006) 84 (hereafter Davis, Inhuman Bondage); Peter Kolchin, American Slavery: 1619–​1877 (Hill and Wang 2003) 4 (hereafter Kolchin, American Slavery). 30 Davis, Inhuman Bondage (n 29). 31 Vernet, ‘Swahili Coast’ (n 27) 41 (noting that: ‘the exceptional Rasulid administrative documentation has shown that the port town of Zayla, in present day Somaliland, was the coastal terminus of major slave routes from the Ethiopian highland. Slaves, including eunuchs, were then shipped to Aden on small ships. This maritime route between Zayla and Aden was very prosperous between the thirteenth and the fifteenth centuries’). 32 Ehud R Toledano, Slavery and Abolition in the Ottoman Middle East (University of Washington Press 1998) 3–​111. The gendered practice of male slave labour facilitated maintenance of the equally gendered purdah system that secluded females at home and forbade them to work: Hugh Thomas, The Slave Trade: The Story of the Atlantic Slave Trade: 1440–​1870 (Simon and Schuster 1997) 381 (hereafter Thomas, The Slave Trade). 33 Hazell, The Last Slave Market (n 24) 79–​80. 34 G Ugo Nwokeji, ‘African Conceptions of Gender and the Slave Traffic’ (2001) 58 The William and Mary Quarterly 47; Henri Médard and Shane Doyle (eds), Slavery in the Great Lakes Region of East Africa (Ohio University Press 2007); Sidney W Mintz, Sweetness and Power: The Place of Sugar in Modern History (Penguin 1986) 30–​32. Women often were sold as domestic slaves in Africa. Male were enslaved for field labour and as ivory transporters: ibid 181. See also Patterson, Social Death (n 7) 179.

Slavery & Slave Trade: Feminist Critique  163 discovered that African enslaved women were as productive in the fields as enslaved men.35 Demand for enslaved women and girls spiked during the years before the official halting of major slave trade routes to Cuba and Brazil36 when American slaveholders began breeding enslaved persons, thus requisitioning high sexual reproductivity from their enslaved populations.37

1.  Concubines, Eunuchs, Wet Nurses, and Other Sexualized, Gendered Slavery Practices The gendered separation of enslaved individuals notably manifested in institutionalized sexual practices that were integral to slavery and the slave trade. Under Islamic law, Muslim men could marry no more than four wives at one time. There was no limit, however, on the number of concubines they could have; thus, wealthy elite men bought the most attractive enslaved women and girls as concubines.38 Concubinage was a form of slavery common in the East African Slave Trade. The enslavement of numerous concubines constituted ‘harem slavery’. Sexualized and gendered at its core, harem slavery included women and girls across racial lines. In the Ottoman Empire, Ethiopian and European girls or young women were enslaved in middle-​class harems as concubines.39 Women and girls from the Caucasus were sold by their families in the hopes that they would enter the Imperial or upper-​class harems.40 On the Swahili coast between the sixteenth and nineteenth centuries, the Katwa, a Somali ethnic group, specialized in slave trading women and girls, such as the non-​Muslim Omoro of Southern Ethiopia, and eunuch boys.41 Concubinage was legal, widely accepted, and continued into the twentieth century. Zanzibar delayed outlawing concubinage until 1909, a full ten

35 David Eltis and Stanley L Engerman, ‘Was the Slave Trade Dominated by Men?’ (1992) 23 The Journal of Interdisciplinary History 237, 253. 36 A Spanish Royal Decree of September 1866 amending the 1845 penal law effectively ended the Cuban slave trade: Laird W Bergad, Fe Iglesias Garcia, and Maria del Carmen Barcia, The Cuban Slave Market 1790–​1880 (CUP 1995). In 1871, Brazil passed the Rio Branco law to gradually end slavery. In 1888, Portugal passed the Golden Law (Lei Áurea) officially abolishing slavery in Brazil: Christopher Schmidt-​Nowara, ‘Empires against Emancipation: Spain, Brazil and the Abolition of Slavery’ (2008) 31 Review (Fernand Braudel Center) 101. 37 Klein, The Atlantic Slave Trade (n 4) 163. 38 Suzanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem (AltaMira Press 2003) 89 (hereafter Miers, Slavery in the Twentieth Century). 39 Toledano, ‘Imperial Eunuchs’ (n 7) 379. 40 ibid 379, 380. 41 Vernet, ‘Swahili Coast’ (n 27) 49; MG daCosta (ed) and Donald Lockhart (trans), The Itinerário of Jerónimo Lobo (Hakluyt Society London 1984) 59.

164  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum years after abolishing other forms of slavery.42 Its pervasive social presence made slave owners reluctant to end this form of sexualized enslavement.43 Concubinage still flourished until after World War II in Hedjaz, a region in present-​day Western Saudi Arabia.44 Harem slavery also comprised the enslavement of boys and men as eunuchs.45 Eunuchs represented a lucrative, yet furtive, part of the slave trade,46 concentrated in the Nile Basin and Western Sudan. Youthful men and boys became eunuchs by castration or ‘gelding’. Castration consisted of the removal of their testicles, penis, or both reproductive organs.47 Gelding occurred during the trade prior to sale to harem owners generally because Islamic law forbids Muslims to conduct castrations. Western Sudanese slave traders used reputed ‘surgeons’ from the Mossi region of current Niger and North-​East Nigeria to geld enslaved men and boys while Ethiopian traders employed Coptic monks to perform castrations.48 Eunuchs were valued as slaves precisely due to their neutered sexual state. Eunuchs were incapable of engaging in sexual intercourse with reproductive organs; consequently, slave masters authorized eunuchs to guard their harems, confident that the eunuch posed no sexual threat. The eunuch’s interaction with the harem also guaranteed sexual control over

42 In 1897, Zanzibar abolished slavery, but exempted concubines, who were only freed with the passage of the 1909 legislation. Their freedom was conditional upon them relinquishing any claims to their children. Public morality rationales delayed the abolition of concubine slavery. Elisabeth McMahon recounts that British ‘Colonial officials feared that ending concubinage would create an “immoral” population of women who would become prostitutes’: Elisabeth McMahon, ‘ “Siendi” (I Won’t Go): Concubines’ Activism in the Abolition of Slavery in the Zanzibar Protectorate’ (2019) 41 Slavery & Abolition 395, 399 (hereafter McMahon, ‘Siendi’). 43 Abdulaziz Y Lodhi, The Institution of Slavery in Zanzibar and Pemba (Uppsala 1973) 20; Jonathon Glassman, ‘Racial Violence, Universal History, and Echoes of Abolition in 20th Century Zanzibar’ in Derek R Peterson (ed), Abolitionism and Imperialism in Britain, Africa, and the Atlantic (Ohio University Press 2010) 175; Temporary Slavery Commission, ‘Report to the Council’ (1925) League of Nations Doc No A.19.1925.VI [58] (‘The custom of concubinage under Moslem law and according to certain local practices is, on the contrary, much more likely to lead to slave-​dealing, since the acquisition of a concubine is generally effected by means of payment of a sum of money by whatever name—​‘present’ or ‘dowry’—​it may be called, which in this case is, in fact, a real purchase’: emphasis added) (hereafter Temporary Slavery Commission 1925 Report). 44 Miers, Slavery in the Twentieth Century (n 38) 89. 45 Boys and adolescent males have been sexually enslaved throughout history. Patterson noted that, in Greek slavery, young boys were sex objects or forced into the lucrative prostitution trade in which many masters engaged: Patterson, Social Death (n 7) 177. The term ‘bardaj,’ of Arab or Persian origin connoted a sexual ‘slave’ or ‘kept boy’: Will Roscoe, The Zuni Man-​Woman (University of New Mexico Press 1991) 5, 22, 28, 144. 46 Hazell, The Last Slave Market (n 24) 19. 47 Miers, Slavery in the Twentieth Century (n 38) 89; Toledano, ‘Imperial Eunuchs’ (n 7) 379, 380. 48 Toledano, ‘Imperial Eunuchs’ (n 7) 383; Thomas, The Slave Trade (n 32) 381. Accounts of Coptic monks’ involvement in castrating males destined to be enslaved as eunuchs are in Otto Meinardus, ‘The Upper Egyptian Practice of the Making of Eunuchs in the XVIIIth and XIXth Century’ (1969) 94 Zeitschrift für Ethnologie 47.

Slavery & Slave Trade: Feminist Critique  165 concubines.49 Once enslaved, eunuchs were further slave traded, often as gifts in exchange for political favours.50 Harem slavery, inclusive of persons of all genders and ages, embodied several indicia of sexualized, gendered violence. Slave owners retained unfettered sexual control over their concubines and eunuchs. Slavery practices of the Transatlantic Slave Trade similarly were rooted in complex gendered and sexualized violence. During the oceanic transit, European sailors regularly raped the African female ‘cargo’.51 Once women and girls were enslaved, the rape continued, serving many purposes. Male slave owners raped to terrorize and punish enslaved persons,52 and to exercise their domination.53 Kolchin offers an unsettling gendered, racialized account of the rapes of enslaved females: Sex between white men and black women was a routine feature of life on many, perhaps most slaveholdings, as masters, their teenage sons, and on larger holdings, their overseers took advantage of the situation to engage in the kind of casual, emotionless sex on demand unavailable from white women.54

Another slavery practice in the US entailed so-​called ‘fancy girls’ or ‘fancy maids’ who were enslaved girls of mixed race with European facial features.55 49 Toledano, ‘Imperial Eunuchs’ (n 7) 383. 50 ibid 386. 51 Thomas, The Slave Trade (n 32) 408 (referring to Captain Newton’s recalling one afternoon, ‘while we were off the deck, William Cooney seduced a woman slave down into the room and lay with her brutelike, in view of the whole quarter deck, for which I put him in irons’); Barbara Bush, ‘ “Daughters of injur’d Africk”: African women and the transatlantic slave trade’ (2008) 17 Women’s History Review 673, 687 (‘[E]‌ven before the ship set sail, it was “general practice” on receipt of a woman slave—​ especially a young one—​for the captain to send for her to come to his cabin “so he may lie with her” ’); A Leon Higginbotham Jr, In the Matter of Color, Race and the American Legal Process: The Colonial Period (OUP 1978) 282. 52 Dorothy Roberts, Killing the Black Body: Race, Reproduction and the Meaning of Liberty (2nd edn, Vintage Books 2017) 29 (hereafter Roberts, Killing the Black Body). 53 Wilma King, ‘Prematurely Knowing of Evil Things: The Sexual Abuse of African American Girls and Young Women in Slavery and Freedom’ (2014) 99 Journal of African American History 173, 179 (referring to a nineteen-​year-​old slave, Celia, who killed her slave owner in self-​defence when he attempted to rape her when she was pregnant in 1855. Despite a Missouri statute declaring that women had the right to defend themselves against rape, the judge refused ‘to include Celia in the “any woman” clause. Instead, he encouraged jurors to find Celia guilty of murder. She was “chattel” without legal rights to protect herself against sexual abuse, and her owner was within his rights to define the boundaries of their relationship, even if it included rape’). 54 Kolchin, American Slavery (n 29) 125. 55 Brenda E Stevenson, ‘What’s Love Got To Do With It? Concubinage and Enslaved Women and Girls in Antebellum South’ in Daina Ramey Berry and Leslie Harris (eds), Sexuality and Slavery (University of Georgia Press 2018) 159, 165–​66 (hereafter Stevenson, ‘What’s Love Got To Do With It?’); Edward E Baptists, ‘ “Cuffy,” “Fancy Maids,” and “One-​Eyed Men”: Rape, Commodification and the Domestic Slave Trade in the United States’ in Walter Johnson, The Chattel Principles: Internal Slave Trades in the Americas (Yale University Press 2005) 165, 183–​87.

166  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum Fancy girls, often teenagers, were kept in brothels or private homes for the sexual pleasure of white men and boys. Some enslaved girls were raised to become fancy girls. Slave traders sold them at high prices at slave markets catering, for example, to ‘well-​off Louisiana and Mississippi gentlemen who did not want to incur the expense of rearing legitimate families’.56 In a closely related slave practice called ‘plaçage’57 (concubinage), masters kept enslaved women in sexual relations, raping them over periods of years. Enslaved females reacted to plaçage differently: from resistance, to resignation, to bargaining that their children would be emancipated.58 Sally Hemmings, the concubine of US President Thomas Jefferson, is the most renowned concubine in American slavery. Fancy girls, maids, and plaçage practices signified enslaved women and girls’ sexual and reproductive subjugation. Lesser acknowledged, but common sexualized, gendered slave practices involved well-​heeled white women US slaveholders who bought, loaned, and exchanged enslaved women and girls as ‘wet nurses’ to breastfeed white infants.59 The commodification of wet nurses’ breastmilk created another sector of the internal slave trade that profited from enslaved bodies.60 In Brazil, wet nursing by enslaved persons, called ‘mercenary nursing,’ was a commonplace practice well into the nineteenth century.61 At slave markets, slave breast milk for white children was merely one of a number of ‘goods’ available for trade.62 Certain slave owners preferred purchasing enslaved mothers as wet nurses ‘without encumbrance’—​meaning without their children—​so as to be devoted to, and have a greater milk supply for, white infants. Wet nursing often forcibly separated enslaved mothers from their enslaved infants.63

56 Light-​skinned, mixed raced slave women at times were purposely impregnated by white men to bear even lighter-​skinned slave children who were ‘more valuable monetarily as slave property for their owners’ as potential fancy girls: ibid 166; Adrienne D Davis, ‘ “Don’t Let Nobody Bother Yo’ Principle”: The Sexual Economy of American Slavery’ in Adrienne D Davis and The BSE Collective (eds), Black Sexual Economies: Race and Sex in a Culture of Capital (University of Illinois Press 2019) 15–​38, 28 (describing the ‘fancy trade’) (hereafter Davis, ‘ “Don’t Let Nobody Bother Yo’ Principle” ’). 57 cf Penny Johnson, ‘Eulalie de Maudeville: An Ethnohistorical Investigation Challenging Notions of Plaçage in New Orleans as revealed through The Lived Experiences of A Free Woman of Color’ (Master’s thesis, University of New Orleans 2010) 1285–​399 (challenging traditional representations of plaçage through an ethnohistorical examination of Eulalie de Maudeville, a free woman of colour). 58 Stevenson, ‘What’s Love Got To Do With It?’ (n 55) 176. 59 Stephanie Jones-​Rogers, ‘ “[S]he could . . . spare one ample breast for the profit of her owner”: White Mothers and Enslaved Wet Nurses’ Invisible Labor in American Slave Markets’ (2017) 38 Slavery & Abolition 337, 338 (hereafter Jones-​Rogers, ‘Wet Nurses’). 60 ibid. 61 Maria Helena Pereira Toledo Machado, ‘Between Two Beneditos: Enslaved Wet-​nurses Amid Slavery’s Decline in Southeast Brazil’ (2017) 38 Slavery & Abolition 320–​36 (hereafter Machado, ‘Between Two Beneditos’). 62 Jones-​Rogers, ‘Wet Nurses’ (n 59) 346. 63 ibid.

Slavery & Slave Trade: Feminist Critique  167

2.  Forced Procreation, or ‘Breeding,’ and Other Reproductive Violence Against Slaves The forced procreation, or breeding, of enslaved persons, was an accepted slavery practice, simultaneously replenishing the enslaved population and augmenting slave owners’ wealth.64 The import ban on slaves into the US in 1808 intensified the forced procreation of enslaved persons, increasing the monetary value of enslaved women and girls, ‘wenches’, and of enslaved men and boys, ‘breeders,’ who were touted as fertile and fecund.65 As Ramey Berry assesses, breeding slaves ‘became associated with animal husbandry,’ while Davis succinctly labels slavery as a ‘sexual political economy’.66 Male sexual abuse, including rape of enslaved men and boys, was integral to US slavery and the domestic slave trade. Sexualized, reproductive violence in American slavery also affected men’s bodies.67 Foster documents how male and female slave owners afflicted sexualized, reproductive violence on their slaves in a variety of ways, including rape of enslaved individuals and requiring rape among enslaved persons; castrations and other genital mutilation of men and boys; separation of enslaved spouses; and forced coupling and procreation of enslaved persons.68 Slave breeding engulfed enslaved males and females.69 The true nature and scope of the sexualized terror that male slaves endured were, often, obscured by too narrow a gendered lens.70 Not only were enslaved men and boys subjected to a range of sexualized violence themselves, but they were also subjected, as witnesses and bystanders, to the sexual violence 64 Roberts, Killing the Black Body (n 52) 27–​28. Outlawing the international slave trade impacted the manumission or freeing of enslaved females in the US. In 1809, the Maryland state legislature passed the ‘Act to Ascertain and Declare the Condition of Such Issue as May Hereafter Be Born of Negro or Mulatto Female slaves.’ The law exposed slaveholders’ dilemmas whose ‘decision to free an enslaved woman involved measuring the potential value of her future labor, against the loss of the physical labor and reproductive labor of both mother and child’: Jessica Millward, ‘Wombs of Liberation: Petition, Law and the Black Woman’s Body in Maryland, 1780–​1858’ in Daina Ramey Berry and Leslie Harris (eds), Sexuality and Slavery (University of Georgia Press 2018) 88, 98: Steven J Micheletti and others, ‘Genetic Consequences of the Transatlantic Slave Trade in the Americas’ (2020) 107 The American Journal of Human Genetics 265, 273. 65 Enslaved females and males, designated by their procreative uses, were referred to as wenches, breeders, bucks, or bulls. Roberts notes that ‘[s]‌laveholders treated infertile slaves like damaged goods, often pawning them off on unsuspecting buyers’: Roberts, Killing the Black Body (n 52) 26, 28; Donna Wyant Howell, I Was A Slave: True Life Stories Dictated by Former Slaves in the 1930’s (American Legacy Books 1997) 11–​12, 133; Ramey Berry, The Price for their Pound of Flesh (n 6) 13, 78–​79. 66 Ramey Berry, The Price for their Pound of Flesh (n 6) 79; Davis, ‘ “Don’t Let Nobody Bother Yo’ Principle” ’ (n 56) 30. 67 Foster, ‘Sexual Abuse’ (n 5) 449. 68 ibid 449, 451–​58. 69 ibid 448. Enslaved females were also victimized by these acts. 70 ibid. Enslaved men and boys considered diminutive or ‘runty’ might be castrated to prevent the propagation of weak-​bodied slaves: Roberts, Killing the Black Body (n 52) 28.

168  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum perpetrated against enslaved women and girls. Unable to intervene or halt these acts, enslaved males were further tortured and traumatized.71 Undoubtedly, sexual violence against enslaved men and boys also harmed enslaved women and girls in a similar manner. Further, we posit that enslaved parents dreaded the arrival of their child’s puberty72 and the consequent sexual abuse and continued control over their sexual integrity. Thus, sexual and gender-​based violence, replete with psychological terror, exercised dominion over the enslaved across multiple generations. In sum, slavery and the slave trade violated all enslaved individuals’ sexual and reproductive autonomy. The East African Slave Trade depended upon enslaved females as concubines and enslaved males as eunuchs. The Transatlantic Slave Trade ultimately relied upon enslaved males as breeders and enslaved females as incubators and wet nurses. This recapitulation of practices better situates the impetus for the international legal condemnation of slavery and the slave trade. Section C, accordingly, examines the definitional scope of slavery and the slave trade as international crimes.

C.  1926 Slavery Convention and 1956 Supplementary Slavery Convention Slavery and the slave trade were proscribed as international crimes in the 1926 Slavery Convention.73 By the time of its adoption, the Transatlantic Slave Trade, domestic slavery, and internal slave trading had ceased in the Americas and the Caribbean. The drafters intended primarily to outlaw ongoing slavery in Africa, Asia, and the Middle East,74 and to distinguish between slavery and forced labour in their colonies.

71 ibid. 72 Ramey Berry writes, ‘As with girls, the exploitation of boys started at a young age . . . In New Orleans, brothel houses specialized in young boys’: Ramey Berry, The Price for their Pound of Flesh (n 6) 78. See also Peter W Bardaglio, ‘Rape and the Law in the Old South: Calculated to Excite Indignation in Every Heart’ (1994) 60 Journal of Southern History 749, 758, citing Harriet Jacobs, Incidents in the Life of a Slave Girl (Published by author 1861); Steven Mintz, ‘Childhood and Transatlantic Slavery’ (Children and Youth in History) accessed 11 July 2020. 73 1926 Slavery Convention (n 2) art 1(1). Certain scholars contest that chattel slavery as practiced by the Transatlantic Slave Trade was an international law norm. cf Nora Wittman, Slavery Reparations Time Is Now: Exposing Lies, Claiming Justice for Global Survival—​An International Legal Assessment (Power of the Trinity Publishers 2013). 74 Joel Quirk, ‘Defining Slavery in all its Forms: Historical Inquiry as Contemporary Instruction’ in Jean Allain (ed), The Legal Understanding of Slavery (OUP 2012) 253.

Slavery & Slave Trade: Feminist Critique  169

1.  Definition of ‘Slavery’ Under the 1926 Slavery Convention The 1926 Slavery Convention’s article 1(1) defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.75 Slavery ‘in all its forms’76 means slavery recognized under law, namely de jure or chattel slavery, as well as de facto slavery sanctioned by social customs. The terms ‘status’ and ‘condition’ evince an enlargement of the prohibition’s scope beyond de jure slavery.77 The Temporary Slavery Commission Reports of 1925 and 1926, which prepared for the drafting of the 1926 Slavery Convention, defined ‘slavery in all its forms’ as the exercise of any and all powers attaching to the rights of ownership over an individual,78 even in cases that did not require legal title or chattel ownership. The 1926 Slavery Convention’s travaux préparatoires79 reveal that the drafters took the definitions directly from Temporary Slavery Commission Reports.80 The Commission’s 1925 Report clarified that the scope of the definition of slavery was intended: [T]‌o eradicate practices restrictive of liberty so far as they may occur in connection with marriage, concubinage, and adoption, the first object should be to strengthen the law so as to enable the courts to repress all abuses, and, secondly and more especially, to take measures in order that everyone should be fully aware that the status of slavery is in no way recognised by law.81

75 ibid; 1926 Slavery Convention (n 2) art 1(1). 76 1926 Slavery Convention (n 2) preamble affirms the ‘intention of securing the complete suppression of slavery in all its forms and of the slave trade by land and sea’ as avowed in previous international instruments, namely, the Convention of Saint-​Germain-​en-​Laye of 1919, to revise the General Act of Berlin of 1885 and the General Act and Declaration of Brussels of 1890. 77 Helen Duffy, Human Rights in Practice, Trabalhadores Fazenda Brazil Verde v Brazil (Amicus Curiae) Case no 12.066 accessed 6 August 2020. 78 Jean Allain, The Slavery Conventions, The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Martinus Nijhoff 2008); Jean Allain, ‘A Legal Consideration Slavery in Light of the Travaux Préparatoires of the 1926 Convention’ (Twenty-​First Century Slavery: Issues and Responses Conference 2006) 11 (hereafter Allain, ‘Legal Consideration of Slavery’). 79 ibid. In Travaux Préparatoires, Allain suggests that the international community’s previous outlawing of the slave trade might have lessened any contentious debates about the definition: 78. 80 League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee (1926) League of Nations Doc No A.104.1926.VI (hereafter Temporary Slavery Commission 1926 Report); Allain, ‘Legal Consideration of Slavery’ (n 78) 11. 81 Temporary Slavery Commission 1925 Report (n 43) 62. League of Nations Temporary Slavery Commission, ‘Minutes of the Second Session’ (1925) 62 accessed 10 August 2020 (hereafter Temporary Slavery Commission, ‘Second Session Minutes’).

170  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum The minutes of the 1925 Second Session of the Temporary Slavery Commission, at which states were negotiating the draft 1926 Slavery Convention, reveal that the practice of concubinage was regarded as falling within the meaning of slavery. Further, it was clear that state delegates did not consider concubines to have the same status as wives. In other words, the Temporary Slavery Commission understood slavery to include concubinage as a sexualized slavery practice.82 The slavery definition proposed in the Temporary Slavery Commission Reports emphasized the exercise of any or all powers attaching to the rights of ownership over a person. The drafters adopted this definition in its entirety. Although it does not specify the particular institutions of slavery, such as concubinage, article 1(1) envelops any practice that involves the exercise of any or all of the powers attaching to the rights of ownership over a person.83 The Commission had sought ‘[a]‌legislative text which, as far as practicable, covers all offences against the liberty of the individual by a single, comprehensive sentence [as] preferable to one attempting to enumerate all possible forms of slavery’.84 The drafters of the 1926 Convention thereby intended that: concubinage, plaçage, and fancy girls; raping, castrating, and breeding slaves domestically; and commodifying slaves’ breastmilk, constituted slavery whenever they evidenced ‘exercise of powers of ownership rights over the person’.85 The 82 Sellers and Kestenbaum, ‘Sexualized Slavery’ (n 21). 83 The drafters of the 1926 Slavery Convention used the term ‘domestic slavery’ to refer to ‘non-​ Western slavery, African or indigenous slavery,’ as opposed to the slavery practices of European powers in the Transatlantic Slave Trade: Suzanne Miers, Britain and the Ending of the Slave Trade (Africana Publishing Corporation 1975) 118; cf Nora V Demleitner, ‘Forced Prostitution: Naming an International Offense’ (1994) 18 Fordham International Law Journal 163 (arguing that, while forced prostitution is often likened to and encompassed by slavery in the international legal arena, forced prostitution, with its historical linkage to the transnational crime of trafficking, requires recognition as an international crime in its own right because the term slavery does not adequately redress forced prostitution). The authors respectfully suggest the contrary. Slavery and the slave trade more aptly proscribe such sexual abuse. As international crimes, their safeguards are mistakenly conflated with the transnational crime of trafficking. See discussion below in Section D. 84 Temporary Slavery Commission 1926 Report (n 80) 25. 85 In the Temporary Slavery Commission Meeting Minutes, the experts noted that concubines were exchanged for money or gifted and, thus, implicated ‘slave-​dealing’: Temporary Slavery Commission, ‘Second Session Minutes’ (n 81) 54. The NGO Women’s Caucus’ discussion on enslavement and slavery explicitly included forced marriage as a ‘form of sexual slavery,’ which was seen as a form of enslavement and slavery: Women’s Caucus for Gender Justice, ‘Recommendations and Commentary for December 1997 Preparatory Committee on the Establishment of an International Criminal Court’ (December 1997) accessed 8 December 2019. Although the Women’s Caucus did not misunderstand forced marriage as purely sexual, sexualized violence was stressed in the recommendations and, consequently, the Caucus categorized forced marriage as sexual slavery and not as enslavement or slavery. See Hannah Baumeister, Sexualized Crimes, Armed Conflict and the Law: The International Criminal Court and the Definitions of Rape and Forced Marriage (CRC Press 2018) 184–​85; Cécile Aptel, ‘Child Slaves and Child Brides’ (May 2016) 14(2) Journal of International Criminal Justice 305. https://​doi.org/​10.1093/​jicj/​mqv​078 (hereafter, Aptel, ‘Child Slaves and Child Brides’). See Temporary Slavery Commission, ‘Second Session Minutes’ (n 81) 54.

Slavery & Slave Trade: Feminist Critique  171 1926 Slavery Convention gained near universal state acceptance, indicating widespread endorsement of the slavery definition,86 including all sexualized institutions and practices of slavery.87

2.  Prohibition Against the Slave Trade Under the 1926 Slavery Convention It is significant that the 1926 Slavery Convention separately proscribed the distinct, but related crime of slave trading, prohibiting the procurement of persons for placement into slavery or the trade or transport of slaves. The crime is defined in article 1(2) as: [A]‌ll acts involved in the capture, acquisition or disposal of a person with intent to reduce [them] to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging [them]; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.88

Article 2(a) of the Convention states that treaty parties’ responsibilities are ‘to prevent and suppress the slave trade’.89 The slave trade prohibition sanctions perpetrators who possess the intention and act to reduce a person, of any gender or age, into a condition of de jure or de facto slavery or—​just as importantly—​who further exchange or transport an enslaved person to other slave traders or into other conditions of slavery. Even though a slave trader must intend to reduce a person to slavery, such enslavement might not eventuate.90

86 Jean Allain, The Law and Slavery (Brill 2015) 423–​24 (hereafter Allain, The Law and Slavery). Neither the Commission nor subsequently the 1926 Slavery Convention drafters, however, intended to outlaw what was forced labour; the drafters found that, although evidence of constrained conditions existed, no powers of de jure or de facto ownership were exercised over persons: Jean Allain, ‘The Definition of “Slavery” in General International Law and the Crime of Enslavement within the Rome Statute’ (Guest Lecture Series of the Office of the Prosecutor, 2007) 5–​6 accessed 4 April 2019 (hereafter Allain, ‘The Definition of “Slavery” ’). 87 Sellers and Kestenbaum, ‘Sexualized Slavery’ (n 21). 88 1926 Slavery Convention (n 2) art 1(2). 89 ibid art 2(a). 90 Jeremy Prestholdt, ‘The Island as Nexus: Zanzibar in the Nineteenth Century’ in Toyin Falola, R Joseph Parrot, and Danielle Porter Sanchez (eds), African Islands: Leading Edges of Empire and Globalization (University of Rochester Press 2019) 317, 330: Prestholdt recounts the experience of an Ethiopian girl who was slave traded at least four times before being bought by a master in Zanzibar.

172  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum The 1926 Slavery Convention recognized that, while these two practices occur in tandem91 and their institutions are interlinked,92 they are distinct crimes. The crime of ‘slavery’ criminalizes the status or condition of slavery. The offence of slave trading criminalizes the reduction of a person to slavery or their transportation or transfer as an enslaved person.93 Slave trading is precursory to slavery and can occur during or after slavery.94 Slave trading is not a lesser offense, or a subset of slavery. The slave trader is not a mere accessory to slavery, such as an aider or abettor. The slave trader might intend and, therefore, act to reduce a person to the status of a slave only to learn that the supposed buyer chooses not to exercise powers of ownership over the person.95 An act of slave trading still has been committed. Analogous to the transfer of illicit goods, slave trading is per se criminal, irrespective of the conclusion of an eventual sale. From the victim’s standpoint and under law, slavery and the slave trade are separately perpetrated crimes.96

3.  1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery97 affirms the 1926 Slavery Convention definitions and framework of slavery and the slave trade. Article 7(c) of the Supplementary Convention updates the definition of the slave trade in two significant ways. First, the Convention recognizes that a person might be slave traded several times prior to becoming enslaved, 91 Sellers and Kestenbaum, ‘Sexualized Slavery’ (n 21). 92 Patricia M Muhammad, ‘The Trans-​Atlantic Slave Trade: A Forgotten Crime Against Humanity as Defined by International Law’ (2003) 19 American University International Law Review 884, 933–​46. 93 Harman van der Wilt, ‘Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the Concepts’ (2014) 13 Chinese Journal of International Law 297, 303. See also Anne T Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2009) 49 Virginia Journal of International Law 789–​848. 94 Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum, ‘Missing in Action: The International Crime of the Slave Trade’ (2020) 18 Journal of International Criminal Justice 517, 520 (hereafter Sellers and Kestenbaum, ‘Missing in Action’). 95 ibid 527. 96 Allain and Bales illustrate the point of precursory conduct and distinctiveness of crimes: Jean Allain and Kevin Bales, Slavery and Its Definition (Global Dialogue 2012) 5–​6. 97 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (adopted 7 September 1956, entered into force 30 April 1957) 266 UNTS 3 (hereafter Supplementary Slavery Convention); In 1949, the United Nations General Assembly requested that the UN Economic and Social Council study the problem of slavery, which led to the development of the Supplementary Slavery Convention: Allain, The Law and Slavery (n 86) 199, 207.

Slavery & Slave Trade: Feminist Critique  173 proscribing ‘all acts of disposal by sale or exchange of a person acquired with a view to being sold or exchanged’. Second, it criminalizes the transportation of enslaved individuals by any means, stating that ‘[t]‌he act of conveying or attempting to convey slaves from one country to another by whatever means of transport . . . shall be a criminal offense under the laws of the States Parties to this Convention’.98 Together, the two Conventions create an international legal framework that provides a wide berth for inclusion of the gendered and sexualized practices that were innate to the East Africa and Transatlantic Slave Trades. The Conventions created the crimes of slavery and the slave trade. These crimes are now recognized as jus cogens or peremptory norms, with erga omnes obligations,99 under customary international law,100 as war crimes under international humanitarian law (IHRL),101 and as non-​derogable human rights violations.102 Section D discusses slavery and the slave trade as serious crimes of international concern under international criminal law (ICL).

98 Supplementary Slavery Convention (n 97) art 7(c) (emphasis added). 99 Restatement (Third) of Foreign Relations of the United States (1987) [702] cmts d-​i, [102] cmt k; EJ Criddle and E Fox-​Decent, ‘A Fiduciary Theory of Jus Cogens’ (2009) 34 Yale Journal of International Law 331; MC Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63, 70–​71 (hereafter Bassiouni, ‘International Crimes’); Yushifumi Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68 Netherlands International Law Review 1, 14. 100 MC Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 New York University Journal of International Law and Politics 445, 447–​48, 454, 456; cf Terje Einarsen, ‘The Concept of Universal Crimes in International Law’ (FICHL Publication Series No. 14, 2012) 158, 205, 231, 232 accessed 6 August 2020; Claus Kreß, ‘International Criminal Law’ (2009) (Max Planck Encyclopedia of Public International Law) accessed 6 August 2020; UN General Assembly, ‘Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, 31 August–​8 September 2001’ (January 2002) UN Doc A/​CONF.189/​12 art 13. 101 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (hereafter AP II) art 4(2)(f); International Committee of the Red Cross (ICRC), ‘Study of Customary Law: Slavery and the Slave Trade’ r 94 accessed 6 August 2020. 102 United Nations, ‘Universal Declaration of Human Rights’ (10 December 1948) art 4: ‘slavery and the slave trade shall be prohibited in all their forms’; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 8: ‘slavery, the slave trade in all their forms’; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR) art 6(1): ‘slavery . . . involuntary servitude . . . [and] the slave trade’; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (ACHPR) art 5: ‘slavery and the slave trade’; Cairo Declaration on Human Rights in Islam (adopted 5 August 1990) art 11(a): ‘no one has the right to enslave’: Jocelyn Getgen Kestenbaum, ‘Disaggregating Slavery and the Slave Trade’ (forthcoming 2022) 17 Florida International University Law Review.

174  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum

D.  Critique of Slavery, the Slave Trade, and Related Crimes: Enslavement, Sexual Slavery, and Trafficking Slavery is mischaracterized and misunderstood in contemporary ICL, and the slave trade is almost completely ignored. Failure to grasp the definitional breadth and normative strength of these crimes weakens their potential juridical application, and therefore the possibilities for redress. A critical feminist analysis of the sexual and gender-​based content implicit in the definitions of slavery and slave trading reveals their contemporary manifestations.

1.  International Legislation and Jurisprudence on Slavery and the Slave Trade A number of seminal ICL instruments deal with slavery crimes, including the charters of the International Military Tribunals for Germany and for the Japan.103 For example, Principle 6 of the Nuremberg Principles recognized ‘enslavement’ as a crime against humanity104 and ‘deportation to slave labour’ as a war crime.105 Article 4(2)(d) of Additional Protocol II to the Geneva Conventions (AP II) prohibits ‘slavery and the slave-​trade in all their forms . . . at

103 United Kingdom of Great Britain and Northern Ireland, United States of America, France, and Union of Soviet Socialist Republics, ‘Charter of the International Military Tribunal—​Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (8 August 1945) art 6 accessed 7 August 2020 (hereafter London Charter ); International Military Tribunal for the Far East, ‘Special proclamation by the Supreme Commander tor the Allied Powers at Tokyo, 19 January 1946; charter dated 19 January 1946; amended charter dated 26 April 1946’ art 5(c) accessed 7 August 2020 (hereafter Tokyo Charter); Control Council, ‘Law No 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity’ art II(1)(c) accessed 7 August 2020. The Nuremberg Tribunal convicted several officials of slave labour, including the deportation to slave labour of over 500,000 female domestic workers to Germany: see eg ‘Trial of Carl Krauch et al (IG Farben trial)’ and ‘Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach et al’ in International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg Volume 10 (1947) 2, 53, 54, 70, 141, 146. The Nuremberg Tribunal convicted Fritz Sauckel for the crime against humanity of enslavement under art 6(c) of the London Charter of the International Military Tribunal when he forcibly employed five million foreign workers in Germany: Harmen van der Wilt, ‘Slavery Prosecutions in International Criminal Jurisdictions’ (2016) 14 Journal of International Criminal Justice 269, 270–​71 citing Ann Tusa and John Tusa, The Nuremberg Trial (Skyhorse 1983) 378. 104 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (1950) art 6 accessed 7 August 2020. The International Law Commission (ILC) included enslavement as a crime against humanity in: ILC, ‘Draft Code of Crimes Against Humanity’ (1996) 2 Internal Law Commission Yearbook 17, 47 art 18(d). 105 ILC, ‘Nuremberg Principles’ (29 July 1950) UN Doc A/​1316.

Slavery & Slave Trade: Feminist Critique  175 any time and at any place whatsoever’.106 The statutes of the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary Criminal Chambers of Cambodia (ECCC), the Extraordinary African Chambers (EAC), and the International Criminal Court (ICC) list enslavement as a crime against humanity.107 ‘Sexual slavery’ is also listed as a crime against humanity in the SCSL and EAC Statutes, and as a crime against humanity and war crime in the Rome Statute of the ICC.108 The crimes of ‘slavery’ and the ‘slave trade’ were not enumerated as war crimes in the ICTY and ICTR Statutes, but they were covered implicitly. Under the ICTY statute, they were covered by article 3, which gives the Tribunal jurisdiction over ‘serious violations of humanitarian law’. According to the test established by the Tribunal in the Tadić case, article 3 incorporates serious violations based in custom and treaty law.109 In the case of the ICTR, article 4 of its Statute states that the Tribunal ‘shall not be limited to’ the express provisions listed, acknowledging that other crimes committed in non-​international armed conflict are justiciable.110 Neither Tribunal prosecuted slave trading as a war crime. The statutes of the SCSL, ECCC, and ICC only give jurisdiction over the expressly enumerated war crimes, which do not include slavery or the slave trade other than sexual slavery. The omission of specific reference to slavery and the slave trade as war crimes in the Rome Statute is most troubling, given 106 AP II (n 101) art 4(2)(d). 107 UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002) (25 May 1993) art 5(c) (hereafter ICTYSt); UN Security Council, Statute of the International Criminal Tribunal for Rwanda (as last amended on 13 October 2006) (8 November 1994) art 3(c) (hereafter ICTRSt); UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) art 2(c) (hereafter SCSLSt); Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (adopted 6 June 2003, entered into force 29 April 2005) 2329 UNTS 117 (hereafter ECCCSt) art 5; Statute of the Extraordinary African Chambers (8 February 2013) art 6(a), 6(f) (EACSt); Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (ICCSt) arts 7(1)(c), 7(1)(g), 8(2)(b)(xxii), 8(2) (e)(vi). 108 SCSLSt (n 107) art 2(g); EACSt (n 107) art 6(a); ICCSt (n 107) art 7(1)(g). 109 ICTYSt (n 107) art 3 allows for prosecution of unenumerated violations of the laws and customs of war if: (i) the violation infringes a rule of IHL; (ii) the rule is customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation is ‘serious’—​it breaches a rule protecting important values, and involves grave consequences for the victim; and (iv) under customary or conventional law, an individual can be held criminally responsible for the violation. Prosecutor v Dusko Tadić (Opinion and Judgment) IT-​94-​1-​T (7 May 1997) [610]; Prosecutor v Dusko Tadić (Decision on the Defence Motion on Jurisdiction) IT-​94-​1 (10 August 1995) [61]: Prosecutor v Krnojelac (Judgment) IT-​97-​25 (15 March 2002) [356]: ‘The Trial Chamber is satisfied that the offence of slavery under Article 3 of the Tribunal’s Statute is the same as the offence of enslavement under Article 5.’ The authors advance that the prohibition of the slave trade meets the four Tadić requirements: OA Hathaway and others, ‘What Is a War Crime?’ (2019) 44 Yale Journal of International Law 54. 110 ICTRSt (n 107) art 4.

176  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum that (1) the ICC is the world’s only permanent international criminal court, (2) the Rome Statute diverges from AP II (article 4(2)(d))111 and does not necessarily embody customary international law, and (3) as the only continuing international criminal justice mechanism, the ICC, through its jurisprudence, will indicate and reflect state practice and opinio juris.

2.  International Criminal Jurisprudence on Slavery and the Slave Trade Several international judgments have concerned slavery proscriptions.112 The ICC entered convictions for slavery crimes, notably in the Ongwen case113 in which the Sinia Brigade of the Lord’s Resistance Army (LRA), commanded by Dominic Ongwen, raided villages to abduct adults and children and to force them to transport looted goods.114 The Chamber viewed the villagers’ abductions and labour as porters as constituting Ongwen’s initial exercise of powers attaching to rights of ownership of enslavement.115 After killing or releasing elderly villagers and women with children,116 Ongwen distributed the enslaved boys to LRA units to replenish his fighting forces.117 He distributed prepubescent girls, ‘ting tings’, to LRA fighters118 and assigned to, gifted, or rewarded LRA fighters with sexually mature girls and women as ‘wives’.119 The Court found that distributions of ‘ting tings’ and other women and girls as ‘wives’ were acts of enslavement.120 Dominic Ongwen, accordingly, was convicted of directly, indirectly, and jointly with others of perpetrating enslavement and sexual slavery

111 AP II (n 101). 112 See also the jurisprudence of other tribunals: Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (RUF) (Judgment) SCSL-​04-​15-​T (2 March 2009) (hereafter RUF Trial Judgment); Prosecutor v Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Judgment) SCSL-​04-​15-​A (26 October 2009); Prosecutor v Brima, Kamara and Kanu (AFRC) (Judgment) SCSL-​04-​16-​T (20 June 2007); Prosecutor v Brima, Kamara and Kanu (AFRC) (Judgment) SCSL-​04-​16-​A (3 March 2008); Prosecutor v Charles Ghankay Taylor (Judgment) SCSL-​03-​1-​T (26 April 2012) (hereafter Taylor Trial Judgment); Prosecutor v Katanga and Chui (Judgment) [2018] ICC-​01/​04-​01/​07; Prosecutor v Ntaganda (Judgment) [2019] ICC-​01/​04-​02/​06 (hereafter Ntaganda Trial Judgment); Ministère Public v Hissène Habré (Judgment) (30 May 2016); Le Procureur v Hissène Habré (Appeal Judgment) (27 April 2017) (hereafter Hissène Habré Appeal Judgment). 113 Prosecutor v Dominic Ongwen (Judgment) ICC-​02/​04-​01/​15-​1762-​Red (04 February 2021) (hereafter Ongwen Judgment). 114 ibid [1154]–​[1562], [1326]–​[1330], [1796]–​[1800], [1830], [1972]–​[1974], [1985]. 115 ibid [2839]–​[2840], [2895]–​[2896], [2948]–​[2949], [2994]–​[2995]. 116 ibid [1580], [2012], [1609], [1611], [1815], [2354], [2369], [2415]–​[2416]. 117 ibid [1610], [2312]–​[2313], [2319]–​[2320], [2355], [2369]. 118 ibid [217], [2020], [2034], [2143], [3086]. 119 ibid [1613]–​[1614], [2013], [2222], [2224]–​[2226], [2143], [2151]–​[2152], [2172]–​[2175], [3086]. 120 ibid [3049], [3055], [3082], [3084], [3087].

Slavery & Slave Trade: Feminist Critique  177 as crimes against humanity121 and sexual slavery as a war crime. The Chamber sentenced him to twenty-​five years’ imprisonment,122 inclusive of twenty years, respectively, for enslavement123 and sexual slavery.124 The Ongwen judgment elucidates the enslavement of adults and children who laboured as porters, but less astutely addresses the complexities of slavery of boy child soldiers and girl ‘ting tings’ under article 8’s war crimes provisions. After their distribution, Ongwen retained strict control over the enslaved boys now ‘conscripted’ as Sinia Brigade fighters. He determined when fighters could be sexually active and when to distribute ‘wives’ to them.125 After distribution, the ‘ting tings’’ girls’ enslavement was examined as physical and mental acts of torture as a war crime.126 Effectively, the enslavement of these children is legally erased since no provision for slavery exists under article 8. Moreover, adjudication of all the initial abductions and subsequent distributions of adults and children is legally amiss under articles 7 and 8 of the Rome Statute that structurally omits enumeration of the slave trade.127 Abductions of villagers into enslavement and the ensuing distributions and redistributions of enslaved persons are quintessential acts of slave trading. Accordingly, the Ongwen judgment exposed juridical impediments within the Rome Statute.128 To obviate the legal deficiencies, like in Ntaganda, the Ongwen Chamber subsumed the precursory conduct of slave trading into the enslavement provision,129 interpreting Ongwen’s initial abductions and deprivations of liberty of villagers as exercises of ownership. Arguably this resolution is a legal overstatement. Rather, viewing his intent to reduce the villagers to slavery as engaging in the crime of slave trading would offer a more

121 ibid [2927], [3049], [3055], [3100]. 122 Prosecutor v Dominic Ongwen (Sentence) ICC-​02/​04-​01/​15 (6 May 2021) 395–​96. Ongwen’s own abduction by the LRA and life as a child soldier mitigated his sentence: ibid 88, 388. However, Ongwen’s status as a father of twenty children was not mitigating. The Chamber noted that, due to ‘his rapes, children were born . . . to women and girls abducted into the LRA and . . . kept . . . in a coercive environment’: ibid [123], [124]. 123 ibid [314]. 124 ibid [308]. As of this writing, the Ongwen judgment is on appeal. 125 ibid [2223]. 126 ibid [3073]. Article 8’s provisions are not specifically analogous to enslavement. Therefore, any concurrence of crimes could only recharacterize the slavery conduct that ‘ting tings’ and the boy child soldiers endured: Patricia Sellers and Jocelyn Getgen Kestenbaum, ‘Conversations Under the Rome Statute–​Enslavement and the Slave Trade’ (OpinioJuris, 11 June 2021) accessed 19 July 2021 (hereafter Sellers and Kestenbaum, ‘Conversations Under the Rome Statute’). 127 Sellers and Kestenbaum, ‘Conversations Under the Rome Statute’ (n 126). 128 In Ntaganda, precursory conduct to slavery, such as abductions, were mischaracterized or disregarded: Sellers and Kestenbaum, ‘Missing in Action’ (n 94) 520–​22. 129 ibid.

178  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum accurate legal characterization of Ongwen’s illicit conduct. Ongwen traded in slaves and held slaves. The ICTY considered enslavement in the Prosecutor v Kunarac et al case.130 The Trial Chamber held that the 1926 Slavery Convention definition of slavery and the ICTY Statute’s enslavement provision reflect customary international law.131 Enslavement under customary international law encompasses exercising powers attaching to rights of ownership, including control over a person’s sexuality.132 Accordingly, Kunarac and other Bosnian-​Serb soldiers were convicted of enslavement as a crime against humanity for detaining and relentlessly sexually abusing Bosnian-​Muslim females in the town of Foça.133 Kunarac offered no definitive pronouncements about the crime of the slave trade. Nonetheless, it found compelling the manner in which the Bosnian-​ Muslim females were reduced to sexualized enslavement by sale, transfer, handover, or transport between and among perpetrators.134 The Tribunal said that the ‘acquisition or disposal of someone for monetary or other compensation is not a requirement for enslavement’135 and that ‘the mere ability to buy, sell, trade, or inherit would be insufficient to establish slavery’.136 The Kunarac Chamber correctly reasoned and refrained from characterizing these repugnant acts as enslavement, although it remained cognizant of their illicit nature.137 The Kunarac decision seemingly acknowledged a legal lacuna, even though it failed to seize the opportunity to characterize the conduct of reducing persons to slavery and further disposing of them as acts of the slave trade.138 Ongwen and Kunarac remain sanguine decisions, yet they contain unsatisfactory reasoning vis a vis acts tantamount to slave trading. This legal lacuna stresses the need to revive customary law’s full proscription of the slave trade and slavery as international crimes.139 It is striking structurally to contemplate 130 Prosecutor v Kunarac (Judgment) IT-​96-​23-​T (22 February 2001) (hereafter Kunarac Trial Judgment); Prosecutor v Kunarac (Judgment) IT-​96-​23/​1-​A (12 June 2002) (hereafter Kunarac Appeals Judgment). 131 Kunarac Appeals Judgment (n 130) [118]: ‘the law does not know of a “right of ownership over a person.” Article 1(1) of the 1926 Slavery Convention speaks more guardedly “of a person over whom any or all of the powers attaching to the right of ownership are exercised.” That language is to be preferred’). 132 The Kunarac Trial Chamber recognized that the exercise of powers of ownership could manifest by: control of someone’s movement; control of physical environment; psychological control; measures taken to prevent or deter escape; force, threat of force, or coercion; duration; assertion of exclusivity; subjection to cruel treatment and abuse; control of sexuality; and forced labour: Kunarac Trial Judgment (n 130) [543]. 133 ibid [742], [745], [782], [872]. 134 ibid [747], [756], [779]. 135 ibid [542]. 136 ibid [543]. 137 ibid [756]. 138 See Sellers and Kestenbaum, ‘Missing in Action’ (n 94), 523–​25. 139 Office of the Special Representative of the Secretary-​General on Sexual Violence in Conflict, Model Legislative Provisions and Guidance on Investigation and Prosecution of Conflict-​Related

Slavery & Slave Trade: Feminist Critique  179 the absence of these jus cogens norms, crimes under customary international law, from the articles of the Rome Statute. Ongwen also misconceptualizes sexualized ownership that can be exercised in enslavement, as discussed in Section B.

3.  ‘Sexual Slavery’ is Enslavement To date, provisions for ‘sexual slavery’ have been used to prosecute slavery-​ related rape as well as aspects of ‘forced marriage’—​conduct tried under the crime against humanity of ‘other inhumane acts’.140 The ICC Statute enumerates ‘sexual slavery’141 in three provisions: as a crime against humanity in article 7 in addition to ‘enslavement’;142 and as a war crime in both international and non-​international armed conflict, under article 8.143 The ICC Elements of Crimes document provides identical elements for both sexual slavery provisions, requiring that ‘[t]‌he perpetrator caused [the] person or persons [over which the right of ownership was exercised] to engage in one or more acts of a sexual nature’.144 This element distinguishes ‘sexual slavery’ from ‘enslavement’ under the Rome Statute. ‘Sexual slavery’ carries the additional evidentiary burden of proof that the perpetrator caused the victim to engage in an act of a sexual nature.145 As applied in Katanga, Chui, and Ntaganda, the ICC found that the decisive factor in determining if sexual slavery occurred is the exercise of powers of ownership over a person’s sexual autonomy. ICC jurisprudence acknowledges that ‘there is no exhaustive list of situations or circumstances’146 that delimit when or how such powers are Sexual Violence (18 June 2021), accessed 20 July 2021. 140 See SCSL’s RUF case: RUF Trial Judgment (n 112). In Taylor, the SCSL separated the sexual conduct in forced marriages from its non-​sexual conduct, characterizing the former as sexual or conjugal slavery and the latter as enslavement: Taylor Trial Judgment (n 112). 141 Departing from customary law, art 7(1)(g)(2) of the Rome Statute, as well as the corresponding article in the SCSL statute, separate ‘sexual slavery’ from enslavement: ICCSt (n 107) art 7(1)(g)(2); SCSLSt (n 107) art 2. See also ILC, ‘Crimes Against Humanity: Texts and Titles of the draft preamble, the draft articles and the draft annex provisionally adopted by the Drafting Committee on second reading, Prevention and punishment of crimes against humanity’ (15 May 2019) UN Doc A/​CN.4/​L935 (CAH Draft Treaty) art 2(1)(c) and (g); Jean Allain, ‘The Definition of “Slavery” ’ (n 86). 142 ICCSt (n 107) arts 7(1)(2), 7(1)(c). 143 ibid arts 8(2)(b)(xxii), 8(2)(e)(vi). 144 ICC, Elements of Crimes (ICC 2011) arts 7(1)(g)-​2, 8(2)(b)(xxii)-​2, 8(2)(e)(vi)-​2 (hereafter ICC, Elements of Crimes). 145 eg Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25 Michigan Journal of International Law 605. 146 The Trial Chamber in Ntaganda held that, ‘(i)n determining whether the perpetrator exercised such a power, the Chamber must contemplate various factors, such control of sexuality’. However, Ntaganda’s examination of causation of acts of a sexual nature only referenced physical acts of

180  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum exercised.147 However, the additional element, causing engagement in an act of a sexual nature, so far has been limited to heteronormative, male-​on-​female acts of rape, such as in Ntaganda148 and Ongwen.149 Instead of reliance on the interpretive scope of the additional burden—​ whether the perpetrator caused a ‘person or persons to engage in one or more acts of a sexual nature’—​we suggest that article 7(1)(c) enslavement encompasses all ‘exercises of ownership’ conduct, including any sexualized indicia of enslavement. Section C of this chapter depicted the myriad ways in which sexualized slavery manifests, including: the exercise of powers of ownership over reproductive fluids, such as semen; commodification and control of breast milk; verification of menstrual flows; gynaecological experimentation; castration; forced separation of enslaved spouses to prevent procreation; inflicting individual and collective psychological sexual terror; grooming of prepubescent girls to become concubines and boys to become sex objects; and the ubiquitous, unfettered sexual access by slave owners to enslaved bodies, including allowing family members, friends, and employees to sexually abuse slaves.150 These acts and even forced pregnancy, which ‘depends upon the unlawful confinement of a (forcibly made) pregnant woman . . . deprived of reproductive autonomy’, have not been interpreted as ‘causing victims to engage in acts of a sexual nature’.151 Notwithstanding, Ongwen unwittingly demonstrates that customary law understandings of sexualized enslavement represent an ameliorated approach, even though the Court offered flawed reasoning. The ‘ting-​tings’’ enslavement was sexualized. Like the grooming of fancy girls, Ongwen deliberately waited for ‘ting tings’ to mature sexually by monitoring their menstruation. He controlled all sexual access to them prior to their distribution to LRA fighters. His holding of the ‘ting tings’ in abeyance for future sexual abuse is demonstrative

rape: Ntaganda Trial Judgment (n 112) [952], [955]. See also rapes as the ‘caused acts’ in Prosecutor v Katanga (Judgment) [2014] ICC-​01/​04-​01/​07 [1008], [1011]–​[1013], [1018], [1022] (hereafter Katanga Trial Judgment). 147 eg López Soto y Otros v Venezuela (Judgment) (26 September 2018) accessed 7 August 2020; Ntaganda Trial Judgment (n 112). 148 See Ntaganda Trial Judgment (n 112) [975]. See also Taylor Trial Judgment (n 112) [422], [426]–​ [427]; RUF Trial Judgment (n 112) [1293]–​[1294]; Katanga Trial Judgment (n 146) [985], [990], [1000], [1012]; Prosecutor v Mathieu Ngudjolo Chui (Judgment) [2012] ICC-​01/​04-​02/​12 [101], [107]. 149 Ongwen Trial Judgment (n 113) [3047]. 150 eg Machado, ‘Between Two Beneditos’ (n 61); Jones-​Rogers, ‘Wet Nurses’ (n 59); Roberts, Killing the Black Body (n 52) 27–​28; Foster, ‘Sexual Abuse’ (n 5). 151 The Ongwen Chamber cited the rule of surplusage for refusing to place forced pregnancy conduct under other provisions: Ongwen Judgment (n 113) [2722].

Slavery & Slave Trade: Feminist Critique  181 of the exercise of powers attaching to the rights of ownership, thus committing sexualized enslavement.152 The Slavery Convention’s definition of slavery includes these and other forms of sexualized slavery. In the ICC context, all of these forms of slavery should amount to both enslavement and sexual slavery under article 7. However, Ongwen demonstrates that the enumeration of sexual slavery in practice is too narrow to encompass grooming, hence the sexualized enslavement of ‘ting-​tings’, and too restricted to include the forced pregnancies and subsequent childbearing acts of ‘wives’. Notwithstanding these strictures, the Ongwen Chamber deemed sexual slavery as lex specialis over enslavement as lex generalis. The breadth of sexual slavery, however, does not even duplicate the scope of sexualized enslavement criminalized under customary law.153 The interpretation that sexual slavery, a subset of enslavement, now encapsulates enslavement as a type of ‘lesser included offense’ is factually and legally ahistorical and bewilderingly incorrect. The enslaved are better safeguarded when the exercise of ownership countenances omissions and commissions over their sexual autonomy as provided by customary international law. Further, there lies the potential to engender a ‘feminization’ of the crime of sexual slavery by presuming that victims are females and perpetrators are males.154 Feminization of sexual slavery might de facto limit the category of male victims—​ boys, adolescents, adults, child soldiers, and prisoners of war and other detainees—​ and the breadth of gendered sexual acts directed at males. Sexualized violence committed against enslaved males largely is ignored155 under contemporary ICL. Characterized as torture and not as sexual slavery or enslavement, it contributes to a feminization of the sexual slavery and a de-​sexualization of enslavement crimes.156 The misconception persists that enslavement primarily criminalizes (non-​ sexual) manual labour, such as mining, transport of goods, or domestic

152 Sellers and Kestenbaum, ‘Conversations Under the Rome Statute’ (n 126). 153 ICCSt (n 107) arts 7(1)(2), 8(2)(b)(xxii), 8(2)(e)(vi). The Taylor Trial Chamber opined that sexual slavery, misconstrued as ‘forced marriage,’ ‘constitutes a form of enslavement in that the perpetrator exercised the powers attaching to the right of ownership over their “bush wives” and imposed on them a deprivation of liberty, causing them to engage in sexual acts as well as other acts. . . . All of these forced acts, both sexual and non-​sexual acts, fall within the definition of enslavement’: Taylor Trial Judgment (n 112) [427]; RUF Trial Judgment (n 112) [156]; Alexandra Adams, ‘Sexual Slavery: Do We Need This Crime in Addition to Enslavement?’ (2018) 29 Criminal Law Forum 279, 280 (hereafter Adams, ‘Sexual Slavery’); Aptel, ‘Child Slaves and Child Brides’ (n 85) 321–​22. 154 Katanga Trial Judgment (n 146) [973]–​[978]. See also Sellers and Kestenbaum, ‘Sexualized Slavery’ (n 21); Adams, ‘Sexual Slavery’ (n 153) 282. 155 eg Taylor Trial Judgment (n 112) 384–​437, 486–​571 (failing to identify boy-​child soldiers as victims of sexual violence). 156 eg Hissène Habré Appeal Judgment (n 112) [229].

182  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum labour.157 We reiterate, enslavement and slavery are the optimal legal frameworks to redress the exercise of sexualized ownership over enslaved persons.

4.  The Slave Trade and Trafficking The Rome Statute muddles the definition and elements of crimes for ‘enslavement’ by mixing features from three separate criminal activities—​slavery, the slave trade, and trafficking in persons. For example, article 7(2)(c), which defines the crime against humanity of enslavement, states that exercising rights of ownership could include ‘the exercise of such power in the course of trafficking in persons, in particular women and children’.158 The article uses ‘trafficking in persons, especially women and children’ as an example of enslavement, conflating the international crime of enslavement with the transnational crime of trafficking.159 Trafficking in persons refers to conduct best redressed, when possible, under the crime of slave trading. The ICC Elements of Crimes do not cite any additional elements necessary to prove trafficking under the elements of enslavement. Under the Rome Statute, trafficking in persons is neither a separate crime nor an element of enslavement, but a mere description of enslavement conduct without legal force.160 The ICC’s Office of the Prosecutor (OTP) affirms this conclusion, noting that the Court has no jurisdiction over trafficking cases.161 The OTP’s strategic plan states that ‘ICC crimes usually do not occur in isolation from . . . other types of criminality, [including] transnational organized criminal activity’.162

157 Sellers, ‘Wartime Female Slavery’ (n 8) [140] (noting that enslavement as examined in the RUF Trial Judgment (n 112) [1093] under-​emphasized the nudity imposed upon enslaved mine workers that was integral to their manual labour). 158 ICCSt (n 107) art 7(2)(c). 159 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319 (UN Trafficking Protocol). See also Rana M Jaleel, ‘The Wages of Human Trafficking’ (2016) 81 Brooklyn Law Review 563 (highlighting how difficulties in interpreting the definition of trafficking have conflated it with slavery—​human trafficking is a labour problem in one interpretation and an ownership problem, akin to slavery, within the other paradigm); Dorchen Leidholt, ‘Prostitution: A Violation of Women’s Human Rights’ (1993–​4) 1 Cardozo Women’s Law Journal 133 (likening prostitution to slavery and slavery-​like practices). 160 Patricia Viseur Sellers, ‘Q&A, The Nexus Between Conflict-​Related Sexual Violence and Human Trafficking for Sexual Exploitation in Times of Armed Conflict During Court Proceedings: An Insider’s View’ (2019) 3 Journal of Trafficking and Human Exploitation 147. 161 ICC OTP, ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) 16–​17. 162 ICC OTP, ‘Strategic Plan 2019–​2021’ (17 July 2019) accessed 7 August 2020; ICC OTP, ‘Strategic Plan 2016–​2018’ (July 6, 2015) [14], [30] accessed 27 September 2019.

Slavery & Slave Trade: Feminist Critique  183 The OTP lists trafficking among transnational activities, clarifying that it is not an international crime within the ICC’s jurisdiction.163 Further, the Elements of Crimes provides that evidence of exercising powers attaching to the rights of ownership over a person includes ‘purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’.164 Although the Rome Statute does not include a standalone crime of slave trading, the Elements list activities that constitute the actus reus of the slave trade. However, the Elements mischaracterize that conduct by also requiring that it be carried out in the exercise of powers attaching to ownership rights.165 Under customary law, the slave trade, unlike slavery or enslavement, does not require the exercise of powers attaching to the rights of ownership. Failing to enumerate the slave trade as a crime against humanity or a war crime results in an inability to charge the crime of slave trading.166 A critical feminist analysis thus illustrates that the ICC Statute creates an actual impunity gap for perpetrators of the slave trade and an unrealizable expression of condemnation of trafficking.

E.  Conclusion This chapter describes the genesis of slavery and the slave trade as international crimes underlined by rampant sexual abuse practices. A feminist critique surfaces how persons of all genders, including females and males, often based on age, physical features, fecundity, impotence, or virility, were slave traded and reduced to slavery. Many empires, nation-​states, and societies legitimized slavery and the slave trade, conforming their political-​legal systems, economies, societal customs, and cultural traditions to the contours of these practices. During the eighteenth and nineteenth centuries, there was broad societal support for slavery, slave traders, and slaveholders. Sexualized enslavement along gender lines garnered official sanction, and enslavers—​men and women alike—​ enjoyed heightened social status. The abolition and international outlawing of slavery and the slave trade by the 1926 Slavery Convention and the 1956 Supplemental Convention dismantled these institutionalized practices.

163 ibid; Nicole Siller, ‘ “Modern Slavery”: Does International Law Distinguish between Slavery, Enslavement and Trafficking?’ (2016) 14 Journal of International Criminal Justice 405, 415. 164 ICC, Elements of Crimes (n 144), art 7(1)(c). 165 ibid. 166 Sellers and Kestenbaum, ‘Sexualized Slavery’ (n 21) 16.

184  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum Dismally, slavery and the slave trade endure today. Driven by survivor/​ victim-​centred factors, such as sex, religion, ethnicity, age, and poverty, or spurred by perpetrator-​centred factors of lucrative economic outcomes and conducting armed conflicts, sexualized practices of slavery and the slave trade persist, engulfing children and adults. The ICC has addressed, imperfectly, conflict-​related enslavement by non-​state actors in the Democratic Republic of the Congo in its Ongwen and Ntaganda judgments.167 As another example, Libya’s prolonged civil war has generated a context whereby slave traders and slaveholders seize migrants transiting from Eritrea and sub-​Saharan Africa to Europe. Consistent reports detail the capture, sale, and resale of migrants of all genders along a virtual slave trade supply chain before they are smuggled to Europe.168 These migrants are held in detention blocks between trades and subjected to relentless male-​on-​male and male-​on-​female rapes, genital mutilations, forced nudity, and other gendered sexual violence until their families pay the slave traders to release them to smugglers.169 Some migrants who remain in Libya are slave traded on open slave markets as ‘big strong boys’ or badayie (‘the merchandise’) to the highest bidders to work as enslaved farmhands.170 These practices, simply put, are tenacious manifestations of the slave trade and slavery. Further, the Islamic State (ISIS) Caliphate intentionally created and executed policies to slave trade and enslave Yazidi women, girls, and boys. ISIS forcibly converted and enslaved boys, via conscription, for use as fighters in military operations. ISIS sexually enslaved girls and women, by openly administering the buying, selling, transferring, or gifting of them to ISIS fighters.171 Enslaved

167 Ntaganda Trial Judgment (n 112) [959]–​[961]. 168 CNN, ‘CNN Team Recounts Uncovering Slavery in Libya’ accessed 7 August 2020; Robert Hackwill, ‘Amnesty International Accuses EU of Complicity in Libyan Slave Trade’ (Euronews 12 December 2017) accessed 7 August 2020; Women’s Refugee Commission, ‘ “More Than One Million Pains”: Sexual Violence Against Men and Boys on the Central Mediterranean Route to Italy’ (March 2019) 19–​ 30 accessed 7 August 2020. 169 ibid. 170 eg CNN, ‘Migrants Being Sold as Slaves in Libya’ (YouTube, 14 November 2017) accessed 7 August 2020; BBC News, ‘Libya Migrant “Slave Market” Footage Sparks Outrage’ (BBC News, 18 November 2017) accessed 7 August 2020; Channel 4 News, ‘Rescued African Migrants Say They are Fleeing Slavery’ (YouTube, 28 June 2017) accessed 7 August 2020; Libya’s Slaves: ‘I was Sold’, CBS News, ‘Reports of Migrant Slave Trade in Libya’ (CBS, 5 January 2018) accessed 7 August 2020. 171 See Middle East Media Research Institute, ‘Islamic State (ISIS) Releases Pamphlet on Female Slaves’ (MEMRI, 4 December 2014) accessed 8 December 2019.

Slavery & Slave Trade: Feminist Critique  185 girls were groomed to become concubines or ‘sabaya’, like their mothers or sisters. ISIS fighters could rape females to ‘purify’ non-​believers.172 Some ISIS fighters married Yazidi captives to avoid paying a slave price.173 Sanctioned physical and psychological violence, forced sexual access, and reproductive control defined ISIS’s enslavement of Yazidi women and girls.174 A critical feminist lens reveals these manifestations of slavery and the slave trade as analogous to previous gendered and sexualized slavery practices. A sabaya is a concubine, a female slave. The ISIS slave markets and the regulations concerning transfers of Yazidi enslaved women and girls among fighters constitutes slave trading reminiscent of Zanzibar markets and US slave-​gifting practices. Enslavement of Yazidi boys to replenish ISIS militias recalls the histories of male enslavement used to populate the armies of their captors. While armed conflict might facilitate slavery and the slave trade, as demonstrated by the migrants in Libya and the Yazidis scenarios, the 1926 and 1956 Slavery Conventions do not require a nexus to armed conflict. They prohibit all forms of slavery and the slave trade in all situations, irrespective of when or how enslavement occurs, or who enslavement victimizes. Child soldiers, concubines, breeders, wet nurses, and others over whom powers attaching to the rights of ownership are exercised whether to rape, castrate, breed, or sexually abuse come within the legal purview of these international crimes. However, failure to enumerate express provisions of slavery and the slave trade in international statutes and in national codes, together with ignoring the international customary norms of slavery and the slave trade, is contrary to states’ binding erga omnes obligations to prevent and punish slavery and the slave trade in all their manifestations.175 In the context of the ICC’s Rome Statute, the Ongwen decision presents ample reasoning as to why article 8, the war crimes provision, should be amended to expressly include slavery and the slave trade. Similarly, Ongwen also augurs why article 7, the crimes against humanity provision should be amended to add the crime of the slave trade. At the same time, article 7(1)(c), 172 Independent International Commission of Inquiry on the Syrian Arab Republic, ‘Rule of Terror: Living under ISIS in Syria’ (14 November 2014) [55], [57] accessed 7 August 2020; Seivan M Salim, ‘The Yazidi Women Who Escaped ISIS’ (Daily Beast, 7 June 2017) accessed 8 December 2019. 173 Human Rights Council, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the Light of the Abuses Committed by the so-​ called Islamic State in Iraq and the Levant and Associated Groups’ (27 March 2015) UN Doc A/​HRC/​ 28/​18 [37]. 174 ibid. 175 Bassiouni, ‘International Crimes’ (n 99) 73 fn 49.

186  Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum the crime against humanity of enslavement, should subsume conduct now covered under the sexual slavery provision and, when appropriate, acts such as forced pregnancy. Moreover, the proposed international crimes against humanity treaty should explicitly provide for the slave trade.176 Diluting, substituting, or conflating slavery and the slave trade with the crimes of ‘trafficking in persons’ or ‘sexual slavery’, obscures perpetration and denies victims full judicial redress. To unchain the enslaved, we must: (1) recognize the historical, ubiquitous, sexualized nature of the slave trade and slavery; (2) master the substantive content and legal interplay of slavery and the slave trade; (3) train a shrewd lens on the perpetrators’ intent, acts, and practices, and; (4) maintain critical feminist eyes on the (in)adequacy of redress under ICL.



176

CAH Draft Treaty (n 141).

7 Victory for Women and LGBTIQ+​Rights Under International Criminal Law Gender in the Draft Crimes Against Humanity Treaty Lisa Davis and Danny Bradley*

A.  Introduction In 2019, the International Law Commission (the Commission or ILC) dropped an outdated definition of gender from its draft convention on crimes against humanity (CAH).1 Adopted from a provision in the Rome Statute of the International Criminal Court (ICC) on the crime against humanity of persecution,2 the opaque definition ran the risk of being coopted by conservative states and used to limit domestic legal protections for women and lesbian, gay, bisexual, transgender, intersex, queer, non-​binary, and gender non-​conforming (LGBTIQ+​) people during atrocities. The Rome Statute is the first international treaty to explicitly proscribe the crimes of rape, forced pregnancy, enforced prostitution, and enforced sterilization, as both war crimes and crimes against humanity under the same * The authors would like to thank Patricia Viseur Sellers for her invaluable comments on this chapter and for her guidance to the legal feminist movement. We would be lost without her. Authors would also like to thank JM Kirby and Diana Duarte for their editorial assistance. 1 The Commission is comprised of international legal experts tasked by the United Nations (UN) Charter with studying and recommending ways in which international law can be progressively developed and codified. The Commission’s Drafting Committee for the crimes against humanity convention has sent its recommended text to the full body that has since commented on, accepted, and sent the draft to the UN General Assembly’s Sixth Committee for debate in fall 2019. See Section B below for more background on the Commission and its role in the advancement of international law. 2 Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) art 7(3): includes a definition of gender that qualifies the provision on persecution. In this instance, persecution refers to a provision of crimes against humanity and not persecution as a legal standard under the 1951 Convention relating to the Status of Refugees. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

188  Lisa Davis and Danny Bradley instrument and to recognize ‘gender’ as a protected class of persecution under the chapeau of crimes against humanity.3 The statute defines the term ‘gender’ in article 7(3), noting ‘it is understood that the term “gender” refers to the two sexes, male and female, within the context of society’.4 While understood to be inclusive of all gendered crimes that meet the threshold of persecution, on its own the definition does not make clear who is protected and there has yet to be a successful prosecution of gender persecution at the ICC which would clarify the contours of the definition.5 For these reasons, including the Rome Statute’s definition of ‘gender’ within the draft crimes against humanity treaty raised concerns. No other mechanism has ever adopted this opaque definition. Moreover, since the draft CAH treaty does not propose an international court to interpret treaty provisions or prosecute violations, ratifying states would enforce the treaty at the domestic level. Yet the draft treaty does not require states to interpret treaty provisions consistent with evolving international human rights law (IHRL). The potential result is that the opaque definition of ‘gender’ imported from the Rome Statute could be misinterpreted or coopted, leading to the application of a limited (gender binary) understanding of the term. Ultimately, this could lead to the exclusion of certain acts of gender-​based persecution from the definition. This chapter argues that the last twenty years of international law has memorialized the definition and understanding of the legal term ‘gender’ and that any new treaty should not adopt an outdated definition that does not reflect this evolution. The chapter starts out by looking back at the women’s rights movement that advocated for progressive gender provisions during the drafting of the Rome Statute. It then traces the drafting history of the proposed draft convention on crimes against humanity, including the incorporation of the definition of ‘gender’ from the Rome Statute, in the absence of any discussion of developments in international law related to sexual violence, women, gender, sexual orientation, or gender identity since the Rome Statute was adopted. It proceeds to examine the evolution of international law, particularly

3 Patricia Viseur Sellers, ‘Gender Strategy is Not a Luxury for International Courts’ (2009) 17 American University Journal of Gender, Social Policy and the Law 301, 314–​15. 4 ICCSt (n 2) art 7(3). 5 Lisa Davis, ‘Reimagining Justice for Gender-​Based Crimes at the Margins: New Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTIQ Persons’ (2018) 24 William and Mary Journal of Women and the Law 513, 543 (hereafter Davis, ‘Reimagining Justice’); Lisa Davis and others, ‘Re: The Definition of Gender in the Draft Crimes Against Humanity Convention’ (2018) accessed 30 June 2020 (hereafter Davis and others, ‘Re: The Definition of Gender’).

Gender in the Crimes Against Humanity Treaty  189 IHRL, on sexual orientation, gender identity, and sex characteristics and concludes that the developments in the law reaffirm an understanding of ‘gender’ as a social construction and its inextricable link to sex discrimination. The chapter then turns to a case study of gender crimes committed by the Islamic State of Iraq and Syria (ISIS), illustrating how a new treaty on CAH with an outdated definition of gender risks allowing impunity for certain gender-​based crimes, including persecution based on sexual orientation and gender identity. The chapter ends with a re-​counting of a campaign by non-​governmental organizations (NGOs), academics, and activists, who successfully advocated for the ILC to remove the Rome Statute definition of gender from the draft treaty, demonstrating how critical such advocacy continues to be for ensuring that gender justice concerns are included in the process of codification of international legal norms.

B.  The Road to Rome: Protecting Gender Rights Under International Law In 1995, at the directive of the UN General Assembly, the ILC produced a framework for the formation of a new draft convention that would create the ICC. Established by the General Assembly in 1947 to ‘initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification’,6 its mandate, together with its previous work, especially on a Draft Code of Crimes Against the Peace and Security of Mankind,7 made it the logical first venue for developing the Rome Statute framework. The ILC’s thirty-​four members represent diverse regional groups and a broad range of expertise and experience in the international law field.8 Yet, while the Commission has been in existence for seventy years, at the

6 UN General Assembly Resolution 174 (II): Establishment of an International Law Commission (17 November 1947) UN Doc A/​RES/​174(II). See also International Law Commission accessed 6 October 2020. 7 ILC, Draft Code of Offences against the Peace and Security of Mankind [1954] (2) UNYBILC 112. See also UN General Assembly Resolution 36/​106 (10 December 1981) UN Doc A/​RES/​36/​106: invited the ILC to resume its work with a view to elaborating the draft Code of Offences against the Peace and Security of Mankind 1954. The ILC adopted the Draft Code of Crimes against the Peace and Security of Mankind, which included a draft Statute for an International Criminal Court, in 1996. For a full summary of this process see ILC, ‘Summaries of the Work of the International Law Commission: Draft Code of Crimes Against the Peace and Security of Mankind (Part II)’ (ILC, 4 December 2017) accessed 6 October 2020. 8 ILC, ‘Membership’ (ILC, 13 July 2020) accessed 25 June 2020.

190  Lisa Davis and Danny Bradley time of writing, only seven women have served as commissioners since its inception and, out of the current thirty-​four members, only four commissioners are women. No commissioner has ever been known to identify as LGBTIQ+​or non-​binary. During the previous fifty years of the Commission’s discussions on a permanent international criminal tribunal to prosecute serious crimes, concerns about rape and other gender-​based crimes went largely unnoticed. It was not until discussions on the international tribunals for the former Yugoslavia and Rwanda, when women’s rights advocates brought rape to the forefront, that gender-​based violence started to make an appearance in the discussion.9 The lack of a gender analysis was reflected in the skeletal draft of articles eventually sent to the Preparatory Committee set up by the UN to oversee the finalization of the new convention that would become the Rome Statute.10 Early in the drafting process, state negotiations referred to an outdated definition of rape as ‘outrages upon personal dignity’ while other sexual violence crimes were overlooked altogether.11 State deliberations on the Rome Statute that would offer a framework for the ICC were accompanied by an organized caucus of women’s rights advocates from around the world who managed to win landmark precedents on gender equality under international criminal law (ICL).12 In the 1990s, MADRE, an international women’s rights organization, housed the Women’s Caucus for Gender Justice (now known as the Women’s Initiatives for Gender Justice), a worldwide coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. The Human Rights and Gender Justice (HRGJ) Clinic, known then as the International Women’s Human Rights (IWHR) Clinic of the City University of New York (CUNY) Law School, served as the secretariat for the Caucus and coordinated an effort to ensure that the Rome

9 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, 59 (hereafter Oosterveld, ‘The Definition of “Gender” ’). The Commission’s original 1994 draft Statute for an International Criminal Court did not include the word ‘gender’ at all: ibid 58. In 1996, ‘gender’ was first proposed in relation to a gender balance on the election of judges, and it was only due to concerted efforts from civil society and some state delegations that the 1998 draft recognized ‘gender’ as grounds for persecution: ibid 58–​59. 10 ILC, ‘Report of the International Law Commission on the Work of its Forty-​Sixth Session’ (1994) 2(2) United Nations Yearbook of the International Law Commission 1. 11 Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court: Advancing International Law’ (2004) 25 Michigan Journal of International Law 605, 612–​13, fn 30. 12 Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (Routledge 2006) 80.

Gender in the Crimes Against Humanity Treaty  191 Statute would take gender into account in provisions relating to the crimes, procedure, evidence, and composition of the ICC. Caucus members provided state delegations with legal analysis on gender-​ based crimes, backed by international law.13 Among their recommendations was to change the limited category of ‘sex’ to the broader term ‘gender’ in the list of grounds protected from the crime against humanity of persecution. A small, socially conservative opposition objected, fearing that adding the term ‘gender’ to the persecutory categories would lead to an increase of protections for women and LGBTIQ+​persons from discrimination.14 Oosterveld, a law professor who was a pivotal delegate at Rome, notes that many delegates were surprised there was any contention at all.15 Delegates in favour pointed out that to remove or change the term ‘gender’ would be ‘a backward and inappropriate step given developments in international law’.16 However, states in opposition pressed for retrenchment, necessitating some kind of negotiated solution.17 A consensus was finally reached by delegates and the term ‘gender’ was adopted, but it came with an unusual definition, reached through diplomatic resort to ‘constructive ambiguity’:18 ‘it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society’.19

At the time, this phrasing satisfied both the proponents of defining the term ‘gender’ as a biological binary as well as the feminist advocates who aimed to ensure that gender was understood as a social construction.20 Today, swapping ‘sex’ for ‘gender’ is considered one of the most important advances to have happened at Rome.

13 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217, 219 (hereafter Copelon, ‘Gender Crimes as War Crimes’). 14 Oosterveld, ‘The Definition of “Gender” ’ (n 9); Copelon, ‘Gender Crimes as War Crimes’ (n 13). 15 Oosterveld, ‘The Definition of “Gender” ’ (n 9). 16 Cate Steains, ‘Gender Issues’ in Roy SK Lee (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results (Kluwer Law International 1999) 357, 360. 17 Oosterveld, ‘The Definition of “Gender” ’ (n 9). 18 Valerie Oosterveld, ‘Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court’ (2014) 16 International Feminist Journal of Politics 563 (hereafter Oosterveld, ‘Constructive Ambiguity’): defining constructive ambiguity as ‘indefinite language used to resolve disparate points of view’. 19 ICCSt (n 2) art 7(3). 20 Oosterveld, ‘The Definition of “Gender” ’ (n 9).

192  Lisa Davis and Danny Bradley

C.  The Founding of a New Treaty on Crimes Against Humanity The impetus for the development of a treaty on crimes against humanity began with the Whitney R. Harris World Law Institute at the Washington University School of Law in St Louis, Missouri. Sadat, the Director of the Institute, launched the Crimes Against Humanity Initiative in 2008, and led the charge that brought the draft treaty to the Commission. Sadat recognized a significant gap in the mechanisms that dealt with crimes against humanity, which did not have its own convention.21 Neither the 1951 Genocide Convention22 nor the 1949 Geneva Conventions23 effectively address crimes against humanity as distinct from, but not lesser than, genocide or war crimes. This gap became apparent to Sadat after the International Court of Justice (ICJ) ruling in Bosnia v Serbia, in which Bosnia and Herzegovina brought a case against Serbia to the Court’s jurisdiction under the Genocide Convention.24 The ICJ held that crimes against humanity had indeed been committed, but the Court could not address these crimes because it lacked the jurisdiction to do so. In Sadat’s view, this lack of accountability for atrocities was yet another example of many in which the international community did not possess the legal mechanisms to hold states to account for such atrocities, never mind prevent them.25 To Sadat, the historical promise and legacy of ‘never again’ was not a reality for this reason.26 The Steering Committee of the Crimes Against Humanity Initiative deliberated on the impact of adding an optional protocol to the Rome Statute, but decided that a separate convention would have the benefit of including states that

21 Richard J Goldstone, ‘Foreword’ in Leila Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) xvi (hereafter Goldstone, ‘Foreword’). 22 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (hereafter Genocide Convention). 23 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (hereafter First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (hereafter Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (hereafter Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (hereafter Fourth Geneva Convention). 24 Leila Sadat, ‘Preface and Acknowledgements’ in Leila Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) xix. 25 ibid. 26 ibid.

Gender in the Crimes Against Humanity Treaty  193 were not parties to the Rome Statute.27 In addition, a separate convention could attempt to address the prevention of crimes, not only their prosecution. Numerous expert meetings on a potential CAH convention took place, reaching over 250 experts including prominent legal scholars and practitioners, as well as UN legal experts and government officials, over a period of two years.28 The majority of the treaty’s early developers wanted a political and strategic approach that would leave the treaty draft as similar as possible to the Rome Statute.29 The aim was to persuade a large number of states to support the initiative, including those that had ratified the Rome Statute.30 Many supporters argued that hard-​fought language in the Statute would be difficult to revise.31 Consequently, the first CAH convention draft largely reflected the language used a decade earlier. In 2010, at the conclusion of the Initiative’s third major conference in Washington, the Steering Committee and seventy-​ six signatories released the Washington Declaration, which called on states to prioritize the adoption of a convention on crimes against humanity.32 The Washington Declaration suggested that the ‘convention should adopt as its definition of crimes against humanity the provisions of article 7 of the Rome Statute of the International Criminal Court’.33 The Declaration noted that the Steering Committee would finalize the Draft Convention, and this became the first proposed draft of the convention that was then given to the ILC.34 Paired with an awareness campaign, a collection of scholarly papers, and film, the draft crimes against humanity convention was launched. The draft included the gender definition from the Rome Statute, retaining it as the only protected class of persecution to be defined. All other recognized protected grounds in the statute—​‘political,’ ‘racial,’ ‘national,’ ‘ethnic,’ ‘cultural,’ and ‘religious’—​are undefined. At the beginning of the drafting process, a small handful of legal advocates called for the drafters to either remove the definition of ‘gender’ or modernize it, including progressive feminist practitioners and academics with a wealth of expertise on gender such as Oosterveld, Askin, 27 Goldstone, ‘Foreword’ (n 21). 28 Leila Sadat, ‘A Comprehensive History of the Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity’ in Leila Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) 449 (hereafter Sadat, ‘A Comprehensive History’). 29 ibid. 30 ibid. 31 ibid. 32 Crimes Against Humanity Initiative, ‘Declaration on the Need for a Comprehensive Convention on Crimes Against Humanity’ (12 March 2010) accessed 30 June 2020. 33 ibid [1]‌–​[2]. 34 Sadat, ‘A Comprehensive History’ (n 28).

194  Lisa Davis and Danny Bradley and Amann.35 From the outset, gender experts raised concerns about the problematic nature of adopting a definition into the treaty that was deliberately ambiguous—​constructively ambiguous, in diplomatic parlance—​in order to resolve polarized positions during negotiations.36 However, these concerns were disregarded. In 2017, the ILC’s first reading of the draft convention was introduced to the UN General Assembly’s Sixth Committee. While a diverse set of rights and protections were deliberated on during the initial four years of discussions on the draft convention, the gender definition was never raised.37 Moreover, not a single official state or ILC comment on the draft mentioned sexual violence, women, gender, sexual orientation, or gender identity in the four years of review.38 When the ILC opened the draft for public comments in 2019, advocates pressed for the Commission to remove, or in the alternative, revise the definition.39 At first, the request to remove the definition of gender was met with a chilly response from treaty supporters. Several states and drafters expressed the need to have the treaty adopted expeditiously and, therefore, recommended keeping intact the original language from Rome. The ILC drafters did acknowledge that problems could arise from using the older Rome Statute language in a new treaty and responded by adding language to the article defining crimes against humanity not found in the Rome Statute: ‘This draft article is without prejudice to any broader definition provided for in any international instrument or national law.’40 In some ways, this blanket statement is a positive addition, since it recognizes the natural progression of rights and allows for growth in the understanding of various violative acts that may qualify as crimes against humanity. However, 35 eg Valerie Oosterveld, ‘Gender-​Based Crimes Against Humanity’ in Leila Sadat (ed), Forging a Convention for Crimes against Humanity (CUP 2011) 78–​101 (hereafter Oosterveld, ‘Gender-​Based Crimes Against Humanity’). 36 Oosterveld, ‘Constructive Ambiguity’ (n 18). 37 In 2017–​18, the Human Rights & Gender Justice Clinic at the CUNY School of Law reviewed four years of statements and found that gender was never substantively discussed in the Commission’s discussion of the draft crimes against humanity convention. 38 See Washington University School of Law Whitney R Harris World Law Institute, ‘Compilation of Government Reactions to the UN International Law Commission’s Project on Crimes Against Humanity’ (Whitney R Harris World Law Institute, 3 January 2019) accessed 22 July 2020. 39 MADRE, ‘Gendering the Crimes Against Humanity Treaty: A Timeline of Civil Society Intervention’ (MADRE, June 2019) accessed 16 September 2020. 40 ILC, ‘Crimes against humanity: Texts and titles of the draft preamble, the draft articles and the draft annex provisionally adopted by the Drafting Committee on first reading’ (26 May 2017) UN Doc A/​ CN.4/​L.892 art 3(4).

Gender in the Crimes Against Humanity Treaty  195 the addition of this statement did not save the ‘gender’ definition, even though ‘gender’ must be interpreted in line with contemporary understandings. One problem is that the draft treaty sends mixed messages if only one of the persecutory categories is defined. Moreover, it would still give states broad discretion between following the opaque definition listed in the treaty or interpreting the term in line with current international law standards. In the event of a conflict, the draft treaty did not provide guidance on which should prevail.41 There was also the risk that the new treaty could crystallize the Rome Statute’s confusing definition and potentially any mischaracterization of it, if states believed they were obliged to apply it rather than current international law.42 One of the primary functions of the ILC is to help clarify and support the evolution of international law and its codification in areas of ‘both settled rules and gaps requiring development of new rules’.43 Given that the Rome Statute definition is opaque, it was preferable for the Commission to either remove it or provide an alternative that was clear and consistent with a contemporary understanding of the term under international law. As the section below describes, an examination of international law, particularly IHRL, on sexual orientation, gender identity, and sex characteristics reflects an evolution in the understanding of ‘gender’ and reaffirms its meaning as a social construction inextricably linked to sex discrimination.

D.  International Law on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics National governments and regional bodies have increasingly integrated rights and protections based on sexual orientation and gender identity and expression (SOGIE) into their human rights frameworks and practices. These precedents have established a growing core of global legal commitments that have cemented SOGIE rights within international rights mechanisms. For example, the 1994 landmark decision of the UN Human Rights Committee in Toonen

41 In comparison, see the interpretive guidance in ICCSt (n 2) art 21(3). 42 In 1949, a UN Secretary-​General memorandum submitted after the very first session of the ILC warned of the danger of ‘a mere registration . . . of existing law [as] it may crystallize the law in matters in which the existing rules are obsolete and unsatisfactory’: UN Secretary-​General ‘Survey of International Law in Relation to the Work of Codification of the International Law Commission’ (1949) UN Doc A/​CN.4/​1/​Rev/​1 [7]‌. 43 Sean D Murphy, ‘Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC’s Work Product’ in Maurizio Ragazzi (ed), The Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Brill/​Nijhoff 2013) 29, 31.

196  Lisa Davis and Danny Bradley v Australia44 was a game changer in the recognition of sexual orientation as a protected class. In Toonen, the Committee held that sexual orientation was definitively included in the International Covenant on Civil and Political Rights’ anti-​discrimination articles with protected status.45 Toonen was pivotal for recognition of gender-​based discrimination and persecution faced due to sexual orientation. Since Toonen, a number of human rights treaty bodies have recognized SOGIE in their General Comments and Recommendations. For example, in 2000, the UN Committee on Economic and Social Rights (CESCR Committee) began listing sexual orientation as a protected ground from discrimination in multiple instances.46 By 2009, the CESCR Committee had crystallized its understanding of SOGIE rights through its recognition of sexual orientation and gender identity as protected classes under ‘other status’, as set out in its General Comment No 20.47 Following suit, in 2010, the UN Committee on the Elimination of all Forms of Discrimination Against Women (CEDAW Committee) deemed that states ‘must legally recognize and prohibit such intersecting forms of discrimination’ including where sex and gender intersect with sexual orientation.48 SOGIE has also been confirmed as being covered by the prohibited grounds of discrimination in the Convention on the Rights of the Child,49 the International Convention on the Elimination of All Forms of Racial Discrimination,50 and the Convention on the Rights of Persons with

44 Toonen v Australia (Communication No 488/​1992) CCPR/​C/​50/​D/​488/​1992 (31 March 1994). 45 ibid [8.7]. 46 eg UN Committee on Economic, Social, and Cultural Rights, ‘General Comment No 20: Non-​ discrimination in Economic, Social and Cultural Rights (art 2, para 2 of the International Covenant on Economic, Social and Cultural Rights)’ (2 July 2009) UN Doc E/​C.12/​GC/​20 [32] (hereafter UN CESCR, ‘General comment No 20’); UN Committee on Economic, Social, and Cultural Rights, ‘General Comment No 14: The right to the highest attainable standard of health (art 12 of the International Covenant on Economic, Social and Cultural Rights)’ (11 August 2000) UN Doc E/​C.12/​2000/​4 [18]; UN Committee on Economic, Social, and Cultural Rights, ‘General Comment No 15: The right to the highest attainable standard of health (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’ (20 January 2003) UN Doc E/​C.12/​2002/​11 [13]. 47 UN CESCR, ‘General Comment No 20’ (n 46). 48 UN Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 28 on the Core Obligations of States Parties under art 2 of the Convention on the Elimination of All Forms of Discrimination Against Women’ (16 December 2010) UN Doc CEDAW/​C/​2010/​47/​ GC.2 [18]. 49 UN Committee on the Rights of the Child, ‘General Comment No 3: HIV/​AIDS and the rights of the child’ (17 March 2003) UN Doc CRC/​GC/​2003/​3 [8]‌; UN Committee on the Rights of the Child, ‘General Comment No 13: The right of the child to freedom from all forms of violence’ (18 April 2011) UN Doc CRC/​C/​GC/​13 [60], [72(g)]; UN Committee on the Rights of the Child, ‘General Comment No 14: The right of the child to have his or her best interests taken as a primary consideration (art 3, para 1)’ (29 May 2013) UN Doc CRC/​C/​GC/​14 [55]; UN Committee on the Rights of the Child, ‘General Comment No 15: The right of the child to the enjoyment of the highest attainable standard of health (art 24)’ (17 April 2013) UN Doc CRC/​C/​GC/​15 [8]. [11]; Davis, ‘Reimagining Justice’ (n 5) 549. 50 While the Committee on the Elimination of Racial Discrimination has not enshrined sexual orientation or gender identity as protected classes through its general comments as of yet, it has confirmed

Gender in the Crimes Against Humanity Treaty  197 Disabilities.51 All of the core international human rights treaties ‘interrelate with the issue of sexual orientation and gender identity’.52 Seven of these nine treaties enjoy wide ranging ratification—​from 83 per cent to 99 per cent of all UN Member States53—​a clear indication of states’ stance on this matter. This progress has also surfaced at the regional level. In 2011, the General Assembly of the Organization of American States (OAS) passed a resolution within its regional mechanism condemning violence and discrimination committed on the basis of sexual orientation or gender identity.54 The OAS then created a Unit for the Rights of LGBTI Persons, followed by a special rapporteurship on the rights of LGBTI persons in the region.55 However, it was the 2012 case of Atala Riffo and Daughters v Chile, in which a mother was denied child custody because of her sexual orientation, where the Inter-​American Court of Human Rights legally confirmed sexual orientation and gender identity as protected categories under the American Convention on Human Rights.56 The HRGJ Clinic, MADRE, and OutRight Action International SOGIE as a protected class under the Convention through its Concluding Observations to Member States: UN Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the combined nineteenth to twenty-​second periodic reports of Germany’ (30 June 2015) UN Doc CERD/​C/​ DEU/​CO/​19-​22 [16]; UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined nineteenth to twenty-​first periodic reports of the Netherlands’ (24 September 2015) UN Doc CERD/​C/​NLD/​CO/​19-​21 [26(b)], [34(d)]; Davis, ‘Reimagining Justice’ (n 5) 549. 51 UN Committee on the Rights of Persons with Disabilities ‘General Comment No 3: Women and girls with disabilities’ (25 November 2016) UN Doc CRPD/​C/​GC/​3 [4(c)]. See also UN Committee on the Rights of Persons with Disabilities, ‘Concluding observations on the initial report of the Islamic Republic of Iran’ (10 May 2017) UN Doc CRPD/​C/​IRN/​CO/​1 [12(b)], [13(c)], [19(c)], [35(c)]; Davis, ‘Reimagining Justice’ (n 5) 549. 52 Human Rights Council, ‘Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity’ (19 April 2017) UN Doc A/​HRC/​35/​36 [20]. In 2012, the UN High Commissioner for Refugees also issued guidelines recognizing that ‘[a]‌n applicant’s sexual orientation and/​or gender identity can be relevant to a refugee claim where he or she fears persecutory harm on account of his or her actual or perceived sexual orientation and/​or gender identity, which does not, or is seen not to, conform to prevailing political, cultural or social norms’: UN High Commissioner for Refugees, ‘Guidelines on International Protection No 9: Claims to Refugee Status based on Sexual Orientation and/​or Gender Identity within the context of art 1A(2) of the 1951 Convention and/​or its 1967 Protocol relating to the Status of Refugees’ (23 October 2012) UN Doc HCR/​GIP/​12/​01 [13] (hereafter UNHCR, ‘Guidelines on International Protection No 9’). 53 See UN Office of the High Commissioner for Human Rights, ‘Status of Ratification Interactive Dashboard: Ratification of 18 International Human Rights Treaties’ (United Nations Human Rights Office of the High Commissioner) accessed 26 November 2018; Davis, ‘Reimagining Justice’ (n 5) 549–​50. 54 Organization of American States General Assembly, ‘Human Rights, Sexual Orientation and Gender Identity’ (7 June 2011) UN Doc AG/​RES. 2653 (XLI-​O/​11): More broadly, the Resolution condemns violence, harassment, discrimination, exclusion, stigmatization, and prejudice based on sexual orientation and gender identity; Davis, ‘Reimagining Justice’ (n 5) 549–​50. 55 The Organization of American States, ‘Press Release: IACHR Creates Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons’ (Organization of American States, 3 November 2011) accessed on 26 June 2020. Commissioner Flávia Piovesan is the current Rapporteur on the Rights of LGBTI Persons and is continuing the main lines of work of the LGBTI Unit. 56 Atala Riffo v Chile (Judgment: Merits, Reparations, and Costs) Inter-​Am Ct HR (ser C) No 239 (24 February 2012) (hereafter Atala Riffo).

198  Lisa Davis and Danny Bradley (OutRight) worked together on the case through nearly a decade of court disputes until it made its way to the highest court in the region.57 Together, they built an argument that sexual orientation and gender identity should be found to be protected classes under the American Convention on Human Rights.58 The Court agreed.59 In Europe, the Charter of Fundamental Rights, which became binding European Union (EU) law in 2009, explicitly lists sexual orientation as a ground protected against discrimination by the Charter.60 By 2014, the African Commission on Human and Peoples’ Rights had also passed a resolution calling on parties to the African Charter on Human and Peoples Rights to take the necessary measures to prevent and prosecute violence committed on the basis of real or perceived sexual orientation or gender identity.61 This resolution came after efforts from a local and international coalition of organizations led by OutRight to educate the African Commission on the widespread recognition of gender identity and sexual orientation as prohibited grounds of discrimination. Perhaps most notable, in 2007, the Committee Against Torture adopted General Comment No 2 (CAT Comment No 2),62 deepening the understanding of gender-​based torture and persecution. CAT Comment No 2 reaffirms the social construction of gender and emphasizes the nuances of how gendered discrimination can facilitate the use of torture.63 The Comment 57 Jessica Stern, ‘Creating Legacy Today: The First LGBT Ruling by the Inter-​American Court of Human Rights’ (2012) 15 City University of New York Law Review 247; Lisa Davis’ remarks in Charles I Auffant and others, ‘The Global Struggle for LGBTQ Rights: Legal, Political, and Social Dimensions’ (2016) 37 Women’s Rights Law Reporter 229, 270–​76. 58 Human Rights and Gender Justice Clinic City University of New York School of Law and others, ‘Inter-​American Court of Human Rights Amici Curiae Brief in the case of Karen Atala and daughters (Case 12.502) against the State of Chile’ (2011) CHD-​S/​2092 accessed 10 July 2020. 59 Atala Riffo (n 56) [91]. 60 Charter of Fundamental Rights of the European Union (2000) 2000/​C 364/​01 art 21(1). In addition to the protections against sexual orientation discrimination explicit in this treaty, the Court of Justice of the European Union (Court of Justice) has established that discrimination against transgender persons is ‘sex’ discrimination. Moreover, the Court of Justice has held that sexual orientation can be a particular social group for the purposes of asylum in part because ‘it is common ground that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it’: Minister voor Immigratie en Asiel v X and Y and Z v Minister voor Immigratie en Asiel (Judgment) C-​ 199/​12, C-​200/​12 & C-​201/​12 (7 November 2013) [46]. 61 See African Commission on Human and People’s Rights, ‘275 Resolution: Protection Against Violence and Other Human Rights Violations Against Persons on the Basis of their Real or Imputed Sexual Orientation or Gender Identity’ (ACHPR, 12 May 2014) accessed 26 June 2020. 62 UN Committee Against Torture, ‘General Comment No 2: Implementation of art 2 by States Parties’ (24 January 2008) UN Doc CAT/​C/​GC/​2 (hereafter UN CAT, ‘General Comment No 2’). 63 ibid [22]. See Lisa Davis, ‘The Gendered Dimensions of Torture: Rape and other Forms of Gender-​ Based Violence as Torture under International Law’ in Metin Basoglu (ed), Torture and Its Definition in International Law: An Inter-​Disciplinary Approach (OUP 2017) 315.

Gender in the Crimes Against Humanity Treaty  199 explains that both women and men can be victims of gender-​based torture and recognizes the discrimination behind the torture of persons who transgress gender roles.64 Consequently, such discrimination is prohibited under the treaty and states are obliged to protect against gender-​motivated crimes of torture, including when directed against LGBTIQ+​people, non-​binary persons and other gender transgressors.65 International human rights and ICL were informed by the definition of torture found in article 1 of the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT or Torture Convention),66 making CAT of particular importance. This definition is recognized as customary international law67 and created the framework for defining the elements of torture as a crime against humanity and a war crime,68 which, in turn, were included nearly verbatim in the Rome Statute.69 It follows that ICL should reflect, in its understanding of persecution, the CAT Comment No 2 analysis that gender discrimination rises to the level of torture and includes LGBTIQ+​persons.70 Compared to the scores of precedents under IHRL, there is little jurisprudence under ICL directly addressing SOGIE protections. While the International Criminal Tribunals for the former Yugoslavia (ICTY) and 64 UN CAT, ‘General Comment No 2’ (n 62) [22]. 65 ibid [21]. 66 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85. 67 Prosecutor v Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998) [593]; Prosecutor v Furundzija (Judgment) IT-​95-​17/​1-​T (10 December 1998) [160]; Prosecutor v Delalic (Judgment) IT-​96-​21-​T (16 November 1998) [459]. See also Patricia Viseur Sellers, ‘Sexual Torture as a Crime under International Criminal and Humanitarian Law’ (2008) 11 City University of New York Law Review 339, 342. 68 Note that the definition of torture under international criminal and humanitarian law differs in some respects from the definition of torture under CAT. For instance, state action is not required to prove torture as a war crime or crime against humanity: Prosecutor v Kunarac, Kovać and Vuković (Judgment) IT-​96-​23-​T & IT-​96-​23/​1-​T (22 February 2001) [496] (‘the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law’). 69 ICCSt (n 2) art 7(2)(e): note that torture as a crime against humanity under the Rome Statute does not require that the conduct be committed for a specific purpose but does require proof that the victim was ‘in the custody or control of the perpetrator’. 70 Davis, ‘Reimagining Justice’ (n 5) 544–​47. See also Valerie Oosterveld, ‘Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crimes Against Humanity of Gender-​Based Persecution’ (2006) 17 Duke Journal of Comparative and International Law 49 (examining how refugee law can help inform the ICC’s analysis of gender-​based persecution); Carla Ferstman, ‘Reparations for Sexual and Other Gender-​Based Violence’ in Gender Perspectives on Torture: Law and Practice (American University Washington College of Law Center for Human Rights & Humanitarian Law 2018) 19. Significantly, this is consistent with the position of the UN High Commissioner for Refugees, who, as indicated earlier, issued guidelines recognizing persecutory harm on account of a person’s actual or perceived sexual orientation and/​or gender identity: UNHCR, ‘Guidelines on International Protection No 9’ (n 52) [13].

200  Lisa Davis and Danny Bradley Rwanda (ICTR) have addressed cases in which women were attacked on the basis of having transgressed prescribed gender roles and behaviours,71 until recently, only one case in the ICC had attempted to bring a specific charge of gender persecution72 and it ultimately failed.73 At the time of writing, another person was facing gender-​based persecution charges for crimes committed against females because of their gender at the ICC, Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud.74 If Al Hassan is convicted, it will be the first ever conviction for gender-​based persecution at any international criminal court or tribunal. Also, in its discussion on reparations in the Lubanga case, the ICC identified ‘sexual orientation’ as a protected class under article 21(3)75 of the Rome Statute.76 The 2014 Policy Paper on Sexual and Gender-​Based Crimes (Policy Paper) of the ICC’s Office of the Prosecutor (OTP), makes clear that the Rome Statute definition of gender ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’.77 Accordingly, the Policy Paper distinguishes ‘gender’ from the term ‘sex’, which refers to ‘the biological and physiological characteristics that define men and women’.78 The Policy Paper also reiterates that the OTP and the Court should operate in accordance with article 21(3) of the Rome Statute, which calls for the application and interpretation of its statutory law to be consistent with internationally recognized human rights. Echoing this obligation, the ICC’s Appeals Chamber has emphasized that ‘[h]‌uman rights underpin the Statute; every aspect of it including the exercise of the jurisdiction of the Court. Its provisions must be interpreted and more 71 For example, in the Nahimana case before the ICTR, Tutsi women were presumed to have transgressed gender roles prescribed by the perpetrators, who branded them ‘femmes fatales’ and ‘seductive agents of the enemy’: Prosecutor v Nahimana (Judgment) ICTR-​99-​52-​T (3 December 2003) [1079]. The ICTR noted this as a motivational factor behind the sexual attacks and killings they experienced: ibid. 72 Prosecutor v Mbarushimana (Prosecution’s Application under art 58) ICC-​01/​04-​01/​10-​11-​Red2 27-​01-​2011 (20 August 2010) 4, 7–​8, 17, 36–​37 (alleging gender-​based persecution). 73 Prosecutor v Mbarushimana (Decision on the confirmation of charges) ICC-​01/​04-​01/​10-​465-​Red (16 December 2011) [264]–​[267] (declining to confirm persecution as a crime against humanity charge because of a lack of evidence showing substantial grounds to believe that the contextual elements of crimes against humanity had been satisfied). 74 Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Decision on the confirmation of charges) [2019] ICC-​01/​12-​01/​18. 75 The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in art 7, para 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth, or other status: ICCSt (n 2) art 21(3). 76 Prosecutor v Thomas Lubanga Dyilo (Decision establishing the principles and procedures to be applied to reparations) ICC-​01/​04-​01/​06 (7 August 2012) [191]. 77 ICC OTP, ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC OTP 2014) 3 (hereafter OTP, ‘Policy Paper’). 78 ibid.

Gender in the Crimes Against Humanity Treaty  201 importantly applied in accordance with internationally recognized human rights’.79 Rapidly evolving IHRL also recognizes rights for intersex persons who are born with sex characteristics that do not fit typical binary biological understandings of female and male bodies. Intersex persons have natural variations in sex characteristics such as chromosomes, genitals, or other biological traits, which may be apparent at birth or realized later in life.80 Sex characteristics are distinct from gender identity and sexual orientation, yet intersex persons often face similar forms of discrimination as people persecuted on the basis of their SOGIE status.81 Discrimination and stigma directed towards those who do not conform to prescribed gender norms can impact all persons with diverse sexual orientations, gender identities, and sex characteristics, referred to as ‘SOGIESC’. In this way, sex characteristics as grounds for protection against persecution falls under the larger category of gender.82 In recent years, international and regional human rights mechanisms have recognized intersex rights in public statements and reviews of national adherence to treaties. The CEDAW Committee, the Committee on the Rights of the Child, Committee on the Rights of Persons with Disabilities, the Committee against Torture, and the Human Rights Committee have all included the rights of intersex persons in their respective reviews of government human rights records.83 In recognition of Intersex Awareness day in 2016, the UN Office of the High Commissioner for Human Rights, the African Commission on Human and People’s Rights, the Human Rights Commission of the Council of Europe, and a number of other human rights bodies and experts called for an ‘urgent

79 Prosecutor v Thomas Lubanga Dyilo (Judgment on the Appeal) [2006] ICC-​01/​04-​01/​06 [37]. 80 UN Free & Equal, ‘Intersex: Fact Sheet’ accessed 9 July 2019. 81 ibid. 82 However, due to the often medical and youth-​focused nature of rights violations, intersex rights activists also fight for the right to health, the rights of children, and freedom from torture, emphasizing that sex characteristics deserve recognition as a stand-​alone violation or protection against persecution. 83 UN Committee on the Elimination of Discrimination against Women, ‘Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Germany’ (9 March 2017) UN Doc CEDAW/​ C/​DEU/​CO/​7-​8 [24(d)]; UN Committee on the Rights of the Child, ‘Concluding Observations on the Combined Second to Fourth Periodic Reports of Switzerland’ (26 February 2015) UN Doc CRC/​ C/​CHE/​CO/​2-​4 [43(b)]; UN Committee on the Rights of the Child, ‘Concluding Observations on the Third to Fifth Periodic Reports of Nepal’ (8 July 2016) UN Doc CRC/​C/​NPL/​CO/​3-​5 [42]; UN Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Germany’ (13 May 2015) UN Doc CRPD/​C/​DEU/​CO/​1 [37]–​[38]; UN Committee against Torture, ‘Concluding Observations on the Fifth Periodic Report of Germany’ (12 December 2011) UN Doc CAT/​C/​DEU/​CO/​5 [20]; UN Human Rights Committee, ‘Concluding Observations on the Sixth Periodic Report of Australia’ (1 December 2017) UN Doc CCPR/​C/​AUS/​CO/​6 [25]–​[26]; Morgan Carpenter, ‘Intersex Variations, Human Rights, and the International Classification of Diseases’ (2018) 20 Health and Human Rights Journal 205.

202  Lisa Davis and Danny Bradley end to human rights violations against intersex children and adults’.84 The recognition of sex characteristics as a protected class within IHRL affirms that it must be included in understandings of gender-​based persecution as a crime against humanity. International law developments on sexual orientation, gender identity, gender expression, and sex characteristics has challenged the culture of impunity for crimes committed against LGBTIQ+​, non-​binary and gender non-​ conforming persons who do not conform to prescribed gender roles. These developments have also reaffirmed the understanding of gender as a social construct and its inextricable link to sex discrimination. In order to ensure that the new draft crimes against humanity treaty was consistent with this contemporary understanding under international law, the Commission needed to look beyond the decades-​old definition of gender from the Rome Statute to subsequent developments in the understanding of ‘gender’ under international law, developments which are better able to address the nuances of why perpetrators commit gender-​based persecution.

1.  Why Defining Gender Matters: Confronting the Islamic State of Iraq and Syria (ISIS) in Iraq Perpetrators of gender-​based crimes rationalize their actions as necessary punishments for members of society who diverge from prescribed gender roles, including behaviours, dress, attributes, or activities. Such prescribed roles are used to oppress women, LGBTIQ+​, non-​binary and gender non-​conforming persons and foment a culture of impunity for gender-​based persecution.85 These gender narratives and power dynamics are directly linked to other harmful and stigmatizing societal systems of racism and xenophobia. Narrow conceptions of gender and how gender is manifested in society lead to narrow understandings of crimes committed on the basis of gender and the ways perpetrators use gender norms for oppression and violence. The consequences of these narrow definitions emerged in the wake of the ISIS invasion of Iraq.86 In Iraq, the ISIS regime imposed oppressive gender 84 UN Office of the High Commissioner for Human Rights, ‘End Violence and Harmful Medical Practices on Intersex Children and Adults, UN and Regional Experts Urge’ (UNHCR, 24 October 2016) accessed 9 July 2019. 85 Davis, ‘Reimagining Justice’ (n 5). 86 See Lisa Davis ‘Iraqi Women Confronting ISIL: Protecting Women’s Rights in the Context of Conflict’ (2016) 22 Southwestern Journal of International Law 27.

Gender in the Crimes Against Humanity Treaty  203 regulations on all people under their control, and those who did not conform faced brutal consequences.87 ISIS fighters have tortured women doctors who did not comply with dress codes that hindered the performance of their medical services.88 They have executed women who held roles as politicians, journalists, or other professional jobs deemed outside of ISIS’s prescribed norms.89 ISIS fighters subjugated women to sexual slavery, creating elaborate pricing schemes and trading protocols.90 Men who were unable or unwilling to grow beards were beaten, and men accused of homosexual behaviour were thrown off buildings to their death, burned, and shot to death.91 Male youth with distinctive haircuts or clothing were labelled ‘faggots’ and killed.92 Women accused of lesbian behaviour have received death warrants and were forced to flee or face execution.93 These forms of gender persecution were not only based on a desire to control women and exterminate LGBTIQ+​people, but also carried out within a broader context of rigid, prescribed gender norms meant to dictate their behaviour in all areas of life. Iraqi activists such as the Organization for Women’s Freedom in Iraq (OWFI) have been documenting, at great personal risk, gender-​based crimes committed by ISIS, as well as by Iraqi government forces and other militias. OWFI’s documentation is a world first. There has never been such robust evidence for crimes against perceived or actual LGBTIQ+​persons committed in an armed conflict setting.94 Iraqi activists have collected and preserved critical evidence about perpetrators and larger criminal networks. Many have also provided shelter and safe passage to those at imminent risk of rape, torture, and murder. In response, the HRGJ Clinic hosted a convening of experts in December 201695 to explore gender protections under ICL. Participants examined the 87 See Human Rights and Gender Justice Clinic (HRGJ) of CUNY School of Law, MADRE, and the Organization of Women’s Freedom in Iraq (OWFI), ‘Communication to ICC Prosecutor Pursuant to art 15 of the Rome Statute Requesting a Preliminary Examination into the Situation OF: Gender-​Based Persecution and Torture as Crimes Against Humanity and War Crimes Committed by the Islamic State of Iraq and the Levant (ISIL) In Iraq’ (8 November 2017) accessed 29 June 2020 (hereafter HRGJ and others, ‘Communication’). 88 Davis, ‘Reimagining Justice’ (n 5) 514. 89 ibid 514–​15. 90 ibid. 91 ibid. 92 Davis, ‘Reimagining Justice’ (n 5) 515. 93 ibid. 94 See HRGJ and others, ‘Communication’ (n 86). 95 The meeting was held in partnership with MADRE, OWFI, OutRight, the Women’s International League for Peace and Freedom, the NGO Working Group on Women Peace and Security, and UN Women. The convening brought together twenty international experts and scholars in the fields of ICL and gender justice.

204  Lisa Davis and Danny Bradley legal theories and current debates regarding gender persecution. Experts also discussed provisions and legal precedents, and identified challenges in investigation and prosecution of these crimes at regional and international levels. They determined that a communication should be submitted to the OTP of the ICC, as provided for under article 15 of the Rome Statute, detailing ISIS’ gender-​ based crimes. Participants discussed in great detail the potential threats, both for the movement as well as for the safety of the documenters, but ultimately thought that this was a defining moment that had to be seized. In the second half of 2017, the HRGJ Clinic of CUNY Law School, in partnership with MADRE and OWFI, filed a submission96 petitioning the ICC to prosecute ISIS fighters for gender-​based persecution and crimes including discrimination based on sexual orientation and gender identity.97 Submission writers were trying to do more than call for accountability for gender-​based crimes committed by ISIS—​they were demonstrating to the international community that targeting LGBTIQ+​people is a serious crime under international law.98 The Court deliberated for two and half years before officially declining to open a preliminary examination.99 Soon after the ICC declined to proceed, the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​ISIL in Iraq, known by its acronym UNITAD, formally requested the documentation cited in the petitioner’s brief.100 Created by the UN Security Council, the investigative team is mandated to support the Iraqi government’s efforts to hold ISIS accountable for crimes by collecting, preserving, and storing information of acts that may amount to war crimes, crimes against humanity, and genocide.101 Sixty-​eight countries still criminalize homosexuality and no international criminal tribunal has ever considered the question of whether it is illegal to persecute women, LGBTIQ+​persons, non-​binary persons, or other gender transgressors.102 Drafting a new treaty on CAH in which such crimes are not 96 See HRGJ and others, ‘Communication’ (n 86). The petition was filed with assistance from the law firm Debevoise & Plimpton. Two LGBTIQ+​-​specific organizations, IraQueer and OutRight, were silent parties to the petition, leaving their names off to prevent the petition from being discredited by virtue of their inclusion. 97 The submission did not include a call for prosecutions based on sex characteristics because of the challenge of identifying and documenting such incidences. 98 See HRGJ and others, ‘Communication’ (n 86). 99 Letter from ICC OTP to the Human Rights & Gender Justice Clinic of CUNY School of Law, MADRE, and the Organization of Women’s Freedom in Iraq (21 May 2019) on file with authors. 100 Letter from UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​ ISIL in Iraq to Human Rights and Gender Justice Clinic of CUNY School of Law, MADRE, and the Organization of Women’s Freedom in Iraq (30 May 2019) on file with authors. 101 UNSC Resolution 2379 (21 September 2017) UN Doc S/​RES/​2379. 102 Human Rights Watch, ‘#OUTLAWED: “The Love That Dare Not Speak Its Name” ’ (Human Rights Watch, 26 June 2019) accessed 15 July 2019.

Gender in the Crimes Against Humanity Treaty  205 clearly recognized would be tantamount to allowing impunity for such crimes to continue.

E.  The Campaign for Gender Justice in the Draft Crimes Against Humanity Treaty In December 2017, within days of hearing about the draft new CAH treaty, two NGOs and two universities came together: MADRE, OutRight, the HRGJ Clinic and the Center for Socio-​Legal Research at the Universidad de Los Andes Law School in Bogota, Colombia formed a coalition. Building on the legacy of the Women’s Caucus for Gender Justice at Rome, the coalition rallied scholars and activists from around the world to ensure that the draft treaty reflected the progress made since the Rome Conference and affirmed the understanding of gender as a social construct. The ILC had called for submissions on the draft articles and with only one year until the deadline,103 the coalition rallied supportive states, UN agencies, and civil society organizations to make submissions to the Commission and organized workshops and briefings with LGBTIQ+​and women’s rights activists and lawyers around the world. Ultimately the coalition called for full removal of the definition, or alternatively, for the ILC to replace it with the understanding of the definition from the OTP’s Policy Paper on Sexual and Gender-​based Crimes. By 1 December 2018, hundreds of activists, states, UN experts, and individuals had made their voices heard to the ILC. Nearly 600 organizations and academics, representing over 100 countries and territories, signed an open letter circulated by the coalition. At least nine other civil society submissions also answered the call and sent separate submissions to the Commission calling for the removal or revision of the definition of gender. Nineteen out of thirty-​five states that made submissions to the ILC called attention to how the rights of women and LGBTIQ+​people are protected under ICL and that a new CAH treaty must reflect this principle.104 No state wrote in support of retaining the gender definition from the Rome Statute. Additionally, twenty-​four UN Special Rapporteurs and other UN experts joined a submission, spearheaded by the Special Rapporteur on extrajudicial, summary, or

103 ILC, ‘Report of the International Law Commission Sixty-​ninth session’ (UN 2017) UN Doc A/​72/​ 10, 5, 10 accessed 30 June 2020. 104 ILC, ‘Crimes against humanity: comments and observations received from Governments, international organizations and others’ (21 January 2019) UN Doc A/​CN.4/​726.

206  Lisa Davis and Danny Bradley arbitrary executions, calling on the Commission to either revise or remove the outdated definition of gender.105 Under Sadat’s leadership, the Crimes Against Humanity Initiative at the Washington University School of Law also recommended that the gender definition be removed to better reflect the understanding of gender in the context of current law.106 The Initiative argued that some elements of the original Rome Statute language do not reflect customary international law and were ‘particularly tied to the Rome Statute’s negotiation’.107 This includes the definition of gender, ‘which was inserted purely as part of a negotiating compromise and appears to have little or no substantive meaning’.108 In its last and final report on the draft treaty to the UN General Assembly, in September 2019, the ILC removed the gender definition and affirmed that gender is understood as a social construct. It also encouraged states to follow international law precedents that confirm this.109 The ILC’s determination that evolving international law defines gender as a social construct reaffirms that the ICC should also apply this definition. The ILC plays an important role in codifying evolving practices to better reflect advancements in international law and protect vulnerable groups. If its definition of the crime against humanity of persecution is adopted by states into a new convention, it would be the most significant recognition of gender-​ based persecution under ICL in over two decades. Even if it fails to be adopted into law, the finalized draft ILC treaty should have long lasting implications for customary international law, as the language and drafting history of the treaty informs the discourse on ‘gender’ under customary international law. Whatever happens next, without the concerted advocacy of feminist civil society organizations, academics, and other experts, these gains may not have occurred.

105 Agnès Callamard and others, ‘Re: Comments to the Draft Crimes Against Humanity Convention’ (30 November 2018) accessed 23 July 2020. 106 Crimes Against Humanity Initiative Steering Committee, ‘Comments and Observations on the 2017 Draft Articles on Crimes against Humanity as Adopted on First Reading at the Sixty-​Ninth Session of the International Law Commission’ (Whitney R Harris World Law Institute, 30 November 2018) accessed 19 January 2019. 107 ibid 5. 108 ibid. 109 Report of the ILC, ‘Seventy-​First Session (29 April–​7 June and 8 July–​9 August 2019)’ (UN 2019) UN Doc A/​74/​10, 45 [42].

8 Gender Dimensions of Forced Marriage in International Criminal Law Melanie O’Brien

A.  Introduction The context in which forced marriage occurs in conflict and mass atrocity contexts is highly gendered. Victims are targeted due to socially constructed assumptions held by perpetrators about the roles of women and men in a given society: for example, of men and women as procreators; and of women as possessions, housekeepers, providers of sexual services, and caregivers. Forced marriage is an expression of patriarchal norms and values, which reside within societies, ‘entrenched, indeed deeply internalized by both men and women’.1 It is, therefore, unsurprising that the majority of forced marriage victims identified by international criminal courts, the United Nations (UN) and others to date are girls and women and the majority of perpetrators are male.2 This reality leads to a need for a gendered lens when considering how international criminal law (ICL) understands and conceptualizes—​and should understand and conceptualize—​this violation. This chapter examines the gender3 dimensions of forced marriage in ICL. First, it discusses international human rights law’s (IHRL) conception of forced marriage and its focus on the need for consent by each of the spouses in the 1 Kate Manne, Down Girl: The Logic of Misogyny (OUP 2018) 230 (hereafter Manne, Down Girl). 2 The ICC cases will be discussed in this chapter. For an example of UN Secretary-​General reports on forced marriage, in which the vast majority of identified victims are female, see UNSC, ‘Conflict-​ related sexual violence: Report of the Secretary-​General’ (30 March 2021) UN Doc S/​2021/​312. Scholars also make the same observation: see eg Annie Bunting, Benjamin N Lawrence, and Richard L Roberts, ‘Something Old, Something New? Conceptualizing Forced Marriage in Africa’ in Annie Bunting, Benjamin N Lawrence, and Richard L Roberts, Marriage by Force? Contestation over Consent and Coercion in Africa (Ohio University Press 2016) 1. This does not discount males as victims in some capacity, even in circumstances where the main victims are girls and women: see eg Myriam S Denov and Mark A Drumbl, ‘The Many Harms of Forced Marriage: Insights for Law from Ethnography in Northern Uganda’ (2020) 18 Journal of International Criminal Justice 349 (hereafter Denov and Drumbl, ‘The Many Harms of Forced Marriage’). 3 This chapter uses the term ‘gender’ to refer to socially constructed beliefs about the expectations of how males and females should behave and their allocated roles in society, and does not use the term to refer to the biological sex of a person. See Chapter 1 by Indira Rosenthal, Valerie Oosterveld, Susana

​

​

208  Melanie O’Brien marriage. It then turns to a discussion of forced marriage under ICL, as considered by international criminal courts and tribunals considering atrocities in Sierra Leone, Cambodia, Uganda, and Mali. In each case, it considers how the courts have conceptualized and defined the crime, including whether this conceptualization is situated in IHRL, and the ways in which gender-​specific experiences of forced marriage are identified and recognized. This chapter concludes that forced marriage is a highly gendered crime: one that is reliant on socially constructed ideas of female servitude and roles in human reproduction, and one that is planned and carried out largely by men within a patriarchal structure. This chapter also concludes that the work to date of the International Criminal Court (ICC) in describing and defining forced marriage sets the stage for adding this violation into the Rome Statute of the ICC as a standalone crime against humanity and war crime.

B.  Forced Marriage Under International Human Rights Law Under IHRL, forced marriage ‘violates the fundamental right to freely consent to marriage that is enshrined in numerous international human rights instruments’;4 a right that includes the right not to marry.5 Forced marriage is part of a broader application of violence as ‘a key force in the production, maintenance, intensification and legitimation of domination and subordination’ of women and girls.6 Indeed, domination and subordination remain key elements of forced marriage, as victims’ lives become subject to the domination of (in the majority of cases) their ‘husbands’, who seek subordinate ‘wives’. Violence against women is defined in the UN Declaration on the Elimination of Violence Against Women ‘any act of gender-​based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to SáCouto for a discussion of the ways in which the term ‘gender’ has been understood and misunderstood (for example, as biological sex) in ICL. 4 Manne, Down Girl (n 1) 6. 5 United Nations, ‘Universal Declaration of Human Rights’ (10 December 1948) art 16(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 23; International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 10(1); Human Rights Committee, ‘CCPR General Comment No 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses’ (27 July 1990). 6 Aisha K Gill and Sundari Anitha, ‘Introduction: Framing Forced Marriage as a Form of Violence Against Women’ in Aisha K Gill and Sundari Anitha (eds), Forced Marriage: Introducing a Social Justice and Human Rights Perspective (Zed Books 2011) 1, 2.

Gender Dimensions of Forced Marriage  209 women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’.7 Forced marriage fulfils this definition, with victims of forced marriage experiencing at least psychological harm, but typically also physical and sexual harm. Internationally, there is no agreed definition of forced marriage. However, there are agreed principles under IHRL for marriage, in particular that marriage is to be entered into with the full and free consent of both parties.8 The Convention on the Elimination of all forms of Discrimination against Women (CEDAW) provides a broad reference to forced marriage, providing for a woman’s ‘right freely to choose a spouse and to enter into marriage only with their free and full consent’.9 Little further is provided in CEDAW to assist with defining forced marriage, other than confirming that consensual marriage is an act which is ‘central to [a woman’s] life and to her dignity and equality as a human being’, and that states must protect and enforce at law a woman’s right to choose when, if, and whom she will marry.10 This latter statement does go some way towards outlining a scope for the elements of consensual marriage: that is, a woman must be free to choose the time of her marriage, whether or not she will marry, and whom she will marry. The category of ‘child, early and forced marriage’ is addressed regularly through human rights mechanisms, including the Human Rights Council, which has categorized such marriage as ‘a harmful practice that violates, abuses and impairs human rights and is linked to and perpetuates other harmful practices, including female genital mutilation (FGM), and human rights violations, and that such violations have a disproportionately negative impact on women and girls’.11 A report from the UN High Commissioner for 7 UNGA, ‘Declaration on the Elimination of Violence Against Women’ (20 December 1993) UN Doc A/​RES/​48/​104 art 1. 8 ‘No marriage shall be legally entered into without the full and free consent of both parties’: Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (adopted 10 December 1962, entered into force 9 December 1964) 521 UNTS 231 (Convention on Consent to Marriage) art 1(1). 9 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 1 (CEDAW) art 16(1)(b). 10 Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 21: Equality in marriage and family relations’ (1994) [16]. See also ICCPR (n 5) art 23(3), which deems that ‘no marriage shall be entered into without the free and full consent of the intending spouses’. 11 Human Rights Council (HRC), ‘Child, early and forced marriage in humanitarian settings’ (12 July 2017) UN Doc A/​HRC/​RES/​35/​16. Note that the UN uses the term ‘child, early and forced marriage’. This chapter uses the term forced marriage, but it is important to note that many of the forced marriages in the atrocity situations addressed in this chapter are child marriages. See also HRC, ‘Strengthening efforts to prevent and eliminate child, early and forced marriage’ (22 July 2015) UN Doc A/​HRC/​RES/​29/​ 8; Human Rights Council, ‘Preventing and eliminating child, early and forced marriage: Report of the Office of the United Nations High Commissioner for Human Rights’ (2 April 2014) UN Doc A/​HRC/​ 26/​22.

210  Melanie O’Brien Human Rights defines forced marriage as ‘any marriage which occurs without the full and free consent of one or both of the parties and/​or where one or both of the parties is/​are unable to end or leave the marriage, including as a result of duress or intense social or family pressure’.12 Child marriage is deemed per se as forced marriage, as children are considered unable to provide full, informed consent.13 The European Union (EU) Agency for Fundamental Rights has presented a more succinct description of forced marriage, based on principles under IHRL: ‘a marriage concluded without the consent of one or both partners, and therefore against the will of at least one of them’.14 Scholars such as Gill and Harvey provide a similar simple and broadly applicable definition of forced marriage, in which ‘one or both parties do not consent to the marriage, and some form of coercion is used to bring it about’.15 These definitions of forced marriage found in human rights law and discourse ultimately conclude that everyone should have the right to choose their spouse, and that marriage should only be entered into with free and full consent of both spouses. Given the long pedigree of fundamental concepts of marriage under IHRL—​dating back decades16—​one would expect international criminal tribunals to look to this field of law when framing the crime of forced marriage. As will be demonstrated, early tribunal decisions did not draw from IHRL when framing forced marriage as a violation. However, later decisions turned to human rights principles of marriage to sculpt definitions around consent.

12 ibid [6]‌. 13 The Committee on the Rights of the Child has stated ‘that the minimum age limit should be 18 years for marriage’: Committee on the Rights of the Child, ‘General Comment No 20 (2016) on the implementation of the rights of the child during adolescence’ (6 December 2016) UN Doc CRC/​C/​GC/​20 [40]. CEDAW (n 9) art 16(2) states ‘the betrothal and the marriage of a child shall have no legal effect’. More generally, under arts 1 and 19(1) of the UN Convention on the Rights of the Child, children are to be protected from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’ while under the age of eighteen: Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) arts 1, 19(1). See Wouter Vandenhole, Gamze Erdem Türkelli, and Sara Lembrechts, Children’s Rights: A Commentary on the Convention on the Rights of the Child and its Protocols (Edward Elgar 2019) [I.60] for an overview of discussion and human rights sources on child marriage. 14 European Union Agency for Fundamental Rights, ‘Addressing Forced Marriage in the EU: Legal Provisions and Promising Practices’ (28 October 2014) accessed 3 September 2021. 15 Aisha K Gill and Heather Harvey, ‘Examining the Impact of Gender on Young People’s Views of Forced Marriage in Britain’ (2017) 12 Feminist Criminology 72. 16 Convention on Consent to Marriage (n 8).

Gender Dimensions of Forced Marriage  211

C.  Forced Marriage During Atrocities To date, international criminal courts and tribunals have addressed the commission of forced marriage in only a small number of mass atrocity situations.17 This is not to say that the crime of forced marriage was not committed in other atrocity situations. For example, in 1996, Human Rights Watch (HRW) reported forced marriages during the Rwandan genocide, during which girls and women were forced to marry members of militia groups.18 Despite the regular occurrence of forced marriage during the Rwandan genocide, the prosecutors for the International Criminal Tribunal for Rwanda (ICTR) did not bring any charges for this crime.19 The atrocities committed during the Sierra Leone Civil War (1991–​2002) finally drew forced marriage into the international criminal justice arena, resulting in charges at the Special Court for Sierra Leone (SCSL). Subsequently, prosecutors at the Extraordinary Chambers in the Courts of Cambodia (ECCC) brought forward charges of forced marriage perpetrated under the Khmer Rouge regime in Cambodia (1975–​79), and the ICC followed suit with respect to the Lord’s Resistance Army (LRA) in Uganda and neighbouring states in the 1990s and early 2000s, and with respect to Ansar Dine/​Al-​Qaeda in the Islamic Magreb (AQMI) in Mali from 2012.20 These cases will be discussed in detail below. None of these international criminal tribunals was provided with express jurisdiction over the crime of forced marriage in their statutes.21 This created 17 Mass atrocity situations encompass extensive crimes committed under the ICL categories of war crimes, crimes against humanity, and genocide. For more on atrocity situations, see Barbora Hola, Hollie Nyseth Brehm, and Maartje Weerdesteijn (eds), The Oxford Handbook of Atrocity Crimes (OUP 2022). 18 Binaifer Nowrojee, ‘Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath’ (Human Rights Watch 1996) 2, 33–​37 accessed 3 September 2021; Gérard Prunier, Rwanda: Death, Despair, and Defiance (African Rights 1995). 19 Monika Satya Kalra, ‘Forced Marriage: Rwanda’s Secret Revealed’ (2001) 7 University of California at Davis Journal of International Law and Policy 197. 20 It is outside the scope of this chapter to provide a history of these conflicts and regimes. For Sierra Leone, see Kieran Mitton, Rebels in a Rotten State: Understanding Atrocity in the Sierra Leone Civil War (OUP 2015). For Cambodia, see Ben Kiernan, ‘The Cambodian Genocide, 1975–​1979’ in Samuel Totten and William S Parsons (eds), Centuries of Genocide: Essays and Eyewitness Accounts (Routledge 2012) 317. For Uganda, see Joanna R Quinn, ‘Getting to Peace? Negotiating with the LRA in Northern Uganda’ (2009) 10 Human Rights Review 55. For Mali, see Susanna D Wing, ‘Mali: Politics of a Crisis’ (2013) 112 African Affairs 476. 21 In the negotiations for the Rome Statute of the ICC, there was little discussion about forced marriage, with the exception of the Women’s Caucus for Gender Justice and the International Committee of the Red Cross, and this was followed up by a small number of states. However this discussion placed forced marriage under the rubric of enslavement and sexual slavery: Hannah Baumeister, Sexualised Crimes, Armed Conflict and the Law (Routledge 2018) 147–​70, 183–​98 (hereafter Baumeister, Sexualised Crimes).

212  Melanie O’Brien challenges for the tribunals, as they have been required to, first, articulate the legal basis on which they are permitted to consider forced marriage, and, second, define the meaning of or set the parameters for the term. This section will examine the prosecution of forced marriage by the SCSL, ECCC, and ICC, analysing how they addressed both challenges, and whether they successfully contextualized the gendered nature of this crime.22

1.  The Special Court for Sierra Leone During the Sierra Leone Civil War, girls and women were forced by rebel fighters to become ‘bush wives’. They were abducted, usually raped, and forced to ‘marry’ a rebel.23 As a ‘bush wife’, these girls and women were forced to provide sexual services exclusively to their ‘husband’, and engage in domestic servitude such as cooking and cleaning.24 Some wives were forced to take drugs, most likely as a desensitization technique.25 Many were beaten and even killed.26 ‘Wives’ and, for those who had become pregnant in the forced

22 For further discussion on other issues regarding the jurisprudence of forced marriage in the international criminal courts and tribunals, see Melanie O’Brien, ‘ “Don’t Kill Them, Let’s Choose Them as Wives”: The Development of the Crimes of Forced Marriage, Sexual Slavery and Enforced Prostitution in International Criminal Law’ (2016) 20 International Journal of Human Rights 386 (hereafter O’Brien, ‘Don’t Kill Them’); Valerie Oosterveld, ‘Forced Marriage and the Special Court for Sierra Leone: Legal Advances and Conceptual Difficulties’ (2011) 2 Journal of International Humanitarian Legal Studies 127 (hereafter Oosterveld, ‘Forced Marriage and the Special Court for Sierra Leone’); Valerie Oosterveld, ‘Forced Marriage during Conflict and Mass Atrocity’ in Fionnuala Ní Aoláin and others (eds), The Oxford Handbook of Gender and Conflict (OUP 2017); Valerie Oosterveld, ‘Forced Marriage: Terminological Coherence and Dissonance in International Criminal Law’ (2019) 27 William and Mary Bill of Rights Journal 1263; Micaela Frulli, ‘Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a “New” Crime against Humanity’ (2008) 6 Journal of International Criminal Justice 1033 (hereafter Frulli, ‘Advancing International Criminal Law’); Elena Gekker, ‘Rape, Sexual Slavery and Forced Marriage at the International Criminal Court: How Katanga Utilizes a Ten-​Year-​Old Rule but Overlooks New Jurisprudence’ (2014) 25 Hastings Women’s Law Journal 105; Neha Jain, ‘Forced Marriage as Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013 (hereafter Jain, ‘Forced Marriage as a Crime against Humanity’); Bridgette A Toy-​Cronin, ‘What Is Forced Marriage? Towards a Definition of Forced Marriage as a Crime against Humanity’ (2010) 19 Columbia Journal of Gender and Law 539. 23 Human Rights Watch, ‘ “We’ll Kill You If You Cry”: Sexual Violence in the Sierra Leone Conflict’ (Human Rights Watch, 2003) accessed 3 September 2021. 24 Prosecutor v Brima, Kamara and Kanu (Appeal Judgment) SCSL-​ 2004-​ 16-​ A (22 February 2008) [190] (hereafter AFRC Appeal Judgment); Prosecutor v Sesay, Kallon and Gbao (Trial Judgment) SCSL-​04-​15-​T (2 March 2009) [1408], [1413] (hereafter RUF Trial Judgment). 25 RUF Trial Judgment (n 24) [1408]. Denov and Maclure discuss the uses of different drugs on child soldiers in Sierra Leone: Myriam Denov and Richard Maclure, ‘Turnings and Epiphanies: Militarization, Life Histories, and the Making and Unmaking of Two Child Soldiers in Sierra Leone’ (2007) 10 Journal of Youth Studies 243. 26 AFRC Appeal Judgment (n 24) [191].

Gender Dimensions of Forced Marriage  213 marriage, their children, were subject to long-​term social stigmatization beyond the duration of the ‘marriage’.27 Forced marriage was so pervasive during the Sierra Leone conflict that the SCSL’s Prosecutor prioritized it when investigating and charging the leaders of the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) rebel groups.28 As a result of the lack of a specific provision in the Court’s statute proscribing forced marriage, the Prosecutor proceeded by charging it as a subset of the crime against humanity of ‘other inhumane acts’.29 This was the first time forced marriage was prosecuted in an international criminal tribunal and therefore the jurisprudence stemming from these charges was a significant breakthrough, even if the jurisprudence is also convoluted and uncertain. In Prosecutor v Brima, Kamara, and Kanu, also known as the AFRC case,30 the prosecution argued that forced marriage fell under the crime against humanity of ‘other inhumane acts’. The prosecution maintained that the constituent elements of forced marriage are distinct from those for the crime of sexual slavery. It argued that forced marriage ‘has its own distinctive features’, even if sexual violence forms part of the experience of forced marriage.31 The prosecution further posited that forced marriage differs from sexual slavery, in that ‘a sexual slave is not necessarily obliged to pretend she is the wife of the perpetrator’.32 A majority of the Trial Chamber, however, rejected these arguments, holding that forced marriage was subsumed under the crime against humanity of sexual slavery and therefore the forced marriage charges were redundant.33 The Trial Chamber majority’s focus on the sexual component of the forced marriage to the exclusion of all other components ignored the entirety of the girls’ and women’s experience, including subsequent stigma, as forced 27 ibid [199]. 28 Valerie Oosterveld, ‘The Special Court for Sierra Leone: Initial Structural and Procedural Decisions on Sexual and Gender-​Based Violence’ (2015–​16) 46 Cambrian Law Review 131, 141, 145–​47. The Prosecutor also attempted to add this charge to the Civil Defence Forces case, but failed (controversially) for lack of timeliness: see discussion at ibid 147. 29 ibid 145–​48 on the consultation process undertaken by the SCSL’s Office of the Prosecutor (OTP) before proceeding with forced marriage charges, and the risks identified by the OTP in bringing these charges. For discussion on the issue of nullum crimen sine lege and the establishment of forced marriage as a ‘new’ crime, see eg Sara Wharton, ‘The Evolution of International Criminal Law: Prosecuting “New” Crimes before the Special Court for Sierra Leone’ (2011) 11 International Criminal Law Review 217; Frulli, ‘Advancing International Criminal Law’ (n 22). 30 The Armed Forces Revolutionary Council (AFRC) was one of the rebel groups in control in Sierra Leone during 1997 and 1998. 31 Prosecutor v Brima, Kamara, and Kanu (Trial Judgment) SCSL-​04-​16-​T (20 June 2007) [701] (hereafter AFRC Trial Judgment). 32 ibid. 33 ibid [704], [711]. For more discussion on this forced marriage/​sexual slavery convolution, see O’Brien, ‘Don’t Kill Them’ (n 22); Jain, ‘Forced Marriage as a Crime against Humanity’ (n 22).

214  Melanie O’Brien ‘wives’. In particular, the Trial Chamber majority excluded the full range of violations the victims suffered within the forced marriage, from their abduction to forced labour, lack of personal liberty, various types of assaults, forced pregnancies, and being the ‘property’ of their ‘husbands’.34 In fact, the Trial Chamber majority found that, because the victims did not give evidence ‘that they considered themselves to be in fact “married” ’, there was ‘no evidence that any of the women taken as “wives” stayed on with their rebel “husbands” following the end of hostilities’, and there was no ‘intent to assume a marital or quasi-​marital status with the victim in the sense of establishing mutual obligations inherent in a husband[-​]‌wife relationship’, there was therefore no need for a crime of ‘forced marriage’ because there was no marriage, only ownership.35 However, a link to IHRL was not explicitly articulated.36 The Appeals Chamber overruled the Trial Chamber, holding that forced marriage constitutes the crime against humanity of ‘other inhumane acts’.37 The Appeals Chamber noted that, while forced marriage may include sexual violence, it has the distinguishing factors of being a relationship of exclusivity, a compulsion into ‘forced conjugal association’. Forced marriage in the Sierra Leone context was held to be: [A]‌situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.38 34 AFRC Trial Judgment (n 31) Partly Dissenting Opinion of Justice Doherty. Valerie Oosterveld, ‘Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-​Based Crimes’ (2009) 17 American University Journal of Gender, Social Policy and the Law 407, 415–​16 (hereafter Oosterveld, ‘Lessons from the Special Court for Sierra Leone’); Valerie Oosterveld, ‘The Special Court for Sierra Leone, Child Soldiers, and Forced Marriage: Providing Clarity or Confusion?’ (2008) 45 Canadian Yearbook of International Law 131, 154–​56. 35 AFRC Trial Judgment (n 31) [711]–​[713]. For more discussion, see Oosterveld, ‘Forced Marriage and the Special Court for Sierra Leone’ (n 22). 36 However, see AFRC Trial Judgment (n 31) Partly Dissenting Opinion of Justice Doherty, [63]–​[65]. The lack of direct reference to IHRL by the Trial Chamber majority is linked to the way in which the issue was discussed at trial, framed around a distinction between arranged marriage during peacetime and forced marriage during armed conflict. Justice Sebutinde, in her separate concurring opinion, articulated why the majority did not centre its forced marriage analysis within IHRL: first, the concerns under CEDAW (n 9) with respect to marriage do not apply in the wartime situation in which there is no marriage transaction (AFRC Trial Judgment (n 31) Separate Concurring Opinion of Justice Sebutinde, [10]); second, while non-​consensual marriage is a violation of IHRL, it is not recognized as a crime under ICL (ibid [12]); and third, the evidence before the court was largely about sexual slavery, which is a crime under ICL (ibid [15]–​[16]). In other words, Justice Sebutinde concluded that, since the rebels did not conduct actual marriages under law, IHRL was not the correct frame. 37 AFRC Appeal Judgment (n 24) [200]–​ [201]. See also Jennifer Gong-​ Gershowitz, ‘Forced Marriage: A “New” Crime Against Humanity?’ (2009) 8 Northwestern University Journal of Human Rights 53. 38 AFRC Appeal Judgment (n 24) [196].

Gender Dimensions of Forced Marriage  215 This definition creates a different conceptualization of forced marriage, moving away from the human rights focus on consent and instead making force and coercion the central elements. This is an echo of the traditional (outdated) perception of rape as being connected to force rather than non-​consent and autonomous decision-​making. In Prosecutor v Sesay, Kallon, and Gbao, known as the RUF case,39 the Trial Chamber held that the elements of forced marriage are distinct from those of sexual slavery, and are ‘forced conjugal association based on exclusivity between the perpetrator and victim’,40 with the actus reus being ‘the imposition of a forced conjugal association’.41 The SCSL Trial Chamber found that ‘the use of the term ‘wife’ by the rebels was deliberate and strategic, with the aim of enslaving and psychologically manipulating the women and with the purpose of treating them like possessions’.42 Ownership and control were specific goals of the perpetrators, forcing the girls and women to live in a captive ‘state of uncertainty and subjugation’ amidst a ‘violent, hostile and coercive environment’, all of which presumed an absence of genuine consent to sexual intercourse or marriage.43 The focus on the exercise of control, force, and coercion by the perpetrators in the Trial Chamber’s forced marriage analysis in the RUF case indicates a further move away from the human rights approach of non-​consent and a move toward framing forced marriage in the language of enslavement. The SCSL’s final case, Prosecutor v Taylor, took this framing of forced marriage one step further.44 In the trial judgment, the Trial Chamber rejected the term ‘forced marriage’ in favour of ‘conjugal slavery’.45 It found that ‘conjugal slavery’ is a combination of two harms: ‘sexual slavery and forced labour in the form of domestic work such as cooking and cleaning’.46 Referring to IHRL’s conception of marriage, the Trial Chamber stated that ‘[w]‌hat happened to the girls and women abducted in Sierra Leone . . . was not marriage in the universally understood sense of a consensual and sacrosanct union’; rather, it was ‘a conjugal form of enslavement’.47 In other words, the Trial Chamber did not think that IHRL on marriage was a useful starting point, and instead 39 The RUF was an armed opposition group active in the 1990s in Sierra Leone. 40 RUF Trial Judgment (n 24) [2307]. 41 ibid [1295]. 42 ibid [1466]. 43 ibid [1467]–​[1471]. 44 Taylor was not charged with forced marriage, but the Prosecutor used evidence of the ‘bush wife’ system to prove the sexual slavery charges: Prosecutor v Charles Taylor (Trial Judgment) SCSL-​03-​01-​T (18 May 2012) [422], [1101], [1700]. 45 The Trial Chamber indicated that the term ‘marriage’ is unhelpful in describing what happened to the victims, and that ‘forced marriage’ is a misnomer: ibid [425]–​[426]. 46 ibid [425]. 47 ibid [427].

216  Melanie O’Brien preferred to conceptualize the harms through enslavement as an international crime.48 Thus, overall, while the SCSL decisions were inconsistent in their approaches and reasoning, they favoured an enslavement approach focused on the exercise of ownership powers rather than an IHRL approach focused on non-​consent. Undoubtedly, the frame within which forced marriage occurred in the Sierra Leone conflict was gendered. Girls and women were the victims, and men the perpetrators. The perpetrators were the ‘husbands’, as well as the male leadership of the AFRC and RUF, who committed and encouraged the commission of this crime on a widespread and systematic scale.49 It was a normal and expected part of AFRC and RUF troop conduct that girls and women would be abducted to be ‘bush wives’, a term chosen to control the women and girls.50 Forced marriage was committed as part of a hegemonic masculine societal structure, under which soldiers were rewarded with ‘wives’ as payment or for bravery, and a soldier’s social status increased due to his possession of a forced ‘wife’ and any children borne from the forced marriage.51 To an extent, the SCSL’s language recognizes the gendered nature of the forced marriage, noting the gender of the victims, and phrasing the crime as one committed by ‘the [male] perpetrator through his words or conduct’.52

2.  The Extraordinary Courts in the Chambers of Cambodia One of the main policies of the 1975–​9 communist Khmer Rouge regime was to increase the population of Cambodia (known as Democratic Kampuchea).53 To achieve this goal, the Khmer Rouge implemented a policy of forced

48 Note that the Trial Chamber confused its own analysis somewhat when, having earlier indicated that evidence of forced marriage amounted to two types of enslavement (sexual and domestic), it then said that ‘conjugal slavery is better conceptualized as a distinctive form of the crime of sexual slavery’: ibid [429]. However, in the next paragraph it reverted back to describing forced marriage as a combination of sexual and domestic enslavement: ibid [430]. 49 RUF Trial Judgment (n 24) [1295], [1347]–​[1351]: recognizing that sexual violence and forced marriage were part of a ‘calculated and concerted pattern’ and ‘a deliberate system intended to spread terror’. 50 ibid [1466]. 51 This applied in the LRA context too: Baumeister, Sexualised Crimes (n 21) 46. 52 AFRC Appeal Judgment (n 24) [196] (emphasis added). 53 James A Tyner, ‘Gender and Sexual Volence, Forced Marriages, and Primitive Accumulation During the Cambodian Genocide, 1975–​1979’ (2018) 25 Gender, Place & Culture 1305. Ironically, despite the goal of population growth, the regime committed genocide of minorities and of Khmer people, with anywhere from 1.6 to 3 million estimated to have been killed during their 1975–​9 reign in Cambodia. For figures, see Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–​79 (3rd edn, Yale University Press 2008) 458.

Gender Dimensions of Forced Marriage  217 marriage.54 Under this policy, men and women or girls were forced by leaders to marry each other.55 The couples usually did not know each other, and marriages had to be approved by authorities. Couples sometimes did not even know they were getting married until they arrived at the destination, having been told they were attending a meeting. Marriage ceremonies were held in a variety of locations, from offices to kitchens, worksites, classrooms, or houses, and were not carried out according to Khmer tradition (such as including Buddhist monk blessings).56 No family members were present at these weddings. During the ceremony, rather than commit to each other, victims were forced to swear allegiance to Angkar.57 After the ceremony, each couple was forced to consummate the marriage, under the visual or aural surveillance of Khmer Rouge cadres and the threat of re-​education and/​or death.58 The context of forced marriage in Cambodia under the Khmer Rouge is different from that of Sierra Leone (or Uganda and Mali, examined below): both the male and female in the couple were the victims of a third party, the Khmer Rouge authorities. It thus appears that the practice of forced marriage under the Khmer Rouge was gender-​neutral. However, there were still many highly gendered elements of the implementation of the Khmer Rouge marriage policy, under which girls and women were specifically targeted. Females ‘were expected to sacrifice themselves for “patriotic” reasons and for the benefit of the revolution’ by being forcibly married to disabled veterans.59 Females were transported to other provinces in groups, specifically to marry—​without consent—​veterans with disabilities (for example, those lacking a limb or who were blind).60 Another gendered aspect was that male combatants and cadres were permitted to choose their wife, or at a minimum, were consulted when being paired up with a potential marriage partner.61 The women, in contrast, were not consulted or permitted to choose. So, for male combatants, the hegemonic males of the society, there was an element of freedom and choice in their marriage, which was denied to girls and women. A further gendered characteristic of the forced marriages is that, in general, the marriages were between 54 Only a brief summary is provided here. For full details of the forced marriages, see Case 002/​02 against Nuon Chea and Khieu Samphan (Judgment) [2019] 002/​19-​09-​2007/​ECCC/​TC [3536]–​[3670] (hereafter Case 002/​02). 55 Witnesses spoke of the coercive circumstances, including fear of death, being moved elsewhere, and threats of re-​education: ibid [3617]–​[3625]. 56 ibid [3626]–​[3640]. 57 Angkar (‘the Organization’) is the name the Khmer Rouge used for itself. 58 Case 002/​02 (n 54) [3641]–​[3665]. 59 ibid [3590]. 60 ibid [3586]–​[3590]. 61 ibid [3591].

218  Melanie O’Brien younger girls or women and older men. Marriage age was as young as sixteen for girls, but men were not married unless they were at least twenty years old, although they were usually aged twenty-​five or older.62 Thus, child marriage occurred for girls, but not boys, and age difference was always skewed to a younger girl or woman marrying an older man. Another experience of female victims of forced marriage is that many experienced a threat not only from the third-​party authorities ordering the marriage and its consummation, but also from their ‘husbands’. As punishment for not consummating the marriage, in some cases ‘husbands’ reported their ‘wives’ to superiors, which then led to physical punishment by cadres or militiamen, including rape.63 Many women were also physically assaulted by their ‘husbands’.64 The ECCC Chamber did not find any evidence of the equivalent occurring by women against men. Finally, with regards to punishment for non-​ compliance, women were raped (sometimes gang-​raped) for refusal to marry or for non-​compliance with the order to consummate the marriage.65 The same punishment was not meted out to men, who were threatened with re-​education or even death, but not raped.66 These highly gendered elements demonstrate that, even in a seemingly gender-​neutral commission of forced marriage, girls and women were further victimized, particularly through sexual violence, because they were female. Thus, as with the other case studies considered here, under the Khmer Rouge there existed a situation in which men sought to control women, which in Cambodia was within the framework of marriage for a larger purpose: to ‘serve’ Angkar by producing children who would become devotees of the regime.67 The ECCC, in Prosecutor v Nuon and Khieu, known as Case 002/​02, followed the SCSL’s lead in analysing forced marriage through the lens of the crime against humanity of ‘other inhumane acts’.68 However, it differed from the SCSL by using norms from IHRL to structure the analysis. For example, the ECCC centred the consideration of forced marriage around the ‘right to 62 ibid [3581]–​[3585]. 63 ibid [3646]. 64 ibid [3646]. 65 ibid [3650], [3658]. See also Kasumi Nakagawa, Gender-​Based Violence during the Khmer Rouge Regime: Stories of Survivors from the Democratic Kampuchea (1975–​1979) (2nd edn, 2008) accessed 3 September 2021. 66 Both the men and women were threatened with re-​education or sometimes death: Case 002/​02 (n 54) [3656]–​[3661]. 67 Which in turn was part of the Khmer Rouge goal of social control: Rachel P Jacobs, ‘Married by the Revolution: Forced Marriage as a Strategy of Control in Khmer Rouge Cambodia’ (2020) Journal of Genocide Research 1. 68 Case 002/​02 (n 54) [741], [3686].

Gender Dimensions of Forced Marriage  219 enter into marriage freely’ as expressed in the Universal Declaration of Human Rights.69 It also concluded that marriage must involve consent of the victims or their families and there was no evidence that the victim’s ability to consent to marriage ‘was voluntarily transferred to the Party (Angkar)’.70 Such consent is required for ‘decisions concerning the core of [victims’] privacy and dignity’, and there was no ‘genuine consent’ given.71 While the ECCC held that forced marriage as an inhumane act was established,72 it did not provide a specific definition of forced marriage. The nearest mention is reference to victims having experienced ‘conjugal relationships in coercive circumstances’.73 Despite acknowledging that there is no ‘common understanding’ of forced marriage, the Chamber refers to the SCSL Appeals Chamber’s AFRC definition,74 and to a definition set out by the ICC in an Ongwen decision of ‘the imposition of “marriage” on the victim . . . [and] of duties that are associated with marriage . . . with the consequent social stigma’ (examined further below).75 The Chamber does not indicate whether one or the other of these definitions is more persuasive and instead concentrates on evaluating whether the specific facts related to the conduct of forced marriage under the Khmer Rouge amount to inhumane acts.76 Despite the references to SCSL and ICC jurisprudence, the ECCC perceives the act of forced marriage as focused on the imposition of marriage and its associated duties, and as a violation of the human right to freely marry and establish a family. It does not focus on sexual slavery or enslavement as the root harm of forced marriage. There are two disappointing elements to the ECCC judgment relevant to gender. First, the Chamber did not specifically acknowledge the gendered experience of women (as mentioned above): the Chamber described the actions, but did not contextualize the gendered elements of the forced marriage which specifically targeted women but not men. Secondly, the Chamber excluded men as victims of rape within forced marriage due to the definition of rape

69 ibid [743]. 70 ibid [3688]. 71 ibid [3689], [3690]. 72 ibid [3692]. 73 ibid [742], [3686]. 74 ibid [744]: referring to the AFRC Appeal Judgment (n 24); Prosecutor v Sesay, Kallon and Gbao (Appeal Judgment) SCSL-​04-​15-​A (26 October 2009) (hereafter RUF Appeal Judgment). 75 Case 002/​02 (n 54) [745], citing Prosecutor v Dominic Ongwen (Decision on the confirmation of charges against Dominic Ongwen) [2016] ICC-​02/​04-​01/​15-​422-​Red [93] (hereafter Ongwen Confirmation of Charges). 76 Case 002/​02 (n 54) [746].

220  Melanie O’Brien adopted by the court.77 While a discussion of this exclusion is outside the scope of this chapter, further analysis is needed on the Chamber’s definition of rape and the Chamber’s decision with respect to male victims of forced marriage.78

3.  The International Criminal Court The ICC has two situations before it in which forced marriage is at issue: Uganda and Mali. Within these situations, the cases of Prosecutor v Ongwen and Prosecutor v Al Hassan have included charges of forced marriage.79 a) Forced marriage in Uganda under the LRA and the Ongwen case The forced marriage context during the conflict in Uganda was very similar to that in Sierra Leone. Members of the Lord’s Resistance Army (LRA) forced girls and women to be ‘wives’ of fighters. Strict control was imposed on every aspect of the women’s conduct in the forced marriages through brutal disciplinary measures. The ‘wives’ were subject to violent discipline for ‘disobedience, resistance, not conceiving [a child], talking together unsupervised, having blank expressions on their faces, looking miserable, allegedly planning an escape, or breaking rules of taboos of the fighting group’.80 The ‘husbands’ could have more than one ‘wife’, but each ‘wife’ would be punished for any suspected or actual infidelity, confirming that each ‘wife’ was the property of their allocated ‘husband’.81 Like the women and their children of forced marriage in the Sierra Leone conflict, women and their children born of forced marriage within the LRA also experienced ongoing victimization in their community as a result of the forced marriage, including ‘rejection, stigma, violence, socio-​ economic marginalization, and issues of identity and belonging’.82 This was in contrast to the experience of the rebel men, whose social status often rose due

77 ibid [731], [3701]. A discussion of the problems related to this decision and the definition is beyond the scope of this chapter. 78 The Co-​Prosecutors’ Appeal against the Case 002/​02 Judgment, filed 20 August 2019, is solely focused on appealing the decision of the Trial Chamber to not classify the experience of the men as an ‘inhumane act’: Case 002/​02 against Nuon Chea and Khieu Samphan (Co-​Prosecutor’s Appeal) [2019] 002/​19-​092007-​ECCC/​SC. The appeal was heard 16–​19 August 2021. 79 Prosecutor v Dominic Ongwen (Trial Judgment) [2021] ICC-​02/​04-​01/​15 (hereafter Ongwen Trial Judgment); Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud) [2019] ICC-​01/​12-​01/​18-​461-​Corr-​Red (hereafter Al Hassan Confirmation of Charges). 80 Baumeister, Sexualised Crimes (n 21) 51. 81 ibid. 82 Myriam Denov and Atim Angela Lakor, ‘When War is Better than Peace: The Post-​Conflict Realities of Children Born of Wartime Rape in Northern Uganda’ (2017) 65 Child Abuse & Neglect 255.

Gender Dimensions of Forced Marriage  221 to ‘marriage’ and fatherhood. These were actions seen as achievements of manhood and masculinity in the Ugandan social context—​a role that could not otherwise be filled due to disruption of normal male roles because of conflict.83 The conflict drove the commission of forced marriage within the LRA specifically because men could no longer obtain the financial independence to enable them to marry, including paying bride dowries.84 The facts in the Ongwen case confirm these scholarly accounts.85 Dominic Ongwen was a high-​ranking soldier in the LRA’s Sinia brigade.86 Victims testified to experiencing and witnessing forced marriage carried out with extreme violence: girls and women who were abducted and forcibly assigned as ‘wives’ were beaten regularly, until their bodies were swollen and/​or they were unconscious, and were routinely raped by Ongwen and/​or other men.87 They were forced to undertake various forms of domestic labour, childbearing, and childcare duties, and could not refuse under threat of severe mistreatment or death.88 The Trial Chamber found a ‘coordinated and methodical effort [by Dominic Ongwen, the Sinia brigade leadership, and the LRA’s leader Joseph Kony], relying on the LRA soldiers under their control, to abduct women and girls in Northern Uganda and force them to serve in the Sinia brigade as so-​ called ‘wives’ of members of the Sinia brigade, and as domestic servants.89 Thus, men were direct perpetrators (as with Ongwen forcing girls/​women to be his own ‘wives’) and indirect perpetrators (as with Ongwen and the other leaders ordering the abduction and forced marriage of girls/​women by the whole brigade).90 The Trial Chamber found Ongwen guilty of forced marriage as an inhumane act, committed directly by Ongwen and jointly, indirectly, by others under his command.91 b) Forced marriage in Mali under Ansar Dine/​AQMI and the Al Hassan case The Al Hassan Confirmation of Charges presents a case for the perpetration of forced marriage in Mali, carried out by the Ansar Dine/​AQMI armed groups. 83 Baumeister, Sexualised Crimes (n 21) 48–​49. 84 ibid 49–​50. 85 Ongwen Trial Judgment (n 79) [205]–​[437]; [2009]–​[2309]. 86 The Sinia Brigade was active in Uganda, Sudan, Central African Republic, and the Democratic Republic of Congo (DRC). The ICC’s jurisdiction over LRA actions relates only to Uganda, although the judges did draw on testimony relating to crimes committed in Sudan as background: Ongwen Trial Judgment (n 79) [310], [314], [579], [609], [610], [624], [876], [925], [941], [984], [1009]. 87 ibid [2256]–​[2270]. 88 ibid [2289]–​[2308]. 89 ibid [212], [3089]. See also Ongwen Confirmation of Charges (n 75) [137]. 90 Ongwen Trial Judgment (n 79) [2098]–​[2142] details the coordinated and systematic nature of the abduction of girls and women. 91 ibid [3021]–​[3100].

222  Melanie O’Brien The Pre-​Trial Chamber noted that, prior to the arrival of these armed groups in Timbuktu, ‘people could choose to enter into a relationship without marriage’, and ‘many couples lived without being married’.92 If couples did choose to marry, it would be done with family consent and through a traditional ceremony, but once the armed groups banned gatherings, marriages had to occur in mosques.93 Members of the armed groups, including leaders, forcibly married people from the local population. Witnesses noted that ‘once an individual joined the armed groups, he received a woman’.94 The forced marriages were public knowledge, with ‘everyone aware that intermediaries, or mediators, exercised pressure on families to marry off their girls’.95 The Islamic Police were also part of the forced marriage process, both through gaining their own ‘wives’ and through ‘convincing’ women to return to their ‘husbands’; they also profited monetarily from their role.96 The testimonies contained in the Confirmation of Charges demonstrate that, to force them into marriage, girls and women were threatened with violence or death by armed men and subjected to violence and, within the ‘marriage’, raped.97 The forced marriages had two objectives. First, the armed groups sought to ‘implant themselves in the population to better solidify their grip on the territories they controlled’, mixing the ‘jihadists’ with the population and creating a new generation.98 Second, the marriages were a means by which to religiously ‘legitimize’ sexual assault through which the sexual needs of members of the armed groups were granted as a reward.99 Those who married were given money and accommodation.100 The marriages were perceived as temporary, only destined to last the duration of the time that the armed group members were physically present in Timbuktu, and the men could get a divorce if they so decided.101 c) The ICC’s interpretation of forced marriage in Ongwen and Al-​Hassan The ICC’s judges have adopted consistent approaches to forced marriage in the Ongwen and Al-​Hassan cases. They combined analysis from the SCSL and ECCC jurisprudence and set it within a deeper understanding of

92

Al Hassan Confirmation of Charges (n 79) [564]. ibid [565]. 94 ibid [567]. 95 ibid [568], [580]. 96 ibid [582]. 97 ibid [584]–​[637]. NB: these testimonies are partly (sometimes extensively) redacted. 98 ibid [570]. 99 ibid [571]. 100 ibid [573]–​[579]. 101 ibid [581]. 93

Gender Dimensions of Forced Marriage  223 non-​consensual marriage in IHRL. They also responded to past scholarly critique of the SCSL and ECCC approaches. In both cases, the Prosecutor charged acts of forced marriage through the crime against humanity of other inhumane acts under article 7(1)(k) of the Rome Statute, citing SCSL and ECCC practice as precedent.102 Within this context, the Court specifically framed forced marriage as a violation of IHRL, citing a wide variety of sources such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, noting that ‘[e]‌very person enjoys the fundamental right to enter a marriage with free and full consent of another person’.103 At the same time, judges in both Ongwen and Al Hassan noted that the union within the charge of forced marriage does not need to be a marriage under domestic law. The Pre-​Trial Chamber in Al Hassan stated that the prosecution is not required to prove that ‘an official or formal marriage’ took place (i.e. a wedding ceremony), but that the situation exists from the subjective perspective of the victim, third parties, and the perpetrator, and of the intention of the perpetrator to consider the couple as married.104 Consequently, the ‘marriage’ does not have to be legally recognized by national law.105 In Ongwen, the Trial Chamber found that the LRA created a quasi-​institution of ‘marriage’ regulated by a specific set of rules.106 The Pre-​ Trial Chamber indicated that ‘[t]he fact that such “marriage” is illegal and not recognised by, in this case, Uganda, is irrelevant’.107 Building on the Court’s focus on non-​consent to a quasi-​marriage status, the Trial Chamber in Ongwen held that the ‘central element’ of forced marriage ‘is the imposition of this status on the victim’, as well as ‘duties that are associated with marriage’ and ‘the consequent social stigma’.108 The Court noted that the term ‘spouse’ ‘could represent a deliberate and strategic choice [by the perpetrators] and a psychological manipulation’ of the victims.109 The Pre-​Trial

102 Ongwen Trial Judgment (n 79) [2744]; Al Hassan Confirmation of Charges (n 79) [555]–​[561]. 103 Ongwen Trial Judgment (n 79) [2748], including fn 7210 citing multiple human rights law sources on the right to freedom of marriage. This was echoed in Al Hassan Confirmation of Charges (n 79) [554], including fn 1479. 104 Al Hassan Confirmation of Charges (n 79) [556]. 105 ibid [557]. 106 Ongwen Trial Judgment (n 79) [2202], [2228]. 107 Ongwen Confirmation of Charges (n 75) [93]. 108 Ongwen Trial Judgment (n 79) [2748]; Al Hassan Confirmation of Charges (n 79) [553], [558]. The court found there to be many ‘social, ethical and even religious effects’ of forced marriage, as well as harm suffered to the ‘victim’s physical and psychological well-​being’, including ‘being ostracised from the community, mental trauma, the serious attack on the victim’s dignity, and the deprivation of the victim’s fundamental rights to choose his or her spouse’: Ongwen Trial Judgment (n 79) [2748], [2749]. 109 Al Hassan Confirmation of Charges (n 79) [555].

224  Melanie O’Brien Chamber in Al Hassan also recognized that children are born of forced marriage may also be subject to ostracism and stigmatization.110 The ICC specifically differentiated forced marriage from enslavement, reasoning that forced marriage ‘implies the imposition of . . . conjugal association’ rather than ownership over a person.111 The Court also differentiated forced marriage from sexual slavery, holding that ‘forced marriage penalises the perpetrator’s imposition of “conjugal association” with the victim’,112 and does ‘not only take into account the sexual aspect’.113 This consideration was brief, indicating that the ICC has moved on from the discussion of forced marriage as slavery or sexual slavery, considering it now accepted that the crime of forced marriage is prosecuted as the crime against humanity of an other inhumane act.114 Ultimately, both cases defined forced marriage as ‘forcing a person, regardless of his or her will, into a conjugal union with another person by using physical or psychological force, threat of force or taking advantage of coercive environment’.115 This approach reflects some of the SCSL and ECCC’s focus on coercion and control, while embedding the definition within the IHRL norm of non-​consent to the ‘marriage’ status and its consequent duties. The Court also determined that forced marriage is a continuing crime, covering the entire period of the forced conjugal relationship, only ending ‘when the individual is freed from’ the forced relationship.116 d) Gender elements of the ICC cases The evidence of forced marriage presented in both the Ongwen and Al Hassan cases is of girls and women forcibly married to male perpetrators. The situation under the LRA was, however, nuanced. Some scholars have noted that the situation of forced marriage in the LRA favoured the male commanders, with ‘wives’ being imposed on lower-​ranking male members.117 They note that, while some of the male LRA soldiers (above the rank of Sergeant) were able 110 ibid [555]. This possible stigmatization was deemed to constitute a part of the elements of an inhumane act. 111 Ongwen Trial Judgment (n 79) [2750]. 112 ibid [2750]. 113 Al Hassan Confirmation of Charges (n 79) [553]. 114 Compared with the longer discussion in the confirmation of charges: Ongwen Confirmation of Charges (n 75) [92]–​[94]. 115 Ongwen Trial Judgment (n 79) [2751]; Al Hassan Confirmation of Charges (n 79) [559]. 116 Ongwen Trial Judgment (n 79) [2752]. 117 Omer Aijazi and Erin Baines, ‘Relationality, Culpability and Consent in Wartime: Men’s Experiences of Forced Marriage’ (2017) 11 International Journal of Transitional Justice 463 (hereafter Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’); Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2).

Gender Dimensions of Forced Marriage  225 to choose their ‘wives’, others were not, with former LRA soldiers stating that ‘wives’ were given through pressure and even under threat of punishment for ‘refusing a girl given to you as a wife’.118 Refusing a wife could be seen as ‘an act of indiscipline’.119 The range of punishment is not comprehensively reported, but could include demotion or harsh punishment.120 Some of the soldiers were just boys, and were too young to want a wife.121 Thus, scholars raise the possibility that, apart from the victim-​‘wives’, some ‘husbands’ were also subjected to forced marriage.122 At the same time, it is clear that any imposition on the men was not equal to the experience and coercion of the girls and women. Men reported being able to negotiate their choice of wife with their commander; or asking for a wife because they wanted one.123 Others talked about enjoying ordering the abduction of girls; still others blatantly discussed raping girls and women who were their ‘wives’, well aware that the ‘wives’ did not want to engage in sex with them.124 One witness who testified in the Ongwen case stated that ‘[i]‌n the bush it’s not easy to get a woman so it is not logical to reject the woman unless the woman is really ugly or repellent’, thus indicating that refusal was possible.125 The descriptions of the experiences of the former LRA soldiers remain inherently connected with the coercion of the girls and women. Aijazi and Baines note that their interviewee CO ‘was forced to marry a woman he regarded as disrespectful and repugnant’.126 This perception of his ‘wife’ as ‘disrespectful and repugnant’ could easily come from her behaviour of refusing to undertake chores or engage in sex, which is clear from the testimonies in Ongwen was a common reaction by the girls and women. Ultimately, CO was able to make a case for his ‘wife’ to go to another home, but she remained in a forced marriage, passed around like property. Denov and Drumbl note that ‘many participants narrated positive sentiments regarding their wives and children. Participants expressed how their wives supported them by completing household chores

118 Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’ (n 117) 476; Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2) 360. 119 Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2) 360. 120 ibid. See also Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’ (n 117) refers to the males not having a choice, but does not mention punishment. 121 Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2) 360. 122 Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2); Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’ (n 117). 123 Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’ (n 117) 476. 124 Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2) 359. 125 This comment is also misogynist, demonstrating the perception of girls/​women in the LRA: an overarching perception that only beautiful and obedient girls/​women were marriageable. 126 Aijazi and Baines, ‘Relationality, Culpability and Consent in Wartime’ (n 117) 477. This is also another misogynist comment.

226  Melanie O’Brien and caring for children’.127 Yet the ‘wives’ were all forced to do household chores and care for children, so it is a misnomer to say that it is a ‘positive sentiment’ from an LRA soldier to say that his ‘wife’ did household chores to support him. Thus, in the LRA context, even though the marriages were not always by choice for some of the male soldiers, the circumstances were far less violent than those of the girls and women, and for many, there was still freedom of negotiation and choice within that ‘marriage’. Thus, any assessment of the male experience must be considered with nuance, in light of the experiences of the girls and women in these forced marriages. The ICC’s Office of the Prosecutor (OTP) and the judges missed the chance to examine these nuances in Ongwen. The prosecution presented forced marriage as a crime committed against abducted women and girls, while the defence countered that both females and males in the ‘marriage’ relationships were compelled to follow the requirement of ‘marriage’.128 The judges determined that the imposition of marriage on men ‘was not an issue in the LRA’.129 Even so, the Court heard testimony relating to punishment of men if they refused a marriage, which included not being given a wife for a long time; beating; or having to give an explanation for the refusal.130 For example, P-​0142 testified that a man could refuse a wife multiple times, after which, ‘it raises questions’.131 The Court found that there was no decisive evidence that, if a man refused a wife, he would be killed (unlike the girls and women, who were threatened with death for refusal).132 While the testimony certainly demonstrates the difference in the coercive circumstances for the males and the females, it does seem that the Court did not adequately assess the claims of male victimization or contextualize the men’s experience within the coercive environment the girls and women experienced.133 One way in which the ICC has acknowledged the gendered nature of the crimes committed by the LRA emerged in the Ongwen Sentence Judgment, in which the Trial Chamber determined that an aggravating factor in sentencing of Ongwen for the crime of forced marriage was that the crimes were

127 Denov and Drumbl, ‘The Many Harms of Forced Marriage’ (n 2) 361. 128 Ongwen Trial Judgment (n 79) [2229]. 129 ibid. 130 ibid [2229] fn 6141. 131 ibid. 132 ibid. The coercive environment for the girls and women is detailed at ibid [2183]–​[2195]. 133 Oosterveld, ‘Lessons from the Special Court for Sierra Leone’ (n 34) 420–​24 notes that consideration of evidence must be gender-​sensitive. This does not mean only taking women’s experiences into account; the experience of men, women and non-​binary persons should be examined and contextualized.

Gender Dimensions of Forced Marriage  227 committed for a discriminatory motive, on the grounds of gender.134 This determination drew on the ‘coordinated and methodical effort . . . to abduct women and girls’, forcing them into ‘marriage’ and as domestic servants.135 This is a positive sentencing decision, which will hopefully bleed into future trial (and appeal) judgments.

D.  The Gendering of Forced Marriage in Atrocities and International Criminal Law Forced marriage taking place within the context of armed conflict or mass atrocity is a highly gendered crime. Socially constructed gender norms inform the selection of targets for forced marriage—​largely women and girls—​because of assumptions by perpetrators that females should tend to the domestic and sexual needs of male fighters, and should give birth to and raise the next generation of fighters. Even in cases in which both men and women are forced to marry, such as that of the Khmer Rouge regime, women and girls are often subjected to additional gender-​specific victimization. In Uganda, while there were elements of victimization of the younger male soldiers in the context of forced marriage, the evidence indicated that the persistently violent victimization experienced by the girls and women was of a different order of magnitude, stripping the women and girls of any agency. All the cases of forced marriages considered here—​Sierra Leone, Cambodia, Uganda, and Mali—​contained a striking common element: an entrenched common plan or policy of forced marriage created and implemented by male leadership. The SCSL found that the rebels implemented a widespread, organized plan to carry out forced marriage.136 The ECCC notes that Pol Pot and Khieu Samphan, as leaders of the Khmer Rouge, specifically promoted the Khmer Rouge policies of forced marriage.137 Likewise, the ICC found a common plan of abduction and forced marriage between Joseph Kony, Dominic Ongwen, and other LRA leaders.138 In Mali, the ICC accepted evidence demonstrating collaboration between armed groups and local police to systematically force girls and women into marriage.139 Thus, formation and 134 Prosecutor v Dominic Ongwen (Sentence) [2021] ICC-​02/​04-​01/​15 [288]. For more on gender-​ based persecution, see Rosemary Grey and others, ‘Gender-​Based Persecution as a Crime Against Humanity: The Road Ahead’ (2019) 17 Journal of International Criminal Justice 957. 135 ibid. 136 RUF Trial Judgment (n 24) [1465], [2070], [2158]–​[2159]. 137 Case 002/​02 (n 54) [3567], [3569]. 138 Ongwen Trial Judgment (n 79) [212], [3089]. 139 Al Hassan Confirmation of Charges (n 79) [582].

228  Melanie O’Brien execution of forced marriage policy is the male domain, in which male military and political leaders preside over a patriarchal structure within a conflict rife with hegemonic masculinity.140 Additionally, forced marriage policy includes the use of rape (and sexual violence more broadly).141 This violence is ‘a socially sanctioned extension of male authority, a way to achieve and maintain power and authority over women’.142 The gendered aspects of the crimes of forced marriage and rape are not considered by the courts and tribunals. The treatment of girls and women through forced marriage in atrocity contexts is not contextualized by international courts and tribunals within broader societal discrimination and violence against women or, if discrimination against women is mentioned, it is brief.143 In contrast, two international courts have essentially excluded the possibility of men’s victimization within forced marriage, albeit in two different situations. The ECCC’s finding on rape within forced marriage excludes men from victim status and the ICC dismissed the suggestion that LRA soldiers were also subject to coercion in the marriage. While the experience of women in forced marriage in both the Cambodian and LRA cases was different from, and particularly more violent than, that of men, this should not result in the exclusion of justice for men who may also be victims. Forced marriage is often carried out against a group’s own women.144 This demonstrates that forced marriage as we have seen in most of these case studies 140 Raewyn Connell, ‘The Study of Masculinities’ (2014) 14 Qualitative Research Journal 5; Raewyn Connell, Masculinities (2nd edn, Polity 2005); Eli Mechanic, ‘Why Gender Still Matters: Sexual Violence and the Need to Confront Militarized Masculinity—​A Case Study of the Conflict in the Democratic Republic of the Congo’ (Partnership Africa Canada 2004) accessed 3 September 2021; Paul Higate (ed), Military Masculinities: Identity and the State (Praeger 2003). 141 It is sometimes stated that rape did not take place under the Khmer Rouge, because they had a law prohibiting ‘moral misconduct toward women’. However, this is a misconception; many women experienced rape, often at torture centres before they were killed: see eg Theresa de Langis, ‘ “This is Now the Most Important Trial in the World”: A New Reading of Code #6, the Rule Against Immoral Offenses Under the Khmer Rouge Regime’ (2014) 3 Cambodia Law and Policy Journal 61. 142 Baumeister, Sexualised Crimes (n 21) 48. 143 See eg AFRC Appeal Judgment (n 24) [127]; AFRC Trial Judgment (n 31) Separate Concurring Opinion of Justice Sebutinde, [11]; RUF Trial Judgment (n 24) [1469]. Consistently contextualizing forced marriage within pre-​existing cultural gender norms would increase and emphasize the connection of forced marriage to the violation of women’s human rights. 144 Most case studies here included situations where ‘own group’ women were targeted, except for in Mali. The author has also met a Bosnian woman who was forcibly married to a Serb man during the 1990s conflict in the former Yugoslavia. Instances of forced marriage in that conflict are under-​ researched. In a footnote in one case, the ICTY mentioned forced marriage as a crime of sexual violence, although it did not provide a definition or explore any incidents of forced marriage in the former Yugoslavia conflict: Prosecutor v Kvočka et al (Trial Judgment) IT-​98-​30/​1-​T (2 November 2001) fn 343. There were women who were kept as sexual slaves and also made to undertake domestic duties, but were not given the status of or considered to be a ‘wife’, and usually there was no exclusivity, as victims were used for sexual purposes by multiple men: see eg Prosecutor v Kunarac et al (Trial Judgment) IT-​ 96-​23-​T & IT-​96-​23/​1-​T (22 February 2001) [728]–​[742].

Gender Dimensions of Forced Marriage  229 is not a crime carried out specifically to target the enemy, to demonstrate superiority over the enemy’s men. Rather, it is a crime of control over, for the most part, girls and women. Within forced marriage, women are victims because they are women, and even when men are also victims, women experience additional, more violent victimization because they are women. Gender as a social construct posits women’s role to undertake domestic tasks, provide sexual services, and reproduce. This role has no greater manifestation than in marriage, which, when undertaken between two consenting adults, can be a wonderful, cooperative, and loving relationship. Without consent, it is a deprivation of the right to family and the right to liberty and security of person, personification of domination over and subordination of women; all of which is amplified when it is carried out in the context of armed conflict, crimes against humanity, or genocide. The recognition of this gendered dimension of forced marriage is lacking in international criminal jurisprudence. Within its rulings so far, the ICC has produced a comprehensive definition of forced marriage, drawing from IHRL, that could be developed into a new provision of the Rome Statute to make forced marriage a stand-​alone crime against humanity and war crime. It has also recognized the gendered nature of forced marriage as an aggravating factor in sentencing. Now it remains for the ICC in future judgments to expressly acknowledge and further elaborate on the highly gendered character of forced marriage as an atrocity crime.

9 Reproductive Crimes in International Criminal Law Rosemary Grey*

A.  Introduction In 2021, the International Criminal Court (ICC) handed down its first conviction for ‘forced pregnancy’ in the case against Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), a rebel group in Uganda.1 This judgment was not just a ‘first’ for the ICC; it was the first time that any international court had convicted any person for forced pregnancy as a war crime or crime against humanity. ‘The crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy and the right to family’, observed the ICC Trial Chamber in this history-​making decision.2 This statement echoed the submissions of the ICC Office of the Prosecutor (OTP), which throughout trial, had emphasized the violation of the ‘reproductive autonomy’ of the women and girls within the LRA. But the high watermark for recognizing reproductive autonomy in ICL to date has been the Ongwen appeal proceedings in 2021 and 2022, in which the OTP, victims’ legal representatives and multiple amici curiae all urged the Appeals Chamber to affirm that reproductive autonomy is the legal interest protected by the crime of forced pregnancy.3 * Rosemary Grey thanks Daniela Kravetz, Indira Rosenthal, Susana SáCouto, Valerie Oosterveld, and Michelle Jarvis for their comments on previous drafts. She also acknowledges, with gratitude, the contributions of all co-​authors of the 2021 ICC amicus curiae brief titled ‘Amici Curiae Observations on the Rome Statute’s definition of “forced pregnancy” by Dr Rosemary Grey, Global Justice Center, Women’s Initiatives for Gender Justice and Amnesty International’, particularly Akila Radhakrishnan, Alix Vuillemin and Matthew Cannock, as well as Jonathan O’Donohue and other colleagues with whom she worked to develop Amnesty International’s 2020 paper ‘Forced Pregnancy: A Commentary on the Crime in International Criminal Law.’ 1 Prosecutor v Ongwen (Trial Judgment) [2021] ICC-​02/​04-​01/​15-​1762-​Red (hereafter Ongwen Trial Judgment). 2 ibid [2717], [2722]. 3 Prosecutor v Ongwen (Prosecution’s Closing Brief) [2020] ICC-​02/​04-​01/​15-​1719-​Red [162] (emphasis added). Regarding the appeals proceedings, see: Prosecutor v Ongwen (Public redacted version of

​

​

232  Rosemary Grey The attention to reproductive autonomy in the Ongwen case is remarkable, given that this topic has until recently been largely ignored in the field of international criminal law (ICL). Twenty-​five years ago, when the United Nations (UN) Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY), the concept of reproductive autonomy was virtually invisible in this legal system. Its violation was not expressly defined as a war crime or crime against humanity in key instruments—​the charters of the Nuremberg and Tokyo Tribunals, the ‘grave breach’ provisions of the 1949 Geneva Conventions, or their 1977 Additional Protocols—​and, although the 1948 Genocide Convention defined ‘imposing measures to prevent births’ as an act of genocide, the original goal was to protect the group’s existence, not the reproductive choices of its members.4 In the intervening years, progress toward prosecuting reproductive violence under international law has been slow. Most forms of reproductive violence, such as being forced to impregnate another person, or being forced to conceive, to breastfeed, to use contraception, to procure an abortion, or to continue with an extant pregnancy, are yet to be expressly criminalized in international instruments. Reproductive violence has also been largely peripheral to the practice of international criminal courts. For example, neither the ICTY nor the International Criminal Tribunal for Rwanda (ICTR) prosecutors brought charges for the conduct of forcibly impregnating women, even though thousands of people were forcibly impregnated in the conflicts in the former Yugoslavia and Rwanda, and this conduct could arguably have been charged using crimes such as ‘outrages on personal dignity’ or ‘other inhumane acts’.5 ‘Prosecution Response to “Defence Appeal Brief Against the Convictions in the Judgment of 4 February 2021”  ’) [2021] ICC-​02/​04-​01/​15-​1882-​Red [578]; Prosecutor v Ongwen (Amici Curiae Observations on Sexual-​and Gender-​Based Crimes, Particularly Forced Pregnancy, and on Standards of Proof Required for Sexual and Reproductive Violence Pursuant to Rule 103 of the Rules of Procedure and Evidence) [2021] ICC-​02/​04-​01/​15-​1933 [3]‌–[​ 9]; Prosecutor v Ongwen (Amici Curiae Observations on the Rome Statute’s definition of ‘forced pregnancy’ by Dr Rosemary Grey, Global Justice Center, Women’s Initiatives for Gender Justice and Amnesty International) [2021] (hereafter ‘Grey et al amicus brief ’), [34]–​[39]; Prosecutor v Ongwen (Amici curiae observations submitted by Prof. Bonita Meyersfeld and the Southern African Litigation Centre Trust pursuant to rule 103 of the Rules of Procedure and Evidence) [2021] [16]; Prosecutor v Ongwen (Prosecution Response to Amici Curiae observations) [2022] ICC-​02/​04-​01/​15-​1952 [49]; Prosecutor v Ongwen (CLRV consolidated response to the Amici Curiae observations in the Defence’s Appeals against the Conviction and the Sentence) [2022] [38]; Prosecutor v Ongwen (Victims’ Observations on amici curiae submissions) [2022] [40], [46]–​[47]; Prosecutor v Ongwen (Transcript of appeal hearing on 15 February 2022) [2022] ICC-​02/​04-​01/​15-​T-​ 264-​ENG 30, 37–​38, 47–​48, 51, 67–​73, 75, 94. 4 William Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, CUP 2009) 197–​98; Rosemary Grey, ‘The ICC’s First “Forced Pregnancy” Case in Historical Perspective’ (2017) 15 Journal of International Criminal Justice 905 (hereafter Grey, ‘The ICC’s First “Forced Pregnancy” Case’). 5 Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4) 915–​17, 928. See also Saeeda Verrall, ‘The Picture of Sexual Violence in the Former Yugoslavia Conflicts as Reflected in ICTY Judgments’ in Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 299, 329 (hereafter Verrall, ‘Sexual Violence’).

Reproductive Crimes in International Criminal Law  233 In 1998, the Rome Statute establishing the ICC became the first international instrument to expressly define forced pregnancy and forced sterilization as crimes under international law. However, forced pregnancy has been charged in just one case so far (Ongwen), and forced sterilization is yet to be charged. In earlier ICC cases, many incidents of reproductive violence went uncharged. For example, during the Lubanga trial, from the situation in the Democratic Republic of Congo, a prosecution witness testified that female child soldiers in Lubanga’s group were impregnated through rape and some were forced to have abortions, suggesting that both forced impregnation and forced abortion had occurred. The victims’ counsel asked the Trial Chamber to re-​characterize these facts and thereby add new charges, including a charge of cruel or inhumane treatment for the forced impregnation and forced abortion. However, the Trial Chamber determined it could not add those charges because, due to the prosecution’s omissions at the pre-​trial stage, the evidence of sexual and reproductive violence fell outside the scope of the charges against Lubanga.6 In the Bemba case, from the situation in the Central African Republic, the prosecution alleged that many female victims of rape became pregnant as a result. However, it did not bring charges for the conduct of forcibly impregnating women. Instead, the forced impregnation was treated as a consequence of rape.7 A more recent example of sidelining reproductive violence can be seen in the 2019 judgment of the Extraordinary Chambers in the Courts of Cambodia (ECCC).8 The judgment concerns crimes committed by the so-​called ‘Khmer Rouge’, i.e. the Communist Party of Kampuchea, from 1975 to 1979. After legal proceedings that stretched over a decade, two former Khmer Rouge leaders were convicted of war crimes, genocide, and crimes against humanity. During their trial, there was extensive evidence showing that men and women were forced into marriages, which they had to ‘consummate’ in order to produce more workers and soldiers for the state.9 And yet there were no charges or convictions for this forced breeding. The charges of sexual and gender-​based violence were limited to forcing people into marriages and rape within those marriages, but not for the related conduct of forcing men to impregnate women

6 Prosecutor v Lubanga (Judgment) [2012] ICC-​01/​04-​01/​06-​2842, [629]–​[631]. See also Rosemary Grey, Prosecuting Sexual and Gender-​Based Crimes at the International Criminal Court (CUP 2019) 136–​37 (hereafter Grey, Prosecuting); Yassin Brunger, Emma Irving, and Diana Sankey, ‘Prosecutor v Thomas Lubanga Dyilo’ in Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart 2019) 434. 7 Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4), 924. 8 Case 002/​02 against Nuon Chea and Khieu Samphan (Judgment) [2019] 002/​19-​09-​2007/​ECCC/​TC (hereafter Case 002/​02). 9 ibid [3549]–​[3558].

234  Rosemary Grey (which is distinct from the actus reus of rape, and constitutes a separate indignity), or forcing women to endure pregnancy and childbirth—​a grave violation of their dignity and autonomy, which was made worse due to their simultaneous experience of starvation, forced labour, and the denial of basic medical care.10 Mindful of these silences around reproductive crimes in international criminal tribunals since the 1940s this chapter seeks to incentivize greater attention to reproductive violence in ICL going forward. In writing this chapter, I recognize that the issue of reproductive autonomy continues to be controversial in many countries, even though rights pertaining to reproductive autonomy are protected in numerous international and regional human rights instruments. Although some states have taken concrete steps to protect reproductive autonomy within their borders, achieving an international consensus on this issue has proved extremely difficult. As a result, we are unlikely to see an international instrument that expressly criminalizes further reproductive crimes in the foreseeable future. However, such an instrument would be largely unnecessary if prosecutors and judges make full use of existing crimes under international law, which as this chapter shows, have untapped potential when it comes to prosecuting violations of reproductive autonomy. The term ‘reproductive violence’ is not defined in any instrument of ICL, and is not yet widely used in this field. For that reason, the chapter starts by explaining the concept of reproductive violence and its links to gender, race, and other identities. I then trace the fraught process of ‘surfacing’ reproductive violence in ICL, taking into account broader debates about global ‘over-​ population’, women’s empowerment, and human rights. This historic overview gives a sense of the political challenges to protecting and promoting the value of reproductive autonomy in international law. Finally, the chapter explores strategies for prosecuting violations of reproductive autonomy in the ICC and other international courts. This is the most ‘practice-​oriented’ section of the chapter, and includes a discussion of genocide, forced pregnancy, enslavement, sexual violence, persecution, outrages on personal dignity, torture, and inhumane acts.

10 Rosemary Grey, ‘Seen and Unseen: Sexual and Gender-​Based Crimes in the Khmer Rouge Tribunal’s Case 002/​02 Judgment’ (2019) 25(3) Australian Journal of Human Rights 466 (hereafter Grey, ‘Seen and Unseen’); Patricia Viseur Sellers, ‘Wartime Female Slavery: Enslavement?’ (2011) 44 Cornell International Law Journal 115, 141–​42 (hereafter Sellers, ‘Enslavement’).

Reproductive Crimes in International Criminal Law  235

B.  Understanding Reproductive Violence Most of the acts described in this chapter as ‘reproductive violence’ could also be described as ‘sexual violence’.11 However, the term ‘reproductive violence’ has certain advantages. First, when identifying the gaps in the jurisprudence of international criminal courts, the term ‘sexual violence’ is overly broad. We need more precise language to explain that although certain types of sexual violence (such as the rape of women and girls) are now widely prosecuted, other types more closely linked to reproduction (such as forced pregnancy, forced childbirth, forced sterilization, and forced abortion) are not. Moreover, the term ‘sexual violence’ does not clearly describe the harms produced by the latter crimes. It suggests that the primary harm is the violation of the victim’s sexual autonomy, which has been recognized as a distinctive harm of rape and other sexual offences.12 Yet there is an additional value which is offended by reproductive violence: that value is reproductive autonomy, i.e. the ability to freely determine one’s reproductive choices, including whether and in what circumstances to reproduce.13 Scholars in other fields have therefore used terms such as ‘reproductive violence’ and ‘reproductive abuse’ to describe violations of this nature,14 and scholars and practitioners in ICL are also starting to embrace those terms.15

11 For example, ICTY jurisprudence describes forced pregnancy, enforced sterilization, and forced abortion as ‘sexual violence’: Prosecutor v Kvočka et al (Judgment) IT-​98-​30/​1-​T (2 November 2001) fn 343. Forced pregnancy and forced sterilization are also described as ‘sexual violence’ in the Rome Statute: Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi). 12 Prosecutor v Kunarac et al (Judgment) IT-​96-​23-​T&IT-​96-​23/​1-​T (22 February 2001) [457]. 13 Kristen Boon, ‘Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent’ (2001) 32 Columbia Human Rights Law Review 625 (hereafter Boon, ‘Rape and Forced Pregnancy’). 14 eg Pamela Bridgewater, ‘Ain’t I a Slave: Slavery Reproductive Abuse, and Reparations’ (2005) 14(1) UCLA Women’s Law Journal 89 (hereafter Bridgewater, ‘Ain’t I a Slave’); Colleen Duggan, Claudia Paz y Paz Bailey, and Julia Guillerot, ‘Reparations for Sexual and Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru’ (2008) 2 International Journal of Transitional Justice 192; Shana Griffin and Clyde Woods, ‘The Politics of Reproductive Violence’ (2009) 61 American Quarterly 583. 15 eg Kelly Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (Martinus Nijhoff 1997) 397–​403; Boon, ‘Rape and Forced Pregnancy’ (n 13) 630, 638, 664, 673; Dieneke de Vos, ‘Can the ICC prosecute forced contraception?’ (IntLawGrrls, 14 March 2016) accessed 13 May 2020 (hereafter de Vos, ‘Forced Contraception’); Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4); Grey, ‘Seen and Unseen’ (n 10); Ciara Laverty and Dieneke de Vos, ‘ “Ntaganda” in Colombia: Intra-​Party Reproductive Violence at the Colombian Constitutional Court’ (OpinioJuris, 25 February 2020) accessed 13 May 2020 (hereafter Laverty and de Vos, ‘ “Ntaganda” in Colombia’); see also legal submissions cited in n 3.

236  Rosemary Grey In short, reproductive violence can be considered a sub-​set of sexual violence. Its distinctive feature, I posit, is that people’s reproductive health and autonomy is damaged, sometimes irreparably. Often, this damage is intentional—​the victims are dehumanized, or subjected to physical or psychological injury, based on a belief that their reproductive capacity is a resource to be commandeered for political, ideological, or economic ends. Put simply, people are treated as mere people-​generators, rather than bearers of aspirations, dignity, and rights. Like other types of sexual violence, reproductive violence can be committed by (and against) persons of any sex. And like other types of sexual violence, its commission is linked to ideas such as gender, race, and ethnicity. Each of these categories is socially constructed: they develop when people take an observable difference between people and imbue it with significance, such as ascribing people different roles and status depending on their body shape, skin colour, or ancestry. As well as organizing people into groups, these constructs function as hierarchies, with the result that some people are viewed as ‘things’—​as less human than others, or not human at all. For example, women are often seen as subordinate to men, and women of marginalized races are often regarded as more dispensable and more subhuman still.16 Such prejudices contribute to many kinds of violence, including reproductive violence. For instance, Patricia Viseur Sellers and Pamela Bridgewater have analysed the ways that ideas of gender and race contributed to reproductive violence during the period of American slavery.17 As part of their unfettered ownership of slaves’ bodies, slave-​owners bought and sold people, separated families, subjected slaves to forced labour, and raped female slaves for sexual gratification, punishment, and control. In addition, many slave-​owners forced slaves to procreate, thereby producing new slaves—​often ‘bred’ for particular characteristics such as strength—​who could be sold or put to work. This business model proved especially popular after 1808, when federal law made it illegal to import slaves from abroad, prompting slave-​owners to instead expand their stock through forced breeding. It degraded enslaved men and women alike, and women also faced additional injuries associated with pregnancy, childbirth,

16 This discussion of race, gender, and other identities is informed by a vast body of feminist and critical race scholarship: See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987); Kimberlé Crenshaw, ‘Race, Gender, and Sexual Harassment’ (1992) 65 Southern California Law Review 1467; Nivedita Menon, Seeing Like a Feminist (Zubaan/​Penguin Books 2012); Karen Bravo, ‘Black Female “Things” in International Law: A Meditation on Saartjie Baartman and Truganini’ in Jeremy Levitt (ed), Black Women and International Law (CUP 2015) 289. 17 Sellers, ‘Enslavement’ (n 10) 122–​23; Bridgewater, ‘Ain’t I a Slave’ (n 14). See also Chapter 6 by Patricia Viseur Sellers and Jocelyn Kestenbaum in this volume.

Reproductive Crimes in International Criminal Law  237 and forced wet nursing.18 Enabling this practice was a racist and sexist ideology which justified the commodification of dark-​skinned people, their dehumanization compounded by the use of practices modelled on animal husbandry.19 Examples of reproductive violence have been documented in most (if not all) recent armed conflicts, including those where ICL has been applied. For instance, it is well documented that during World War II, the Nazis subjected Jewish and Roma men and women to forced sterilization, and also subjected pregnant women to forced childbirth and forced abortion, depending on the race of the anticipated child.20 In the conflicts that prompted the creation of the ICTY and ICTR, thousands of women became pregnant as a result of rape, a portion of whom were also forced to carry their pregnancies to term under the pretext that the resultant child would carry the rapist’s ethnicity.21 There are many other examples of large-​scale, state-​enabled reproductive violence that have not come to the attention of international criminal courts. One example is the ban on abortion in Romania in the 1960s–​1980s, which combined with restrictions on contraception and relentless propaganda exhorting women to bear children for the state, left several thousand women dead from unsafe abortion and the highest overall maternal mortality rate in Europe.22 Another is China’s so-​called ‘one-​child policy’, which was introduced in 1980 and continued in various forms until 2015.23 Due to over-​zealous implementation by local authorities, this policy led to many instances of forced sterilization, forced abortion, and forced insertion of intrauterine devices or other contraceptives.24 Measures including forced sterilization and marriage restrictions aimed at forcibly changing a country’s racial composition have also been implemented by Peru and the United States (US), among others, and there are reports that Chinese authorities have carried out forced sterilization of Uyghur people in Xinjiang.25 18 Bridgewater, ‘Ain’t I a Slave’ (n 14) 119–​21. 19 ibid. 20 Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4) 910–​15. 21 ibid 915–​17. 22 See Gail Kligman, When Abortion is Banned: The Politics of Reproduction in Ceausescu’s Romania, and After (National Council for Soviet and East European Research 1992) iii, 28–​29, 45. 23 Tom Phillips, ‘China ends one-​child policy after 35 years’ The Guardian (London, 30 October 2015) accessed 13 May 2020. 24 eg Human Rights in China, ‘Caught between Tradition and the State: Violations of the Human Rights of Chinese Women’ (1996) 17(3) Women’s Rights Law Reporter 285, 294–​99; Mei Fong, One Child: The Story of China’s Most Radical Experiment (Houghton Mifflin Harcourt 2016) 60–​62. 25 Carolyn Brown, ‘The Forced Sterilization Program Under the Indian Emergency: Results in One Settlement’ (1984) 43 (1) Human Organization 49; Russell McGregor, ‘ “Breed out the colour” or the importance of being white’ (2002) 33(120) Australian Historical Studies 286; Jocelyn Getgen, ‘Untold Truths: The Exclusion of Enforced Sterilizations from the Peruvian Truth Commission’s Final Report’ (Paper No 1087, Cornell Law Faculty Publications 2009); Mark A Largent, Breeding

238  Rosemary Grey The criminalization of abortion, which continues in many states,26 can also be characterized as reproductive violence. Laws that criminalize abortion offend the dignity of women and girls by limiting their choices about whether to proceed with pregnancy and childbirth. Such laws also increase resort to rudimentary ‘backyard abortions’, with devastating consequences for women’s health and human rights.27 Indeed, the World Health Organization (WHO) has identified unsafe abortion as a leading cause of maternal death, particularly in Africa, where the risk of dying from unsafe abortion is the highest in the world.28 It has recommended the ‘full decriminalization’ of abortion, along with the removal of other legal, policy, and clinical barriers to safe abortion, together with sexuality education and contraception.29 Likewise, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) has consistently called for the decriminalization of abortion.30 Nonetheless, restrictions on abortion are becoming tighter in some places, including in the US,31 and anti-​abortion advocates continue to use the term ‘pro-​life’ to describe laws that, in practice, condemn countless women and girls to death. Non-​state actors also perpetrate reproductive violence, sometimes explicitly citing gendered ideology to justify their actions. For example, the so-​called Islamic State in the Levant (ISIL) has reportedly committed widespread crimes in Iraq and Syria, including raping and impregnating women, and subjecting

Contempt: The History of Coerced Sterilization in the United States (Rutgers University Press 2011); Lisa Reinsberg, ‘China’s Forced Sterilization of Uyghur Women Violates Clear International Law’ (29 July 2020) . 26 26 countries prohibit abortion in all circumstances, and many others prohibit and/​or criminalize it in certain circumstances: Center for Reproductive Rights, ‘The World’s Abortion Laws’ (Center for Reproductive Rights) accessed 6 March 2020. 27 World Health Organization (WHO), Safe abortion: technical and policy guidance for health systems (2nd edn, WHO 2012), 17–​18 accessed 18 May 2020. 28 WHO, ‘Preventing unsafe abortion’ (WHO, 26 June 2019) accessed 14 May 2020. 29 ibid; WHO, Abortion Care Guideline (WHO, 2022) 23 . 30 eg Committee on the Elimination of All Forms of Discrimination against Women Committee (CEDAW Committee), ‘General Recommendation No 24: Article 12 of the Convention (Women and Health)’ (1999) A/​54/​38/​Rev.1 [31]; CEDAW Committee, ‘Concluding observations on the combined third and fourth periodic reports of Saudi Arabia’ (14 March 2018) CEDAW/​C/​SAU/​CO/​3-​4 [47]; CEDAW Committee, ‘Concluding observations on the third periodic report of Afghanistan’ (2 March 2020) CEDAW/​C/​AFG/​CO/​3 [48]–​[49]. 31 Rick Rojas and Alan Blinder, ‘Alabama Abortion Ban is Temporarily Blocked by a Federal Judge’ New York Times (New York, 29 October 2019) accessed 18 May 2020.

Reproductive Crimes in International Criminal Law  239 women to forced abortion.32 Lisa Davis’ study of ISIL propaganda shows that this sexual and reproductive violence is motivated by ideas about men’s right to own and exploit women and girls. As Davis explains, ISIL’s written dogma ‘position wives, mothers, and daughters as enslaved chattel or subhuman, relegated to the domestic sphere to be used to build the caliphate’.33 In the past century, women’s rights activists have taken a lead role in raising issues of reproductive violence in international forums. The next section of the chapter reviews some advances that have been made in this regard, and considers the tensions that have arisen along the way. The analysis is not confined to developments in international criminal law, because in practice, the relevant debates have not been confined to this field. Rather, ICL came late to this issue, after hard-​won gains had already been made in the field of international human rights law.

C.  International Responses to Reproductive Violence The first major development was the 1968 Teheran Declaration, a non-​binding statement adopted in the UN General Assembly, which stated that ‘parents have a basic human right to determine freely and responsibly the number and the spacing of their children’.34 As the first international instrument to frame reproductive choice as a right, this statement is an important building block. 32 See Human Rights and Gender Justice Clinic of CUNY Law School, MADRE, and the Organization of Women’s Freedom in Iraq, ‘Communication to the ICC Prosecutor Pursuant to art 15 of the Rome Statute Requesting a Preliminary Examination into the Situation of: Gender-​Based Persecution and Torture as Crimes Against Humanity and War Crimes Committed by the Islamic State of Iraq and the Levant (ISIL) in Iraq’ (8 November 2017) accessed 18 May 2020 (hereafter MADRE et al, ‘Communication to the ICC Prosecutor’); UN Office of the High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-​called Islamic State in Iraq and the Levant and associated groups’ (27 March 2015) UN Doc A/​HRC/​28/​18 [35]–​[52]; Kenneth Roth, ‘Slavery: The ISIS Rules’ (Human Rights Watch, 5 September 2015) accessed 14 May 2020; Rukmini Callimachi, ‘To Maintain Supply of Sex Slaves, ISIS Pushes Birth Control’ New York Times (New York, 12 March 2016) accessed 14 May 2020; Human Rights Watch, ‘Iraq: Women Suffer Under ISIS’ (Human Rights Watch, 5 April 2016) accessed 14 May 2020; Human Rights Council (HRC), ‘ “They came to destroy”: ISIS Crimes Against the Yazidis’ (15 June 2016) UN Doc A/​HRC/​32/​CRP.2 [42]–​[80] (hereafter HRC, ‘They Came to Destroy’); de Vos, ‘Forced Contraception’ (n 15). 33 Lisa Davis, ‘Reimagining Justice for Gender-​Based Crimes at the Margins: New Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTIQ Persons’ (2018) 24(3) William and Mary Journal of Women and the Law 513, 522. 34 UN General Assembly, ‘Proclamation of Teheran, Final Act of the International Conference on Human Rights’ (13 May 1968) UN Doc A/​CONF 32/​41 [16].

240  Rosemary Grey Yet it is worth recalling that this statement did not originate from a commitment to reproductive rights as such. Rather, it arose due to concerns about global overpopulation, and was intended to ‘pressure less developed states that had resisted the spread of contraceptives within their borders’.35 At the 1974 World Population Conference in Bucharest, the issue of reproductive choice was again overshadowed by concerns about global population growth.36 Several developing states argued that the biggest threat to human rights was the hoarding of wealth and resources in the developed world, rather than population growth per se.37 They insisted that the best way to manage the world’s growing population was to promote development,38 a reasonable point, given that birth rates are typically lower in more prosperous and developed states.39 The conference resulted in the 1974 World Population Plan of Action, which alluded to the threat of overpopulation, while stressing the need to close the gap between rich and poor states.40 It also affirmed that: ‘all couples and individuals have the basic right to decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so’.41 The reference to ‘responsible’ decision-​making meant considering the needs of the broader community, as distinct from purely self-​interested choices.42 Reproductive violence met a very different response in the 1976 International Tribunal on Crimes against Women, which treated reproductive autonomy as a value in its own right. This was not an official court, but a ‘people’s tribunal’ intended to mark ‘the start of a radical decolonization of women’.43 Rejecting orthodox sources of international law, which its creators viewed as ‘patriarchal’, 35 LP Freedman and SL Isaacs, ‘Human Rights and Reproductive Choice’ (1993) 24 Studies in Family Planning 18, 20–​21 (hereafter Freedman and Isaacs, ‘Human Rights’). 36 Helen Hunter, ‘The United Nations World Population Conference 1974 with text of World Population Plan of Action: Discussion Outline, Annotated References and Commentary on Social Welfare Services’ (University of Michigan 1976) 1–​4 accessed 18 May 2020. 37 ibid 21–​22; ‘Speech by Head of the Delegation of the People’s Republic of China at the World Population Conference Bucharest, August 1974’ (1994) 20 Population and Development Review 450. 38 SW Sinding, ‘Overview and Perspective’ in WC Robinson and JA Ross (eds), The Global Family Planning Revolution (World Bank 2007) 1, 6 (hereafter Sinding, ‘Overview and Perspective’). 39 ibid 8. 40 World Population Conference (1974), ‘World Population Plan of Action’ (19–​30 August 1974) UN Doc E/​CONF.60/​19 [14(j)] (hereafter World Population Conference, Plan of Action): ‘The demand for vital resources increases not only with growing population but also with growing per capita consumption; attention must be directed to the just distribution of resources and to the minimization of wasteful aspects of their use throughout the world’. See also Freedman and Isaacs, ‘Human Rights’ (n 35) 22; Sinding, ‘Overview and Perspective’ (n 38) 6–​7. 41 World Population Conference, Plan of Action (n 40) [14(f)] (emphasis added). 42 ibid. 43 Diana Russell and Nicole van de Ven (eds), Crimes Against Women: Proceedings of the International Tribunal (3rd edn, Russell Publications 1990) 5.

Reproductive Crimes in International Criminal Law  241 the tribunal applied a legal framework of its own design.44 This enabled it to recognize violations of reproductive autonomy that had gone unrecognized by states, including ‘forced motherhood’,45 and ‘compulsory non-​motherhood’.46 Over the next decade, women’s rights activists started to organize across borders and find a stronger foothold in official international forums. Consequently, the concept of reproductive autonomy began to transform into a right with legal force. A breakthrough was the 1979 Convention on the Elimination of Discrimination against Women, which guaranteed women and men equal rights ‘to decide freely and responsibly on the number and spacing of their children’.47 However, this right attracted numerous reservations, suggesting that there would be more battles ahead.48 Sure enough, at the 1984 World Population Conference in Mexico, there was a strong anti-​abortion lobby. It succeeded in persuading the Reagan administration to adopt the ‘global gag rule’, which barred any NGO that performed or promoted abortion from receiving US government funding for any purpose, including for the provision of life-​saving prenatal and postnatal healthcare to women and girls.49 Over the next decade, states became increasingly willing to regard reproductive health and autonomy as human rights. At the same time, a strong counter-​movement emerged, led by the Vatican and several majority-​Catholic 44 ibid 7. 45 ibid 13–​25. 46 ibid 26–​28. 47 Convention on the Elimination of all Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) art 16(1)(e). 48 Iraq and Thailand did not consider themselves bound by this right at all; Bahrain, Maldives, and the UAE expressed reservations to the extent that this right conflicted with Sharia law; Malta and Monaco did not agree with the right insofar as it might be read as imposing an obligation to legalize abortion; India agreed to comply only where it would not interfere with the ‘personal affairs’ of a community without its initiative and consent; and Niger stated that this right ‘cannot be applied immediately, as they are contrary to existing customs and practices which, by their nature, can be modified only with the passage of time and the evolution of society and cannot, therefore, be abolished by an act of authority’: CEDAW Committee, ‘Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women’ (10 April 2006) CEDAW/​SP/​2006/​2 accessed 29 May 2020. 49 The ‘global gag rule’ would later be rescinded by the Clinton administration, reinstated by George W Bush, scrapped by Obama, reinstated in an expanded form in by Trump, and most recently, prescribed by Biden: See International Planned Parenthood Foundation, ‘Why we will not sign the Global Gag Rule’ (International Planned Parenthood Foundation, 23 January 2017) accessed 14 May 2020; Jon Sharman, ‘ “Women and children will die” because of Donald Trump’s global gag rule, charities claim’ The Independent (London, 16 May 2017) accessed 18 May 2020; Center for Reproductive Rights, ‘Biden Administration Rescinds Global Gag Rule’ (Center for Reproductive Rights, 1 February 2021) .

242  Rosemary Grey and majority-​ Muslim countries.50 For example, at the 1995 UN World Conference on Women in Beijing, reproductive rights proved controversial. The majority of states supported these rights, leading to a Declaration affirming that ‘the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment’.51 However, it was opposed by several states who had resisted the concept of reproductive rights at the International Conference on Population and Development in Cairo the year before.52 In the early 1990s, the battle over reproductive rights began to spill over into ICL. The main catalyst was reporting from the Bosnian war, which indicated that non-​Serbian women were being raped and detained by Serb forces so that they would bear ‘Serbian’ babies—​the assumption being that ethnicity was passed down the father’s line.53 These reports caught the attention of women’s rights activists, with high-​profile responses including two civil suits in 1993 against Radovan Karadžić, then President of the Republika Srpska, for the ‘rape, forced prostitution, forced pregnancy, forced childbirth, and gender and ethnic discrimination’ allegedly committed by his troops.54 That same year, the (American) Center for Reproductive Rights published a report arguing that ‘forced impregnation’ of the type seen in Bosnia-​Herzegovina should be

50 Babatunde Osotimehin, ‘Introduction’ in UN, International Conference on Population and Development Programme of Action (UNFPA 2014) x–​xiii; UN, International Conference on Population and Development (UNFPA 2014) 186–​ 204; Carmel Shalev, ‘Rights to sexual and reproductive health: The ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women’ (2000) 4(2) Health and Human Rights Journal 38, 39–​40. 51 UN Fourth World Conference on Women, ‘Beijing Declaration and Platform of Action’ (15 September 1995) UN Doc A/​CONF.177/​20 [92]. 52 Dianne Otto, ‘Holding up Half the Sky, but for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women’ (1996) 6(1) Australian Feminist Law Journal 7, 15–​16. 53 Robert Fisk, ‘Bosnia war crimes: The rapes went on day and night’ The Independent (London, 8 February 1993) accessed 18 May 2020; Tadeusz Mazowiecki, ‘Annex II: Report on the situation of human rights in the territory of the former Yugoslavia’ (10 February 1993) UN Doc E/​CN.4/​1993/​50 [48]. 54 The claims were filed in 1993 on behalf of survivors of the crimes by US lawyer Catharine MacKinnon (acting for one plaintiff) and The Center for Constitutional Rights, the CUNY Women’s Human Rights Clinic and the International League for Human Rights (for the other plaintiff). They were brought under the Alien Tort Statute, which gives US district courts jurisdiction over civil actions against foreign nationals for torts ‘committed in violation of the law of nations or a treaty of the United States’. The plaintiffs were supported by a range of women’s rights groups acting as amicus curiae, who argued that this sexual and reproductive violence constituted war crimes, crimes against humanity, and genocide. The claim succeeded and the plaintiffs were awarded US$745 million, although those damages were never paid. See Doe v Karadžić, 866 F Supp 734 (SDNY 1994); Nancy Kelly, Doe v Karadžić: Brief Amici Curiae from Alliances et al (17 January 1995) accessed 15 May 2020; Rosalind Dixon, ‘Rape as a Crime in International Humanitarian Law: Where to from Here?’ (2002) 13 European Journal of International Law 697, 706.

Reproductive Crimes in International Criminal Law  243 a crime under international law.55 It defined this crime in terms of the intentional act of making a woman pregnant by force, stating: ‘Forced impregnation’ can be defined as an impregnation that results from an assault or series of assaults on a woman perpetrated with the intent that she become pregnant.56

The reports from the Bosnian war also provoked a strong reaction from states. For example the 1993 Vienna Declaration, a ‘soft law’ instrument adopted by consensus by 171 states, expressly recognized ‘forced pregnancy’ as a violation of human rights.57 The next breakthrough came in December 1997, when the UN committee responsible for preparing a draft ICC Statute referred to ‘enforced pregnancy’ and ‘forced sterilization’ as war crimes, following a proposal to that effect by the Women’s Caucus for Gender Justice.58 The proposed reference to ‘forced sterilization’ proved uncontentious and this act was ultimately defined as both a war crime and a crime against humanity in the Rome Statute.59 By contrast, the reference to ‘enforced pregnancy’ was controversial because some states were concerned that making forced pregnancy a crime in the Rome Statute might imply a universal right to abortion, or might restrict the concerned states’ legal capacity to regulate abortion under national law. Such concerns were raised at the committee’s March-​April 1998 meeting, at which the Holy See sought to avoid the problem by changing the term to ‘forced impregnation’, which would focus on the forced inception of pregnancy. This proposal 55 Anne Tierney Goldstein, Recognizing Forced Impregnation as a War Crime Under International Law (Center for Reproductive Law & Policy 1993). 56 The proposition continued: ‘The requisite criminal intent can be established either directly, through admissions or statements of the perpetrators, or indirectly, through circumstantial evidence. Forcible removal of a woman’s IUD [intrauterine device] or contraceptive implant, or destruction of other means of birth control or access to birth control, would constitute evidence of intent to impregnate. The intentional detention of a pregnant woman until she was beyond the time limit in which local law or practice permits abortion would also constitute evidence of violation. Mandatory pregnancy tests following a rape, or attempts to keep track of a detained woman’s menstrual cycle (especially if she were assaulted more frequently around the time she ovulated) similarly would be evidence of the requisite intent’. Cited in Siobhan Fisher, ‘Occupation of the Womb: Forced Impregnation as Genocide’ (1996) 46 Duke Law Journal 91, 92. 57 UN World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993) UN Doc A/​CONF.157/​23 [38]. 58 Preparatory Committee on the Establishment of an International Criminal Court, ‘Decisions Taken By The Preparatory Committee At Its Session Held From 1 To 12 December 1997’ (18 December 1997) UN Doc A/​AC.249/​1997/​L.9/​Rev.1 9, 12; Women’s Caucus for Gender Justice, ‘Recommendations and Commentary For December 1997 PrepCom On The Establishment of An International Criminal court United Nations Headquarters December 1–​12, 1997’ (1997) 31 accessed 15 May 2020. 59 ICCSt (n 11) art 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi).

244  Rosemary Grey met resistance from other states, who were committed to criminalizing the conduct of keeping a woman pregnant against her will.60 The debate continued at the 1998 Rome Diplomatic Conference,61 where the Holy See again complained that the term ‘enforced pregnancy’ could be construed as denying access to abortion.62 That position was echoed by several ‘pro-​life’ and ‘pro-​family’ groups from the US and Canada, who had a strong anti-​abortion agenda.63 The Holy See’s objection was refuted by the Women’s Caucus and like-​minded states, which claimed that the proposed crime of ‘forced pregnancy’ would not interfere with restrictions on abortion.64 After protracted debate, the states at Rome finally agreed to give the ICC jurisdiction over ‘forced pregnancy’ as a war crime and crime against humanity, subject to the proviso that: ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.65

This definition ameliorates the concern that to criminalize abortion under national law is to commit forced pregnancy under the Rome Statute (after all, domestic abortion laws are highly unlikely to involve confining the victim, and would therefore not amount to forced pregnancy). The second sentence, about national laws, was added as a further reassurance to the concerned states. As

60 Cate Steains, ‘Gender Issues’ in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International 1999) 357, 366 (hereafter Steains, ‘Gender Issues’). 61 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 15 June–​17 July 1998). 62 Fr Robert John Araujo, ‘Holy See’s Statements on Criminal Court’ (Catholic Culture, 22 July 1998) accessed 15 May 2020 (hereafter Araujo, ‘Holy See’). 63 Marlies Glasius, The International Criminal Court: A Global Civil Society Achievement (Routledge 2006) 77–​93; 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; Grey, Prosecuting (n 6), 104–​10. 64 Steains, ‘Gender Issues’ (n 60) 366. In hindsight, this claim was not necessarily accurate. According to the Women’s Caucus, the crime of enforced pregnancy is ‘a crime of commission, not a crime of omission’. That would indeed mean that a failure to provide abortion fell outside the crime. Yet the question remained as to whether the criminalization of abortion, which is positive act, would be captured by the crime: See Women’s Caucus for Gender Justice, ‘Women’s Caucus Advocacy in ICC Negotiations: The Crime of Forced Pregnancy’ (Women’s Caucus for Gender Justice, 16 June 1998) accessed 15 May 2020. 65 ICCSt (n 11) art 7(2)(f).

Reproductive Crimes in International Criminal Law  245 detailed in the amicus curiae brief filed in the Ongwen case by the Global Justice Center, Women’s Initiatives for Gender Justice, Amnesty International and myself, this sentence simply confirms that the Rome Statute does not directly invalidate or otherwise tamper with national laws. It is an unusual sentence, but it came about due to unusual circumstances, namely the persistent and unfounded fear that giving the ICC jurisdiction over forced pregnancy would legally force states to liberalize abortion. This definition of ‘forced pregnancy’ was the most that could be achieved, but it is still very restrictive. It applies only if the pregnancy was initiated forcibly and the victim was unlawfully confined while pregnant and the goal of that confinement was to affect the ethnic composition of a population or carry out other grave violations of international law.66 ‘Have I not experienced forced pregnancy too?’, a woman might ask as she embarks on a potentially fatal home-​abortion after conceiving through rape and having no access to safe and legal abortion. ‘No’, would be the answer from ICL, due to the absence of the ‘confinement’ and ‘special intent’ elements. Twenty years later, the issue of reproductive autonomy continues to be contentious. On one hand, reproductive rights have been impliedly and expressly recognized in numerous international and regional human rights instruments, as detailed in the aforementioned amicus curiae brief. On the other hand, references to reproductive health and reproductive rights continue to meet fierce opposition from some states and civil society groups. For example, at the 2018 meeting of the Commission of the Status of Women, diplomats representing the US objected to any mention of ‘sexual and reproductive health’, in line with talking points reportedly provided to the Trump administration by the non-​ government organization, C-​Fam, which also opposed the ‘forced pregnancy’ crime during the 1998 Rome Conference.67 As this brief overview shows, efforts to protect reproductive autonomy under international law—​even ‘soft law’—​have been difficult. Some states and lobby groups have opposed efforts to hold states or individuals to account for violating reproductive autonomy; and they have been effective at securing concessions from more moderate states. In this environment, only three violations of reproductive autonomy have been expressly criminalized in international instruments: genocide by ‘imposing measures intended to prevent

66 ibid. 67 Julian Borger and Liz Ford, ‘Revealed: The Fringe Rightwing Group Changing the UN Agenda on Abortion Rights’ The Guardian (London, 16 May 2019). accessed 15 May 2020.

246  Rosemary Grey births within the group’,68 and ‘forced sterilization’ and ‘forced pregnancy’ as war crimes and crimes against humanity.69 By contrast, courts and commissions entrusted with interpreting international human rights law have made steady progress in protecting reproductive autonomy through making full use of existing legal standards. For example, the UN Human Rights Committee has found that the blanket criminalization of abortion can violate the right to be free from cruel, inhuman or degrading treatment,70 the right to privacy,71 and the right against sex discrimination under the law.72 The Committee on Economic, Social and Cultural Rights has stated that the right to health includes ‘the right to control one’s health and body, including sexual and reproductive freedom’;73 and the CEDAW Committee has stated that: Violations of women’s sexual and reproductive health and rights, such as forced sterilization, forced abortion, forced pregnancy, criminalization of abortion, denial or delay of safe abortion and/​or post-​abortion care, forced continuation of pregnancy, and abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-​based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.74

Regional human rights courts have also made progress in this regard. The Inter-​American Court of Human Rights, for example, has ruled that delaying the execution of a pregnant political prisoner until her baby had been birthed

68 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) art 2(d); UN Security Council (UNSC), Statute of the International Criminal Tribunal for the former Yugoslavia (hereafter ICTYSt) (established 25 May 1993) art 4(2)(d); UNSC, Statute of the International Criminal Tribunal for Rwanda (hereafter ICTRSt) (established 8 November 1994) art 2(d); UNSC, Statute of the Extraordinary Chambers in the Courts of Cambodia (hereafter ECCCSt) (established 1997) art 4; ICCSt (n 11) art 6(d). 69 ICCSt (n 11) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi); Assembly of Republic of Kosovo, ‘Law on Specialist Chambers and Specialist Prosecutor’s Office (Kosovo)’ (3 August 2015) Law No 05/​L-​053 arts 13(g), 14(1)(b)(xxii), 14(1)(d)(vi); International Law Commission (ILC), ‘Text of draft articles 1, 2, 3 and 4 provisionally adopted by the Drafting Committee on 28 and 29 May and on 1 and 2 June 2015’ (2 June 2015) UN Doc A/​CN.4/​L.853 art 3(g). 70 Mellet v Ireland (Judgment) [2016] CCPR/​C/​116/​D/​2324/​2013 [7.6] (hereafter Mellet); Whelen v Ireland (Judgment) [2017] CCPR/​C/​119/​D/​2425/​2014 [7.7] (hereafter Whelen). 71 Mellet (n 70) [7.8]; Whelen (n 70) [7.9]. 72 Mellet (n 70) [3.15]; cf Whelen (n 70) [7.12]. 73 Committee on Economic, Social and Cultural Rights (ESCR), ‘General Comment No 14: The Right to the Highest Attainable Standard of Health (art 12)’ (11 August 2000) UN Doc E/​C.12/​2000/​4 [8]‌. 74 CEDAW Committee, ‘General recommendation No 35 on gender-​based violence against women, updating general recommendation No 19’ (26 July 2017) UN Doc CEDAW/​C/​GC/​35 [18].

Reproductive Crimes in International Criminal Law  247 and weaned, so that it could be taken by a Uruguayan family, was one of the ‘most serious and reprehensible forms of violence against women perpetrated against her by state officials from Argentina and Uruguay’.75 The European Court of Human Rights has also issued numerous decisions that support reproductive autonomy, including finding that forced sterilization and the denial of abortion can amount to violations of the European Convention on Human Rights.76 Moreover, at the national level, certain states have moved ahead on these issues. For example, as Kravetz details, courts in Latin American countries have led the way in recognizing acts of reproductive violence as war crimes, crimes against humanity, and genocide.77 Defending reproductive rights also continues to be a focus for transitional women’s rights activism, with global coalitions often joining forces to protest against national laws that limit these rights.78 While international law regards such activism as outside of ‘state practice’ and therefore irrelevant to the development of legal norms, as feminists it behooves us to listen to these dissenting voices when thinking about attitudes to reproductive autonomy around the world.

D.  Prosecuting Reproductive Crimes In this final section of the chapter, my focus shifts from ‘reproductive violence’ to ‘reproductive crimes’. The aim is to identify strategies for prosecuting acts of reproductive violence using existing war crimes, crimes against humanity, and genocide. Motivating this analysis is an understanding that treating acts of reproductive violence as crimes under international law has strong ‘expressive’ power.79 It signals that reproductive autonomy is an important value, and that its violation befits international condemnation. For participating victims,

75 Juan Gelman et al v Uruguay (Inter-​Am Ct HR Judgment) [2011] [97]–​[98]. 76 European Court of Human Rights, ‘Factsheet—​Reproductive rights’ (European Court of Human Rights, December 2019) accessed 15 May 2020. 77 See Chapter 12 by Daniela Kravetz in this volume (hereafter Kravetz, Ch 12); Laverty and de Vos, “Ntaganda” in Colombia (n 15). 78 eg Center for Reproductive Rights, ‘Over 200 Sexual Reproductive Right’s NGOs Call for Polish Parliament to Protect Women’s Health and Rights’ (Center for Reproductive Rights, 22 March 2018) accessed 15 May 2020. 79 For a discussion of ‘expressive’ justice in the context of ICL, see: Margaret deGuzman, ‘An Expressive Rationale for the Thematic Prosecution of Sex Crimes’ in Morten Bergsmo (ed), Thematic Prosecution of International Sex Crimes (Torkal Opsahl Academic EPublisher 2012) 11; Carsten Stahn, A Critical Introduction to International Criminal Law (CUP 2019) 181–​82.

248  Rosemary Grey the re-​characterization of acts of reproductive violence as crimes may enhance satisfaction in the justice process. Indeed, in both the ICC and the ECCC, we have seen victims’ legal representatives initiating requests of this nature, although neither request succeeded.80 A ‘thematic prosecution’ of reproductive crimes—​that is, a prosecution that focuses on a range of these crimes—​could be an especially effective way to raise the visibility of reproductive crimes and emphasize the underlying value of reproductive autonomy.81 To prosecute acts of reproductive violence as crimes under international law, a process of translation is required. First, the violence must be reimagined as criminal conduct (as opposed to the sequelae to other crimes). For example, a pregnant woman may miscarry due to rape, a scenario recorded in several cases at the ICTR.82 One might describe the criminal conduct in this scenario as forced sexual intercourse, in which case, there is one crime (rape). At most, the miscarriage is an aggravating factor. But if the conduct is described as sexual intercourse and forcibly causing a miscarriage, there are two potential crimes. The second stage in the translation process is to characterize that conduct as a crime within the jurisdiction of the relevant court. If the conduct is not expressly criminalized in the court’s statute, it must be ‘read into’ an existing crime. Indeed, this is how most acts of sexual violence were prosecuted in the ICTY, because apart from the crime against humanity of rape, there was no mention of other forms of sexual violence in its statute.83 The jurisprudence on ‘reading in’ reproductive violence into existing international crimes is not extensive. Nonetheless, there is some practice that can be drawn upon. For instance, in the 1940s, the trials of Nazi leaders and officials

80 Prosecutor v Lubanga (Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court) [2009] ICC-​01/​ 04-​01/​06-​1891-​tENG [33], fn 77. See also, Prosecutor v Lubanga (Transcript) ICC-​01/​04-​01/​06-​T-​150-​ Red-​ENG (18 March 2009) 35–​36. For the ECCC, see Case 004 (Consolidated Decision on the Requests for Investigative Action Concerning the Crime of Forced Pregnancy and Forced Impregnation) [2016] 004/​07-​09-​2009-​ECCC-​OCIJ [13]–​[21] (hereafter Case 004 (Consolidated Decision); Erin Handley, ‘Forced pregnancy will not be part of KRT’s Case 004’ Phnom Penh Post (Phnom Penh, 17 June 2016) accessed 18 May 2020. 81 For a fulsome discussion of the value of ‘thematic prosecutions’, see Morten Bergsmo (ed), Thematic Prosecution of International Sex Crimes (Torkal Opsahl Academic EPublisher 2012). 82 Prosecutor v Akayesu (Transcript) ICTR-​96-​4-​T (17 January 1997) 68; Prosecutor v Akayesu (Transcript) ICTR-​96-​4-​T (4 November 1997) 23–​24. 83 For details of how sexual violence was read into crimes within the ICTY Statute, see Kelly Dawn Askin, ‘Prosecuting Wartime Rape and Other Gender Related Crimes: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288; Helen Brady, ‘The Power of Precedents: Using the Case Law of the Ad Hoc International Criminal Tribunals and Hybrid Courts in Adjudicating Sexual and Gender-​Based Crimes at the ICC’ (2012) 18(2) Australian Journal of Human Rights 75; Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016).

Reproductive Crimes in International Criminal Law  249 under Control Council Law 10 led to several convictions for reproductive violence. An example was the ‘Medical case’, in which the use of forced sterilization in concentration camps was regarded as a war crime and crime against humanity.84 Another is the RuSHA case, in which the Tribunal found that the imposition of forced abortions on labourers from ‘Eastern nations’ constituted a war crime and crime against humanity,85 as did the Nazi policy of ‘hampering reproduction of enemy nationals’.86 In both cases, the Tribunal did not specify which war crimes and crimes against humanity it relied on to enter convictions for these crimes. However, in more recent decades, the jurisprudence has become more precise in this regard. Let us now note some key cases, and consider how they might be extended in future prosecutions for reproductive violence.

1.  Genocide Article 2(d) of the Genocide Convention defines ‘imposing measures to prevent births’ within a national, ethnic, racial or religious group as an act of genocide, when committed with a genocidal intent.87 As this crime is explicitly concerned with impairing reproduction, it is a good place to start. The first case to shed light on this crime was the Eichmann case, in which former Nazi official Adolf Eichmann was prosecuted under Israeli law for offences including ‘crimes against the Jewish People’. Modelled on the Genocide Convention, this crime includes ‘imposing measures intended to prevent births among Jews’ when committed with intent to destroy the Jewish people.88 The District Court of Jerusalem held Eichmann responsible for this crime, based on evidence that he ‘direct[ed] that births be banned and pregnancies terminated among Jewish women in the Terezin Ghetto, with intent to exterminate the Jewish People.89 This judgment lends weight to the proposition that forced abortion can amount to genocide if its aim is to prevent births within a national, ethnic, racial, or religious group.

84 ‘United States of America v. Karl Brandt et al’ in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law 10, Vol. II (US Government Printing Office 1949) 174. 85 ‘United States of America v. Ulrich Greifelt et al’ in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law 10, Vol. V (US Government Printing Office 1949) 109. 86 ibid 120–​25. 87 A genocidal intent, as defined in the Genocide Convention (n 68) art 2, means committing the relevant act ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. 88 Nazis and Nazi Collaborators (Punishment) Law (1 August 1950) [1(b)(4)]. 89 Attorney General v Adolf Eichmann (Judgment) Case 40/​61, District Court of Jerusalem Case (11 December 1961) [244(4)].

250  Rosemary Grey In 1998, in the Akayesu case, the ICTR Trial Chamber became the first international court to interpret the crime of genocide by ‘imposing measures to prevent births’. The Trial Chamber held that ‘measures to prevent births’ could include ‘sexual mutilation, the practice of sterilization, [and] forced birth control’.90 Alluding to the reports of Bosnian Muslim women being forced to bear ‘Serbian’ babies, it also stated that in groups where membership depends on the identity of the father, a ‘measure to prevent births’ could also include cases where ‘during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group’.91 The Akayesu Trial Chamber further held that ‘measures to prevent births’ could be psychological, such as when a person who has been raped refuses subsequently to procreate.92 For prosecutors seeking to apply this interpretation, a difficulty would be proving that the rape was intended to dissuade the victim from reproducing (as distinct from merely having that effect).93 Nonetheless, the argument that sexual violence can constitute a ‘measure to prevent birth’ has found favour in other courts. For example, in Chapter-​12 in this book, Kravetz refers to the 2018 judgment in Guatemala’s re-​trial of José Mauricio Rodríguez Sánchez, head of military intelligence during the Ríos Montt regime (1982–​83).94 The court held that the regime’s attacks on the Ixil indigenous people amounted to genocide.95 Regarding genocide by ‘imposing measures to prevent births’, it held that: Rapes, mutilations, killing of fetuses, forced nudity and other practices of sexual violence were measures aimed at preventing births within the group, affecting their reproductive organs, which also led to trauma and terror, and to ostracism, creating social and personal constraints that prevented its reproduction.96 90 Prosecutor v Akayesu (Judgment) ICTR-​96-​4 (2 September 1998) [507] (hereafter Akayesu). 91 ibid. 92 ibid [508]. 93 For the crime of genocide, the perpetrator must intentionally commit the relevant genocidal act (killing, imposing measures to prevent birth, etc) as well as possess the special intent to destroy the group, in whole or in part. See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment of 26 February 2007) [186]–​[187]; Prosecutor v Krstić (Appeal Judgment) IT98-​33-​A (19 April 2004) [20]. 94 See Kravetz, Ch 12 (n 77). 95 See Jo-​Marie Burt and Paulo Estrada, ‘Court Finds Guatemalan Army Committed Genocide, but Acquits Military Intelligence Chief ’ (International Justice Monitor, 28 September 2018) accessed 18 May 2020. 96 Sentencia C-​01076-​2011-​00015, Guatemala (26 September 2018) [184] (author’s translation). With thanks to Dr Jo-​Marie Burt, Associate Professor at George Mason University, for providing a copy of this judgment.

Reproductive Crimes in International Criminal Law  251 The forced separation of men and women could also constitute genocide by imposing measures to prevent births, according to the Akayesu Trial Chamber.97 This argument was advanced by ICTY Prosecutors in relation to the forced separation of men and women at Srebrenica, but was not accepted by the judges.98 Nonetheless, prosecutors at the ICC may have the opportunity to run this argument should the Court obtain custody of Omar Al-​Bashir, who is allegedly responsible for genocide in Darfur,99 or become seized of other potential genocides such as ISIL’s alleged genocide against Yazidi people in Syria.100 The final example that the Akayesu Trial Chamber gave of a measure to prevent births was the prevention of marriages.101 One might also argue that the forced imposition of marriage could constitute genocide, where its purpose was to ‘breed out’ a particular group. An example can be seen in ECCC’s Case 002/​02, in which former leaders of the Communist Party of Kampuchea were charged (among other crimes) with genocide against Vietnamese people in Cambodia. At the time of the alleged genocide, it was quite common for people from Cambodia’s largest ethnic group (the Khmer) to marry people of Vietnamese ethnicity. The Communist Party disapproved of these mixed marriages, and regarded Vietnamese ethnicity as a characteristic passed through the mother’s line. Accordingly, where a Khmer man was married to a Vietnamese woman, she and the children were typically killed, while the man was forced to take a Khmer wife.102 According to the Co-​Prosecutors, this practice of forcing Khmer to marry Khmer ‘was a manifestation of the Party leaders’ intent to erase future generations of Vietnamese or part-​Vietnamese and to destroy the group as such’.103 However, the Co-​Prosecutors did not test 97 Akayesu (n 90) [507]. 98 In two cases, namely Popović et al and Tolimir, the prosecutor argued that the crime of genocide through ‘imposing measures intended to prevent births within the group’, pursuant to art 4(2)(d) of the ICTY Statute, was substantiated through the separation of the sexes at Srebrenica. However, this argument was somewhat obscured in the indictments and ultimately, the argument was not accepted by the Chamber in either case. See Prosecutor v Popović et al (Revised Second Consolidated Amended Indictment) IT-​05-​88-​T (4 August 2006) [33] (arguing that the forced separation of men and women at Srebrenica and Žepa impaired the capacity of the Muslim population of Eastern Bosnia to reproduce) cf [26] (arguing that the accused committed genocide through arts 4(2)(a) and 4(2)(b), but does not refer to art 4(2)(d)); Prosecutor v Popović et al (Judgment) IT-​05-​88-​T (10 June 2010) [854]; Prosecutor v Popović et al (Prosecution’s notice of filing a public redacted version of the prosecution final trial brief: Annex A) IT-​05-​88-​T (14 July 2010) [2833]; Prosecutor v Tolimir (Third Amended Indictment) IT-​05-​88/​2-​T (4 November 2009) [10] cf [24]; Prosecutor v Tolimir (Prosecution notice of re-​filing of public redacted final trial brief: Annex A) IT-​05-​88/​2-​T (28 November 2012) [829]; Prosecutor v Tolimir (Judgment) IT-​05-​88/​2-​T (12 December 2012) [767]; For a discussion of these decisions, see Patricia Viseur Sellers, ‘Genocide Gendered: The Srebrenica Cases’ (2015) 48 Studies in Transnational Legal Policy 17, 25–​27. 99 Prosecutor v Al Bashir (Second Warrant of Arrest) [2010] ICC-​02/​05-​01/​09-​95. 100 See HRC, ‘They Came to Destroy’ (n 32) [100]–​[165]. 101 Akayesu (n 90) [507]. 102 Case 002/​2 (Co-​Prosecutors’ Amended Closing Brief) [2017] 002/​19-​09-​2007-​ECCC/​TC [937]. 103 ibid.

252  Rosemary Grey this argument by bringing a charge of genocide by imposing measures to prevent births. As a result, although the Trial Chamber made a finding of genocide against the Vietnamese, the only genocidal act that it recognized was killing members of the group’.104 The crime of genocide by imposing measures to prevent births has also been interpreted by the UN Human Rights Council’s fact-​finding mission for Myanmar. In 2018, the mission reported that the extensive sexual violence allegedly perpetrated by state forces against Rohingya women and girls in Rakhine State ‘may have been aimed at affecting their reproductive capacity’.105 It noted that state authorities, including Myanmar’s military, ‘have actively propagated the narrative of “uncontrollable” Rohingya birthrates that constitute a threat to the nation’.106 It further explained that within the Rohingya community, female survivors of sexual violence are often regarded as unmarriageable, which hampers procreation, and that the perpetrators of this sexual violence would have been aware of these consequences.107 These cases indicate that the crime of genocide through ‘imposing measures to prevent births’ covers a broad range of measures, including intentionally damaging people’s reproductive organs, deliberately traumatizing people so that they do not reproduce, raping or otherwise degrading people with a view to making them ‘unmarriageable’ according to cultural norms, or interfering with reproduction through regulating marriage.

2.  Forced Pregnancy As noted above, the Rome Statute lists ‘forced pregnancy’ as a war crime and crime against humanity, and defines ‘forced pregnancy’ to mean: ‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law’.108 The Bosnian experience, which has been discussed above, was the main catalyst for the recognition of this crime.109 It 104 Case 002/​02 (n 8) [3514]–​[3519]. 105 HRC, ‘Report of the detailed findings of the Independent International Fact-​Finding Mission on Myanmar’ (17 September 2018) UN Doc A/​HRC/​39/​CRP.2 [1410]. 106 ibid [1409]. 107 ibid [1410]. 108 ICCSt (n 11) art 7(2)(f). 109 Barbara Bedont and Katherine Hall-​Martinez, ‘Ending Impunity for Gender Crimes Under the International Criminal Court’ (1999) 6 Brown Journal of World Affairs 65, 73–​74; Boon, ‘Rape and Forced Pregnancy’ (n 13) 656; For example, the delegate for Lebanon argued that ‘in view of reports on crimes committed in Bosnia and Herzegovina, . . . it might be better to refer to forcible pregnancies the purpose of which was to change the identity of a population group’. The representative of the Holy

Reproductive Crimes in International Criminal Law  253 seems that, a critical mass of states regarded that example of forced pregnancy to be particularly egregious because the aim was ‘ethnic cleansing’, as well as because it violated reproductive autonomy as such.110 Perhaps because of its difficult negotiating history, the Rome Statute’s definition of ‘forced pregnancy’ is susceptible to misinterpretation. For example, one commentator has referred to ‘the necessary intent to impregnate on behalf of the perpetrator’.111 This interpretation is inconsistent with the Statute and Elements of Crimes, neither of which require that the perpetrator intended (or was involved in) the victim’s impregnation.112 Another commentator has argued that in order for the intent of ‘affecting the ethnic composition’ to apply, the victim and perpetrator ‘must be members, or thought to be members, of different ethnic groups’.113 Again, this requirement has no basis in the Statute or Elements of Crimes, and is not a necessary inference from either source.114 The ICC’s Ongwen case has helped to rectify some of these misinterpretations pending the outcome of the appeal judgment in this case. The accused in this case, a former LRA commander, is charged with personally committing the crimes of rape and forced pregnancy in Uganda. The prosecution has argued that one of the main reasons that the LRA abducted and enslaved women and girls was for their childbearing capacity—​that is, to produce future fighters for the group.115 In its confirmation of charges decision, the Pre-​Trial Chamber stated that the crime of forced pregnancy ‘does not depend on the perpetrator’s involvement in the woman’s conception; it is only required that the perpetrator

See clarified that ‘[t]‌he fact that my delegation, like others, is aware of the fundamental flaws with the interesting concept of “[en]forced pregnancy” does not mean that we are uninterested in the plight of the women and children of Bosnia-​Hercegovina who have been the victims of violence. See UN, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records, Volume II (UN NY 2002) 163[16]; Araujo, ‘Holy See’ (n 62). 110 See Rhonda Copelon, ‘Surfacing Gender: Re-​Engraving Crimes against Women in Humanitarian Law’ (1994) 5 Hastings Women’s Law Journal 243, 263; Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4). 111 Verrall, ‘Sexual Violence’ (n 5) 329. 112 Neither the Rome Statute nor the ICC Elements of Crimes requires that the perpetrator was the person to impregnate the victim, much less that he or she intended that result. See ICCSt (n 11) art 7(2) (f); ICC, Elements of Crimes (ICC 2011) art 7(1)(g)-​4 (hereafter ICC, Elements of Crimes). 113 Boon, ‘Rape and Forced Pregnancy’ (n 13) 663. 114 For example, a person from ‘Group A’ might subject a woman from that same group to forced pregnancy in order to produce a child of ‘pure’ ethnicity, rather allowing her to procreate with someone from ‘Group B’. 115 Prosecutor v Ongwen (Prosecution’s Pre-​Trial Brief) [2016] ICC-​02/​04-​01/​15-​533 [48] (hereafter Ongwen ‘Pre-​ Trial Brief ’); Prosecutor v Ongwen (Transcript) ICC-​02/​04-​01/​15-​T-​20-​Red-​ ENG (21 January 2016) 26; Civil Society Organisations for Peace in Northern Uganda, Nowhere to Hide: Humanitarian Protection Threats in Northern Uganda (December 2004) 51, 57 accessed 18 May 2020.

254  Rosemary Grey knows that the woman is pregnant and that she has been made pregnant forcibly’.116 Furthermore: [I]‌t is not necessary to prove that the perpetrator has a special intent with respect to the outcome of the pregnancy, or that the pregnancy of the woman is in any way causally linked to her confinement. While the first alternative of the special intent requirement (intent of ‘affecting the ethnic composition of any population’) would typically include such component, the second alternative (intent of ‘carrying out other grave violations of international law’) does not call for any such restrictive interpretation.117

The Pre-​Trial Chamber confirmed the charge of forced pregnancy in the Ongwen case based on evidence that Ongwen had unlawfully confined several women who had been made forcibly pregnant (by him), and such confinement was aimed at carrying out ‘grave violations of international law’, namely to subject the women to ‘forced marriage’, to rape and torture them, and to treat them as his slaves.118 The Trial Chamber applied that same interpretation of the crime when convicting Ongwen of forced pregnancy in 2021,119 noting that: ‘the crime of forced pregnancy consists in the confinement of a forcibly pregnant woman in order to carry out other grave violations of international law, regardless of whether the accused specifically intended to keep the woman pregnant.’120 This interpretation conforms to the definition provided by the Rome Statute and the ICC Elements of Crimes, and it clarifies an important point. Namely, that the crime is not limited to cases where women are forcibly impregnated as a means of ‘ethnic cleansing’, because that is just one of two alternative special intents. The other special intent (seeking to carry out any grave violation of international law) ensures that the crime can be applied in circumstances that have no relationship to ‘ethnic cleansing’. For example, the crime could apply where a person who has been forcibly impregnated is then unlawfully confined so that they or their baby can be sold, subjected to forced labour, or used in medical experiments. It can also apply where the victims’ pregnancy was neither the sole nor the primary reason for their confinement, as seen in the 116 Prosecutor v Ongwen (Decision on the confirmation of charges) [2016] ICC-​02/​04-​01/​15-​422-​ Red) [99]. 117 ibid [100]. 118 Prosecutor v Ongwen (Transcript) ICC-​02/​04-​01/​15-​T-​21-​Red2-​ENG (22 January 2016) 50; Ongwen ‘Pre-​Trial Brief ’ (n 115) [533], [541]. 119 Ongwen Trial Judgment (n 1) [2717]–​[2729]. 120 ibid [2729].

Reproductive Crimes in International Criminal Law  255 Ongwen case. The forthcoming appeal judgment in the Ongwen case, which will be the first ICC appeal judgment to analyse forced pregnancy, will hopefully further clarify the definition of this crime.

3.  Enslavement Enslavement is listed as a crime against humanity in the Rome Statute, along with the statutes of all previous international criminal tribunals going back to Nuremberg. Its key feature is that the perpetrator exercised rights of ownership over the victim or subjected them to a similar deprivation of liberty.121 The ICC Elements of Crimes notes that ‘exercising rights of ownership’ may involve commercial transactions, namely ‘purchasing, selling, lending or bartering’ the victim, and that ‘deprivation of liberty’ may include exacting forced labour.122 In relation to ‘exercising rights of ownership’ over a person, the ICTY Appeals Chamber has held that it is relevant to consider ‘control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’.123 As Sellers has persuasively argued, forced reproduction has long been a part of enslavement.124 This is because forced reproduction is a means of controlling a person, including controlling their sexuality. An analysis of the definition of ‘forced labour’, which the ICTY Appeals Chamber described as an indicia of enslavement,125 further strengthens the case that certain forms of reproductive violence constitute enslavement. Under the International Labour Organization’s Forced Labour Convention, ‘forced labour’ is defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’, excluding compulsory military service or emergency relief, work that forms part of a criminal penalty, and ‘the normal civic obligations of the citizens’.126 There is a strong argument to be made that when enslaved men are forced to impregnate 121 Prosecutor v Kunarac et al (Appeal Judgment) IT-​96-​23 & IT-​96-​23/​1-​A (12 June 2002) [117]–​ [118] (hereafter Kunarac Appeal Judgment); ICC, Elements of Crimes (n 112) art 7(1)(c). 122 ICC, Elements of Crimes (n 112) art 7(1)(c). 123 Kunarac Appeal Judgment (n 121) [119]. 124 Sellers, ‘Enslavement’ (n 17). 125 Kunarac Appeal Judgment (n 121) [119]. 126 Convention (No 29) concerning forced or compulsory labour (adopted 28 June 1930, entered into force 1 May 1932) 39 UNTS 55 (Forced Labour Convention) art 2.

256  Rosemary Grey women, or when enslaved women are forced to bear children or act as ‘wet nurses’, their physical and mental exertion meets this definition of ‘forced labour’ and is therefore readily classified as enslavement.127

4.  Other Forms of Sexual Violence The Rome Statute is the first instrument of ICL to include a crime of ‘other forms of sexual violence’ as a war crime and crime against humanity.128 This crime refers to acts of sexual violence of comparable gravity to those which are expressly listed in the Statute (namely rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization). This residual crime could potentially be used to prosecute unenumerated acts of reproductive violence, provided that two tests can be satisfied. First, the Chamber must be persuaded that the relevant acts are ‘sexual’ in nature; and second, it must find that those acts are of a ‘comparable gravity’ to the other sexual crimes listed above.129 The utility of this crime for prosecuting reproductive violence has been recognized by the ICC Prosecutor in the Colombia preliminary examination,130 which has been underway since June 2004.131 The Prosecutor has taken note of reports that paramilitary groups including the Fuerzas Armadas Revolucionarias de Colombia (FARC) and the Ejército de Liberación Nacional (ELN) have subjected women to forced abortion and forced contraception, and has indicated that such acts constitute ‘other forms of sexual violence’.132 There has been some accountability for these crimes at the national level, as detailed in Chapter-​12 by Kravetz.133 An important development was the conviction for forced abortion in the Sánchez Caro et al case, which was decided by a Colombian court in 2015. Among other crimes, the court convicted the former leader of the Ejército Revolucionario Guevarista (ERG) of subjecting

127 It is irrelevant that these forms of labour are typically unremunerated when done voluntarily. The definition of ‘forced labour’ found in the ILO Convention is not limited to forcing people to do work that is usually paid. 128 ICCSt (n 11) arts 7(1)(g), 8(2)(b)(xxii), 8(2)(e)(vi). 129 ICC, Elements of Crime (n 112) arts 7(1)(g)-​6, 8(2)(b)(xxii)-​6, 8(2)(e)(vi)-​6. 130 In the ICC, a ‘preliminary examination’ is the initial inquiry that the Prosecutor undertakes in order to determine whether the statutory criteria for opening an investigation are satisfied. See Sara Wharton and Rosemary Grey, ‘The Full Picture: Preliminary Examinations at the International Criminal Court’ [2019] 56 Canadian Yearbook of International Law 1. 131 ibid 42. 132 ICC OTP, ‘Situation in Colombia: Interim Report’ (November 2012) [91], [143] accessed 19 May 2020. 133 Kravetz, Ch 12 (n 77).

Reproductive Crimes in International Criminal Law  257 female fighters in the group to forced abortion, which it characterized as a war crime (torture) as well as a crime under the Colombian criminal code (abortion without consent).134 More recently, in 2019, the Colombian Constitutional Court affirmed that the FARC’s practice of subjecting female fighters to forced abortion and forced contraception was a violation of their sexual and reproductive rights, and amounted to the war crime of sexual violence when committed in connection with an internal armed conflict.135 These national proceedings make an important contribution to justice for reproductive violence, but it bears noting that neither the ICC preliminary examination nor the domestic cases cover acts of forced pregnancy, forced abortion, or forced sterilization imposed on Colombian women by members of their own family during the armed conflict, which was reportedly more common than the commission of those crimes by paramilitary groups and the armed forces combined.136 The crime of ‘other forms of sexual violence’, could also potentially be used to charge acts such as forced impregnation, forced use of contraception, and forced breastfeeding. Previous cases from the ICC indicate that the prosecution would need to do more than simply assert that these acts are ‘sexual’ in nature; rather, it would need to give the Chamber specific reasons for regarding the acts as ‘sexual’.137 In the absence of clear legal standards in this respect, the Prosecutor may choose to be informed by the Hague Principles on Sexual Violence, a non-​binding declaration created in 2019 by Women’s Initiatives for Gender Justice based on a detailed analysis of international jurisprudence, consultations with legal experts including the ICC Prosecutor’s Gender Advisor, and input from survivors in 25 conflict-​affected countries.138 This document sets out numerous indicia that an act is ‘sexual’ in nature and lists over fifty examples of such acts including:

134 ibid. 135 Sentencia SU599/​19, Bogotá D.C. (11 December 2019) [3.2]. For a discussion, see Laverty and de Vos ‘ “Ntaganda” in Colombia’ (n 15); Kravetz, Ch 12 (n 77). 136 See Casa de la Mujer, First Survey on the Prevalence of Sexual Violence Against Women in the context of the Colombian armed conflict 2001–​2009 (Oxfam 2011) 19–​22 accessed 18 May 2020. Note: the definition of ‘forced pregnancy’ used in the survey is slightly different from the definition found in the Rome Statute. 137 See Rosemary Grey, ‘Conflicting Interpretations of “Sexual Violence” in the International Criminal Court’ (2014) 29(81) Australian Feminist Studies 273; Grey, Prosecuting (n 6) 291–​95. 138 Women’s Initiatives for Gender Justice, Hague Principles on Sexual Violence: Civil Society Declaration on Sexual Violence (2019) accessed 18 May 2020.

258  Rosemary Grey [D]‌epriving someone of reproductive autonomy, such as by subjecting them to forced pregnancy, forced sterilization, reproductive sabotage [defined to mean ‘tampering with or damaging condoms and other contraceptives’], forced parenthood; or preventing them from making choices as to whether or not to use contraception, undergo sterilization, impregnate another person, or carry a pregnancy in their own body to term.139

5.  Persecution Persecution has also been listed as a crime against humanity in the statute of every international criminal tribunal since Nuremberg, although the definition has changed over time. The most recent definition is found in the Rome Statute, which specifies that ‘persecution’ means ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’.140 The Statute gives the ICC power to prosecute persecution (so defined) when committed: [A]‌gainst any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.141

This crime enables the ICC to prosecute acts of reproductive violence that severely violate rights protected by international law, provided such acts occur ‘in connection’ with other crimes within the Court’s jurisdiction. Interpretive guidance may be sought from the field of human rights, where courts and treaty bodies have made significant progress in enforcing reproductive rights.142 This 139 ibid 18. 140 ICCSt (n 11) art 7(2)(g). 141 ibid art 7(1)(h). For a detailed analysis of this definition, see Rosemary Grey and others, ‘Gender-​ based Persecution as a Crime Against Humanity: The Road Ahead’ (2019) 17 Journal of International Criminal Justice 957. 142 Rebecca Cook, ‘International Protection of Women’s Reproductive Rights’ (1991) 24 New York University Journal of International Law and Politics 645–​727 (hereafter Cook, ‘Women’s Reproductive Rights’); Rebecca Cook, ‘Human Rights and Reproductive Self-​Determination’ (1995) 44 American University Law Review 975–​1016 (hereafter Cook, ‘Human Rights’); Christina Zampas and Jamie Gher, ‘Abortion as a Human Right: International and Regional Standards’ (2008) 8 Human Rights Law Review 249; UNFPA, The Danish Institute for Human Rights, and OHCHR, Reproductive Rights are Human Rights: A Handbook for National Human Rights Institutions (UN 2014) (hereafter UNFPA et al, Reproductive Rights are Human Rights); Johanna Fine, Katherine Mayall, and Lilian Sepúlveda, ‘The

Reproductive Crimes in International Criminal Law  259 could include a charge of persecution on ‘gender’ grounds, but it may also include persecution on other grounds. Consider a case where a political prisoner miscarries due to being tortured, to take an example from the Nuremberg Tribunal.143 If it could be shown that the miscarriage involved an ‘intentional and severe deprivation of fundamental rights contrary to international law’, such as the right to health, then causing this miscarriage could be part of a ‘political persecution’ charge because it occurred ‘in connection to’ the crime of torture.

6.  Outrages on Personal Dignity In the field of human rights law, it is well established that reproductive self-​ determination is an aspect of human dignity, which is the foundation for the concept of universal human rights.144 In the words of Anand Grover, UN Special Rapporteur on the Right to Health: ‘[d]‌ignity requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health’.145 The link between reproductive autonomy and human dignity has also been emphasized by several national courts including the Colombian constitutional court, which in 2006 held that: Human dignity warrants a sphere of autonomy and moral integrity that must be respected by public authorities and by private citizens. The sphere of protection for women’s human dignity includes decisions related to their choice of life plan, among them decisions regarding reproductive autonomy . . . When the legislature enacts criminal laws, it cannot ignore that a woman is a human being entitled to dignity and that she must be treated as such, as opposed to being treated as a reproductive instrument for the human race. The legislature must not impose the role of procreator on a woman against her will.146

Role of International Rights Norms in the Liberalization of Abortion Laws Globally’ (2017) 19 Health and Human Rights Journal 69. 143 Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4) 911. 144 Cook, ‘Women’s Reproductive Rights’ (n 142); Cook, ‘Human Rights’ (n 142). 145 UN General Assembly, ‘Interim Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ (3 August 2011) UN Doc A/​66/​254 [15]. 146 Women’s Link Worldwide, ‘Excerpts of the Constitutional Court’s Ruling that Liberalized Abortion in Colombia’ 15(29) Reproductive Health Matters 160.

260  Rosemary Grey This justification for protecting reproductive autonomy is relevant to ICL because respect for human dignity is also central to this regime.147 For example, when reproductive violence occurs in the context of an armed conflict, it may constitute the war crime of ‘outrages upon personal dignity’. This charging strategy does not ignore the physical and psychological injuries caused by the violation, which can and should be discussed as part of the charge. However, it has the benefit of emphasizing the value of human dignity—​a value that all states have committed to protect.

7.  Torture and Other Inhumane Acts The crime of torture may also be applicable to reproductive violence, where it causes severe physical or mental pain. Guidance can be found in the jurisprudence of the ICTY, where prosecutors successfully charge many acts of sexual violence as ‘torture’ under the 1949 Geneva Conventions.148 For torture as a war crime, it must be shown that the violence was inflicted for certain purposes, or was based on ‘discrimination of any kind’—​this applies for the definition of torture under customary international law and the definition in the ICC Elements of Crimes.149 Thus, in the Mucić case, the ICTY found that raping the victim ‘because she is a woman’ constituted ‘discrimination’ as required for the crime of torture.150 By the same logic, sufficiently grave violence which is inflicted because the victim is pregnant could be prosecuted using the war crime of torture. Examples may include cutting open a woman’s belly and removing the fetus while she (the woman) is still alive.151 There is also scope to prosecute reproductive violence using the crime against humanity of ‘other inhumane acts’, provided that it was foreseeable that the conduct was criminalized under international law at the time it was

147 Prosecutor v Furundžija (Judgment) IT-​95-​17/​1-​T (10 December 1998) [183]. 148 See Laurel Baig et al, ‘Contextualizing Sexual Violence: Selection of Crimes’ in Serge Brammertz and Michelle Jarvis, Prosecuting Conflict-​related Sexual Violence at the ICTY (OUP 2016) 172, 187–​94. 149 For the ICC’s definition, see ICC, Elements of Crimes (n 112) arts 7(1)(f), 8(2)(a)(ii)-​1, 8(2)(c) (i)-​4. For the definition under customary international law, see Prosecutor v Mucić et al (Judgment) IT-​ 96-​21 (16 November 1998) [4]‌, [94] (hereafter Mucić). 150 Mucić (n 149); Human Rights and Gender Justice Clinic of CUNY School of Law, MADRE and Organization of Women’s Freedom in Iraq, ‘Communication to the ICC Prosecutor Pursuant to art 15 of the Rome Statute Requesting a Preliminary Examination into the Situation of: Gender-​Based Persecution and Torture as Crimes Against Humanity and War Crimes Committed by the Islamic State of Iraq and the Levant (ISIL) in Iraq’ (8 November 2017) [86]–​[87]. 151 eg Prosecutor v Muhimana (Judgment) ICTR-​95-​1B (28 April 2005) [393], [570]; Prosecutor v Mbarushimana (Prosecution’s document containing the charges) [2011] ICC-​01/​04-​01/​10-​330-​AnxA-​ Red [70], [81].

Reproductive Crimes in International Criminal Law  261 committed.152 For example, the act of exposing the victim to the risk of forced impregnation could potentially be prosecuted as an ‘other inhumane act’, where it causes serious bodily or mental harm.153 Examples could include forcibly introducing semen into a victim’s vagina (through artificial or organic means), particularly if it is known that the risk of the victim conceiving at that time in her menstrual cycle is high. However, if the court’s temporal jurisdiction reaches back several decades into the twentieth century, this strategy may raise concerns about compliance with the principle of legality (nullum crimen sine lege), which prevents a court from convicting a person for acts that were not clearly defined as criminal at the time of their commission. The fact that forced sterilization and forced pregnancy were not explicitly enumerated as crimes under international law until the 1998 Rome Statute means it may be difficult to persuade a court that these or other forms of reproductive violence were impliedly criminalized under international law before then. This issue arose in the ECCC’s Case 004, which like all ECCC cases, concerns crimes allegedly committed between 1975 and 1979. In this case, lawyers representing the putative victims requested that ‘forced pregnancy’ be investigated and charged using the crime against humanity of ‘inhumane acts’.154 The international co-​prosecutor agreed that the relevant conduct should be investigated and charged as ‘inhumane acts’. However, because forced pregnancy was not defined as a crime against humanity until 1998, the international co-​prosecutor described the alleged conduct as ‘forcibly impregnating a woman or girl against her will or under coercive circumstances’.155 These requests for investigative action were dismissed by the international co-​investigating judge. His chief reason was that charges of forced pregnancy/​ impregnation would violate the principle of legality since, in his view, the conduct was not criminalized under Cambodian or international law in the 1970s.156 In relation to international law, the judge reasoned that for conduct to rise to the level of ‘inhumane acts’, it must have been regarded as ‘a gross or blatant denial of a fundamental human right’ at the time that the crimes 152 The ICTY Appeals Chamber affirmed this interpretation of the principle of legality in 2003. See Prosecutor v Hadžihasanović & Kubura (Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility) IT-​01-​47-​AR72 (16 July 2003) [34]–​[35]. Some ICTY trial chambers seem to have equated the prohibition of the conduct under IHRL with its criminalization under ICL. See eg Prosecutor v Kupreškić et al (Judgment) IT-​95-​16-​T (14 January 2000) [566]. However, jurisprudence of the ICTY Appeals Chamber seems to indicate that the conduct must have been criminalized (whether explicitly or impliedly), that is made subject to individual criminal responsibility. See Prosecutor v Stakić (Judgment) IT-​97-​24-​A (22 March 2006) [317]. 153 Grey, ‘The ICC’s First “Forced Pregnancy” Case’ (n 4) 928. 154 Case 004 (Consolidated Decision) (n 80) [13]–​[21]. 155 ibid [24]–​[27]. 156 ibid [31(a)].

262  Rosemary Grey occurred, and that such rights would be identified by referring to international instruments from the relevant time.157 In his view, forcing people to become or remain pregnant did not satisfy this standard because: While the concept of personal and reproductive autonomy has gained prominence, there is insufficient evidence of state practice or opinio juris on which to assert that from 1975 to 1979, breaches of such autonomy were considered by the international community to be a serious violation of fundamental human rights.158

This reasoning does not recognize that reproductive autonomy is a facet of human dignity, and has therefore long been protected by international law. Nor does it recognize that conduct that has not been expressly criminalized under international law, but which reasonably falls within the scope of an existing crime under international law, has been recognized by other international tribunals as consistent with the principle of legality.159 This ECCC decision, which was not appealed, illustrates the legal difficulties created by the international community’s historic silence on reproductive autonomy. It serves as a warning to prosecutors who are seeking to charge violations of reproductive autonomy by applying existing crimes and suggests that, in such cases, there is benefit to anticipating and counteracting concerns about the principle of legality.

8.  Post-​Conviction Strategies for Responding to Reproductive Violence Shifting now from charging to sentencing, there is scope for international criminal courts to recognize the impact of crimes on the victims’ reproductive lives. It is true that certain acts of reproductive violence could be also assessed as aggravating factors at sentencing, such as where rape causes pregnancy.160 A clear example can be found in the judgment of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery, a ‘peoples’ tribunal’ established by civil society in 2000. In assessing the impact of the crimes committed 157 ibid [46]–​[65]. 158 ibid [74]. 159 For example, in Mucić et al, the ICTY Trial Chamber held that although rape had not been expressly criminalized as a war crime under international law, the existing war crime of torture was sufficient to prosecute this conduct: Mucić (n 149) [475]–​[496]. 160 eg Prosecutor v Bemba (Decision on Sentence pursuant to art 76 of the Statute) [2016] ICC-​01/​ 05-​01/​08-​339921 [36].

Reproductive Crimes in International Criminal Law  263 against women in ‘comfort stations’ run by the Japanese Military during World War II, the Tribunal paid close attention to ‘reproductive harms’, such as losing the ability to conceive due to sexual and physical violence, forced hysterectomy, or exposure to sexually transmitted disease.161 Causing such harms could be an aggravating factor, even where the act of reproductive violence is not charged as criminal conduct in its own right. Examples include when the victim experiences a miscarriage as a result of other crimes, such as torture, forced labour, forced transfer or deportation, destruction of protected buildings including hospitals, or rape,162 or obstetric injuries due to being forced into sex and childbirth at a young age.163 For courts that offer reparations, such as the ICC and ECCC, attention to reproductive harms is also crucial to assessing the damage caused, and therefore, the scope of the reparations award.

E. Conclusion Reproductive violence threatens the right of all people to exercise agency over their own bodies and fertility. International law has historically been a poor vehicle for preventing, prosecuting, or denouncing this kind of sexual violence. Many states criminalize abortion and/​or take coercive measures to manage population growth, making it difficult to achieve explicit international commitments to reproductive autonomy. That this resistance exists is unsurprising given the objections that invariably arise when reproductive rights, especially women’s reproductive rights, are discussed. As Freedman and Isaac observed over a decade ago, ‘even when the commitment to women’s overall equality seems firmly entrenched, at least in the language of the law, the question of control over reproduction remains a highly explosive issue’.164 The notion of criminalizing forced impregnation or forced childbirth is also difficult because almost universally, pregnancy and motherhood are represented as life affirming experiences—​as the greatest achievements of a woman’s life.

161 Prosecutor v Hirohito et al (Judgment on the Common Indictment and the Application for Restitution and Reparation) PT-​2000-​1-​T (4 December 2001) [406]–​[412]. 162 See Prosecutor v Akayesu (Transcript) ICTR-​96-​4-​T (31 October 1997) 34–​35; Prosecutor v Akayesu (Transcript) ICTR-​96-​4-​T (4 November 1997) 23–​24; International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–​1 October 1946 Vol. 6 (International Military Tribunal 1947) 170. 163 See UNFPA et al, Reproductive Rights are Human Rights (n 142) 16. 164 Freedman and Isaacs, ‘Human Rights’ (n 35) 20.

264  Rosemary Grey Conceiving of these experiences as crimes or injuries is therefore seen as subversive and offensive, even if the pregnancy was occasioned by force.165 But despite these significant obstacles, human rights activists and like-​ minded states have lobbied for stronger responses to reproductive violence in international law, including ICL, and have gained some ground. It now lies with international criminal courts to interpret the existing legal principles in ways that enable the prosecution of reproductive crimes. Fortunately, as this chapter indicates, the existing legal framework provides multiple avenues for prosecuting reproductive violence as a war crime, a crime against humanity, and an act of genocide. That is because attacks on reproductive autonomy amount to violations of values that lie at the heart of ICL, including respect for personal dignity. This may be little comfort to those who suffer reproductive violence at the hands of their families or communities, that is, in spaces that fall outside the boundaries of ICL. Nonetheless, as a response to conflict-​related reproductive violence, ICL has untapped potential.

165 See Khiara M Bridges, ‘When Pregnancy Is an Injury: Rape, Law and Culture’ (2013) 65 Stanford Law Review 457.

10 Using International Criminal Law to Curb Discriminatory Practices Against Females The Case of Female Genital Mutilation Antonia Mulvey

A. Introduction A number of discriminatory acts and practices against females are ordered or tolerated by many states. Some, such as intimate partner or domestic violence,1 are endemic across the world, whilst others, such as female genital mutilation (FGM),2 are widespread only in certain parts of the world. Whilst these practices may be unlawful under national laws, these laws are rarely enforced. Similarly, although these practices constitute clear violations of international human rights law (IHRL), for example under the Convention for the Elimination of all Forms of Discrimination against Women (CEDAW),3 the International Covenant on Civil and Political Rights,4 the Convention Against Torture (UNCAT),5 and the Convention on the Rights of the Child,6 these instruments appear to have had minimal impact on preventing FGM. 1 Gender-​based violence—​including intimate partner and domestic violence—​also affects men and boys, and further action must be undertaken to address this. This chapter focuses on women and girls, and in particular on the practice of FGM, because that practice is justified on the basis of discriminatory beliefs about women and girls and is therefore a manifestation of gender-​based discrimination against women and girls. 2 The practice has other names: for instance, female genital cutting (FGC), female circumcision, and female genital excision. ‘Female genital mutilation’ is used here (1) for clarity and simplicity and (2) because it captures the broad range of practices and techniques (some of which do not involve the removal of parts of the victim’s anatomy) that will be discussed in this chapter. 3 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (hereafter CEDAW). 4 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 99 UNTS 171 (hereafter ICCPR). 5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (hereafter UNCAT). 6 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

266  Antonia Mulvey Despite causing great harm to countless millions, FGM practices have not been prosecuted as crimes under international law. Nonetheless, they may be capable of meeting the legal thresholds for such crimes. Indeed, this chapter argues that FGM could amount to the crime against humanity of torture (both under the Rome Statute establishing the International Criminal Court (ICC) and under customary international law, as reflected in the jurisprudence of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR)).7 Characterizing FGM as the crime against humanity of torture, and investigating and prosecuting the crime as such, could help to address the lack of progress in eradicating the practice still so prevalent in many parts of the world. The World Health Organization (WHO) estimates that at least 200 million girls and women alive today have undergone FGM in 30 countries in Africa, the Middle East, and Asia.8 It further estimates that at least three million girls and women undergo the practice annually—​around 8,200 every day.9 Somalia has the highest prevalence of FGM, with estimates of 98 per cent of Somali women and girls between the ages of fifteen and forty-​nine having undergone FGM.10 Seven other countries, Djibouti, Eritrea, Egypt, Sudan,11 Mali, Guinea, and Sierra Leone, have FGM prevalence rates of more than 80 per cent.12 According to the WHO, the practice has serious short, medium, and long-​term physical, mental, and reproductive health consequences.13 In some cases, the practice of FGM results in death.14 Efforts to prevent these harmful practices have focused on education, awareness raising, and domestic criminal proceedings. Eradication efforts have centred around the practice as a health issue, as well as a human rights violation.15 7 FGM could arguably also amount to torture, the prohibition of which is recognized as a jus cogens norm at an international level, and which is criminalized within many domestic jurisdictions. See Erika de Wet, ‘The Prohibition of Torture as an International Norm of jus cogens and its Implications for National and Customary Law’ (2004) 15 European Journal of International Law 97. 8 World Health Organization (WHO), ‘Female Genital Mutilation Factsheet’ (WHO, 3 February 2020)   accessed 25 September 2020 (hereafter WHO, ‘Female Genital Mutilation Factsheet’). 9 WHO, ‘Female Genital Mutilation: Prevalence of FGM’ (WHO) accessed 25 September 2020. 10 ibid. 11 On 22 April 2020, the Sovereign and Ministerial Councils of Sudan approved an amendment to art 141 of the Criminal Act to criminalize and punish FGM at a national level. 28 Too Many, ‘Sudan’ (28 Too Many) accessed 14 October 2020. 12 ibid. 13 ibid. 14 ibid. 15 See Office of the United Nations High Commissioner for Human Rights (OHCHR) et al, ‘Eliminating Female genital mutilation: An interagency statement’ (WHO 2008) 8–​12 accessed 21 March 2021 (hereafter OHCHR et al, ‘Eliminating Female Genital Mutilation’)

ICL and The Case of FGM  267 This chapter considers the potential of international criminal law (ICL), and specifically crimes against humanity, to address FGM. After a background section on FGM, the chapter shows how FGM is a form of torture under the general prohibition against torture in international law, which forms the basis for the definition of torture under ICL. It then considers how FGM, in some contexts, may meet the specific threshold test for the crime against humanity of torture. Finally, it addresses the benefits of characterizing FGM as the crime against humanity of torture. These benefits focus on the expressive value of torture as a universally condemned evil that is prohibited under international law, and of crimes against humanity as amongst the most egregious crimes. In so doing, the chapter looks to reshape the way the legal community, and society more generally, considers and responds to FGM and to strengthen efforts to stamp it out. Two preliminary issues should be addressed at the outset: why the focus is on FGM and not male circumcision and why this chapter focuses on the crime against humanity of torture and not other crimes against humanity.16 Young men and boys in some societies are subjected to cultural and religious practices of genital cutting in the form of male circumcision. However, when it comes to both the intent behind the practice and its impact, FGM is more overtly discriminatory than its male equivalent. ‘FGM is performed to control women’s sexuality; that is, in fact, one of the reasons often given for FGM.’17 By contrast, male circumcision is frequently justified by reference to its putative health benefits.18 Regardless of the strength of the therapeutic or other arguments in favour of male circumcision, the practice does not enforce patriarchal norms to the same extent as FGM. Indeed, although both FGM and non-​therapeutic male circumcision involve differential treatment of boys and girls, there is little equivalence when it comes to the discriminatory purpose of each practice.19 16 While the focus in this chapter is on FGM, other state-​tolerated discriminatory practices, such as domestic violence, could also amount to the crime against humanity of torture or another crime against humanity if they met the threshold legal tests. 17 Alexi Nicole Wood, ‘A Cultural Right of Passage or a Form of Torture: Female Genital Mutilation from an International Law Perspective’ (2001) 12 Hastings Women’s Law Journal 348, 371–​72. 18 The American Academy of Pediatrics (AAP) for example, has stated that the ‘health benefits of newborn male circumcision outweigh the risks’: AAP, ‘Technical Report Male Circumcision’ (2012) accessed 5 April 2020. The fact that there may be health benefits to male circumcision does not, on its own, answer the question of whether male circumcision ought to be performed. This is fundamentally a moral inquiry and involves consideration of a broad range of factors, not least of which is the consent of the child. 19 See CEDAW, ‘General Recommendation 19: Violence Against Women’ (1992) UN Doc A/​47/​38 (hereafter CEDAW, ‘GR19’), which states that violence against women is sex discrimination based in widespread attitudes about the inferiority of women and identified FGM as an example of such violence. See also Hope Lewis, ‘Female Genital Mutilation and Female Genital Cutting’ in David Forsyth (ed), Encyclopaedia of Human Rights: Volume 2 (OUP 2009) 200, 208 (hereafter Lewis, ‘Female Genital

268  Antonia Mulvey Second, while FGM could arguably also amount to the crimes against humanity of gender-​based persecution20 or ‘other inhumane acts’,21 this chapter focuses on the possible characterization of FGM as the crime against humanity of torture. In criminal law literature, ‘fair labelling’ of offences, which is the notion that the legal definition of a crime should accurately reflect the nature, seriousness, and gravity of the underlying wrongdoing,22 has become common currency. It is a useful device for examining the various ways in which FGM could be characterized under ICL. While FGM might qualify as gender-​based persecution or ‘other inhumane acts’, characterizing FGM as the crime against humanity of torture arguably not only captures the nature, seriousness, and gravity of the crime but also recognizes the distinct harm inflicted on individual victims. Indeed, while it may be entirely necessary and appropriate, in some instances, to charge perpetrators with the crime of gender-​based persecution in order to highlight the systematic targeting of people, such as women and girls, on the basis of their membership in a group,23 doing so can de-​ personalize the physical and mental damage wrought by one person, or group of persons, on a single victim. Applying the ‘torture’ label which, in common usage and international criminal jurisprudence has become a byword for the most extreme form of suffering that one person can inflict upon another, appropriately recognizes that harm while at the same time recognizing and respecting the dignity of individual victims.24 Similarly, FGM could perhaps be charged as the crime against humanity of an ‘other inhumane act’, a residual category of crime. However, characterizing FGM as such inaccurately portrays it as a new form of suffering that is unsuited to the offences already available to capture similar conduct, despite its long history.

Mutilation’); OHCHR et al, ‘Eliminating Female Genital Mutilation’ (n 15) 5; Catherine L Annas, ‘Irreversible Error: The Power and Prejudice of Female Genital Mutilation’ (1996) 12 Journal of Contemporary Health Law and Policy 325, 327–​32. But see Nancy Ehrenreich and Mark Bar, ‘Intersex Surgery, Female Genital Cutting, and the Selective Condemnation of “Cultural Practices” ’ (2005) 40 Harvard Civil Rights-​Civil Liberties Law Review 71. 20 eg Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) art 7(1)(h). 21 eg ibid art 7(1)(k). 22 eg Talita de Souza Dias, ‘Retroactive Recharacterisation of Crimes: the Principles of Legality and Fair Labelling in International Criminal Law’ (DPhil thesis, University of Oxford 2020); Hilmi Zawati, Fair Labelling and the Dilemma of Prosecuting Gender-​Based Crimes at the International Criminal Tribunals (OUP 2014) (hereafter Zawati, Fair Labelling). 23 eg Prosecutor v Kvočka (Amended Indictment) ICTY-​98-​30/​1-​T (21 August 2000); Prosecutor v Brđanin (Amended Indictment) ICTY-​99-​36-​T (9 December 2003). 24 Zawati, Fair Labelling (n 22) 34.

ICL and The Case of FGM  269

1.  Background on Female Genital Mutilation FGM is primarily performed on young girls between infancy and fifteen years of age, but adult and married women are also sometimes subjected to cutting.25 In Somalia, girls are usually aged between four and nine years old when they experience FGM.26 The practice is usually implemented by traditional practitioners, who may service an entire community, or by relatives. Medical professionals—​doctors, midwives, and nurses—​also practice FGM.27 The WHO recognizes four types of FGM: • Type 1—​clitoridectomy, the partial or total removal of the clitoris and/​or the prepuce; • Type 2—​excision, the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora; • Type 3—​infibulation, the narrowing of the vaginal orifice with a covering seal; and • Type 4—​all other harmful procedures to the female genitalia for non-​ medical purposes such as pricking, piercing, incising, scraping, or cauterization.28 There are no medical benefits to FGM. However, those undergoing the procedure face a number of immediate and long-​term health risks depending on the type of FGM practiced, the context where it occurs, the skill of the practitioner involved, and access to other healthcare services. UNFPA highlights these as follows: Immediate complications include severe pain, shock, haemorrhage, tetanus or infection, urine retention, ulceration of the genital region and injury to adjacent tissue, wound infection, urinary infection, fever, and septicaemia. Haemorrhage and infection can be severe enough to cause death. Long-​term consequences include complications during childbirth, anaemia, the formation of cysts and abscesses, keloid scar formation, damage to the urethra

25 WHO, ‘Female Genital Mutilation Factsheet’ (n 8). 26 Abdi Gele, Bente Bø, and Johanne Sundby, ‘Have We Made Progress in Somalia After 30 Years of Interventions? Attitudes Toward Female Circumcision Among People in the Hargeisa District’ (2013) 6(122) BMC Research Notes accessed 25 September 2020. 27 WHO, ‘Female Genital Mutilation Factsheet’ (n 8). 28 ibid.

270  Antonia Mulvey resulting in urinary incontinence, dyspareunia (painful sexual intercourse), sexual dysfunction, hypersensitivity of the genital area and increased risk of HIV transmission, as well as psychological effects.29

Post-​traumatic stress disorder (PTSD), anxiety, depression, memory loss, as well as reduced social functioning, feelings of worthlessness, guilt, and even suicidal ideation have all been identified as amongst the potential mental health implications of FGM.30 The practice of FGM is often maintained by local structures of power and authority comprising community and religious leaders, circumcizers, and elders.31 It is frequently carried out by traditional birth attendants or circumcizers.32 The traditional cutters are commonly elderly, well-​respected women within the community who have undergone FGM themselves. The cutting instruments are usually knives, scalpels, pieces of glass, scissors, razor blades, and, in some cases, the clitoris is nicked with a nail.33 FGM is also increasingly performed by medically trained personnel, including doctors, midwives, or nurses who can earn additional income this way. In 2014, UNICEF surveyed FGM trends in twenty-​nine countries in Africa. It found that Sudan has the highest rate of healthcare professionals performing FGM (41 per cent), followed by Egypt (32 per cent) and Kenya (20 per cent).34 A recent UNICEF report suggests that in countries such as Egypt and Kenya, the cumulative effect of advocacy efforts to eradicate FGM have brought about an increase in FGM procedures being performed by medical professionals, leading to a ‘medicalization’ of the practice of FGM.35

29 United Nations Population Fund (UNFPA), ‘Female Genital Mutilation (FGM): Frequently Asked Questions’ (UNFPA, July 2020) accessed 25 September 2020 (hereafter UNFPA, ‘FGM FAQ’). 30 Serene Chung, ‘The Psychological Effects of Female Genital Mutilation’ (28 Too Many, 16 May 2016) accessed 25 September 2020. 31 OHCHR et al, ‘Eliminating Female Genital Mutilation’ (n 15). 32 Population Reference Bureau, ‘Female Genital Mutilation/​Cutting: Data and Trends’ (2014) accessed 5 September 2020 (hereafter Population Reference Bureau, ‘Female Genital Mutilation/​Cutting’). 33 Edna Adan Hospital, ‘Female Genital Mutilation’ (Edna Adan Hospital) accessed 25 September 2020. 34 Population Reference Bureau, ‘Female Genital Mutilation/​Cutting’ (n 32). 35 UNICEF, ‘Female Genital Mutilation/​Cutting: A Statistical Overview and Exploration of the Dynamics of Change’ (UNICEF, 2016) accessed 25 September 2020.

ICL and The Case of FGM  271 Usually a girl’s parents or her extended family decide whether she will undergo FGM, and will arrange the procedure.36 However, the wider community may play a significant role in influencing that decision. Some traditional elders and chiefs have advocated for the end of FGM within their communities.37 Many others, however, continue to support the practice and have been vocal in their opposition to new laws aimed at ending the practice. In Somalia, for example, some female elders opposed the ban on FGM in the new Constitution, arguing that the practice allowed women and girls to stay ‘pure’.38 Proponents of FGM argue that it is a part of the cultural heritage of the practicing communities. In some societies, FGM is performed because it is perceived as a rite of passage into womanhood.39 In others, FGM exists because the external female genitalia are considered dirty and ugly and are removed, ostensibly, to promote hygiene and aesthetic appeal.40 Traditional beliefs also contribute to its persistence. For instance, according to the Maasai culture, a woman that has not undergone FGM is believed to bring death to the family.41 At the same time, many of these beliefs or rituals are rooted in gender discrimination; discrimination which is used to justify these firmly held beliefs.42 Twenty-​two of the twenty-​eight African countries where FGM is most common have adopted national laws prohibiting FGM, though often these remain unenforced.43 This particularly holds true in countries with plural legal systems, which frequently combine customary, sharia, and formal laws.44 In Puntland, Somalia, for instance, despite the existence of FGM

36 UK Home Office, ‘Female Genital Mutilation: The Facts’ (2015) accessed 25 September 2020. 37 AMISOM News, ‘Somali Government Reaffirms Its Commitment to Fighting Female Genital Mutilation’ (AMISON, 2016) accessed 25 September 2020. 38 IRIN, ‘Female Genital Mutilation Banned Under Somali’s New Constitution’ (The Guardian, 17 August 2012) accessed 25 September 2020. 39 UNFPA-​ UNICEF Joint Programme on Forced Genital Mutilation: Accelerating Change, ‘Performance Analysis for Phase II’ (2018) 73 accessed 4 November 2020 (hereafter UNFPA-​ UNICEP Joint Programme, ‘Performance Analysis’). 40 UNFPA, ‘FMG FAQ’ (n 29). 41 ibid. 42 eg OHCHR et al, ‘Eliminating Female Genital Mutilation’ (n 15) 5–​7. 43 28 Too Many and Thomson Reuters, ‘The Law and FGM: An Overview of 28 African Countries’ (28 Too Many, 2018) accessed 25 September 2020. 44 Human Rights Council (HRC), ‘Good Practices and Major Challenges in Preventing and Eliminating Female Genital Mutilation’ (27 March 2015) UN Doc A/​HRC/​29/​20 (hereafter HRC, ‘Good Practices’).

272  Antonia Mulvey legislation, there has yet to be a prosecution or conviction for the practice as the formal legal system competes with Islamic law and teaching, as well as customary law.45 UNFPA and UNICEF have recorded statistics that show that enforcement of legal FGM frameworks fluctuates over time. For example, in 2015, while 498 arrests for FGM were recorded across African countries with legislation in place, the following year saw a marked drop, to just 90 arrests, before rising again to 253 arrests in 2017.46 While the number of cases brought to court increased from just 119 (2015) to 267 (2017), and the number of cases where convictions or sanctions were approved increased from 40 (2015) to 184 (2017),47 this represents a miniscule fraction of FGM cases. UNFPA suggests the very low prosecution and conviction rates are caused by a lack of enthusiasm among judges and prosecutors to enforce the criminal provisions where the practice of FGM is still commonplace.48 It should also be noted that rates of arrest and conviction vary significantly between countries.49 Additionally, Somalia, where the prevalence of FGM is 98 per cent, and Mali, where prevalence is 91 per cent, have yet to criminalize FGM. It has been argued that a punitive approach towards, and the enforcement of laws against, FGM have inadvertently driven the practice underground.50 A further criticism is that countries that criminalize FGM have failed to account for the transnational and mobile character of the communities that practice FGM. There is insufficient collaboration between neighbouring countries and, as a result, girls can be taken to a neighbouring country with weaker anti-​ FGM laws or no enforcement of the law, to be cut.51 Criminalization, whether under national or international criminal law, cannot be effective as a standalone tool, but must form part of a broad advocacy and education platform. Sustained advocacy and public education will reach farther and deeper than any legal remedy alone. For these strategies to be effective, however, decision-​makers and key stakeholders need to be persuaded and an accurate characterization of FGM as a serious international crime might assist in this effort.

45 28 Too Many and Thomson Reuters, ‘Somalia: The Law and FGM’ (28 Too Many, 2018) https://​ www.28toom​any.org/​sta​tic/​media/​uplo​ads/​Law%20Repo​rts/​soma​lia_​law_​repo​rt_​​​​​​​​(july_​2​018).pdf> accessed 11 December 2020 (hereafter 28 Too Many and Thomson Reuters, ‘Somalia’). 46 UNFPA–​UNICEP Joint Programme, ‘Performance Analysis’ (n 39). 47 ibid. 48 ibid. 49 ibid. 50 HRC, ‘Good Practices’ (n 44) [59]. 51 ibid.

ICL and The Case of FGM  273

B.  Female Genital Mutilation as Torture and a Crime Against Humanity International law has traditionally viewed FGM through the lens of human rights, treating it as a harmful practice violating a range of fundamental rights and inhibiting progress towards gender equality.52 While the human rights characterization is helpful, this section considers how FGM—​particularly against young girls—​might also fulfil the legal criteria for the crime against humanity of torture, when occurring as part of a widespread or systematic attack against a civilian population. This section begins with a discussion of the legal definitions of acts that amount to torture under international law in general, before turning to the specific crime against humanity of torture to examine whether FGM, in some circumstances at least, might meet the threshold tests for that crime. It starts with the definition in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT),53 which forms the basis for the definition of torture used in ICL at the ad hoc criminal tribunals,54 and especially at the ICC, albeit with some significant variations, as described in Sections B.1 and B.2 below.

1.  The Definition of Torture Under the UN Convention Against Torture Article 1 of UNCAT defines torture as: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on 52 United Nations, ‘Sustainable Development Goal 5: Achieve Gender Equality and Empower all Women and Girls’ (United Nations) accessed 25 September 2020. 53 UNCAT (n 5) art 1. 54 See Prosecutor v Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998) [681] (accepting the UNCAT definition of torture as laying out the ‘essential elements of torture’ under the ICTR statute); Prosecutor v Delalić (Judgment) ICTY-​96-​21-​T (16 November 1998) [455]–​[460] (following the UNCAT definition as ‘[reflecting] a consensus which the Trial Chamber considers to be representative of customary international law’); Prosecutor v Furundžija (Judgment) ICTY-​95-​17/​1-​T (10 December 1998) [159].

274  Antonia Mulvey discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.55

This definition provides a three-​part legal test for the existence of torture: (1) there must be intentional infliction of severe pain or suffering, (2) the harm must be intentionally inflicted for a prohibited purpose, and (3) the pain or suffering must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It is in relation to the second and third of these elements that the definition of torture under ICL diverges from the UNCAT definition. a) Intentional infliction of severe pain or suffering The first part of the test is common to both international human rights and criminal law.56 It requires the intentional infliction of severe pain or suffering. Regional human rights courts have interpreted ‘severe pain and suffering’ as requiring that an act of ill-​treatment reach a minimum level of severity in order to be categorized as torture.57 Similarly, international criminal tribunals have noted that ‘the severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences’.58 Both human rights bodies and international criminal tribunals have held that whether the threshold is reached is a matter to be assessed taking into account the specific circumstances of the case, including both objective and subjective criteria.59 For instance, the physical and mental effects of the treatment must be taken into account.60 The type of FGM practiced (I, II, III, or IV) may be relevant. Type III is particularly invasive and is associated with the greatest risk of pain and additional medical complications. However, all forms of FGM are often practiced with rudimentary tools or without the use of anaesthetic, may inflict pain and suffering, and have a 55 UNCAT (n 5) art 1. 56 Torture is also a war crime under international humanitarian law (IHL) and under the Rome Statute: ICCSt (n 20) art 8(2)(a)(ii). As the principal contextual element for war crimes—​nexus to an armed conflict—​is not normally present in the practice of FGM, this crime is not discussed here. 57 See Ireland v the United Kingdom, App No 5310/​71, 18 January 1978 [167] (hereafter Ireland v the United Kingdom). 58 Prosecutor v Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić & Zoran Žigić (Trial Judgment) IT-​98-​30/​1 (2 November 2001) [142] (hereafter Kvočka et al, Trial Judgment). 59 eg ibid [143]; Selmouni v France, App No 25803/​94, 28 July 1999 [98]–​[105]. 60 eg Cestaro v Italy, App No 6884/​11, 7 July 2015 [171] (hereafter Cestaro v Italy); Kvočka et al, Trial Judgment (n 58) [143]; Prosecutor v Radoslav Brđanin (Judgment) IT-​99-​36-​T (1 September 2004) [484].

ICL and The Case of FGM  275 significant negative impact on the individual’s health and wellbeing—​both physical and mental—​for the rest of their lives. Significantly, courts have recognized that the same act inflicted on two different persons may have a starkly different impact.61 A subjective assessment requires consideration of the impact of the conduct on the individual victims.62 Thus, under a subjective assessment, less invasive forms of FGM may still cause severe pain or suffering to the individual undergoing the procedure. In assessing severity, the courts will also consider sex, age, and state of health of the victim.63 It is relevant to note that those undergoing the practice are often young girls—​usually between the ages of five and fifteen. In this respect, the pain and suffering experienced may be subjectively considered as more severe. Both human rights64 and ICL tribunals65 also consider the duration of the ill-​ treatment to be significant. Depending on the type of FGM practiced, the actual cutting may last no longer than an ordinary surgical procedure. However, courts must weigh the short duration of the procedure against the intensity of the pain and suffering endured.66 Moreover, an assessment of severity must take into account the prolonged and intense healing period, as well as the well-​ documented serious and life-​long health implications caused by all forms of FGM.67 In many, if not most cases of FGM, it may be possible to argue that the durational aspect of severity is satisfied. Finally, international criminal jurisprudence has identified other factors which may be relevant to determining whether torture has occurred, including ‘the premeditation and institutionalization of the ill-​treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim’.68 These factors are relevant to FGM, especially in contexts where the practice is commonplace and implemented as a matter of 61 eg Ireland v the United Kingdom (n 57). 62 eg Cestaro v Italy (n 60) [178] (taking into account ‘the applicant’s feelings of fear and anguish’); Kvočka et al, Trial Judgment (n 58) [149] (recognizing that the mental suffering of an individual forced to watch severe mistreatment of a relative could reach the level of gravity required for the crime of torture). 63 Cestaro v Italy (n 60) [171]; United Nations Voluntary Fund for Victims of Torture, ‘Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies’ (OCHCR) accessed 6 November 2020; Kvočka et al, Trial Judgment (n 58) [143] (recognizing factors ‘such as the victim’s age, sex or state of health’, in some cases, as relevant to an assessment of the degree of pain or suffering required to meet the threshold for torture). 64 Cestaro v Italy (n 60) [171] (taking into account the ‘duration of the treatment’). 65 Prosecutor v Krnojelac (Trial Judgment) IT-​97-​25-​T (15 March 2002) [182] (hereafter Krnojelac, Trial Judgment). 66 ibid. 67 On the health consequences of ill-​treatment in the human rights context, see eg Musaiłek and Bacyński v Poland, App No 32798/​02, 26 July 2011 [135]–​[137]. 68 Krnojelac, Trial Judgment (n 65) [182].

276  Antonia Mulvey course, which is the case in countries with especially high levels of FGM, such as Somalia and Mali. The medicalization of FGM, may also, in some contexts point to an ‘institutionalization’ of the practice. Again, the young age at which FGM is often practiced would suggest the ‘position of inferiority of the victim’ in many cases. b) The harm must be intentionally inflicted for a prohibited purpose The second part of the UNCAT test requires that harm must be intentionally inflicted for a prohibited purpose, that is to say, harm must not be accidentally inflicted and must be inflicted for a purpose such as those listed in article 1 of the UNCAT.69 This part of the test was imported into the statutes for the ICTY and ICTR, but does not apply under the Rome Statute of the ICC (Rome Statute) definition of torture as a crime against humanity.70 A number of expert bodies have consistently and explicitly identified FGM as a form of violence against women and girls and a discriminatory practice, including the UN Committee on the Elimination of All Forms of Discrimination against Women,71 the UN General Assembly,72 and the UN Commission on the Status of Women.73 Many of those carrying out the procedure of FGM, alongside the parents of those undergoing FGM, have argued that their motivation is not to harm or to discriminate, but to follow custom, tradition, or to ensure the victim’s acceptance by society. However, the Committee Against Torture, in General Comment 2, underscored that ‘[t]‌he elements of intent and purpose in Article 1 [UNCAT] do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances’.74 A similar approach has been taken by the ad hoc tribunals with respect to the distinction between a perpetrator’s motivation and whether the elements of torture are met. In the ICTY case of Kunarac,75 the appellants argued that 69 UNCAT (n 5) art 1. 70 ICCSt (n 20) art 7(2)(e). 71 eg CEDAW, ‘GR19’ (n 19); CEDAW Committee, ‘Inquiry concerning Mali under art 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ (24 December 2019) UN Doc CEDAW/​C/​IR/​MLI/​1 [53]. The Committee stated that ‘female genital mutilation is a harmful practice and a form of gender-​based violence that constitutes discrimination against women’. 72 UNGA Resolution 61/​143 (30 January 2007) UN Doc A/​RES/​61/​143; UNGA Resolution 69/​150 (17 February 2015) UN Doc A/​RES/​69/​150. 73 Commission on the Status of Women, ‘Ending Female Genital Mutilation’ (11 March 2008) UN Doc E/​CN.6/​2008/​L.2/​Rev.1 (identifying FGM as a form of ‘discrimination and violence against girls’). 74 Committee Against Torture, ‘General Comment No 2’ (24 January 2008) UN Doc CAT/​C/​GC/​2 (hereafter Committee Against Torture, ‘General Comment No 2’). 75 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment) IT-​96-​23 & IT-​96-​23/​1-​A (12 June 2002) (hereafter Kunarac et al, Appeal Judgment).

ICL and The Case of FGM  277 their intent was to sexually gratify themselves and not to hurt the victim. The appellants, who had been accused of torture by committing rape, submitted that, since their motives were sexual gratification, they lacked the requisite ‘purposive’ element to commit torture.76 The ICTY Appeals Chamber rejected this argument, holding that: [I]‌n response to the argument that the Appellant’s avowed purpose of sexual gratification is not listed in the definition of torture, the Appeals Chamber restates the conclusions of the Trial Chamber that acts need not have been perpetrated solely for one of the purposes prohibited by international law. If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-​listed purpose (even one of a sexual nature) is immaterial.77

In the context of FGM, the objective intent is to cut and remove part of a woman/​girl’s body. This act inherently inflicts physical harm on the victim with long-​lasting and severe physical, mental, and emotional health consequences. The practice is inherently discriminatory. While boys are, of course, also subjected to circumcision, the reasons given for male circumcision, on the one hand, and FGM, on the other, reveal that the latter practice arises out of a socio-​cultural belief system that is more overtly gendered and discriminatory. In fact, ‘[i]‌n contrast to male circumcision, which is in no way an attempt to inhibit sexual pleasure, performance, ability, or desire, one of the most frequently given reasons for female circumcision is the control of sexuality of females’.78 c) The harm must be inflicted by, or with the consent or acquiescence of, a public official Finally, the UNCAT definition of torture requires that pain or suffering be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’.79 There has been considerable and authoritative commentary on this element and how the UNCAT might apply to acts of severe pain or suffering in which the state does not appear to be involved, including from the UNCAT Committee itself.80 However, this 76 ibid [153]. 77 ibid [155]. 78 Alison Slack, ‘Female Circumcision: A Critical Appraisal’ (1988) 10 Human Rights Quarterly 437, 441. See also CEDAW, ‘GR19’ (n 19); Lewis, ‘Female Genital Mutilation’ (n 19) 208; OHCHR et al, ‘Eliminating Female Genital Mutilation’ (n 15) 5. 79 UNCAT (n 5) art 1. 80 Committee Against Torture, ‘General Comment No 2’ (n 74) [18], noting that ‘the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture

278  Antonia Mulvey requirement is not present in ICL. For instance, the ICC Elements of Crimes, the document which contains the definitions of torture and other international crimes within the ICC’s jurisdiction, clearly omits this element of the UNCAT test.81 Similarly, the ICTY held that: [T]‌he definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.82

As this analysis shows, it is possible that FGM could meet the elements of the test for torture under UNCAT and ICL. The next step is to consider if it could also meet the additional elements of the crime against humanity of torture.83 Such a characterization introduces the possibility of ICC jurisdiction over FGM, and triggers states’ responsibility to prosecute FGM as an atrocity crime under customary international law.84

2.  FGM as a Crime Against Humanity of Torture Under the Rome Statute The discussion that follows focuses on characterization of FGM as the crime against humanity of torture under the Rome Statute, as the ICC is the only extant international criminal justice mechanism that might have jurisdiction. The focus is also on the ICC because of the possibility that its involvement facilitates and enables non-​State actors to commit acts impermissible under the Convention with impunity, [thus] the State’s indifference or inaction provides a form of encouragement and/​or de facto permission. The Committee has applied this principle to States Parties’ failure to prevent and protect victims from gender-​based violence such as [ . . . ] female genital mutilation’. 81 ICC, Elements of Crimes (ICC 2011) art 7(1)(f) (hereafter ICC, Elements of Crimes). Note that this document is the result of negotiations by states. 82 Prosecutor v Kunarac et al (Trial Judgment) IT-​96-​23-​T & IT-​96-​23/​1-​T (22 February 2001) [496]. The Appeals Chamber adopted the same approach: Kunarac et al, Appeal Judgment (n 75) [144]. 83 Under UNCAT, states are required to criminalize torture within their own national legal orders (UNCAT (n 5) art 4) and to provide for universal jurisdiction over the crime (ibid art 5(2)). 84 At the time of writing, there is no binding international instrument obligating states to prosecute crimes against humanity. If any such requirement exists, it arises from customary international law. See Miles M Jackson, ‘The Customary International Law Duty to Prosecute Crimes against Humanity: A New Framework’ (2007) 16 Tulane Journal of International and Comparative Law 117. Note that there is a project for the development of a crime against humanity treaty, under which states parties would be required to prosecute all such crimes. See International Law Commission (ILC), Draft Articles on Prevention and Punishment of Crimes Against Humanity (2019) UN Doc A/​74/​10, 11.

ICL and The Case of FGM  279 might encourage greater national investigation and prosecution of FGM. Even in states that are not signatories to the Rome Statute, the characterization of FGM as the crime against humanity of torture reinforces the nature, seriousness, and gravity of the crime and may, thus, boost local advocacy efforts to investigate and prosecute the practice. Under the Rome Statute, no involvement of state actors is required. Rather, those subjected to severe physical or mental pain or suffering need only to have been in the custody or under the control of the perpetrator and the pain or suffering must not have been caused by lawful sanctions.85 As an initial matter, no country imposes FGM as part of lawful sanctions. It is commonly framed as a traditional practice.86 With respect to the custody and control requirement, while those who practice FGM may claim that victims of FGM undergo the procedure voluntarily, most victims remain under the custody or control of their parents or community members who support the practice.87 Indeed, in 2008, the former Special Rapporteur on Torture and Inhuman and Degrading Treatment, Manfred Nowak, stated, ‘[in the context of FGM] it must be noted that the cutting is usually carried out before a girl’s tenth birthday. In such circumstances, girls are clearly under the complete control of their parents and communities and do not have the possibility of resisting’.88

3.  Rome Statute Requirements for the Crime Against Humanity of Torture a) A widespread or systematic attack directed against any civilian population For torture to amount to a crime against humanity, it must be ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.89 This section considers each of these elements in turn. The Elements state that an ‘[a]‌ttack directed against a civilian population is understood to mean a course of conduct involving the multiple commission of acts’.90 Significantly, an attack ‘need not constitute a military attack’.91 This 85 ICC, Elements of Crimes (n 81) art 7(1)(f). 86 eg UNFPA, ‘Female Genital Mutilation’ (UNFPA) accessed 18 December 2020. 87 Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (15 January 2008) UN Doc A/​HRC/​7/​3. 88 ibid. Thus, the characterization of FGM as the crime against humanity of torture is particularly appropriate when the practice is directed at young girls. 89 ICCST (n 20) art 7(1). 90 ICC, Elements of Crimes (n 81) 5. 91 ibid.

280  Antonia Mulvey interpretation reflects the jurisprudence of the ad hoc tribunals, which consolidated the position that ‘an attack is not limited to the use of armed force but encompasses any mistreatment of the civilian population’.92 For its part, the ICC has found that ‘the commission of the acts referred to in article 7(1) of the Rome Statute constitute the ‘attack’ itself ’93 and no additional requirement is needed to prove a course of conduct involving the multiple commission of acts. Given that FGM can amount to torture, one of the crimes listed in article 7(1), and that it is perpetrated against civilians, primarily girls and young women, this part of the definition of ‘attack’ could be said to be met.94 Further, the attack must be widespread or systematic. A ‘widespread’ attack is one of a large-​scale nature, targeting a number of persons,95 while a ‘systematic’ one is characterized by its organized and intentional nature.96 It is difficult to see how 200 million women and girls worldwide could be seen as anything other than widespread. Even within specific country contexts, FGM can be described as widespread. This is apparent in countries like Somalia, Guinea, Djibouti, Egypt, Sierra Leone, Mali, and Sudan where the rate of FGM exceeds 85 per cent.97 However, even in countries where the rate is lower, FGM can affect a considerable number of persons. For example, while an estimated 24 per cent of girls aged between fifteen and forty-​nine have experienced FGM in Nigeria, this amounts to twenty million women and girls.98 Within countries, rates of FGM can also vary significantly; in Senegal, while the rate of FGM is 6 per cent in the centre region of the country, in the South, it is estimated to be 77.8 per cent.99 Contextual analyses of the rates of FGM clearly demonstrate that the ‘widespread’ criterion can be met. While a crime against humanity need not be both widespread and systematic under the Rome Statute, it is worth noting that the practice of FGM also meets the definition of ‘systematic’. As noted above, a systematic attack is identified 92 Prosecutor v Radovan Karadžić (Judgment) ICTY-​95-​5/​18-​T (24 March 2016) [473]. See also Prosecutor v Jovica Stanišić and Franko Simatović (Judgment) ICTY-​03-​69-​T (30 May 2013) [962]; Prosecutor v Jadranko Prlić (Judgment) ICTY-​04-​74-​T (29 May 2013) [35]; Prosecutor v Perišić (Judgment) ICTY-​04-​81-​T (6 September 2011) [82]. 93 Prosecutor v Bemba (Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-​Pierre Bemba Gombo) [2009] ICC-​01/​05-​01/​08 [75]. 94 In addition, the civilian population must be the primary target of the attack, Prosecutor v Katanga (Trial Judgment) [2014] ICC-​01/​04-​01/​07 [1104] (hereafter Katanga, Trial Judgment); Kunarac et al, Appeal Judgment (n 75) [91]. As women and young girls who are clearly civilians are the primary target of the attack, this criterion is met as well. 95 Katanga, Trial Judgment (n 94) [1123]. 96 ibid. 97 WHO, ‘Female Genital Mutilation Factsheet’ (n 8). 98 28 Too Many, ‘Nigeria’ (28 Too Many) accessed 25 September 2020. 99 ibid.

ICL and The Case of FGM  281 by ‘its organized and intentional nature’.100 The extensive and longstanding implementation of FGM as a traditional practice—​where many communities or families have specified individuals who implement FGM using standardized or traditional tools and methods, and where FGM is practiced against girls of similar age—​suggest the practice is ‘organized’. The practice of FGM is intentional both in the sense that it is deliberate (non-​accidental) and in the sense that the practice is continued through generations—​individuals within communities must make an active decision to continue the practice of FGM. b) Pursuant to, or in furtherance of, a state or organizational policy to commit such attack Under the Rome Statute, the ‘attack’ must have its basis in a state or organizational policy encouraging or promoting such an attack.101 A state or organizational policy will be demonstrated where the attack is planned, directed, or organized, as opposed to random or spontaneous.102 Liability via omission is possible if that omission is deliberately directed at encouraging the attack.103 Indeed, a footnote to the ICC Elements of Crimes states: ‘Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’.104 Significantly, encouragement does not need to come from a state actor but can be instigated by a non-​state actor105 where that non-​state actor is sufficiently ‘organizational’, that is to say, where the non-​state actor has the capability to perform acts which infringe on basic human values.106 The ICC has outlined potential criteria that may indicate the existence of a sufficiently organized structure, such as, control over geographical territory, a responsible command or established hierarchy, or the means to carry out a widespread or systematic attack against a civilian population.107 Given the rejection of the practice of FGM by the governments of some of the countries where FGM is regularly practiced, through governmental statements or criminalization of FGM, the ‘state or organizational policy’ criterion of crimes against humanity could be viewed as an obstacle in arguing 100 Katanga, Trial Judgment (n 94) [1123]. 101 ICCSt (n 20) art 7(2)(a). 102 Katanga, Trial Judgement (94) [1123]. 103 ICC, Elements of Crimes (n 81) 5 fn 6. 104 ibid: However, the ‘existence of such a policy cannot be inferred solely from the absence of governmental or organizational action’. 105 ibid 5. 106 Situation in the Republic of Kenya (Decision Pursuant to art 15 of the Rome Statute on the Authorization of an Investigation Into the Situation in the Republic of Kenya) [2010] ICC-​01/​09 [90]. 107 ibid [93].

282  Antonia Mulvey that FGM amounts to a crime against humanity. However, the continuation of the practice—​in some countries at markedly high levels—​suggests a deliberate effort by states either to ensure or allow the practice of FGM to continue. Moreover, where a state policy cannot be demonstrated, state actors may be complicit in an organizational policy to commit the attack. Both these possibilities will be explored below in the context of Somalia, where the level of FGM is estimated to be around 98 per cent. c) State or organizational policy to commit FGM: Somalia as a case study As has been noted above, the Somali government has made a number of efforts to reduce the practice of FGM in Somalia, including in drafting (though not yet passing) an FGM bill which would criminalize the practice. In 2014, the Federal Government of Somalia adopted a policy on FGM that prohibited Type III infibulation but allowed for the ‘Sunna’ or Types I and II of FGM to continue.108 The justification for the adoption of this policy was that it would be more realistic to encourage a gradual move away from FGM, considering its prevalence and widespread acceptance, rather than prohibiting it outright.109 In 2014, Puntland criminalized FGM under the Female Genital Mutilation/​ Cutting Act. Article 3(1) of the Act provides that a ‘person is guilty of an offence if the person does or attempts to do, an act of female mutilation/​cutting’. These steps, while flawed—​the policy does not call for an end to all forms of FGM and there has yet to be a prosecution for FGM under the Puntland Act—​might suggest that the Somali government at least intends to bring about an end to the practice of FGM. Yet, the practice continues to be widespread and commonplace throughout the country. In the capital, Mogadishu, for instance, medical professionals who perform FGM openly advertise their services on street signs and there are clinics that specialize in FGM.110 It is clear that existing legislative and policy measures are ineffective, suggesting the failure to take more effective action is consciously aimed at allowing the practice to continue. Moreover, Somalia’s inadequate efforts (and in some contexts, almost total inaction) are part of a wider legal framework which systematically disempowers women and girls. A clear example of this is the flawed Sexual 108 28 Too Many and Thomson Reuters, ‘Somalia’ (n 45) 4. 109 eg Abdi A Gele, Bente P Bø, and Johanne Sundby, ‘Attitudes toward Female Circumcision among Men and Women in Two Districts in Somalia: Is It Time to Rethink Our Eradication Strategy in Somalia?’ (2013) Obstetrics and Gynaecology International accessed 6 November 2020. 110 Sheena Crawford and Sagal Ali, ‘Situational Analysis of FGM/​C Stakeholders and Interventions in Somalia’ (2015) accessed 25 September 2020.

ICL and The Case of FGM  283 Intercourse Bill (currently awaiting parliamentary consideration).111 While Somalia is not alone in having a legal framework which fails to address the needs of women and girls, this is the context in which the practice of FGM, and inadequate efforts to address it, continue. The wider context undermines the stated policy efforts of the government. Further, the ‘state policy’ need not be evident at the national or federal state level. If regional or municipal authorities condone or encourage FGM pursuant to, or in furtherance or a policy, the test could be met. For example, in February 2018, the Ministry of Endowment and Islamic Affairs of the Republic of Somaliland issued a ruling making a certain type of FGM ‘mandatory’ for every girl in Somaliland, while, at the same time banning the more extreme forms.112 To the extent this form of FGM amounts to torture, meaning to the extent it rises to the level of severe pain and suffering discussed above and is committed against young women and girls under the custody and control of perpetrator, then the ruling mandating this practice would likely satisfy the state policy criteria. Alternatively, it may be the case that the practice of FGM in Somalia is rooted in an organizational policy, arguably pursued by clan or religious leadership throughout Somalia. Clan structure remains a vital component of governance throughout much of Somalia, including in resolving intra-​and inter-​clan disputes. Continued reliance on customary or informal mechanisms through the clan structure, which largely excludes women, has been identified as a factor for the continuation of practices like FGM.113 In Somali tradition, the rights of groups and individual security ‘effectively are protected by [the use of] force, or threat of force’ by clans.114 Clan elders exercise influence over militia actions against rival clans, and make decisions related to representation of the clan at state and federal level.115 Moreover, clan or religious leaders, who clearly 111 The proposed new bill, designed to update the law on sexual offences in the Penal Code, still uses outdated definitions of sexual crimes (including rape), legalizes child marriage, and significantly reduces the likelihood of survivors of sexual violence in Somalia being able to access justice in the courts. 112 Save The Children, ‘Child Rights Agencies Concerned Over Decision That Encourages FGM In Somaliland’ (Save the Children, 24 February 2018) accessed 10 April 2021. 113 Expanding Access to Justice Program in Somalia (EAJ), ‘The Shari’ah in Somalia’ (Pact and the American Bar Association Rule of Law Initiative, 2020) 22 accessed 5 May 2021. 114 Australian Red Cross and ACCORD, ‘Clans in Somalia: Report on a Lecture by Joakim Gundel, COI Workshop Vienna, 15 May 2009’ (15 December 2009) 21 accessed 10 April 2021. 115 EAJ, ‘Alternative Dispute Resolution Initiatives in Somalia’ (Pact and the American Bar Association Rule of Law Initiative, 2020) accessed 10 April 2021.

284  Antonia Mulvey maintain a level of authority over traditional practices, support the continuation of FGM.116 In this respect, it can be argued that clans meet the definition of an organization capable of infringing on the rights of individuals. Where clans encourage or promote FGM, this arguably could meet the definition of an ‘organizational’ policy. To the extent an organizational policy is shown, state actors may be complicit in the pursuit of that policy by religious groups and clan leadership throughout Somalia, by failing to respond appropriately to that policy, or by allowing the influence of that policy to impact state policy or legislative decisions. Indeed, in a number of places, politicians have emphasized that concerns by Islamic clerics have played a role in mitigating or altering proposed anti-​FGM legislation.117 The ‘state or organizational policy’ criterion is undoubtedly one of the more challenging criteria to fulfil in arguing that practices such as FGM meet the definition of a crime against humanity under the Rome Statute—​even in the context of Somalia where estimates of the practice of FGM near 100 per cent. Nevertheless, where the practice of FGM continues at significant rates and proponents of the practice are able to influence state policy and legislation, the context and totality of circumstances suggest that the continuation is more than just tradition or habit, but rather a concerted state policy or, at a minimum, complicity in a policy by religious groups and clans, to continue the practice. Two further points should be emphasized. First, this case study has focused solely on Somalia—​it may be that a state or organizational policy could also be demonstrated in another country or locality. Second, the requirement of a state or organizational policy appears only within the Rome Statute definition of crimes against humanity and not under customary ICL. Thus, to the extent FGM is prosecuted under customary international law, this criterion would not need to be met.

116 ibid. Significantly, even outside Somalia, incidents have been documented where community leaders have actively promoted FGM and/​or countered anti-​FGM initiatives by the State. See Peter Muiruri, ‘Kenyan efforts to end FGM suffer blow with victims paraded in “open defiance” ’ (The Guardian, 21 October 2020) accessed 10 April 2021. 117 Belinda Goldsmith, ‘Village by village, the quest to stop female genital cutting in Somaliland’ (Reuters, 29 August 2019) accessed 10 April 2021.

ICL and The Case of FGM  285 d) Knowledge of the attack The Elements of Crimes also require that ‘the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population’.118 In respect of the ‘knowledge of the attack’, they state that this element: [S]‌hould not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization.119

Knowledge that conduct is part of a widespread attack against a civilian population will inevitably depend on the facts in a particular case and what the individual in question knew or did not know. Nonetheless, it could be possible to show that the perpetrator, whether a state actor or clan or religious leader, knew their conduct was part of, or intended it to be part of, the widespread or systematic practice of FGM against women and girls. In sum, while at first describing FGM as a crime against humanity may seem outlandish, closer examination of practice, alongside the relevant legal criteria, indicates that a clear line of argument can be made. Closer scrutiny of available evidence in particular local contexts, and the conduct of key individuals in positions of authority, whether state actors or community leaders, would be required for a criminal prosecution. Nevertheless, it might be possible to lay out a legal pathway to prosecution: FGM could amount to the crime against humanity of torture.

4.  Other Discriminatory Practices as the Crime Against Humanity of Torture This analysis raises the question of whether the same line of argument could be applied effectively to other gender discriminatory practices, such as intimate partner/​domestic violence. While the subjective assessment of severe pain and suffering in establishing torture as a crime against humanity inherently requires a case-​by-​case assessment, deeply entrenched gender discriminatory practices where state actors fail to adequately address them could also amount to the crime against humanity of torture following the same analysis in

118 ICC, Elements of Crimes (n 81) 7. 119

ibid 5.

286  Antonia Mulvey this chapter. In this respect, it is worth underscoring the key points in the legal argument made here: First, that the assessment of severe pain and suffering has both an objective and subjective component, and that mental harm may equally amount to torture.120 Second, that an attack against a civilian population need not be a military attack. Third, that where the state fails to adequately address such acts, this can amount to encouragement or acquiescence of those acts and may, in particular contexts, amount to the state policy required for crimes against humanity.121 In the alternative, where the practice continues at significant levels, this may suggest the existence of an organizational policy, in which state actors may be complicit. Thus, while questions may arise around particular legal elements in any given context, it is arguable that some other gender discriminatory practices may amount to crimes against humanity.

C.  The Benefits of Framing FGM (and Other Discriminatory Practices) as the Crime Against Humanity of Torture What would be the benefits of successfully reframing discriminatory practices, such as FGM, as the crime against humanity of torture? A number of benefits may accrue simply through the recognition of FGM as the crime of torture. While a detailed discussion of such benefits falls outside the scope of this chapter, they include triggering obligations on a state to criminalize,

120 A number of commentators have argued that certain forms of violence against women, including domestic violence, may violate the international prohibition on torture. See Rhonda Copelon, ‘Recognizing the Egregious in the Everyday: Domestic Violence as Torture’ (1994) 25 Columbia Human Rights Law Review 291; Anthony P Ewing, ‘Establishing State Responsibility for Private Acts of Violence Against Women Under the American Convention on Human Rights’ (1995) 26 Columbia Human Rights Law Review 751, 760, 764–​65; Barbara Cochrane Alexander, ‘Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims’ (2000) 15 American University International Law Review 895; Patricia Tarre Moser, ‘Duty to Ensure Human Rights and its Evolution in the Inter-​American System: Comparing Maria de Pengha v Brazil with Jessica Lenagan (Gonzales) v United States’ (2012) 21 American University Journal of Gender, Social Policy and the Law 437, 448–​52 (arguing that the court should have classified domestic violence as torture in the two named cases). Some judges serving on human rights bodies have taken a similar position. See eg Gonzalez et al (Cotton Field) v Mexico (Concurring Judgment of Judge Cecilia Medina Quiroga) (Inter-​ American Court of Human Rights, 16 November 2009) accessed 6 November 2020 (opining that the acts perpetrated against the victims should have been classified as torture). 121 The Elements of Crimes for crimes against humanity provide that ‘a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action’: ICC, Elements of Crimes (n 81) fn 6.

ICL and The Case of FGM  287 investigate, prosecute, and punish acts of torture, and to prevent torture where there is a real risk of it taking place.122 Additional advantages to framing FGM as the crime against humanity of torture include potential access to a wider range of legal remedies for survivors of FGM as victims of an international crime. For example, if a case alleging FGM were brought before the ICC, survivors may be consulted by the ICC on their needs and interests from the earliest stages of an investigation,123 participate as ‘victims’ in a trial124 through legal representation,125 and join a reparations award in the event of a conviction.126 Second, the process of investigating or trying FGM as an international crime may deter perpetrators or encourage state actors to enforce existing legal mechanisms at a domestic level. In Libya, for example, research carried out by Hillebrecht suggests that the number of government-​sponsored civilian killings reduced the more the ICC signalled its intent to prosecute wrongdoers.127 Similarly, data from the Transitional Justice Research Collaborative indicates that African countries under investigation by the ICC tried four times as many police or low-​level officers than countries not being investigated.128 Third, the wider, non-​legal impact of international criminal proceedings in bringing about an end to the practice of FGM cannot be understated. A successful case or legal intervention could inspire other survivors or their wider community to seek justice and to have some confidence that it can be obtained. It could also express the collective view of the international community that they oppose the discriminatory practice. Further, an international criminal case prosecuting FGM could give a ‘face’ to the vast numbers of FGM victims, demonstrating to states the personal impact of FGM on individual women and girls. Even an unsuccessful criminal trial could mobilize public pressure 122 UNCAT (n 5) arts 4, 6, 7. Also, under the principle of non-​refoulement, states may not repatriate refugees or other individuals seeking asylum where there is a real risk of torture: ibid art 3. On the application of this principle to FGM, see the European Court of Human Rights: RBAB v the Netherlands, App No 7211/​06, 7 June 2016. 123 In October 2020, the Pre-​Trial chamber confirmed victims had the right to request that the Chamber consider hearings outside the host country, during investigation (i.e. prior to the issue of an arrest warrant), in the situation of Bangladesh/​Myanmar: Situation in the People’s Republic of Bangladesh/​Republic of the Union of Myanmar (Corrected version of “Decision on Victims’ joint request concerning hearings outside the host State”) [2020] ICC-​01/​19-​38. 124 ICC, ‘Rules of Procedure and Evidence’ r 89 accessed 10 April 2021. 125 ibid r 90. 126 ICCSt (n 20) art 75. These benefits only relate to proceedings before the ICC. 127 Courtney Hillebrecht, ‘The Deterrent Effects of the International Criminal Court: Evidence from Libya’ (2016) 42 International Interactions 616, 632–​33. 128 Geoff Dancy and Florencia Montal, ‘Unintended Positive Complementarity: Why International Criminal Court Investigations May Increase Domestic Human Rights Prosecutions’ (2015) 111 American Journal of International Law 689.

288  Antonia Mulvey to change national legislation, policy, and/​or behaviour.129 Further, prosecution of FGM as a crime against humanity at the ICC or in national proceedings applying the Rome Statute definition could expose the failure of the state to adequately address the practice of FGM or highlight its complicity in the policies of non-​state actors. National prosecutions of FGM using the customary law definition of torture would highlight the discriminatory purpose behind the practice of FGM. In either case, such criminal proceedings could provide a useful platform for anti-​FGM activists. Fourth, beyond formal legal proceedings under ICL, the re-​characterization of FGM proposed in this chapter could add a powerful tool to the anti-​FGM movement’s arsenal. Indeed, defining discriminatory practices, such as FGM, as torture, and potentially an international crime, could boost the impact of advocacy for states to undertake the effective steps necessary to ensure that this form of torture does not occur. This could include wide-​ranging grassroots education programmes that seek to transform local understanding of the practice and highlight its dangers. Together with criminalization and effective enforcement of existing laws, these efforts will be necessary to bring about an end to these practices. Finally, there is something to be said for the expressive value of characterizing FGM as the crime against humanity of torture. The torture label could act as an effective shorthand for the horrors of FGM, while the crime against humanity label could go a long way towards highlighting the widespread practice of FGM, as well as its systematic nature and state involvement. Recasting FGM as the crime against humanity of torture could help counter cultural and religious sensitivities around FGM by recognizing that it is a discriminatory attack on women and girls that should ‘deeply shock the conscience of humanity’.130 The harm caused by FGM has long been recognized, but all too often state efforts to address it amount to little more than lip service at best. Hundreds of millions of women and girls remain at risk of serious harm, long-​term injury, and death, as well as gross violations of their fundamental human rights. Ultimately, redefining discriminatory acts, such as FGM, as torture, and as a crime against humanity, might provide another tool for bringing about an end to these practices. At a minimum, it would apply a ‘fair label’ to what is a gross violation of the rights and dignity of women and girls.

129 On the positive, mobilizing impact of unsuccessful human rights litigation by lesbian, gay, bisexual, transgender, intersex, queer, non-​binary, or otherwise gender-​non-​conforming (LGBTIQ+​) organizations, see Douglas NeJaime, ‘Winning Through Losing’ (2011) 96 Iowa Law Review 941, 947. 130 ICCSt (n 20) Preamble.

PART III

ENGE N DE R ING J U ST IC E The Future of International Criminal Law

11 ‘Gender-​Inclusivity’ in the International Criminal Court’s First Reparations Proceedings Jonathan O’Donohue and Rosemary Grey*

A.  Introduction In addition to its criminal justice mandate—​to investigate and prosecute war crimes, crimes against humanity, genocide, and aggression in the absence of genuine national proceedings—​the International Criminal Court (ICC) has a reparative mandate. Specifically, it can order a convicted person to provide reparations to victims, whose right to effective remedies is often ignored at the national level. This reparations power is the result of advocacy by civil society and like-​minded states during the negotiations for the 1998 Rome Statute of the ICC,1 who saw reparations as ‘a centrepiece of a more victim-​oriented court’.2 It is one of the features that differentiates the ICC from previous international criminal tribunals, which had very limited reparations powers.3 The ICC Statute obliges the ICC to ‘establish principles relating to reparations to, or in respect of, victims’.4 In its nascent reparations jurisprudence * With thanks to Christoph Sperfeldt and this book’s tireless editors, for providing comments on drafts of this chapter. The chapter covers developments until 1 March 2021. It does not cover subsequent ICC reparations practice, including the reparations order issued by the Ntaganda Trial Chamber on 8 March 2021, or the commencement of the reparations proceedings in the Ongwen case. However, we hope that this chapter will provide a useful starting point for a gender review of those more recent reparations orders. 1 Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt). 2 Christoph Sperfeldt, ‘Rome’s Legacy: Negotiation the Reparations Mandate of the International Criminal Court’ (2016) 17 International Criminal Law Revew 351, 361 (hereafter Sperfeldt, ‘Rome’s Legacy’). 3 ibid 356. For example, the ICTY and ICTR Statutes and Rules of Procedure and Evidence enabled the Trial Chamber to order the return of any property and proceeds acquired by criminal conduct but made no provision for other forms of reparations: UN Security Council (UNSC), Statute of the International Criminal Tribunal for the former Yugoslavia (established 25 May 1993) art 24(3); UNSC, Statute of the International Tribunal for Rwanda (established 8 November 1994) art 23(3). 4 ICCSt (n 1) art 75(1).

292  Jonathan O’Donohue and Rosemary Grey the ICC began to adopt such principles, including requiring the Court to apply reparations in a ‘gender-​inclusive’ way. This principle was first articulated in the Lubanga case, in which the Appeals Chamber stated, ‘[a]‌gender-​inclusive approach should guide the design of the principles and procedures to be applied to reparations, ensuring that they are accessible to all victims in their implementation’.5 This was an important promise to confront the ways that victims, particularly women and girls, are often denied full and effective reparations for violations of human rights. It is grounded in the statutory requirement that the ICC must interpret and apply the law without adverse distinction on gender grounds and consistent with ‘internationally recognized human rights’,6 including the right of victims to equal access to a judicial remedy.7 The requirement of a ‘gender-​inclusive’ approach to reparations has since been restated in principles relating to reparations adopted in subsequent cases,8 and supported in the Office of the Prosecutor’s (OTP) 2014 Policy Paper on Sexual and Gender-​Based Crimes.9 Gender-​inclusivity is therefore emerging as a principle to be applied in all ICC reparations proceedings. But what does this principle mean in concrete terms for the ICC’s reparations proceedings? How can it be operationalized? This chapter seeks to answer these questions at a time when the ICC’s reparations practice and jurisprudence is still vague as to the requirements of ‘gender-​inclusivity’. It does so by identifying concrete opportunities and limitations for achieving gender-​inclusivity and avoiding gender discrimination in the ICC’s reparations practice. Our goal is to show that, when it comes to the ICC, a ‘gender-​inclusive’ approach to reparations should not simply mean awarding reparations for sexual violence crimes. Rather, the concept of ‘gender-​inclusive’ reparations should be interpreted broadly to require that a gender analysis permeates all aspects of the ICC reparations process, regardless of the crimes charged in the case. The aim of ‘gender-​inclusive’ reparations 5 Prosecutor v Lubanga (Order for Reparations (amended)) [2015] ICC-​01/​04-​01/​06-​3129-​AnxA [18] (hereafter Lubanga Amended Principles and Reparations Order). 6 ICCSt (n 1) art 21(3). 7 UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’ (21 March 2006) UN Doc A/​RES/​60/​147 [12] (hereafter UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy’). 8 The Lubanga Principles were endorsed and applied mutatis mutandis in the Katanga and Al Mahdi cases: Prosecutor v Katanga (Order for Reparations pursuant to art 75 of the Statute) [2017] ICC-​01/​ 04-​01/​07-​3728-​tENG [30] (hereafter Katanga Reparations Order); Prosecutor v Al Mahdi (Reparations Order) [2017] ICC-​01/​12-​01/​15-​236 [26] (hereafter Al Mahdi Reparations Order). 9 ICC Office of the Prosecutor (OTP), ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) [102] (hereafter ICC OTP, ‘Policy Paper’).

Gender-Inclusive ICC Reparations  293 should be to ensure that all eligible victims, including women and girls, have equal access to ICC reparations, and that the Court’s reparations orders seek to address the harms they have suffered to the fullest extent possible, whilst confronting entrenched gender discrimination that contributed to the commission of the crimes. This analysis of what it means to operationalize the principle of ‘gender-​ inclusive’ reparations is particularly timely, given current concerns about the clarity and viability of the ICC’s reparations mandate as a whole. As observed in the September 2020 Final Report of the ICC Independent Expert Review, established to strengthen the performance of the Court, ‘[t]‌he Court’s conceptual and procedural processes for reparations are laden with complexity and uncertainty, which gravely affects the victims’ rights to meaningful participation and reparations’.10 To structure our analysis, we have developed a three-​part framework for elaborating on the notion of ‘gender-​inclusive’ reparations at the ICC. First, the chapter examines what the principle of ‘gender-​inclusivity’ implies for the ICC’s reparations process, including the victims’ experience in applying for reparations and their involvement in designing any reparations award. Second, the chapter considers what this principle means for the reparations decision, taking into account the Court’s role in identifying the harms that require reparations, as well as its choice as to the forms that the reparations will take. Third, we focus on a related principle adopted in the ICC’s early reparations decisions, namely, the principle that reparations may include measures with a ‘transformative value’.11 The need for transformative reparations to address sexual and gender based crimes—​measures that seek not only to remedy the consequences of these crimes, but to overcome the entrenched gender norms and hierarchies that contribute to their commission—​have been emphasized by feminist academics in relation to national reparations processes,12 as well as in some filings before the ICC.13 However, given the Court’s limited capacity 10 Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report (30 September 2020) [879]: accessed 18 April 2021 (hereafter Independent Expert Review). 11 eg Lubanga Amended Principles and Reparations Order (n 5) [34]. 12 For a detailed analysis of the concept of ‘transformative reparations’, see Ruth Rubio-​Marín, ‘Gender and Collective Reparations in the Aftermath of Conflict and Political Repression’ in Ruth Rubio-​Marín (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (CUP 2009) 381 (hereafter Rubio-​Marín, ‘Gender and Collective Reparations’). 13 eg Prosecutor v Lubanga (Observations on Reparations in Response to the Scheduling Order of 14 March 2012) [2012] ICC-​01/​04-​01/​06-​2872 [72]–​[77] (hereafter Lubanga TFV Observations on Reparations); Prosecutor v Lubanga (Observations of the Women’s Initiatives for Gender Justice on Reparations) [2012] ICC-​01/​04-​01/​06-​2876 [13], [17] (hereafter Lubanga Observations of the Women’s Initiative for Gender Justice).

294  Jonathan O’Donohue and Rosemary Grey to effect lasting social change, and its lack of a democratic mandate to do so, some commentators have questioned whether the ICC can and should embrace ‘transformative reparations’ as a goal.14 Cognizant of these concerns, we suggest that, although the Court should take measures to confront gender discrimination in its reparations orders where possible, it must be realistic about the modest transformative effect that its orders can achieve and respond to the concerns expressed by the affected community, particularly by marginalized actors within it. Throughout the chapter, we pay close attention to insights from the feminist scholarship on state-​administered reparations, meaning reparations provided by states in response to human rights violations or as part of a transitional justice process.15 As we show, this scholarship offers valuable lessons for the ICC, although some ideas do not always translate easily to the ICC’s context. We have also drawn from the UN Secretary-​General’s 2014 Guidance Note on Reparations for Conflict-​Related Sexual Violence16 and from civil society initiatives, including the 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation17 (which was adopted by women’s rights advocates and survivors of conflict-​related sexual violence from Africa, Asia, Europe, and the Americas), as well as relevant amicus curiae observations filed in the ICC. The chapter refers to the ICC’s early reparations practice where relevant, taking into account lessons learned from the ICC’s first four reparation 14 eg Leila Ullrich, ‘Schizophrenic Justice: Exploring “Justice for Victims” at the International Criminal Court (ICC)’ (DPhil thesis, University of Oxford 2016) 219–​51; Andrea Durbach and Louise Chappell, ‘Leaving Behind the Age of Impunity: Victims of Gender Violence and the Promise of Reparations’ (2014) 16 International Feminist Journal of Politics 543 (hereafter Durbach and Chappell, ‘Leaving Behind the Age of Impunity’). For similar concerns in relation to the ECCC, see Sarah Williams and Emma Palmer, ‘Transformative Reparations for Women and Girls at the Extraordinary Chambers in the Courts of Cambodia’ (2016) 10 International Journal of Transitional Justice 311 (hereafter Williams and Palmer, ‘Transformative Reparations for Women and Girls at the ECCC’). 15 eg Rubio-​Marín, ‘Gender and Collective Reparations’ (n 12); Colleen Duggan, Claudia Paz y Paz Bailey, and Julie Guillerot, ‘Reparations for Sexual and Reproductive Violence: Prospects for Achieving Gender Justice in Guatemala and Peru’ (2008) 2 International Journal of Transitional Justice 192 (hereafter Duggan, Paz y Paz Bailey, and Guillerot, ‘Reparations for Sexual and Reproductive Violence’); Anne Saris and Katherine Lofts, ‘Reparation Programmes: A Gendered Perspective’ in Carla Ferstman, Mariana Goetz, and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Brill/​Nijhoff 2009) 79; Emily Jones, ‘Gender and Reparations: Seeking Transformative Justice’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (2nd edn, Brill/​Nijhoff 2020) 86 (hereafter Jones, ‘Gender and Reparations’); Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (OUP 2016) 130–​59. 16 UN, ‘Guidance Note of the Secretary-​General: Reparations for Conflict-​Related Sexual Violence’ (June 2014) 9 accessed 3 July 2020 (hereafter UN, ‘Guidance Note’). 17 ‘Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation’ (21 March 2007) accessed 3 July 2020 (hereafter Nairobi Declaration).

Gender-Inclusive ICC Reparations  295 proceedings in the Lubanga, Katanga, Al Mahdi, and Bemba cases.18 However, we do not claim to offer a comprehensive gender evaluation of the ICC’s gender practice, for two reasons. First, our ability to assess the ICC’s reparations practice is limited by access to information: in many instances, the details of the Court’s reparations process are not reported in public documents; much of it happens out of sight. Second, a full assessment requires in-​country research into the experiences of victims and the gendered impact of ICC reparations in affected communities, which was beyond our capacity at the time of writing. Nonetheless, with four completed reparations proceedings resulting in three reparations orders at the time of writing, it is possible to offer an early analysis of the extent to which the Court’s commitment to ‘gender-​inclusivity’ in its reparations awards is being realized, and to identify some emerging issues and concerns.

B.  The ICC’s Reparations Mandate and First Reparation Proceedings at a Glance Before exploring the implications of the ICC’s commitment to ‘gender-​ inclusive’ reparations, it is useful to briefly summarize the ICC’s reparations mandate and its reparations practice to date. Article 75 of the Rome Statute empowers the ICC, in the event of a conviction, to order an accused person to provide reparations to victims of the crimes they have been found guilty of committing, in accordance with principles relating to reparations established by the Court. Article 75 specifies that these reparations can include: • restitution (the restoration of liberty, enjoyment of human rights, identity, family life, and citizenship, return to one’s place of residence, restoration of employment, and return of property); • compensation (payment for economically assessable damage, including physical or mental harm; lost employment and educational opportunities, material damage, loss of earnings, moral damage; and medical and legal costs); and • rehabilitation (medical and psychological care as well as legal and social services).19

18 Regarding more recent developments, see n 1 of this chapter. 19 ICCSt (n 1) art 75(1). Definitions of the three forms of reparations are taken from the UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation’ (n 7) [19]–​[21].

296  Jonathan O’Donohue and Rosemary Grey During the Rome Statute negotiations, the delegations from France and the United Kingdom (UK) played lead roles in negotiating this provision, with strong civil society input, resulting in an agreement on the provision just a few days before the final vote.20 Due to the difficulties in securing agreement on this provision, the delegates left the text fairly vague—​a negotiating technique known as ‘constructive ambiguity’.21 In particular, they left the task of ‘establishing principles on reparation’ to the Court, which as one ICC judge has observed, ‘place[d]‌a high burden on the shoulders of the judges’.22 After the establishment of the ICC, the judges considered this requirement and decided to establish the principles on a case-​by-​case basis,23 which has arguably impeded the development of consistent and coherent reparations principles across the Court as a whole.24 In subsequent jurisprudence, the ICC has confirmed that it can order individual reparations (eg payments that are provided to individual victims) or collective reparations (eg facilities that are provided to groups of victims).25 It has further confirmed that, in addition to restitution, compensation, and rehabilitation, reparations can include measures with symbolic, preventative, or transformative value.26 While the Court did not define ‘symbolic’ reparations, this term is generally understood to include creative measures for memorializing past wrongs, such as ‘official apologies, the change of names of public spaces, the establishment of days of commemoration, and the creation of museums and parks dedicated to the memory of victims . . . finding missing bodies, and converting of repressive sites into museums’.27 The term ‘preventative’ measures would suggest measures aimed at preventing recurrence of the crimes. ‘Transformative measures’ seek to overcome entrenched norms and hierarchies, including those based on gender, that contribute to the commission of the crimes (see Section E below).

20 See Sperfeldt, ‘Rome’s Legacy’ (n 2) 358–​63. 21 Christine Van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44(1) Case Western Reserve Journal of International Law 475, 486. 22 ibid. 23 During the 2005 and 2007 plenary meetings of the ICC judges, it was decided that these principles would be established through the Court’s jurisprudence in specific cases: Judge Sang-​Hyun Song, ‘Opening Remarks, Reparation and the International Criminal Court: Issues and challenges’ (12 May 2011). 24 See Independent Expert Review (n 10) [894] and Recommendation 342. 25 Lubanga Amended Principles and Reparations Order (n 5) [33]. 26 ibid [34]. 27 Brandon Hamber and Ingrid Palmary, ‘Gender, Memorialization, and Symbolic Reparations’ in Ruth Rubio-​Marín (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (CUP 2009) 324, 324 (hereafter Hamber and Palmary, ‘Symbolic Reparations’).

Gender-Inclusive ICC Reparations  297 Complementing the provision on reparations, article 79 of the Rome Statute directs the Assembly of States Parties to establish a Trust Fund for the benefit of victims (‘the Trust Fund’), which can receive voluntary contributions from states or other entities,28 as well as money and other property collected through fines and forfeiture if ordered by the Court.29 Established by the Assembly in 2002,30 the Trust Fund has two key roles.31 First, to implement ICC reparations orders. Article 75(2) provides that, where appropriate, the Court may order that an award for reparations be made ‘through’ the Trust Fund.32 This may involve developing a draft implementation plan which details how each reparations order will be fulfilled,33 and may include financing the reparations when the convicted person is indigent. Second, the Trust Fund provides ‘general assistance’ to victims in situations where ICC investigations have been opened, including services for physical and psychological rehabilitation, and economic support.34 This general assistance mandate is an essential complement to the reparations scheme because it allows affected communities, including victims, to access support from the Trust Fund independent of the verdict in any case.35 The ICC’s reparations power is closely tied to the Court’s core mandate of imposing individual criminal responsibility for crimes under the Rome Statute. As the Appeals Chamber stressed in the Lubanga case, an ICC reparations order is intended to be an expression of the ‘principle of accountability’—​that is why the order is always made ‘against’ the convicted person, even if he or she is indigent, with the result that the Trust Fund is often asked to foot the bill.36 28 ICC, ‘Regulations of the Trust Fund for Victims’ (3 December 2005) ICC-​ASP/​4/​Res.3 regs 21, 56. The Trust Fund may be funded by resources seized from the convicted person; money and other property collected through fines or forfeiture; and voluntary contributions from governments, international organizations, individuals, corporations, and other entities. 29 ICCSt (n 1) art 79(2). 30 ICC, ‘Establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims’ (9 September 2002) ICC-​ASP/​1/​Res.6. 31 See Independent Experts Review (n 10) [877]. 32 ICCSt (n 1) art 75(2); ICC, ‘Rules of Procedure and Evidence’ r 98(2), (3), and (4) accessed 18 April 2021 (hereafter ICC, ‘Rules of Procedure and Evidence’). 33 See Section D.2 ‘Forms of Reparations’. 34 See Trust Fund for Victims website: accessed 18 April 2021; ICC, ‘Rules of Procedure and Evidence’ (n 32) r 98(5). 35 Durbach and Chappell, ‘Leaving Behind the Age of Impunity’ (n 14). 36 Prosecutor v Lubanga (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) [2015] ICC-​01/​04-​01/​06-​3129 [70] (hereafter Lubanga Appeals Judgment on Reparations). See also Carsten Stahn, ‘Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures of Reparation’ (EJIL Talk!, 7 April 2015) accessed 30 June 2020.

298  Jonathan O’Donohue and Rosemary Grey At the time of writing, the ICC has had limited opportunity to put its reparations powers into practice. Indeed, at the end of 2020, only four reparations processes have been completed resulting in three reparations orders.37 The first reparations order was issued in 2012, in the Lubanga case. The Trial Chamber ordered Thomas Lubanga Dyilo, who had been convicted of enlisting, conscripting, and using child soldiers, to provide collective reparations to those former child soldiers and their families in the Democratic Republic of Congo (DRC).38 In 2015, that reparations order was largely upheld by the Appeals Chamber, which requested the Trust Fund to prepare a draft implementation plan for collective reparations. However, the Appeals Chamber held that Lubanga was not liable to provide reparations for acts of sexual violence allegedly perpetrated by his militia because he had not been held criminally responsible for those acts.39 Nonetheless, it noted that these victims could at least receive general assistance through the Trust Fund.40 In the intervening years, the process of implementing the Lubanga reparations order has been painfully slow. While the Trial Chamber approved an implementation plan for symbolic collective reparations in 2016,41 it did not approve the plan for collective service-​based reparations to victims, including projects aimed at mental and physical health care and improving the socio-​ economic situation of victims, until March 202142—​nine years after Lubanga’s conviction and almost twenty years since the crimes occurred. As observed in the Independent Expert Review, the length of the reparations process in this case has been ‘plainly excessive’.43 This time lag has had serious consequences for victims, particularly for former girl soldiers who bore children as a result of rape during their time in Lubanga’s armed group. According to research by Mariana Goetz, the lengthy delay in accessing reparations has meant that some of these women have been left with no financial support, and have had to resort to uncertain, stigmatized, 37 A fifth reparation process in the Ntaganda case was completed in March 2021 resulting in a fourth order for reparations: ICC Press Release, ‘Ntaganda case: ICC Trial Chamber VI orders reparations for victims’ (ICC, 8 March 2021) accessed 18 April 2021. 38 Prosecutor v Lubanga (Decision establishing the principles and procedures to be applied to reparations) [2012] ICC-​01/​04-​01/​06-​2904 (hereafter Lubanga Reparations Decision). 39 Lubanga Appeals Judgment on Reparations (n 36) [196]–​[198]. 40 ibid [199]. 41 Prosecutor v Lubanga (Order approving the proposed plan of the Trust Fund for Victims in relation to symbolic collective reparations) [2016] ICC-​01/​04-​01/​06-​3251. 42 Prosecutor v Lubanga (Rectificatif de la Version publique expurgée de la Décision faisant droit à la requête du Fonds au profit des victimes du 21 septembre 2020 et approuvant la mise en œuvre des réparations collectives prenant la forme de prestations de services) [2021] ICC-​ 01/​ 04-​ 01/​ 06-​3495-​Red-​Corr. 43 Independent Experts Review (n 10) [880].

Gender-Inclusive ICC Reparations  299 and dangerous employment, including prostitution or begging, in order to provide for themselves and their dependent children.44 As one victims’ intermediary told Goetz in 2018: It is the girls that are the ones who are not at all doing well, the boys are managing, but the girls have not done well with all that happened to them. No parent dares to support the girls or their children due to the stigma. Most left the training camps pregnant or with undesired babies . . . They have developed mental illnesses, psychic [sic] problems, some became crazy, and a number have died of madness and neglect . . . No medical assistance or psychosocial support has as yet been forthcoming [to these victims] twelve years after the case began.45

This sobering epilogue to the Lubanga case highlights the need to expedite the reparations process. It also suggests that the general assistance provided by the Trust Fund from 2008 to 2017 in the affected region, despite specific efforts directed at survivors of sexual violence, was not sufficient to meet their needs.46 Seen in this light, the Trust Fund’s 2020 announcement of ten new assistance programs in the DRC is welcome news,47 although the fact remains that for some victims, this assistance will come too late. The second case to result in a reparations order was the Katanga case, also from the DRC. The case focused on a 2003 attack on the village of Bogoro, for which Katanga had provided weapons and logistical support. In March 2017, the Trial Chamber awarded both individual and collective reparations to surviving victims and their families for those crimes for which Katanga had been convicted—​murder, destruction of property, and pillaging committed during this attack.48 However, the reparations order did not address the harms resulting from the sexual violence crimes that occurred during this attack because although the Trial Chamber was satisfied beyond reasonable doubt that

44 Mariana Goetz, ‘Victims’ Experiences of the International Criminal Court’s Reparations Mandate in the Democratic Republic of the Congo’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (2nd edn, Brill/​Nijhoff 2020) 414, 431–​32. 45 ibid 342. 46 See Trust Fund for Victims, Annual Report 2017 (ICC 2017) accessed 16 September 2020. 47 ICC, ‘The Trust Fund for Victims Launches Ten New Assistance Projects in the Democratic Republic of the Congo’ (ICC, 27 July 2020) accessed 16 September 2020. 48 Katanga Reparations Order (n 8).

300  Jonathan O’Donohue and Rosemary Grey those crimes had occurred, it had not found Katanga could be held criminally responsible for them. The Appeals Chamber largely confirmed the order.49 The third reparations order was made in August 2017, in the Al Mahdi case from the situation in Mali. Al Mahdi had been convicted by the ICC of being a co-​perpetrator of the war crime consisting of intentionally directing attacks against religious and historic buildings in Timbuktu. In this case, the Trial Chamber ordered individual and collective reparations to victims who had suffered economic loss, as well as cultural and psychological harm.50 The Trial Chamber also initiated reparations proceedings in the Bemba case, following his 2016 conviction for murder, rape, and pillaging in the Central African Republic (CAR), including appointing experts to provide input into the possible reparations order.51 The experts filed their report in November 2017.52 However, no reparations order was made as Bemba was acquitted on appeal.53 The Trust Fund subsequently announced that it would accelerate a programme of assistance in the CAR so that the victims would not be left entirely empty-​handed.54 However, it took more than two years for the Trust Fund to launch a pilot project in September 2020 under its assistance mandate to support victims and their families in Bangui. Some were survivors of conflict-​related sexual violence living in precarious conditions and suffering the severe, long-​term effects.55

49 Prosecutor v Katanga (Judgment on the appeals against the order of Trial Chamber II of 24 March 2017 entitled ‘Order for Reparations pursuant to art 75 of the Statute’) [2018] ICC-​01/​04-​01/​07-​3778-​ Red. The Appeals Chamber largely confirmed the reparations order, but ordered the Trial Chamber to reconsider its decision not to award reparations for ‘transgenerational harm’—​a recognized phenomenon whereby trauma from a violent episode is transmitted from ascendants to their descendants, continuing the harmful impacts of the violence through several generations. The victims’ legal representatives had requested such reparations for five children whose parents had experienced the Bogoro attack and had reportedly passed on their trauma to their children. After reconsidering, the Trial Chamber again declined to award reparations for intergenerational harm. See Prosecutor v Katanga (Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018) [2018] ICC-​01/​04-​ 01/​07-​3804-​Red-​tENG. 50 Al Mahdi Reparations Order (n 8). 51 Prosecutor v Bemba (Public redacted version of ‘Decision appointing experts on reparations’) [2017] ICC-​01/​05-​01/​08-​3532-​Red [10]. 52 Prosecutor v Bemba (Public redacted version of ‘Annex, 28 November 2017, ICC-​01/​05-​01/​08-​ 3575-​Conf-​Exp-​Anx-​Corr2’) [2017] ICC-​01/​05-​01/​08-​3575-​Anx-​Corr2-​Red [36]–​[51] (hereafter Bemba Experts’ Report). 53 Prosecutor v Bemba (Final decision on the reparations proceedings) [2018] ICC-​01/​05-​01/​08-​3653. 54 ibid [11]; ICC, ‘Following Mr Bemba’s acquittal, Trust Fund for Victims at the ICC decides to accelerate launch of assistance programme in Central African Republic’ (ICC, 13 June 2018) accessed 18 April 2021. 55 ICC, ‘The Trust Fund for Victims Launches Assistance Pilot Project in Central African Republic’ (ICC, 8 October 2020) accessed 18 April 2021.

Gender-Inclusive ICC Reparations  301 Having summarized the ICC’s reparations mandate and the first four reparations proceedings, the next sections consider how the Court can deliver ‘gender-​inclusive’ reparations. Specifically, we consider what gender-​inclusivity means for the reparations process, before turning to the implications for the reparations order itself.

C.  ‘Gender-​Inclusivity’ in the ICC Reparations Process Rashida Manjoo, former UN Special Rapporteur on Violence against Women, its causes and consequences, has emphasized the need for ‘women-​centred processes of reparations’.56 That is, the inclusion of women (and we would add, the inclusion of other marginalized groups such as male victims of sexual violence and gender non-​conforming people) should not only be measured by the award at the end of any reparations process; it should be woven into the process from the start. This is because participation in the reparations process can itself be reparative if it enables victims to see themselves as agents of social change.57 This point is echoed in the Nairobi Declaration, which states: Full participation of women and girl victims should be guaranteed in every stage of the reparation process, i.e. design, implementation, evaluation, and decision-​making . . . Processes must empower women and girls, or those acting in the best interests of girls, to determine for themselves what forms of reparation are best suited to their situation.58

Likewise, the UN Secretary-​General’s 2014 Guidance Note on Reparations for Conflict-​Related Sexual Violence advises that ‘[t]‌he process of obtaining reparations should itself be empowering’ and victims must be ‘able to assume a proactive role in obtaining reparations’.59 To achieve gender-​inclusivity in the reparations process at the ICC, it is essential that key actors including the Trial Chamber and the Trust Fund consider how gender may actually affect people’s ability to apply for reparations and participate in the reparations process. Where this analysis reveals

56 Rashida Manjoo, ‘Introduction: Reflections on the Concept and Implementation of Transformative Reparations’ (2017) 29 International Journal of Human Rights 1193, 1200 (hereafter Manjoo, ‘Transformative Reparations’). 57 ibid 1193, 1200. 58 Nairobi Declaration (n 17) Principles 1(D) and 2(B). 59 UN, ‘Guidance Note’ (n 16) 9.

302  Jonathan O’Donohue and Rosemary Grey gendered barriers to accessing reparations and participating in the reparations process, measures must be taken to address them. This includes addressing ‘the banal obstacles that typically restrict women’s access to formal mechanisms of justice, such as geography, language and illiteracy’,60 as well as any cultural norms or legal rules that silence women or other gender groups in the legal process. To make this proposal concrete, it is useful to consider the ICC’s reparations process in stages.

1.  Applying to Participate in the Reparations Process Victims must apply to the ICC in order to access reparations.61 This application procedure can present significant challenges, including challenges with a gender dimension. The first issue facing the Court is how best to inform victims of the ICC’s reparations process. Human rights standards set out that all victims of rights violations have a right to be informed about reparation processes and how to apply.62 Meeting that goal will often necessitate targeted awareness-​raising and outreach to women and girls, given that information poverty is often associated with gender.63 An example of gendered information poverty can be seen in a 2010 evaluation of ICC outreach in the CAR, which found that women were less likely to know about the Court’s processes, including its reparations process, and that: [M]‌ay be explained partly by social inequalities. For example, fewer women attend school, with 38 percent of women respondents having no formal education, compared to 13 percent of the men. In-​depth discussions further suggest that when a household owns a radio, men generally decide how it is used.64

60 Duggan, Paz y Paz Bailey, and Guillerot, ‘Reparations for Sexual and Reproductive Violence’ (n 15) 203. 61 ICC, ‘Rules of Procedure and Evidence’ (n 32) rr 94 and 95. 62 UNGA, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ (29 November 1985) UN Doc A/​RES/​40/​34 Principle 6(a); UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation’ (n 7) Principle 12(a); UN Commission on Human Rights, ‘Updated Set of principles for the protection and promotion of human rights through action to combat impunity’ (8 February 2005) UN DOC E/​CN.4/​2005/​102/​Add.1 Principle 33; UN, ‘Guidance Note’ (n 16) 11. 63 Patrick Vinck and Phuong Pham, ‘Outreach Evaluation: The International Criminal Court in the Central African Republic’ (2010) 4 International Journal of Transitional Justice 421, 432. 64 ibid 432.

Gender-Inclusive ICC Reparations  303 A gender-​inclusive approach therefore requires an understanding of gendered barriers that victims face in accessing information and finding creative means of reaching those victims who might otherwise be left in the dark and providing accurate information to those who are aware of the ICC reparations but lack information about how its system of reparations works. In particular, the Independent Expert Review recommended that the Court should use public information, outreach, and interactions with victims and their communities to avoid creating expectations of reparations before the final outcome of any appeals against a conviction.65 Even if gendered information barriers can be overcome, victims may still be wary of lodging an application. In particular, survivors of sexual violence and other gender-​based crimes may be reluctant to apply for reparations because of the stigma associated with the crimes. For example, filings in the Lubanga case indicate that in the DRC, a fear of stigmatization dissuaded many former female child soldiers from identifying themselves as survivors of sexual violence.66 Similarly, filings in the Ongwen case have highlighted that social pressures prevented male victims of sexual violence in Uganda from reporting it to the ICC in their application forms or in early discussions with the legal representative for victims.67 It is imperative that people have the opportunity to apply for reparations without being publicly identified as victims of sexual and gender-​based crimes. The process should respect fundamental rights to privacy and ensure against causing additional harm, such as exposing victims to stigma or ostracization by their communities. Victims may also need support and practical assistance with completing their application forms.68 These forms require victims to give detailed information regarding their claim, which may involve recounting traumatic events, and to provide, ‘to the extent possible, any relevant supporting documentation’.69 Again, this assistance must be done in a gender-​inclusive way in order to identify and address possible gendered and other barriers (for example faced by some people with disability), including literacy and educational levels, that impact on victims’ ability to apply. 65 Independent Expert Review (n 10) [R346]. 66 Prosecutor v Lubanga (Annex 15 to the Ordonnance enjoignant au Greffier de verser au dossier des documents additionnels) [2017] ICC-​01/​04-​01/​06-​3344-​Anx15 [58]; Prosecutor v Lubanga (Annex 5 to the Ordonnance enjoignant au Greffier de verser au dossier des documents additionnels) [2017] ICC-​ 01/​04-​01/​06-​3344-​Anx5 8–​9. 67 Prosecutor v Ongwen (Request for reconsideration of the ‘Decision on the Legal Representatives for Victims Requests to Present Evidence and Views and Concerns and related requests’) [2017] ICC-​02/​ 04-​01/​15-​1203 [29]–​[31]. 68 Such support may include psychosocial and/​or financial support. 69 ICC, ‘Rules of Procedure and Evidence’ (n 32) rr 94 and 95.

304  Jonathan O’Donohue and Rosemary Grey The extent to which the ICC is taking steps to ensure that women and other marginalized groups are informed about the reparations process and are assisted in doing so is unclear. Reports issued by the ICC in its early years of operation (before the ICC’s first reparations proceedings) show that, although the Court’s Outreach Unit had conducted significant work in relevant countries, it had struggled to reach women and girls.70 By 2010, there were some signs that more effective strategies had started to evolve.71 In 2012, when the Lubanga reparations proceedings began, the Court adopted a Revised Strategy in Relation to Victims (‘Revised Victim Strategy’), which acknowledged that much of its outreach efforts up to that point in time had paid ‘minimal attention’ to gender and it committed itself to improving in this regard.72 In particular, the Revised Victim Strategy stated that the Court would ‘do its utmost to communicate with victims of gender crimes’ including by providing staff with gender training.73 It also outlined plans to provide training on gender sensitivity to legal representatives and intermediaries in order to ‘convey best practice’74 in assisting victims of crimes, including in relation to the completion of application forms. The Court’s 2014 Guidelines Governing the Relations between the Court and Intermediaries (‘Intermediaries Guidelines’) also indicated that field-​based training on ‘gender sensitivity and best practice for working with traumatized or particularly vulnerable victims’ may also be provided on a regular basis to intermediaries involved in Court related activities, including outreach and assisting victims with application forms.75 Although these were promising developments, it is unclear whether these commitments have been implemented. Despite calls from civil society,76 the ICC has not issued detailed reports on its outreach activities since 2010. Nor has it reported on the implementation of gender trainings set out in the 2012 70 ICC Public Information and Documentation Section, ‘Outreach Report 2010’ 1 accessed 30 June 2020, stated that of the 46,499 people directly targeted by ICC outreach activities that year, less than a quarter were women. 71 ibid. The Court reported that in the CAR, where ‘special attention’ was given to groups of women, 2,181 out of 4,773 participants in ICC outreach events were women. 72 ICC Assembly of States Parties, ‘Report of the Court on the Revised Strategy in relation to victims: Past, present and future’ (5 November 2012) ICC-​ASP/​11/​40 [7]‌. 73 ibid [11]–​[12]. 74 ibid [12]. 75 ICC, ‘Guidelines Governing the Relations between the Court and Intermediaries’ (March 2014) accessed 30 June 2020. 76 eg Women’s Initiative for Gender Justice, ‘Gender Report Card 2018’ 136 accessed 30 June 2020. Although the Court continues to issue an annual report on the activities and performance of all its programmes, including the work of the Public Information and Outreach Section, it contains only very brief summaries of the Outreach Unit’s activities in each situation. eg ICC Assembly of States Parties, ‘Report on activities and programme performance of the International Criminal Court for the year 2018’ (25 July 2019) ICC-​ASP/​18/​3 [154]–​[167].

Gender-Inclusive ICC Reparations  305 Revised Victim Strategy77 or the Intermediaries Guidelines. Even basic statistics, such as the number of males and females who have applied for reparations, have not been made public in most cases.78 It is therefore difficult to comment on whether the process for applying for reparations is gender-​inclusive, in terms of informing victims of their rights and providing them with necessary practical assistance and support to take part. Another critical factor in a gender-​inclusive reparations process is the setting of appropriate deadlines for applying for reparations. The Nairobi Declaration states that women and girls should not be excluded if they fail to come forward within a prescribed period.79 Although the ICC’s judicial reparations process in each case cannot stay open indefinitely, the Court should take into account any gendered barriers that victims may encounter in applying for reparations. This point was underscored by Court-​appointed reparations experts in the Bemba case, who recommended against extending the timeline for applying for reparations beyond the original deadline, with the caveat that ‘[t]‌he Court may consider whether to make an exception for surviving victims of rape and children born of rape’ because: These are among the most serious crimes with particularly severe consequences for the victims. Especially victims of rape often find it very difficult to participate in a legal process or to submit an application for reparations, given the sensitivity of the information they will have to provide, the trauma associated with reviving the memory of the events, and the risk of further stigmatization and scorn generated in CAR by reporting rape.80

Regrettably, the experts did not consider whether gender or other barriers had prevented victims of other crimes from applying. The recommendation to extend the deadline for victims of sexual violence and their children was later rendered moot, as Bemba was acquitted on appeal. However, the experience of the Lubanga case shows that greater flexibility with application deadlines is indeed possible. In that case, the Trial Chamber recognized that a large number of potentially eligible victims had not had the opportunity to submit an application for reparations within the timeframe it had originally set. It therefore 77 Gaelle Carayon and Jonathan O’Donohue, ‘The International Criminal Court’s Strategies in Relation to Victims’ (2017) 15 Journal of International Criminal Justice 567 (hereafter Carayon and O’Donohue, ‘The ICC’s Victim Strategies’). 78 The only breakdown was provided in the Al Mahdi Reparations Order (n 8) fn 15. It showed that, at the time of the order, forty-​six males and ninety-​one females had applied for reparations. 79 Nairobi Declaration (n 17) Principle 3(G). 80 Bemba Experts’ Report (n 52) [36]–​[51].

306  Jonathan O’Donohue and Rosemary Grey allowed more time for victims to apply for reparations after the size and scope of the reparations award had been set. It tasked the Trust Fund with working with the legal representatives for victims and the ICC’s Victims Participation and Reparations Section during the implementation phase to locate new applicants to ensure that eligible beneficiaries were not excluded.81 In setting deadlines for applications for reparations, the Court must take into account a number of considerations, including whether extending application deadlines could prejudice the interests of those who have already applied, as an extension could delay their access to reparations. However, these concerns must be balanced against the rights of those victims who have not been able to apply due to gendered or other discriminatory barriers.

2.  Involvement in the Design of Reparations Principles adopted in the ICC’s first cases recognize that victims should be able to participate throughout the reparations process and receive adequate support in order to make their participation substantive and effective.82 Gender-​ inclusivity in the process of designing reparations is particularly important. As the Nairobi Declaration recognizes, this process must empower women and girls to determine for themselves what forms of reparation are best suited to their situation.83 Ideally, the personnel facilitating the process would include people trained in working with young children, whose capacity to understand and articulate their needs may be more limited than adolescents and adults.84 The need for consultations with women and girls was emphasized in the amicus curiae brief filed by the NGO, Women’s Initiatives for Gender Justice in the Lubanga case, which argued that ‘[w]‌omen and girls often have different views concerning the type and modalities of reparations that are meaningful to them’.85 Despite initiatives to ensure that women and girls had a voice during some consultations organized in the first reparations processes, in reality they appear 81 Prosecutor v Lubanga (Decision Approving the Proposals of the Trust Fund for Victims on the Process for Locating New Applicants and Determining their Eligibility for Reparations) [2019] ICC-​01/​ 04-​01/​06-​3440-​Red-​tENG. 82 Lubanga Amended Principles and Reparation Order (n 5) [29]. 83 Nairobi Declaration (n 17) Principle 1(D) and 2(B). 84 ICC OTP, ‘Policy on Children’ (ICC 2016) accessed 18 April 2021: provides useful guidelines on working with children in the context of investigations and prosecutions, which could be adapted for use in the reparations process. 85 eg Lubanga Observations of the Women’s Initiative for Gender Justice (n 13) [32].

Gender-Inclusive ICC Reparations  307 to have been significantly under-​represented. For example, in developing the plan for implementing the Lubanga reparations order, the Trust Fund conducted separate male-​only and female-​only consultations with former child soldiers (129 male and 89 female) to allow the participants to ‘more freely express their thoughts and experience’.86 Yet, overall the Trust Fund consulted with a total of 1,254 victims, of whom fewer than 25 per cent were female.87 Women and girls were also under-​represented in consultations conducted during the reparations process in the Katanga case, in which the Registry and the legal representative of victims individually interviewed 305 victims about the reparations measures they sought (most of whom had participated in the trial), including 203 male victims, 101 female victims, and one organization.88 It is uncertain whether this pattern was repeated in the Bemba and Al Mahdi cases, as records referring to consultations with victims do not disclose the respective number of male and female participants involved.89 Although the Women’s Initiatives for Gender Justice advocated in its submission in Lubanga that ‘consultations should be conducted by a person or body with expertise on reparations for gender-​based crimes,’90 the qualifications and experience of ICC and Trust Fund staff or experts leading consultations, or the training provided to them, is not reported. Finally, a gender-​inclusive consultation process requires the Court to be alive to, and reject, input that may lead to discriminatory outcomes. In particular, the Court needs to carefully navigate local customs and norms that discriminate on grounds of gender. Addressing this issue in the Lubanga case, the Appeals Chamber stated, ‘[w]‌henever possible, reparations should reflect local cultural and customary practices unless these are discriminatory or exclusionary or they deny victims equal access to their rights’ (emphasis added).91 On at least one occasion, the Court appeared to apply this principle to avoid gender discrimination. In the Al Mahdi case, the victims’ legal representative argued that the involvement of local religious leaders in designing the form of reparations was paramount and essential for legitimizing the reparations

86 Prosecutor v Lubanga (Filing on Reparations and Draft Implementation Plan) [2015] ICC-​01/​04-​ 01/​06-​3177-​Red [53]. 87 ibid. 88 Prosecutor v Katanga (Report on Applications for Reparations in accordance with Trial Chamber II’s order of 27 August) [2015] ICC-​01/​04-​01/​07-​3512-​Anx1-​Red2 [1]‌. 89 See Bemba Experts’ Report (n 52) [12]; Prosecutor v Al Mahdi (Lesser public redacted version of ‘Updated Implementation Plan’ submitted 2 November 2018) [2019] ICC-​01/​12-​01/​15-​291-​Red3 [148]–​[155] (hereafter Al Mahdi Implementation Plan). 90 Lubanga Observations of the Women’s Initiative for Gender Justice (n 13) [24]. 91 Lubanga Amended Principles and Reparations Order (n 5) [47].

308  Jonathan O’Donohue and Rosemary Grey among the affected community.92 However, expert witnesses advised that this was problematic as traditional justice processes conducted by those leaders tended to exclude and discriminate against women.93 Faced with those conflicting submissions, the Trial Chamber decided not to require that traditional justice mechanisms be part of the implementation of the ICC reparations award.94 In conclusion, gender-​inclusivity has significant implications for the ICC’s reparations process. Gender is relevant to ensuring that victims are informed about the reparations process, that they receive support and assistance in applying, and that the deadlines are realistic and take account of any gendered factors that would make it difficult for those deadlines to be met. Those assisting victims, including staff of the ICC and intermediaries, should receive appropriate gender sensitivity training to ensure that gender barriers are identified and addressed. Victims should be consulted in the process of designing reparations, overcoming gender barriers to participation, harnessing local norms and traditions that empower women and girls, and carefully navigating any such norms or traditions which discriminate on gender grounds.

D.  ‘Gender-​Inclusivity’ in the Reparations Decision Having explored the opportunities for gender-​inclusivity in the reparations process, we now turn to the outcome of that process—​the Court’s reparations order. We show that a consideration of gender is relevant to the Court’s decision as to the harm requiring reparations, as well as the forms that the reparations should take.

1.  Determination of Harm Suffered As reparations are awarded for harm suffered,95 the identification of harms is critical to ensuring that victims are able to access reparations, and that the 92 Prosecutor v Al Mahdi (Public redacted version of ‘Submissions of the Legal Representative of Victims on the principles and forms of the right to reparation’ dated 2 December 2016) [2017] ICC-​01/​ 12-​01/​15-​190-​Red-​tENG [131]. 93 Prosecutor v Al Mahdi (Expert Report—​Reparations Phase The Prosecutor v Ahmad Al Faqi Al Mahdi, by Dr Marina Lostal) [2017] ICC-​01/​12-​01/​15-​214-​AnxII-​Red2 [115]; Prosecutor v Al Mahdi (Annex 1 to the Transmission of the Public Version of one Expert’s Report pursuant to the Trial Chamber’s Order of 11 July 2017) [2017] ICC-​01/​12-​01/​15-​214-​AnxI-​Red3 48–​49. 94 Al Mahdi Reparations Order (n 8) [147]. 95 UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy’ (n 7) Principle 11(c) and Part IX.

Gender-Inclusive ICC Reparations  309 reparations measures ordered are effective. Academic literature on gender and reparations demonstrates that gendered harms, including harms experienced primarily by women, such as sexual violence, undesired pregnancies as a result of rape, and unsafe abortion, have previously been overlooked or underestimated in state-​awarded reparations.96 At the ICC, the responsibility for determining the harms to be addressed in reparations awards rests with the relevant trial chamber.97 The chamber may only award reparations for those harms that resulted from crimes for which the accused was convicted, which are in turn constrained by the Prosecutor’s original selection of charges.98 Nonetheless, once a conviction has been rendered, it is the chamber’s role to identify the full extent of the harms suffered by victims of the crimes and to ensure that its reparations order not only addresses all the harms it identifies, but is also gender-​inclusive. When identifying the harms requiring reparations, it is crucial that the ICC consider the differential impact of crimes along gender lines, bearing in mind Manjoo’s observation that ‘the same violations may give rise to different harms for men and women, and impact differently for women and girls depending on context’.99 To some extent, the experts appointed in the Bemba reparations process provided a gendered analysis of the consequences of the crime of rape. For instance, they noted that in the CAR female rape survivors felt pressure to drop out of school, were viewed as unmarriageable, or were often abandoned by their husbands, and were told that ‘a raped woman is nothing’.100 They reported that male survivors were told ‘you are not a man’, were otherwise humiliated, or made unwelcome in their neighbourhoods.101 Some committed suicide.102 Much of the experts’ analysis is supported by expert amicus curiae submissions to the ICC, as well as the ICC’s Office of Public Counsel for Victims, which provides legal representation to victims and support to victims’ legal counsel.103

96 Ruth Rubio-​Marín, ‘The Gender of Reparations in Transitional Societies’ in Ruth Rubio-​Marín (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (CUP 2009) 63, 72–​85 (hereafter Rubio-​Marín, ‘The Gender of Reparations in Transitional Societies’). 97 Lubanga Appeals Judgment on Reparations (n 36) [181]. 98 Lubanga Amended Principles and Reparations Order (n 5) [59], [65]: specifically, it must be shown on the ‘balance of probabilities’ that the relevant harm would not have occurred ‘but for’ the commission of the crime. 99 Manjoo, ‘Transformative Reparations’ (n 56) 1199. 100 Bemba Experts’ Report (n 52) [106]–​[107]. 101 ibid [108]. 102 ibid. 103 Prosecutor v Bemba (Submissions relevant to reparations) [2016] ICC-​01/​05-​01/​08-​3455 [36]; Prosecutor v Bemba (Submission by QUB Human Rights Centre on reparations issues pursuant to art 75 of the Statute) [2016] ICC-​01/​05-​01/​08-​3444 [60], [78].

310  Jonathan O’Donohue and Rosemary Grey Had the Trial Chamber proceeded to order reparations in the Bemba case, this information would have been a valuable resource for identifying the full extent of the harms. Unfortunately, most submissions and decisions on ICC reparations have tended to differentiate between harm experienced by men and women only in respect of sexual violence crimes. For other crimes, this crucial gender analysis has been lacking. For example, in the Bemba case, submissions by the Trust Fund, victims’ legal representatives, and amici curiae included little or no gender analysis of the harms caused by the crimes of murder and pillage; the gender analysis was limited to the crime of rape. The experts’ report presented some gender analysis in relation to the consequences of murder. It said: The murder of a parent, particularly the father, causes critical pecuniary damages to the family unit as a whole. . . . The mother has to find a way to survive economically in addition to having to cope with her own and her children’s painful emotional loss and to continue taking care of the children . . . When the mother is murdered, the family’s sense of emotional equilibrium tends to be lost with her, affecting the breadwinner of the house and thereby the financial stability of the home.104

However, that was the most extensive recognition, in all of the submissions, that crimes other than sexual violence may have gendered consequences. As such, the opportunity to identify the gendered impacts of seemingly gender-​ neutral crimes and to bring them to the attention of the Court was largely lost. As the ICC’s reparations practice evolves, it is imperative that submissions by the Trust Fund, victims’ legal representatives, amici curiae, and experts analyse the gendered impacts of all crimes, and that judicial decisions do the same. In particular, chambers should expressly request a detailed gender analysis of all crimes, when briefing experts or inviting submissions from the Trust Fund, victims’ legal representatives, and amici curiae. In analysing gender-​specific harms, a difficult question arises as to how the ICC should engage with harms that reflect sexist, homophobic, or other discriminatory beliefs. For example, in the Bemba sentencing decision, the Trial Chamber recognized that, in the CAR, the fact that some victims ‘lost their virginity as a result of their rape’ was a significant harm, due to the value placed



104

Bemba Experts Report (n 52) [96].

Gender-Inclusive ICC Reparations  311 on a woman’s virginity in that cultural context.105 In the literature on gender and reparations, feminist scholars have grappled with how to deal with harms of this type, i.e. harms that are premised on discriminatory beliefs (in this case, the belief that a woman’s value lies in her perceived sexual purity or virginity). Should courts recognize these harms, so that the victims are provided with full reparations? Or does that approach serve only to reinforce underlying discriminatory beliefs?106 This question is indeed challenging for the ICC and other courts. However, Rubio-​Marín makes a convincing case that courts must recognize such harms in the reparations process because victims’ lives are seriously affected by these attitudes.107 The Court must be alert to this challenge as its reparations practice evolves. Reparations awards should include measures aimed at addressing harms that are exacerbated by discriminatory attitudes. For example, if a woman who has been raped is deemed ‘impure’ or ‘unmarriageable’ as a result of that crime, she should receive reparations for that reputational damage. But the reparations award should also include measures to address the underlying discrimination, such as organizing community dialogues in which participants have the opportunity to critically reflect on the belief that a woman’s worth and her ‘marriageability’ is affected by her previous sexual experiences. Such beliefs are often deeply entrenched, and unlikely to change quickly. However, by confronting these issues through its reparations orders, the Court can potentially contribute to a longer-​term shift in attitudes, as discussed in more depth in Section E of this chapter. Finally, gender-​inclusivity depends on the Court’s application of causation. In the Lubanga case, the Appeals Chamber clarified that the ICC may only order reparations for harms that are suffered ‘as a result of ’ the crimes for which an accused was convicted.108 During that trial, the prosecution led

105 Prosecutor v Bemba (Decision on Sentence pursuant to art 76 of the Statute) [2016] ICC-​01/​05-​01/​ 08-​3399 [38]. See also Prosecutor v Bemba (Testimony of Dr André Tabo) [2011] ICC-​01/​05-​01/​08-​T-​ 100-​ENG 48. 106 Duggan, Paz y Paz Bailey, and Guillerot, ‘Reparations for Sexual and Reproductive Violence’ (n 15) 208; Ruth Rubio-​Marín and Clara Sandoval, ‘Engendering the Reparations Jurisprudence of the Inter-​American Court of Human Rights: The Promise of the “Cotton Field” Judgment’ (2011) 33 Human Rights Quarterly 1062, 1068 (hereafter Rubio-​Marín and Sandoval, ‘Engendering the Reparations Jurisprudence’); Rosemary Grey, ‘Seen and Unseen: Sexual and Gender-​Based Crimes in the Khmer Rouge Tribunal’s Case 002/​02 Judgment’ (2019) 25 Australian Journal of Human Rights 466, 466. 107 Rubio-​Marín, ‘Gender and Collective Reparations (n 12) 381, 396–​97. 108 The Appeals Chamber further determined that ‘the standard of causation is a “but for” relationship between the crime and the harm and, moreover, it is required that the crimes for which Mr Lubanga was convicted were the “proximate cause” of the harm for which reparations are sought’. Lubanga Amended Principles and Reparations Order (n 5) [10], [59]

312  Jonathan O’Donohue and Rosemary Grey evidence of acts of sexual violence committed by Lubanga’s militia. However, the Trial Chamber declined to determine whether Lubanga was criminally responsible for those acts because they were not part of the charges in the case.109 Nonetheless, in its reparations decision the Trial Chamber made several statements about the importance of taking into account the needs of victims of sexual violence.110 On appeal, the Appeals Chamber clarified that Lubanga could not be ordered to provide reparations for harms caused by sexual violence because he had neither been charged with, nor convicted of those acts.111 In other words, in applying its causation test, the Appeals Chamber was not satisfied that, ‘but for’ Lubanga’s crimes, the harms associated with sexual violence would not have occurred. As the non-​government organization, Redress, noted following the decision, ‘[t]‌his is an important lesson for the Prosecutor and the Court as a whole: charges must reflect the full range of harms suffered by victims, or else these victims will be excluded from the reparations process’.112 A similar issue arose in the Katanga case. As previously discussed, the Trial Chamber held that Katanga would not provide reparations for the harms resulting from sexual violence during the Bogoro attack, because he had been acquitted on the charges of rape and sexual slavery.113 However, this decision was not well justified. Although Katanga had been acquitted of the crimes of rape and sexual slavery, he had been convicted of the war crime of intentionally ‘directing attacks against the civilian population’.114 His conviction on that charge was based, inter alia, on evidence that the attackers had sexually assaulted two civilian women.115 The fact that Katanga’s conviction included those sexual assaults indicates that he should have been ordered to provide reparations for the resultant harms. The victims’ legal representatives did not raise this point on appeal, with the result that the Trial Chamber’s reasoning stood unchallenged.

109 Prosecutor v Lubanga (Judgment pursuant to art 74 of the Statute) [2012] ICC-​01/​04-​01/​06-​2842 [629]–​[631]. 110 See Lubanga Reparations Decision (n 38) [189], [200], [207]–​[209]. 111 Lubanga Appeals Judgment on Reparations (n 36) [196]–​[198]. 112 Redress, ‘At long last: Reparations for Victims can now proceed in the ICC’s first case’ (Redress, 3 March 2015) accessed 30 June 2020. 113 Katanga Reparations Order (n 8) [146]–​[154]. 114 ICCSt (n 1) art 8(2)(e)(i). 115 Prosecutor v Katanga (Trial Judgment) [2014] ICC-​01/​04-​01/​07 [871]–​[879] (nb [876]).

Gender-Inclusive ICC Reparations  313

2.  Forms of Reparations ICC jurisprudence indicates that ‘reparations’ can involve a broad range of measures to address the harms caused by the crimes, including restitution, compensation, rehabilitation, as well as symbolic, preventative, and transformative measures. The decision as to which forms of reparations will be awarded in a given case has important gender implications. Reparations awards must be tailored to ensure that all victims have equal access to effective measures to address the harms they have suffered, without adverse distinction based on gender or sex. This requires choosing forms of reparations that are accessible, in practical terms, bearing in mind the ‘structural and administrative obstacles . . . which impede or deny women’s and girls’ access to effective and enforceable remedies’.116 The Nairobi Declaration states: ‘[i]‌nvariably, a combination of these forms of reparation will be required to adequately address violations of women’s and girls’ human rights’.117 The Court has started to consider the gender implications of the forms of reparations in the principles adopted in the first reparations proceedings. They emphasize the principle of non-​discrimination enshrined in international human rights law,118 and expressly recognize that compensation and rehabilitation demand a gender-​inclusive approach, whilst avoiding reinforcing structural inequalities and perpetuating discriminatory practices.119 In particular, the principles state that, whenever possible, reparations should reflect local cultural and customary practices unless these are discriminatory, exclusive, or deny victims equal access to their rights.120 So far, the ICC trial chambers have given the Trust Fund considerable scope to determine which specific forms of reparations to award in particular cases. The reparations orders in the Lubanga, Katanga, and Al Mahdi cases have mostly defined the forms of reparations that should be applied in broad terms, in some cases noting gender considerations. For example, in the Lubanga case the Appeals Chamber ordered that ‘rehabilitation of the victims of child [soldier] recruitment should include measures that are directed at facilitating their reintegration into society, taking into account the differences in the impact of these crimes on girls and boys’.121 116 Nairobi Declaration (n 17) Principle 2(c). 117 ibid Principle 3(F). 118 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 99 UNTS 171 art 26. See also Nairobi Declaration (n 17) Principle 1(B); UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy’ (n 7) Principle 25. 119 Lubanga Amended Principles and Reparations Order (n 5) [38], [41]. 120 ibid [47]. 121 ibid [67(iii)].

314  Jonathan O’Donohue and Rosemary Grey In all three cases, the Trust Fund has developed a detailed draft plan for implementing the reparations order.122 For example, the Trust Fund proposed specific measures such as memorials, healthcare services, and vocational training programs, which have been largely approved by the relevant trial chambers.123 In each case, the draft implementation plans have identified and sought to address gender barriers that victims may face in accessing reparations. In Lubanga, the Trust Fund emphasized that its proposals for ‘service-​based’ collective reparations, including healthcare, psychological support, and vocational training, would proactively take into account the manner in which women’s marginalized status may negatively affect their ability to access justice within their own local settings.124 Moreover, in relation to ‘symbolic’ collective reparations, it proposed that women and girls be involved in all aspects of establishing three commemoration centres and mobile memorialization initiatives.125 In the Katanga case, the Trust Fund acknowledged potential gender and power dynamics that could affect the ability of victims to access individual compensation.126 It therefore committed to taking steps to ensure that eligible victims could receive individual compensation awards regardless of their gender or age, and that the payments—​which were $250 each—​would be distributed in a manner that ensured that female recipients could access and retain control over that money.127 The Trust Fund also proposed that reparations should take

122 In Lubanga, the Appeals Chamber held a reparations order must specify at least five elements: ‘(1) it must be directed against the convicted person; (2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; (3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both, pursuant to rules 97(1) and 98 of the Rules of Procedure and Evidence; (4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and (5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.’ See Lubanga Appeals Judgment on Reparations (n 36) [1]‌. 123 ibid [200]: ‘[I]‌f a Trial Chamber does not specify the nature and size of an award for reparations in the order itself, it must identify the modalities of reparations that are appropriate for the circumstances of that case, based upon which the Trust Fund then designs the award for reparations’. 124 Prosecutor v Lubanga ((Draft) SCOPE OF WORK Collective Reparations projects in relation to the conviction of Thomas Lubanga Dyilo before the ICC) [2017] ICC-​01/​04-​01/​06-​3273-​AnxA 20–​21. 125 Prosecutor v Lubanga (Filing regarding symbolic collective reparations projects with Confidential Annex: Draft Request for Proposals, ICC-​01/​04-​01/​06-​3223-​Conf) [2016] ICC-​01/​04-​01/​06-​3223-​Red [36], [39]. 126 Prosecutor v Katanga (Draft implementation plan relevant to Trial Chamber II’s order for reparations of 24 March 2017 (ICC-​01/​04-​01/​07-​3728)) [2017] ICC-​01/​04-​01/​07-​3751-​Red [115] (hereafter Katanga Implementation Plan). 127 ibid.

Gender-Inclusive ICC Reparations  315 the form of housing assistance (including assistance with constructing, buying, or renting a home), and committed to assisting with legal registration of property to ensure that victims, including women (who in most countries are less likely than men to own property) could retain ownership over it.128 In Al Mahdi, the Trust Fund proposed that a key reason for establishing an Economic Resilience Facility supporting economic initiatives proposed by members of the Timbuktu community, was to ensure access for socially and economically vulnerable groups, including women.129 It is also significant that the Trust Fund has incorporated gender analysis into the monitoring and evaluation framework of its implementation plans. In particular, it has committed to identifying the extent to which females and males are participating in, and benefiting from, reparations programmes and projects.130 However, at the time of writing, the Trust Fund had not released data or published the outcomes of any monitoring and evaluation undertaken. In some cases, including a gender perspective in the reparations award may involve providing goods, services, or spaces exclusively to marginalized gender groups, such as women, or people who identify as LGBTIQ+​. An example can be seen in the Al Mahdi case in which the Trust Fund proposed creating women-​only ‘safe spaces’ in Timbuktu, where women affected by the destruction of the culturally significant buildings, for which Al Mahdi was convicted, could talk about its impact on them with the guidance of a moderator.131 This initiative was developed in consultation with women in the affected community132 and was approved by the Trial Chamber.133 In other cases, it may be more appropriate to award the same forms of reparations to all victims, regardless of gender. For example, in the Bemba case, the court-​appointed experts recommended that the Chamber order urgent reparations for HIV positive victims of rape using gender-​neutral language to include both male and female victims.134 However, the design and implementation of such reparations still require gender-​analysis to ensure that they are relevant and effective in addressing the specific harms that individuals suffered. The forms of reparations must strive to achieve substantive gender equality, not just formal gender equality. Unfortunately, this has not always been the 128 ibid [125]. 129 Al Mahdi Implementation Plan (n 89) [121]. 130 Katanga Implementation Plan (n 126) [141]. 131 Al Mahdi Implementation Plan (n 89) [6]‌, [148]–​[155]. 132 ibid [149]. 133 Prosecutor v Al Mahdi (Decision on the Updated Implementation Plan from the Trust Fund for Victims) [2019] ICC-​01/​12-​01/​15-​324-​Red [72]. 134 Bemba Experts Report (n 52) [156]–​[160].

316  Jonathan O’Donohue and Rosemary Grey experience in the ICC. For example, in the Al Mahdi case, the Trial Chamber held that only victims whose livelihood had depended ‘exclusively’ on the destroyed buildings could receive individual compensation for economic loss.135 On its face, this limitation was not discriminatory. But as the victims’ legal representative argued, it had the effect of privileging men.136 This is because, before the buildings had been destroyed, women’s access to these cultural sites had been limited: they had been excluded from entering most of the buildings, at least until after menopause.137 As a result of this pre-​existing discrimination, victims who could most easily demonstrate that their livelihoods depended ‘exclusively’ on the destroyed buildings, such as the guides or masons (‘maçons’), were primarily, if not exclusively, men. Women who earned income in the areas surrounding the sites, including those who sold arts and crafts to visitors, were effectively excluded from receiving individual compensation for economic loss, despite the fact that their livelihoods also depended on the destroyed sites. The Court only considered economic harms arising from the destruction of the actual buildings and not the impact their destruction had on the area in which they stood. This made it significantly more difficult for women to demonstrate that their livelihoods had depended ‘exclusively’ on the destroyed buildings.138 Going forward, it seems there is also scope for the Court to further explore options for gender-​inclusive ‘symbolic reparations’ projects, if requested by the victims. Experience in other forums indicates that ‘symbolic reparations’ can be designed in a gender-​sensitive way, especially if they treat women and other marginalized groups as having agency and provide a culturally sensitive way of commemorating the crimes.139 A recent example can be seen in the practice of the Extraordinary Chambers in the Courts of Cambodia (ECCC), which has jurisdiction over crimes committed by Pol Pot’s Khmer Rouge regime. The ECCC endorsed several symbolic reparations measures, including a dance performance about the crime of ‘forced marriage’, one of the crimes for which Khmer Rouge leaders were tried.140 This measure was designed with extensive 135 Al Mahdi Reparations Order (n 8) [81]. 136 Prosecutor v Al Madhi (Observations du Représentant légal sur le Second rapport mensuel d’activité du Fonds au profit des victimes et sur le processus de sélection des victimes aux reparations) [2018] ICC-​01/​12-​01/​15-​284-​Red [33]–​[43] (hereafter Al Mahdi Victims’ Observations on Reparations). See also Adrienne Ringin, ‘Al Mahdi case: women and girls must not be excluded from reparation’ (Human Rights in International Justice, 2 October 2017) accessed 30 June 2020 (hereafter Ringin ‘Al Mahdi case’). 137 Prosecutor v Al Mahdi (Annex 1 to the Transmission of the Public Version of one Expert’s Report pursuant to the Trial Chamber’s Order of 11 July 2017) [2017] ICC-​01/​12-​01/​15-​214-​AnxI-​ Red3, 21–​22. 138 Al Mahdi Victims’ Observations on Reparations (n 136) [33]–​[43]. See also Ringin ‘Al Mahdi case’ (n 136). 139 Hamber and Palmary, ‘Symbolic Reparations’ (n 27). 140 Case 002/​02 (Judgment) [2019] 002/​19-​09-​2007/​ECCC/​TC [4424], [4457]–​[4460].

Gender-Inclusive ICC Reparations  317 input from survivors of Khmer Rouge-​era sexual and gender-​based violence. For them, a dance performance was an appropriate form to use because it provided a means of acknowledging the crimes in a figurative and non-​graphic format, and it also ensured that people with limited literacy could engage with the project. The use of classical choreography and music in the performance had particular resonance because it honoured cultural practices that were prohibited in Khmer Rouge times.141

E.  Transforming the Structural Causes of Sexual and Gender-​Based Crimes The final aspect of our proposed framework for ‘gender-​inclusive’ reparations at the ICC examines the options for ‘transformative reparations’. This term originated in the field of human rights and in the transitional justice literature.142 No legally authoritative definition of this term exists. However, it is generally used to describe reparations whose aim is not to put the victims back in the position they were in prior to the violation if that position was one of subordination or oppression, but to change the discriminatory structures, laws, and belief systems that may have enabled or contributed to the relevant crimes. In this way, ‘transformative reparations’ for sexual and gender-​based crimes seek not only to repair the wrong, but to prevent its reoccurrence. This notion of ‘transformative reparations’ was backed by global civil society in the 2007 Nairobi Declaration143 and, in 2009, the Inter-​American Court of Human Rights became the first international court to embrace this concept in the Cotton Fields case.144 In that case, the Court held Mexico responsible under the American Convention on Human Rights145 for failing to properly investigate and prosecute the murder of several women whose mutilated bodies were found in a cotton field near the city of Ciudad Juárez.146 During the 141 Rosemary Grey, Sotheary Yim, and Somaly Kum, ‘The Khmer Rouge Tribunal’s First Reparation for Gender-​Based Crimes: Where Art and Law Meet’ (2020) 25 Australian Journal of Human Rights 488. 142 eg Manjoo, ‘Transformative Reparations’ (n 56); Rubio-​ Marín, ‘Gender and Collective Reparations’ (n 12); Jones, ‘Gender and Reparations’ (n 15); Duggan, Paz y Paz Bailey, and Guillerot, ‘Reparations for Sexual and Reproductive Violence’ (n 15). 143 Nairobi Declaration (n 17) [3]‌. 144 eg Lubanga Observations of the Women’s Initiative for Gender Justice (n 13) [17]; Rubio-​Marín and Sandoval, ‘Engendering the Reparations Jurisprudence’ (n 106) 1062. 145 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123. 146 See González et al (Cotton Field) v Mexico (Judgment (Preliminary Objection, Merits, Reparations, and Costs)) (Inter-​American Court of Human Rights, 16 November 2009) accessed 18 April 2021.

318  Jonathan O’Donohue and Rosemary Grey proceedings, Mexico acknowledged that a cause of these murders was the culture of gender-​based violence against women in Ciudad Juárez.147 Referring to that fact in its reparations decision, the Court stated that, bearing in mind the context of structural discrimination in which the violations occurred, ‘[t]‌he reparations must be designed to change this situation, so that their effect is not only of restitution, but also of rectification. In this regard, reestablishment of the same structural context of violence and discrimination is not acceptable’.148 Accordingly, the reparations order included measures aimed at reducing gender-​based discrimination in society and in Mexico’s justice system. For example, Mexico was ordered to bring its protocols for investigating murders, disappearances, and sexual violence into line with international standards,149 to provide training in gender-​sensitive practices to police, prosecutors, judges, and other officials involved in the criminal justice system,150 and to provide public education aimed at overcoming discrimination against women in the region where the crimes occurred.151 Following the Cotton Fields case, the notion of transformative reparations gained considerable ground in international law, due in no small part to advocacy by Rashida Manjoo,152 and to the former UN Secretary-​General, Ban Ki-​Moon, who endorsed this idea in 2014 in his Guidance Note on Reparations for Conflict-​Related Sexual Violence.153 Within feminist scholarship, a leading proponent of this idea is Rubio-​Marín, who argues that when it comes to gender-​based violence against women, transformative reparations are needed in order to ‘unsettle pre-​existing gender hierarchies that were at the root of women’s subordination and account for many of the reasons, forms, and effects of such violence’.154 Transformative reparations often require large-​scale reforms in order to change structural conditions of gender inequality. Among other things, they might require legal reforms—​for example, it may be necessary to remove restrictions on abortion, change property laws so that women can own and inherit property, and enact national laws that criminalize sexual and gender-​based

147 ibid [129], [152]. 148 ibid [450] (emphasis added). 149 ibid [502]. 150 ibid [542]. 151 ibid [543]. 152 Manjoo, ‘Transformative Reparations’ (n 56) 1193. See also UNGA, ‘Report of the UN Special Rapporteur on Violence against Women, its Causes and Consequences, Rashida Manjoo’ (23 April 2010) UN Doc A/​HRC/​14/​22 18. 153 UN, ‘Guidance Note’ (n 16) 8. 154 Rubio-​Marín, ‘The Gender of Reparations in Transitional Societies’ (n 96) 70.

Gender-Inclusive ICC Reparations  319 violence against any person.155 Moreover, as Hamber and Palmary have argued, symbolic reparations can also have a transformative dimension, and can ‘contribute, however minimally, to subverting gender hierarchies’.156 For example, reparations in the form of artworks, monuments, or museums need not perpetuate stereotypes of women as passive victims; they can instead present women as having agency and strength.157 Despite originating in the context of state responsibility for violations of IHRL, the concept of ‘transformative reparations’ has also been embraced within the ICC. In Lubanga, Trial Chamber and the Appeals Chamber endorsed this concept158 after it was championed in filings, including by the Trust Fund159 and Women’s Initiatives for Gender Justice as amicus curiae.160 The OTP has likewise supported this concept. Its Policy Paper on Sexual and Gender-​Based Crimes states that: The Office will also support consultation with the victims, and the carrying out of a gender analysis by an appropriate body in order to determine the most effective and appropriate forms of reparation within a particular community. This approach is intended to promote reparations that are transformative and contribute to advancing gender equality.161

Despite the support for transformative reparations within the ICC, the ICC’s jurisprudence offers no critical reflection on whether the notion of ‘transformative reparations’ is actually compatible with the Court’s capacity and mandate. At the same time, some scholars have argued that in relation to the ICC and other internationalized criminal courts, promises of ‘transformative reparations’ may raise expectations that are unlikely to be met.162 These warnings are well-​founded for several reasons. First, ICC reparations orders are made ‘against’ a convicted person, to express the idea that the reparations are the consequence of their criminal responsibility. However, a convicted person is not typically responsible for the 155 Colleen Duggan and Ruth Jacobsen, ‘Reparation of Sexual and Reproductive Violence: Moving from Codification to Implementation’ in Ruth Rubio-​Marín (ed), The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations (CUP 2009) 121. 156 Hamber and Palmary, ‘Symbolic Reparations’ (n 27) 357. 157 ibid. 158 Lubanga Reparations Decision (n 38) [222], [236]; Lubanga Amended Principles and Reparations Order (n 5) [34]. 159 Lubanga TFV Observations on Reparations (n 13) [72]–​[77]. 160 Lubanga Observations of the Women’s Initiative for Gender Justice (n 13) [17]. 161 ICC OTP, ‘Policy Paper’ (n 9) [102]. 162 Durbach and Chappell, ‘Leaving Behind the Age of Impunity’ (n 14); Williams and Palmer, ‘Transformative Reparations for Women and Girls at the ECCC’ (n 14) 311.

320  Jonathan O’Donohue and Rosemary Grey structural injustices that contributed to the crimes (although they likely benefit from, and perpetuate them even unwittingly). For example, they may not have participated in enacting laws that discriminate against women. This raises the question of whether the convicted person should be required to provide reparations for those structural injustices if they did not cause those injustices in the first place. Second, with current limited resources, the ICC and the Trust Fund lack capacity to ensure enduring structural transformations. Indeed, the Court’s resources are barely sufficient for conducting preliminary examinations, running investigations and prosecutions, and funding counsel for victims and defence.163 Voluntary contributions to the Trust Fund are also currently insufficient to fully achieve its mandates to implement reparations orders and provide projects of assistance in all countries where the ICC Prosecutor has opened an investigation.164 Third, there is also no democratic mandate for the Court to drive structural reforms in states parties or other states, as Luke Moffett has noted.165 Indeed, as Leila Ullrich has observed, the ICC’s efforts to bring about broad reforms in situation countries may even seem neocolonial, or might impinge on state sovereignty.166 Alluding to this argument, an amicus curiae brief in the Katanga case by academics from Queen’s University Belfast and the Ulster University argue that ICC reparations orders ought not seek to achieve political goals, and that: the state has the mandate, responsibility and legitimacy to engage in national reparations that promote reconciliation, tackle underlying causes of victimisation, prevent further violence, and are transformative [emphasis added].167

163 Jonathan O’Donohue, ‘ICC Prosecutor Symposium: Wanted–​International Prosecutor to Deliver Justice Successfully Across Multiple Complex Situations with Inadequate Resources’ (Opinio Juris, 14 April 2020) accessed 30 June 2020. 164 Carayon and O’Donohue, ‘The ICC’s Victim Strategies’ (n 77) 583–​84. 165 Luke Moffett, ‘Reparations for Victims at the International Criminal Court: A New Way Forward?’ (2017) 21 International Journal of Human Rights 1204, 1212 (hereafter Moffett, ‘Reparations for Victims’). 166 Leila Ullrich, ‘Can Reparations Transform Societies? The Practice of “Transformative Justice” at the International Criminal Court’ (Oxford Transitional Justice Research Seminars, 17 March 2016) accessed 30 June 2020 (hereafter Ullrich, ‘Can Reparations Transform Societies?’). 167 Prosecutor v Katanga (Queens University Belfast’s Human Rights Centre (HRC) and University of Ulster’s Transitional Justice Institute (TJI) Submission on Reparation Issues pursuant to art 75 of the Statute) [2015] ICC-​01/​04-​01/​07-​3551 [6]‌.

Gender-Inclusive ICC Reparations  321 Sovereignty concerns aside, such efforts might also lack a grassroots mandate. For example, for her research in Uganda, Ullrich interviewed female survivors of wartime rape. They indicated that they did not necessarily want to be associated with transformative social change programs. Their more immediate goal was to be accepted by their communities, which would likely be even more difficult if they were regarded as social disrupters.168 Finally, the concept of ‘transformative reparations’ arguably undermines the main rationale for the ICC’s reparations power, which is to offer redress to particular victims of a crime or violation—​not to benefit oppressed people more broadly. Philosopher Margaret Urban Walker, argues in relation to reparations programs broadly that the most ambitious transformative reparations (those that seek to achieve sweeping social, economic, and legal reforms) actually marginalize the victims who are entitled to redress by redirecting attention and resources toward broader structural injustices.169 In her words, ‘the most aggressive transformative agenda elides the distinctive aims of reparative justice into social or distributive justice generally, losing the focus on acknowledging and redressing harms to victims that is the distinguishing work of reparative justice’.170 Moffett has made the same point in relation to the ICC.171 This argument about the ICC’s limited power to transform society is further illustrated by Ullrich’s Ugandan-​based research, which suggests that ICC reparations and assistance from the TFV have been directed at transforming people, such as by providing them with education or medical support, rather than transforming the structures that contribute to violence and inequality in the first place.172 A further example can be seen in the Al Mahdi case. As noted above, women’s access to the destroyed shrines was restricted prior to the crime: they could not work at the sites, and some buildings were restricted to women until after menopause.173 The reparations award in this case gives no indication that once restored, the buildings will be equally accessible to men and women. Rather, it appears the prior situation of inequality will be restored. This may be the only legitimate outcome, given that the ICC has no mandate from Mali, or from the affected community, to eliminate gender-​based discrimination at the tombs 168 Ullrich, ‘Can Reparations Transform Societies?’ (n 166). 169 Margaret Urban Walker, ‘Transformative Reparations? A Critical Look at a Current Trend in Thinking about Gender-​Just Reparations’ (2016) 10 International Journal of Transitional Justice 108 (hereafter Urban Walker, ‘Transformative Reparations’). 170 ibid 122–​23. 171 Moffett, ‘Reparations for Victims’ (n 165) 1213. 172 Ullrich, ‘Can Reparations Transform Societies?’ (n 166). 173 See Section D.2 above.

322  Jonathan O’Donohue and Rosemary Grey and shrines. However, it is a concrete example of the Court’s limited power to achieve transformation—​while the women of Timbuktu now have a ‘safe space’ to discuss the impact of the crime, they are still precluded from accessing the buildings on equal footing with men. When it comes to designing gender-​sensitive reparations for the ICC, an especially bold ‘transformative approach’ is unrealistic. However, by shining a light on the structural causes of gender-​based crimes, the Court may at least help to make these causes visible to the affected community and actors that do have greater ability to change them—​including legislators, educators, and community leaders. Moreover, by acknowledging the reality of gender inequality in the design and implementation of its reparation orders, the Court may still make a more modest contribution to broader social change. For example, symbolic reparations in the form of artworks or memorials may portray women in non-​gender stereotypical roles, including as active agents. As Urban Walker argues, reparations programs may strive to be gender sensitive, and to contribute to empowering women and other marginalized groups, even if they do not dismantle the structural conditions which enable gender-​based violence and compound its effects.174

F. Conclusion The principle of ‘gender-​inclusivity’ stipulated in the ICC’s first reparations proceedings provides a foundation for a reparations practice in which all victims can participate and receive meaningful forms of redress. This has implications for all cases, not only those involving sexual and gender-​ based crimes. Thus far, the court records show promising glimpses of sound gender analysis during the reparations stage, including techniques to ensure that women and girls are included in the process and benefit from awards. However, the Court’s ability to deliver gender-​inclusive reparations has at times been impaired by inconsistency in its approach, long delays in the design and delivery of reparations, and an inattention to the gendered impacts of non-​sexual crimes. Compounding these difficulties is a lack of a clearly articulated common vision of ‘gender-​inclusive’ reparations. This chapter has offered some concrete



174

Urban Walker, ‘Transformative Reparations’ (n 169).

Gender-Inclusive ICC Reparations  323 proposals as to what such a vision could entail, taking into account the ICC’s specific mandate and its finite resources. These proposals include: 1. overcoming gendered challenges to applying for reparations; 2. ensuring that women, girls, and other marginalized groups have the opportunity to be active participants in the design of reparations; 3. identifying the full range of harms caused by the relevant crimes, bearing in mind the fact that the harms may be different depending on the victims’ gender and other intersecting identities; and 4. choosing forms of reparations which are meaningful to, and accessible by, all victims without adverse distinction based on gender or sex. The Independent Expert Review proposed a number of reforms to ICC reparations. These include priority recommendations that the Court develop consistent and coherent principles relating to reparations and incorporate standardized, streamlined, and consistent procedures and best practices applicable in the reparations phase of proceedings in the Chambers Practice Manual.175 Once refined with input from the Court and civil society, it is hoped that the framework of ‘gender-​inclusive reparations’ advocated in this chapter will be considered in these processes to strengthen the performance of the Court.



175

Independent Experts Review (n 10) 303, [R342]–​[R343].

12 Gender and the Implementation of International Criminal Law in the Latin American Region Daniela Kravetz*

A. Introduction In February 2016, fifteen Mayan Q’eqchi’ women from Sepur Zarco, a small rural community in North-​Eastern Guatemala, made history by obtaining the first conviction before a Guatemalan court for sexual and domestic slavery perpetrated during the country’s internal conflict. In the early 1980s, the military killed and forcibly disappeared several male leaders of this indigenous community who sought to obtain legal titles to their land. After killing the men, the military enslaved the women at their base, forcing them to cook, clean, and wash clothes. The military also routinely raped them. In the years that followed, the women of this community lost their land and their possessions. Their children died of starvation in the mountains. More than 30 years later, a tribunal in Guatemala City convicted two military officers—​the former commander of the military base and the former military commissioner of the area—​to 120 and 240 years’ imprisonment, respectively,1 and their convictions were later upheld on appeal.2 Now in their sixties and seventies, the Grandmothers of Sepur Zarco * The views expressed in this chapter are the author’s own views. The author wishes to thank Michelle Jarvis and Marta Valiñas for their comments on an earlier version of this chapter. 1 The charges included sexual violence, sexual and domestic slavery, inhumane and degrading treatment, murder, and enforced disappearance as international crimes: Guatemala v Esteelmer Francisco Reyes Girón, Heriberto Valdez Asig (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente (First Tribunal for Crime, Drug Trafficking and Environmental Offences), C-​01076-​2012-​00021 (26 February 2016) (hereafter Sepur Zarco Judgment). 2 Jo-​Marie Burt and Paulo Estrada, ‘Court Ratifies Historic Sepur Zarco Sexual Violence Judgment’ (International Justice Monitor, 21 July 2017) accessed 10 May 2020. In November 2018, the Constitutional Court upheld the judgment on final appeal.

326  Daniela Kravetz (as they are respectfully referred to) are still demanding the recognition of their land rights and other reparations. The Sepur Zarco case is a leading example of the emerging jurisprudence on gender-​based atrocities from the Latin American region. Apart from Guatemala, a number of other countries are pursuing accountability for crimes perpetrated during periods of mass repression and armed conflict. Crimes against humanity trials are taking place before national courts in Argentina and Chile for human rights abuses perpetrated during military dictatorships in the 1970s and 1980s. Colombia has set up special jurisdictions to address crimes perpetrated by state and non-​state actors during its fifty-​year conflict, and Peruvian courts have made some progress in prosecuting abuses committed by state security forces in the 1980s and 1990s, during this country’s internal conflict. In these national systems, domestic legal practitioners have confronted many practical challenges, including the lack of readily available evidence, protection and security risks for victims and witnesses, and defects in the applicable legal frameworks. The lack of political will has also impeded accountability efforts. Yet, the most common barriers to the prosecution of gender-​based violations have been the entrenched gendered assumptions and biases regarding the gravity and nature of these violations, as well as regarding victimhood and perpetration. These less visible obstacles have often been the most difficult to overcome. Recognizing national prosecutions as a key component of the international criminal justice framework, this chapter focuses on a selection of criminal cases from the Latin America region. The cases discussed in this chapter provide concrete examples of the manner in which gender influences the harms inflicted during periods of mass violence and of how criminal justice systems react to those harms. This chapter is divided into two sections. Section B examines different legal and evidentiary strategies used to connect gender-​based crimes to campaigns of mass violence in order to characterize violations as core international crimes and hold individuals accountable. Section C examines the progress made in national systems in prosecuting violations of reproductive rights as war crimes, crimes against humanity, and genocide. It explains that, in addition to prosecuting different forms of violence affecting sexual autonomy, national courts are now turning their attention to violations of reproductive autonomy. The chapter concludes in Section D with insights to be drawn from national practice for other national systems seeking to address gender-​based violations and grappling with similar issues.

Gender in Latin American ICL cases  327

B.  Viewing Gender-​Based Atrocities in Context A fundamental insight to emerge from national prosecutions in the Latin American region is the importance of integrating gender analysis in complex cases involving core international crimes. Gender analysis matters for several reasons. First, by examining crimes through a gender framework, domestic legal practitioners are able to better understand the connections between the crimes and the campaign of mass violence in which they were committed, and thus establish the required contextual elements for international crimes. These connections can also assist in attributing responsibility to those who participated in this violent campaign, as well as to those who orchestrated it. Legal practitioners can use gender analysis in domestic cases to examine the means employed to carry out the criminal conduct and the types of harms flowing from the crimes, which in turn contributes to accurately characterizing such conduct. Gender factors can also explain the selection and targeting of specific victims within a community, for example during a campaign of persecution or genocide. Finally, by taking into account the influence of gender when investigating and constructing a criminal case, prosecutors and investigators can more easily recognize common biases and stereotypes that account for why gender-​based violations are often overlooked or under-​prioritized in criminal proceedings.

1.  Connecting Gender-​Based Crimes to a Campaign of Mass Violence Over this past decade, Argentinean jurisprudence has recognized different forms of gender-​based violence as manifestations of state terrorism (terrorismo de estado) perpetrated during the country’s military dictatorship (1976–​ 83).3 Up until 2010, gender-​based crimes had received limited attention in Argentinean trials into dictatorship-​era human rights abuses.4 The June 2010 3 Dictatorship-​era abuses were found to be part of an illegal system of repression in the landmark 1985 ‘Trial of the Juntas’, which held that the military juntas designed a criminal plan implemented by the state security forces to counter opposition through illegal means: Jucio a las Juntas Militares (Judgment) Cámara Nacional de Apelaciones en lo Criminal y Correccional de la Capital de Buenos Aires (National Criminal and Correctional Chamber of Appeals of Buenos Aires), Case No 13/​84 (9 December 1985). See also Comisión Nacional sobre la Desaparición de Personas (CONADEP), Nunca Más (CONADEP 1984) ‘Chapter I—​The Repressive Action’ (hereafter CONADEP report): referring to the systematic plan of state terrorism. 4 See Daniela Kravetz, ‘Accountability for Sexual and Gender-​Based Violence during Mass Repression and in Conflict: the experiences of Argentina and Guatemala’ (2020) 18(2) Journal of International

328  Daniela Kravetz Gregorio Molina5 case was the first case where an accused was convicted for dictatorship-​era sexual violence as a standalone crime against humanity.6 This case set an important precedent by recognizing sexual violence against female political prisoners as a systematic and routine practice at clandestine detention centres, rejecting the notion that these were isolated and random acts.7 Since then, federal courts across Argentina have prosecuted cases involving gender-​ based abuses.8 By March 2020, some thirty-​one cases dealing with dictatorship crimes had included sexual violence charges.9 While the main focus has been on sexual violence against females in prison settings,10 some cases have examined male sexual abuse.11 Courts are now also considering other forms of gendered abuse, such as the treatment of pregnant prisoners, discussed below. Criminal Justice (Special Issue: Justice and Accountability for Sexual Violence in Conflict: Progress and Challenges in National Efforts to Address Impunity) 213, 307–​24 (hereafter JICJ Special Issue). 5 The accused, a non-​commissioned air force officer, was convicted as a physical perpetrator for six incidents of rape and attempted rape against two female victims: See Molina, Gregorio Rafael (Judgment) Tribunal Oral en lo Criminal Federal de Mar del Plata (Federal Oral Criminal Tribunal of Mar del Plata), Case No 2086 (9 June 2010) (hereafter Molina Trial Judgment). The conviction was later upheld on appeal: Molina, Gregorio Rafael (Judgment) Cámara Federal de Casación Penal (Federal Chamber of Criminal Cassation), Case No 12.821 (17 February 2012) (hereafter Molina Appeal Judgment). For a more detailed analysis, see Paloma Soria Montañez, Viviana Waisman, and Keina Yoshida, ‘The Prosecution of Sexual and Gender Crimes in the National Courts of Argentina’ (2017) 39 Human Rights Quarterly 680, 698–​700. 6 Dictatorship-​era sexual violence has also been prosecuted as an underlying act of torture: eg Barcos, Horacio Américo (Judgment) Tribunal Oral en lo Criminal Federal de Santa Fe (Federal Oral Criminal Tribunal of Santa Fe), Case No 43/​08 (19 April 2010) 99. 7 Molina Trial Judgment (n 5) 111; Molina Appeal Judgment (n 5) 83. 8 See Aliendro, Juana Agustina (Judgment) Tribunal Oral en lo Criminal Federal de Santiago del Estero (Federal Oral Criminal Tribunal of Santiago del Estero), Case No 960/​11 (5 March 2013) (hereafter Aliendro Trial Judgment); Martel, Osvaldo Benito (Judgment) Tribunal Oral en lo Criminal Federal de San Juan (Federal Oral Criminal Tribunal of San Juan), Case No 1077 (3 September 2013) (hereafter Martel Judgment); Arsenal Miguel de Azcuénaga and the Police Headquarters of Tucumán (Judgment) Tribunal Oral en lo Criminal Federal de Tucumán (Federal Oral Criminal Tribunal of Tucumán), Case No A-​81/​12 (19 March 2014) (hereafter Arsenal-​Police Headquarters Judgment); Sambuelli, Danilo Alberto (Judgment) Tribunal Oral Criminal Federal de Santa Fe (Federal Oral Criminal Tribunal of Santa Fe), Case No 21/​10 (25 September 2013); Menéndez Luciano Benjamín (Judgment) Tribunal Oral en lo Criminal Federal de La Rioja (Federal Oral Criminal Tribunal of La Rioja), Case No FCB 710018028/​2000 (28 June 2016) (hereafter Menéndez Judgment); Barberis, Marcelo Eduardo (Judgment) Tribunal Oral en lo Criminal Federal de La Rioja (Federal Oral Criminal Tribunal of Rioja), Case No 1861/​2011/​TO1 (18 September 2015) (hereafter Mansión Seré Judgment). 9 These cases included ninety-​seven female and fifteen male victims of sexual violence. However, the rate of prosecutions remains low. Up until March 2020, only 11 per cent of the 968 individuals prosecuted had been charged with sexual violence. See Procuraduria de Crimenes de Lesa Humanidad, ‘8M: de las 241 sentencias dictadas en causas de lesa humanidad, 31 contemplan delitos por violencia sexual’ (Fiscales, 8 March 2020) accessed 10 May 2020. 10 Approximately 340 clandestine detention centres functioned across the country during the dictatorship: CONADEP report (n 3) ‘Chapter I (D)—​Clandestine Detencion Centres’. 11 See Aliendro Trial Judgment (n 8) 185, 199–​200, 204–​5, 612; Menéndez Judgment (n 8) 225, 648, 661–​62. See also Arsenal-​Police Headquarters Judgment (n 8) 1950–​51: referring to incidents of forced nudity. See further Riveros and others (Judgment), Tribunal Oral en lo Criminal Federal No. 2 de San Martin (Federal Oral Criminal Tribunal No. 2 of San Martin), FSM 27004012/​2003/​TO22, 2 November 2020 (hereafter Zárate-​Campana Judgment), 140, 211.

Gender in Latin American ICL cases  329 Since 2012, the Argentinean Attorney General’s Office has made progress in addressing gender-​based crimes by adopting appropriate legal and investigative strategies. A concrete strategy was the issuance of guidelines to ensure that prosecutors prioritized gender-​based crimes in their work and applied the crime against humanity framework correctly.12 In their cases, Argentinean prosecutors have connected gendered violence to wider patterns of criminal conduct by arguing that these crimes were an integral part, along with other violent crimes, of a system of ill-​treatment designed by the military regime. This has required focusing on issues of gender underpinning the crimes. For example, in several cases involving female victims, prosecutors have argued that the military used sexualized political violence as a means to punish female activists for stepping outside accepted gender roles and to discriminate against them as women.13 To show that gender-​based crimes against both females and males formed part of a broader criminal plan, prosecutors have adduced evidence on the vulnerability of the victims in captivity, the clandestine nature of their imprisonment, and the imbalance of power between the victims and their captors.14 To provide the judges with a fuller picture of the role that gender played in the context surrounding the crimes, prosecutors have led different types of contextual evidence.15 For example, in a recent case against three military officers for the illegal imprisonment, torture and sexual abuse of female and male prisoners at a naval base in the Zárate-​Campana region, in the province of Buenos Aires, the prosecution presented the testimonies of two ‘context 12 In 2011, the Coordination Unit of the Attorney General’s Office produced a report examining the challenges prosecutors were facing in addressing these crimes. In 2012, the Office adopted guidelines to address these challenges: See Public Prosecution Office, ‘Resolution PGN No 557/​2012’ (14 November 2012) 10–​12 accessed 10 May 2020. 13 Sambuelli, Danilo Alberto (Judgment) Cámara Federal de Casación Penal, Case No FRO 88000021/​ 2010/​TO1/​CFC1 (6 April 2017) (hereafter Sambuelli Appeal Judgment), 61–​62: indicating that the clear message sent through sexual violence was that women should stay at home and not get involved in politics; Arsenal-​Police Headquarters Judgment (n 8) 1949–​53: noting that sexual violence against female prisoners was ‘one of the most brutal manifestations of the patriarchy’. See also Martel Judgment (n 8) 1083, 1085. 14 In a case concerning an air force-​run detention centre known as Mansión Seré, in the province of Buenos Aires, the judgment explained the connections between the crimes and the broader plan as follows: ‘The vast freedom granted by the higher ranks of the armed forces to their subordinates in the execution of illegal orders resulted in the dehumanization of the victims in inconceivable ways, including through grave acts of sexual violence against both female and male detainees at various clandestine detention centres. In other words, these crimes could not have been perpetrated if the victims had not been in a total state of vulnerability and helplessness at the hands of their captors, which was an essential part of the plan being implemented.’ See Mansión Seré Judgment (n 8) 813 (author’s translation). See also Aliendro Trial Judgment (n 8) 612–​13. 15 In some cases, prosecutors have relied on open source publications to establish the gendered impact of sexual violence on prisoners: see Sambuelli Appeal Judgment (n 13), 61–​62; Riveros, Santiago (Judgment) Cámara Federal de Casación Penal, Case No FSM 146/​2013/​TO1/​CFC8 (16 May 2018) 65.

330  Daniela Kravetz witnesses’—​Rita Segato, an anthropologist, and Laura Sobredo, a mental health therapist—​both renowned for their work with sexual violence survivors.16 These witnesses explained the trauma suffered by the victims by examining gendered notions of femininity and masculinity in Argentinean society,17 and discussed the factors that can inhibit victims from speaking about the violence they suffered.18 In September 2020, two of the accused—​both high-​ranking members of the armed forces—​were convicted for these crimes.19 In Guatemalan war crimes trials, prosecutors and civil plaintiffs have integrated gender analysis through the use of expert evidence. Experts play an important role in these trials because judges tend to rely heavily on this type of evidence in their findings.20 For instance, in the Sepur Zarco case, the prosecution and civil plaintiffs adduced the evidence of multiple experts, in combination with other sources, to show the long-​term effects of the crimes on the victims and their community, as well as to prove the army’s role in these crimes, among other issues.21 Argentinean anthropologist Rita Segato provided expert evidence on the pronounced gender influences on the crimes experienced by males and females in the community,22 noting that, because of their gender roles, the men in the community were killed while the women were enslaved. The tribunal relied on her evidence to establish that the crimes against the women were not excesses of the troops, but responses to the army’s strategy of control over the community.23 In the Molina Theissen case,24 a local court examined the abduction, nine-​day detention, and sexual torture of then twenty-​one-​year-​old Emma Molina Theissen at a military base, as well 16 Under Argentinean criminal procedure provisions, prosecutors are allowed to lead evidence of general relevance to the case. 17 See Ministerio Público, ‘Delitos de poder: los crímenes sexuales en el circuito represivo Zárate-​ Campana’ (Fiscales, 25 October 2019) accessed 31 May 2020. 18 ibid. See also Zárate-​Campana Judgment (n 11), 51–​52. 19 The third accused, a military doctor, was acquitted. See Ministerio Público, ‘Dictan hasta 22 años de prisión por delitos sexuales, torturas y privaciones ilegítimas de libertad en el circuito represivo Zárate-​Campana’ (Fiscales, 7 September 2020) < https://​www.fisca​les.gob.ar/​lesa-​humani​dad/​dic​tan-​ hasta-​22-​anos-​de-​pris​ion-​por-​deli​tos-​sexua​les-​tortu​ras-​y-​priv​acio​nes-​ile​giti​mas-​de-​la-​liber​tad-​en-​ el-​circu​ito-​repres​ivo-​zar​ate-​camp​ana/​> accessed 12 January 2021. See also Zárate-​Campana Judgment (n 11). 20 See Public Prosecution Office, ‘General Instruction No 2-​2011’ (12 May 2011) 13–​14: stressing the importance of leading expert evidence in war crimes trials. 21 Jo-​Marie Burt, ‘Gender Justice in Post-​Conflict Guatemala: The Sepur Zarco Sexual Violence and Sexual Slavery Trial’ (2019) 71–​72 accessed 29 May 2020: noting that the experts helped to ‘weave a web of context’ for the judges. 22 Sepur Zarco Judgment (n 1) 20–​41. 23 ibid 487–​88. 24 Hugo Ramirez Zaldaña Rojas (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo Grupo “C” (First Tribunal for Crime, Drug Trafficking and Environmental Offences) Case No C-​01077-​1998-​00002 (23 May 2018) (hereafter Molina Theissen Judgment).

Gender in Latin American ICL cases  331 as the enforced disappearance her fourteen-​year-​old brother, Marco Antonio, in September 1981. Along with other evidence, the prosecution adduced the expert testimony of Julieta Rostica, who discussed the support and training provided by the Argentinean military intelligence to their Guatemalan counterparts,25 and explained that both military intelligence services employed sexual violence, among other tactics, to breakdown female ‘subversives’.26 This evidence assisted the judges in situating these crimes in the context of the army’s counterinsurgency operations and in attributing responsibility to the accused.27 In addition to expert evidence, Guatemalan prosecutors also rely on the 1999 report by the Comisión de Esclarecimiento Histórico, the country’s truth commission, to contextualize the crimes.28 The practice of using truth commission reports as contextual evidence has also been adopted in other Latin American justice systems, such as Argentina and Peru.29 In the Colombian trials against right-​wing paramilitary groups before the transitional justice system (known as the Justice and Peace system), prosecutors present their cases by grouping crimes into patterns of macro-​criminality.30 They examine the paramilitaries’ main criminal activities per category of crime to ‘reveal the contexts, causes and the reasons’ for their actions.31 When examining patterns of gender-​based violence, Justice and Peace tribunals have discussed the gendered impact of paramilitary violence on the roles assigned to females and males in specific regions of Colombia,32 describing the

25 ibid 310–​58. 26 ibid 316. Sociologist Sonja Perkić-​Krempl provided expert testimony on the use of sexual torture against political prisoners by the military in order to terrorize and punish them, as well as a means to obtain information: ibid 914–​15. 27 ibid 1036–​37, 1062. 28 See Sepur Zarco Judgment (n 1) 63, 95, 420. 29 See Aliendro Trial Judgment (n 8) 10: referring to the CONADEP’s findings on sexual violence in the context of state terrorism in Argentina; MMMB (Judgment) Sala Penal Nacional (National Criminal Chamber), Case No 314-​2010 (26 October 2016) (hereafter MMMB Judgment) 95–​96: citing to Peru’s Truth and Reconciliation Commission’s findings on the systematic nature of sexual violence in the Peruvian conflict. 30 See Law 1592 of 2012 ‘Reform of Justice and Peace Law’ (Colombia) art 15: indicating that the aim of the justice and peace process is to identify the patterns of macro-​criminality. See also Maria Camila Moreno, ‘Uncovering Colombia’s Systems of Macro-​Criminality’ (ICTJ, 8 December 2014) accessed 10 May 2020. 31 See Galindo Cifuentes (Judgment) Corte Suprema de Justicia de Colombia (Colombia Supreme Court of Justice), Criminal Chamber, Case No 44921 (23 November 2017) 38–​40. 32 See Orlando Villa Zapata (Judgment) Tribunal Superior de Bogotá, Sala de Justicia y Paz, Case No 110016000253200883612-​00 (24 February 2015) [664]–​[668] (analysing gender-​based violence against men), [749]–​[753] (summarizing Colombian jurisprudence on murder and persecution based on gender), [881]–​[939] (examining incidents of rape, sexual slavery, and femicide).

332  Daniela Kravetz curtailment of their rights after the paramilitary takeover.33 Some decisions have also examined discriminatory violence based on sexual orientation and gender identity,34 as well as the use of public punishments against women and girls to maintain control.35 While the focus on patterns has resulted in extensive analysis of gender-​based crimes by paramilitaries, this approach has, at times, led judges and prosecutors to give more attention to the scale and systematic nature of the crimes rather than to their connections with other acts of violence.36 However, to prosecute gender-​based crimes as war crimes and as crimes against humanity, it is not necessary to establish that these were widespread or systematic, but that they formed part of a broader context of violence. The newly established Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP)—​created under the 2016 peace agreement between the government and the Revolutionary Armed Forces of Colombia (FARC)—​is now examining conflict-​related gender-​based crimes.37 To integrate a gender perspective in its work, the JEP has set up a Gender Commission as a consultative body.38 Crimes must be closely linked, directly or indirectly, to the armed conflict to fall under the JEP’s jurisdiction. Yet, the practical application of the nexus requirement has not been straightforward, despite the Gender Commission’s guidance on this issue.39 Several preliminary rulings have examined whether incidents of sexual violence were ‘opportunistic’ or ‘strategic’ violence when 33 See Murillo (Judgment), Tribunal Superior de Medellín, Sala de Justicia y Paz, Case No 110016000253200680018 (2 February 2015) 1274–​330: referring to the different ways in which the paramilitaries exercised control over the lives of women and girls. 34 For concrete examples, see Daniela Kravetz, ‘Promoting Domestic Accountability for Conflict-​ Related Sexual Violence: The Cases of Guatemala, Peru, and Colombia’ (2017) 32 American University International Law Review 708, fn 69 (hereafter Kravetz, ‘Promoting Domestic Accountability’). 35 See German Antonio Pineda López (Judgment) Tribunal Superior de Medellín, Sala de Justicia y Paz, Case No 110016000253-​2010-​84502 (25 January 2019) 379–​414: indicating that the paramilitaries imposed their authority through the murder, sexual abuse, mistreatment, public punishments, and forced displacement of women and girls. 36 ibid 375–​79: indicating that, to establish a pattern of gender-​based violence, the prosecution led evidence of incidents of gender-​based violence across the country, instead of focusing on criminal conduct attributable to the accused; Javier Alonso Quintero (Judgment) Tribunal Superior del Distrito Judicial de Medellín, Sala de Justicia y Paz, Case No 110016000253/​2009/​83705 (12 February 2020) 1120–​29, 2219: finding that the prosecution failed to prove a pattern of gender-​based violence because it led insufficient evidence to establish that the violence targeting women was systematic, motivated by gender factors, and reiterated over time. 37 The JEP was established to prosecute the gravest violations of IHL and international human rights law (IHRL) perpetrated before December 2016. The parties expressly excluded rape and other forms of sexual violence from amnesty and pardon measures. See ‘Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera’ (24 November 2016) Point 5.1.2: Justice, 143 accessed 29 May 2020; Law 1820 (2016) ‘Commentary Amnesty Law’ (Colombia) art 23: enumerating the crimes excluded from amnesty. 38 See Marta Valiñas, ‘The Colombian Special Jurisdiction for Peace’ in JICJ Special Issue (n 4), 449–​ 67 (hereafter, Valiñas, ‘Jurisdiction for Peace’). 39 JEP, Comisión de Género, Concept Note of 25 June 2018, Case file 2017-​120080101268E.

Gender in Latin American ICL cases  333 deciding whether these acts fell under the JEP’s jurisdiction.40 The reference to ‘opportunistic’ sexual violence in JEP decisions is problematic because it shifts the focus from whether the conflict played a substantial part in the perpetrator’s ability to commit crimes to an inquiry about the perpetrator’s personal motive, thus obscuring the application of the nexus requirement. In February 2020, women’s rights group called on the JEP to open a macro-​ case on sexual and reproductive crimes.41 A challenge for the JEP going forward will be to ensure that it closely examines the links between gender-​based crimes and armed conflict and avoids viewing these crimes in isolation, disconnected from other violent acts. Additionally, the JEP should consider other forms of gender-​based abuse beyond sexual violence. For example, in its Case 007 on illegal recruitment and use of child soldiers,42 the JEP could examine the differentiated impact of child recruitment on girls and boys and explain how the tasks and roles assigned to children within FARC ranks tended to reproduce and exacerbate traditional gender roles.43 The JEP could also examine the killings of civilian women by FARC based on gender, and investigate acts of gender-​based persecution. On 14 April 2021, the JEP set an important precedent by accrediting five LGBTI+​persons as victims of the armed conflict for acts of gender-​based persecution committed against them.44 Finally, courts in Chile have been slow in addressing gender-​ based crimes perpetrated during the 1973–​89 military dictatorship. Investigative judges45 have tended to prioritize the prosecution of deaths and enforced 40 For example, when ruling on a provisional release, a chamber focused on the perpetrator’s motive to rape the victims rather than on the nexus between the crimes and the conflict. It found, by majority, that the rapes were committed for personal sexual gratification and fell outside the JEP’s jurisdiction. The dissenting judge held that ‘opportunistic’ sexual violence falls under the JEP’s jurisdiction if the nexus requirement is met. See Orlando Guerrero Ortega (Judgment) JEP, Sala de Definición Jurídicas (Chamber for the Definition of Legal Situations), Case No 973 (31 July 2018); Orlando Guerrero Ortega (Dissent) JEP, Sala de Definición Jurídicas, Case No 973 (31 July 2018); For a more detailed analysis, see Marta Valiñas, ‘Jurisdiction for Peace’ (n 38). See also Oscar Enrique de Lima Contreras (Judgment) JEP, Sala de Amnistías e Indultos (Chamber of Amnesty and Pardons), Case No 20181510212642, 20181510120712 (8 April 2019) [107], [123]: distinguishing between sexual violence as a strategy, a practice, and as opportunistic violence. 41 El Espectador, ‘ “Violencia sexual no fue cometida solo por FARC”: vocera Cinco Claves’ (El Espectador, 28 February 2020) accessed 31 May 2020. 42 See Reclutamiento y utilización de niñas y niños en el conflicto armado (Judgment) JEP, Sala de Reconocimiento de Verdad, de Responsabilidad y de Determinación de los Hechos y Conductas (Chamber for the Acknowledgement of Truth and Responsibility), Decision No 029 (1 March 2019). 43 Marta Valiñas, ‘Jurisdiction for Peace’ (n 38). 44 Auto 066, JEP, Sala de Reconocimieto de Verdad, de Responsabilidad y de Determinación de los Hechos y Conductas (14 April 2021). 45 Chile has used an inquisitorial system, in force at the time of the crimes, to prosecute dictatorship-​ era violations. In this system, a single magistrate investigates, brings charges and issues the first instance judgment based on the documentary evidence in a case file. A panel of judges later hears the appeal, and the Supreme Court reviews the appeals judgment.

334  Daniela Kravetz disappearances over cases involving torture, a crime the judges have traditionally considered to be less serious, partly due to its limited inclusion in the law in force at the time of the crimes. While sexual torture at clandestine detention centres has been extensively documented,46 these violations have often been overlooked in court decisions.47 Judges have also not given due consideration to this violence as gender-​specific abuse.48 Some recent cases have recognized sexual violence as an underlying act of torture and a crime against humanity.49 In recent years, to draw attention to the impunity surrounding these crimes, former female political prisoners have filed criminal complaints specifically focused on dictatorship-​era sexual violence.50 The first trial dealing with one of these complaints concluded in April 2019, and concerned the arbitrary arrest and sexual torture of two women at a police-​run detention centre.51 While the judgment summarized the victims’ testimonies and found them credible, their sexual abuse was only considered an aggravating circumstance to the charge of abduction, and several former agents were convicted on these charges.52 On 46 See ‘Report of the National Commission on Political Imprisonment and Torture for the Clarification of the Truth about the Human Rights Violations in Chile’ (2004) 242–​44, 251–​57, 442–​ 52 accessed 29 May 2020 (hereafter Valech Commission Report). 47 See Episode “Nilda Peña Solari” (Judgment) Corte de Apelaciones de Santiago (Appeals Court of Santiago), Case No 6.741-​2006 (30 March 2012) Section on criminal conduct, [4]‌: summarizing witness testimony regarding the pervasiveness of sexual violence at the Venda Sexy detention centre; The Disappearance of Rebeca Espinoza Sepúlveda (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (14 July 2008) Conclusions, [2]: referring to the guards frequently raping the victim at the Tejas Verde detention centre. 48 See Fionnuala Ní Aoláin and Catherine Turner, ‘Gender, Truth & Transition’ (2007) 16 UCLA Women’s Law Journal 229, 263: noting that the recognition of gender specific abuse requires both an understanding of the political character of the abuse and of the particular element of motivation related to gender. 49 See Episode ‘Villa Grimaldi’-​Folder ‘Maria Cristina Chacaltana’ (First Instance Judgment) Corte de Apelaciones de Santiago, Case No 2182-​98 (12 January 2015) 175: recognizing the sexual torture against female prisoners at the Villa Grimaldi prison camp as a crime against humanity. This ruling was confirmed on appeal: Episode ‘Villa Grimaldi’-​Folder ‘Maria Cristina Chacaltana’ (Appeal Judgment) Corte de Apelaciones de Santiago, Case No 82. 246-​2016 (27 April 2017). See also Lara Reyes v the State of Chile (Judgment) Corte Suprema (Supreme Court), Case No 31.711-​17 (23 January 2018) 4–​ 6: overturning a ruling of a lower court and finding that the gang-​rape of a teenager by police at a police station in 1984 was a crime against humanity, not a private and isolated act. 50 Notica La Nación, ‘Mujeres ingresan querella por delitos sexuales en dictadura: éramos botín de guerra’ (16 May 2014) accessed 10 May 2020. 51 Both women were tortured and raped during their detention in June and July 1974 at a police intelligence headquarters (Servicios de Inteligencia de Carabineros, SICAR) known as ‘el Hoyo’ (‘the Hole’), located in a basement in Santiago’s civic centre. 52 The judge charged the crimes as aggravated kidnapping of sexual connotation (secuestro agravado de connotación sexual) under art 141 of the Criminal Code: Trigesimo Cuarto Juzgado del Crimen de Santiago (Thirty-​Fourth Criminal Tribunal of Santiago), Rol No 629-​2010 (26 April 2019). See also Noticias de American Latina y el Caribe (NODAL), ‘Corte reconoce delitos sexuales contra mujeres cometidos por Carabineros en la dictadura’ (NODAL, 17 May 2019), accessed 10 May 2020.

Gender in Latin American ICL cases  335 appeal, their convictions were upheld and the sentences against them were increased.53 In a subsequent case concluded in November 2020, the judgment went further in recognizing the systematic nature of sexual violence at clandestine detention centres.54 The trial focused on criminal complaints brought by former political prisoners of an infamous detention centre in Santiago known as the Venda Sexy (‘Sexy Blindfold’) or Discotheque—​where security agents played loud music while they sexually abused and tortured blindfolded prisoners. The trial judgment found the military commander who ran the detention centre, as well as several of his subordinates, responsible for the sexual violence perpetrated against six women at this facility in 1974 and 1975.55 More recently, the Appeals Court of Santiago ordered reparations for victims of dictatorship-​era sexual violence, thus acknowledging the gravity and long-​ term effect of the harms they had suffered.56 These latest precedents signal that the Chilean judiciary is making progress towards addressing sexual violence crimes, albeit more than forty years after the crimes took place. National courts in the Latin American region still have a long way to go to improve the visibility of gendered violence in their decisions. The examples discussed here underscore the importance of gender competency of justice operators so that the applicable legal frameworks are interpreted in ways that enable the prosecution of this violence. Integrating a gender perspective in domestic trials also requires guaranteeing procedural fairness, as illustrated by the ongoing Manta and Vilca case in Peru.57 In a June 2018 order, the Peruvian Supreme Court granted a motion by the civil parties to recuse the trial chamber in charge of the case, after the trial judges instructed the victims to testify in the presence of the accused, despite their request not to do so, and did not allow a witness to provide evidence about specific incidents of sexual violence.58 The Supreme Court’s decision highlighted the need for judges to adopt a gender perspective in the conduct of trial proceedings and recognized their duty to

53 Campillo Bastidas and Herrera Escobar, Appeal Judgment Corte de Apelaciones de Santiago, Case No 4260-​2019 (2 March 2022). 54 Trigesimo Cuarto Juzgado del Crimen de Santiago (Thirty-​Fourth Criminal Tribunal of Santiago), Rol No 73-​2016 “Venda Sexy” (5 November 2020), 193–​94, 286–​87. 55 ibid 297–​98. 56 See Poder Judicial, ‘Corte de Santiago ordena indemnizar a víctimas de detención illegal y torturas sexuales en recintos de la Armada Concepción’ (31 January 2022). 57 The case concerns sexual violence perpetrated at two military bases in neighbouring communities during the internal armed conflict in the 1980s, and includes charges against eleven defendants, including two commanders. 58 Manta and Vilca, Corte Suprema de Justicia de la República (Supreme Court of Justice of the Republic), Sala Penal Nacional (National Criminal Chamber), Decision on Annulment Appeal, Case No 2395-​2017 (20 June 2018) (hereafter Manta and Vilca Supreme Court ruling).

336  Daniela Kravetz establish the truth and receive all relevant evidence in cases involving crimes against humanity.59

2.  Connecting Gender-​Based Crimes to the Accused The attribution of responsibility for mass atrocities can present distinct challenges for national systems. Applicable domestic provisions may not appropriately capture collective criminal misconduct. This may result in more limited accountability for gender-​based crimes, because existing criminal provisions on responsibility may not adequately reflect how these crimes unfolded during periods of mass violence. For example, these provisions may prove insufficient to attribute responsibility for sexual violence that was not ordered or planned but was nevertheless foreseeable to the accused. In addition, due to unconscious gender biases, judges may interpret these provisions more restrictively when examining an accused’s responsibility for gender-​based crimes, for example by requiring a higher level of proof of knowledge or evidence of orders to commit the crimes. Moreover, defendants may attempt to downplay their responsibility through discriminatory attacks on the victims’ credibility;60 judges too may express biased views.61 While it exceeds the scope of this chapter to discuss modes of liability in national systems in detail, several key insights can be drawn from national practice. First, in several jurisdictions, domestic prosecutors are establishing the responsibility of accused in leadership roles for gender-​based violence by demonstrating the general factors concerning the context that made the commission of these crimes more probable. In the Argentinean trials, prosecutors have focused on contextual factors to attribute responsibility to the senior leadership as indirect perpetrators for setting in motion and institutionalizing a system of ill-​treatment that made gender-​based abuse more likely. To implement the plan of state terrorism, lower-​ranking individuals were granted wide 59 The Court ordered the appointment of a new trial chamber, and a new trial is currently underway. See ibid 13–​19. 60 For instance, in the ongoing Peruvian Manta and Vilca case, several military defendants have alleged that the plaintiffs were their girlfriends: See Demus, ‘Sala Penal permite que se politice el juicio de Manta y Vilca y revictimize a denunciantes’ (DEMUS, 28 July 2019) , accessed 10 May 2020. 61 See Chumbivilcas (Judgment) National Criminal Chamber ‘B’ (Peru), Case No 37–​2008 (28 June 2017) 140–​41: finding that the victim’s account of rape was unreliable and motivated by revenge because the military had disappeared her husband. See also Manta and Vilca Supreme Court ruling (n 58) 13–​15: finding that the trial chamber treated the victims unfairly during their testimonies and retraumatized them by forcing them to confront the accused.

Gender in Latin American ICL cases  337 discretion to exercise violence and terrorize political prisoners.62 Several indicators have been taken into account to demonstrate that sexual and gender-​ based crimes were a natural consequence of this system of ill-​treatment, such as the violent means used to implement the criminal plan, the vulnerability of the victims, and the guaranteed impunity for the physical perpetrators.63 These factors have also been used to infer the accused’s awareness of the crimes, as well as their intent, as these abuses were foreseeable in such a context, and the accused accepted their occurrence and continued furthering the criminal plan.64 The leadership’s control over the structures that committed the crimes, as well as their power to decide the ultimate fate of the victims, have been additional relevant factors to establish their responsibility as indirect perpetrators.65 Proving the responsibility of senior leaders has therefore not required evidence of orders to commit the crimes, because they have been held liable for practices they tolerated and accepted.66 In the Guatemalan Molina Theissen case, the tribunal also took into account the creation of conditions conducive to sexual abuse as a relevant factor to convict two high-​ranking military officials—​who were geographically removed from the scene of the crime—​as perpetrators of sexual torture, among other crimes. When examining the crimes in the context of the army’s counterinsurgency campaign, the tribunal found that these accused had ‘control over the crime’ because they exercised authority over the perpetrators and oversaw the operation that led to the victim’s capture, thus contributed to placing her in a situation that exposed her to sexual abuse.67 However, proving linkage remains a challenge for domestic practitioners. This is particularly so in cases where the accused did not exercise control over the physical perpetrators. While there is a growing body of Latin American jurisprudence recognizing the responsibility of senior leadership for mass atrocities, the role of others who facilitated, assisted in, financed, or provided substantial support to the crimes remains under-​examined.68 Several domestic

62 Mansión Seré Judgment (n 8) 813; Aliendro Trial Judgment (n 8) 141–​42. See also Azar, Musa (Judgment) Cámara Federal de Casación Penal, Case No 830960/​2011/​12/​CFC1 (22 June 2015) (hereafter Aliendro Appeal Judgment) 205–​7. 63 Aliendro Trial Judgment (n 8) 141–​42, 228–​30; Mansión Seré Judgment (n 8) 813; Menéndez Judgment (n 8) 653, 656–​57. 64 ibid. 65 ibid. 66 Menéndez Judgment (n 8), 657; Aliendro Appeal Judgment (n 62) 201, 205–​7, 213–​15. 67 Molina Theissen Judgment (n 24) 1029–​31, 1044. 68 However, in some contexts, courts have examined the responsibility of a broad range of individuals. For example, in Argentina, national courts have prosecuted different categories of individuals who participated in different ways in the illegal abduction of the children of political prisoners, including medical personnel who forged birth certificates, persons who gave the children in adoption and adoptive parents.

338  Daniela Kravetz cases examining the responsibility of such individuals have resulted in acquittals on grounds that they did not exercise authority over the physical perpetrators. For example, in the Guatemalan Rodríguez Sánchez case,69 the first instance tribunal found that the army committed genocide against the Mayan Ixil population, and that gender-​based crimes were an integral part of the genocide.70 However, the tribunal, by majority, acquitted the accused, who was the military intelligence chief and member of the army’s main staff under Ríos Montt (1982–​3). The majority reasoned that given his functions, Rodríguez Sánchez did not command the troops on the ground or oversee military operations, and he did not personally participate in these operations.71 It thus did not consider that the accused’s role in supplying military intelligence for the army’s counterinsurgency operations was sufficient to attribute responsibility to him for the military campaign that led to the genocide.72 Two other cases are underway which concern different phases of the genocide against the Mayan Ixil population.73 The accused include individuals who were members of the army’s main staff, but were not in command of the troops that carried out the campaign. Conceptualizing their responsibility will require placing their participation in context and adducing sufficient evidence to allow the judges to draw the necessary inferences about their contributions to the genocide and their specific intent. More work is needed to identify appropriate evidentiary and legal strategies that accurately capture the responsibility of this category of individuals in order to obtain successful outcomes at national levels. Finally, Colombia’s JEP will also require specific evidentiary strategies to apply its provisions on command responsibility to hold commanders accountable for gender-​based crimes.74 These provisions are controversial because they 69 José Mauricio Rodríguez Sánchez (Judgment) Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo, C-​01076-​2011–​00015 (26 September 2018) (hereafter Rodríguez Sánchez Judgment). 70 ibid 835–​41, 847–​48. 71 ibid 920–​22. 72 However, dissenting Judge Yoc found that it was the accused’s categorization of the Mayan Ixil ethnic group as internal enemy that fuelled the army’s genocide campaign against the civilian population. At the time of writing, the case is on appeal. See Jo-​Marie Burt and Paulo Estrada, ‘Court Finds Guatemalan Army Committed Genocide, but Acquits Military Intelligence Chief ’ (International Justice Monitor, 28 September 2018) accessed 13 January 2021. 73 See Jo-​Marie Burt and Paulo Astrada, ‘Another Senior Military Official Indicted on Genocide Charges in Guatemala’ (International Justice Monitor, 5 December 2019) accessed 10 May 2020. 74 See Acto Legislativo 1 del 4 de abril de 2017 por medio del cual se crea un título de disposiciones transitorias de la Constitución para la terminación del conflicto armado y la construcción de una paz estable y duradera y se dictan otras disposiciones (4 April 2017) art 24: requiring proof of knowledge based on the information available to the commander before, during and after the commission of the crimes. See also Corte Constitucional, C-​674/​17 (14 November 2017): upholding the constitutional amendment to implement the peace accords’ transitional justice system.

Gender in Latin American ICL cases  339 require proof that a commander had actual knowledge of—​and effective control over—​the respective misconduct of subordinates.75 Under international customary law, command responsibility arises when commanders have effective control over the troops responsible for the crimes, not over the criminal conduct itself, and encompasses responsibility for failing to prevent, punish, or report crimes that the commander ‘knew or had reason to know’.76 In future cases, the JEP should ensure that it applies this and other modes of liability in a way that recognizes the responsibility of commanders for the crimes of subordinates where they ‘should have known’ and had the material ability to prevent or punish them.

C.  Charging Strategies for Violations of Reproductive Autonomy as International Crimes While certain forms of sexual violence, in particular rape, have now been prosecuted as international crimes in various Latin American countries, other closely linked harms impacting an individual’s reproductive autonomy have received less attention. As argued by Rosemary Grey in Chapter 9 in this book, despite its prevalence, reproductive violence has often been overlooked, narrowly defined, and seldom prosecuted in contexts of mass violence. Several national systems have documented examples of reproductive crimes. In various cases, Chilean courts have examined evidence of torture of pregnant prisoners, miscarriages from torture, and births in custody during the dictatorship.77 Yet, they have not taken this evidence into account in their legal findings.78 In the 75 The JEP’s definition also includes concurring and more restrictive criteria to prove ‘effective control’: ibid. 76 In ICL, ‘effective control’ has been defined as the commander’s material ability to prevent or repress the commission of the criminal conduct or to submit the matter to competent authorities afterwards: see Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (ICCSt) art 28. See also Prosecutor v Halilović (Judgment) ICTY-​01-​48-​A (16 October 2007) [59]; Prosecutor v Delalić et al (Judgment) ICTY-​96-​21-​A (20 February 2001) [196]. 77 See Episode Londres 38-​folder María Cecilia Labrín Saso (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (25 April 2013): noting that the victim was two-​months pregnant when arrested and was forcibly disappeared; Disappearances of Cecilia Miguelina Bojanic Abad and Flavio Arquimedes Oyarzun Soto (Judgment) Corte de Apelaciones de Santiago, Case No 11.844-​Volume E (18 December 2006): summarizing witness testimonies that the victim was subjected to brutal torture while pregnant at the José Domingo Cañas detention centre; Episode ‘Luis Rodriguez’ (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (4 August 2013): referring to evidence about the arrest of a fourteen-​year-​old girl who was seven-​month’s pregnant at the time and whom the police repeatedly raped before killing; Villa Grimaldi—​Episode Eight of Valparaiso (Judgment) Corte de Apelaciones de Santiago, Case No 2.182-​1998 (30 July 2010): describing the arrest of a woman who was eight-​month’s pregnant and noting that she gave birth to twins in custody. 78 The 2004 Valech Commission report documented pregnancies from rape, forced miscarriages and births in custody but viewed them as ‘collateral’ to torture: Valech Commission Report (n 46) 254–​57.

340  Daniela Kravetz emblematic case of MMMB79 in Peru—​concerning the illegal arrest and sexual torture of a university student by security forces in 1992—​the court considered the plaintiff ’s pregnancy from rape, but for the wrong reasons. It addressed the issue of culpability and found that it was unable to reach findings on responsibility for the rapes with respect to several accused, because the victim’s child born in prison had not been subjected to DNA testing.80 Women’s rights activists and grassroots organizations have advocated for stronger responses to sexual and reproductive violence.81 An example is the Ni Una Menos (‘not one less’) movement that began in Argentina in 2015 as a call for urgent action against femicide and has now become a regional movement with broader demands, including the demand for safe and legal access to abortion.82 In various Latin American countries, women’s rights groups and survivor organizations are lobbying for increased accountability for reproductive crimes.83 These demands are slowly gaining ground in criminal proceedings. National systems are adopting different strategies to bring charges of reproductive crimes. Courts in Colombia have considered incidents of forced abortion on civilian women84 and on female fighters85 under the domestic offence of ‘abortion without consent’, recognizing the nexus of these violations to the conflict. Similarly, Argentinean courts have prosecuted forced abortions during the dictatorship under the domestic criminal provision of ‘abortion without consent’ and labelled them a crime against humanity because A 2004 law setting up a reparations program for torture victims awarded reparations to children born in captivity, but not to their mothers who were forced to give birth in custody: see Reparation Law 19.992 (24 December 2004) art 5. 79 This case is known by the plaintiff ’s pseudonym at trial. See MMMB Judgment (n 29). See also Comisión de la Verdad y Reconciliación (Truth and Reconciliation Commission), Informe Final Volume VI (2003) Ch. 1.5, 383–​84 accessed 10 May 2020. 80 MMMB Judgment (n 29) 89, 148–​51, 160; On appeal, the Supreme Court confirmed these findings but ordered the retrial of one accused: Fowks, ‘Perú condena por primera vez a militares por violaciones sexuales cometidas en los años de conflicto interno’ (El País, 9 February 2018) accessed 10 May 2020. 81 See Chapter 9 by Rosemary Grey in this volume (hereafter Grey, Ch 9). 82 See Marcela López Levy, ‘#NiUnaMenos: “Now that you see us”: The resurgence of feminism in Argentina makes waves’ (Latin American Bureau, 5 June 2018) accessed 10 May 2020. 83 See Demus, ‘La Fiscalía de Perú presenta cargos contra Fujimori por los programas de esterilización forzada de mujeres’ (10 January 2021) https://​www.demus.org.pe/​notic​ias/​la-​fisca​lia-​de-​peru-​prese​ nta-​car​gos-​con​tra-​fujim​ori-​por-​los-​progra​mas-​de-​est​eril​izac​ion-​forz​ada-​de-​muje​res/​> accessed 13 January 2021; Susana Patricia Noguera Montoya, ‘Violación de derechos reproductivos en Colombia, un histórico desafío para la JEP’ (Agencia Andalou, 9 October 2019), accessed 31 May 2020. 84 Salvatore Mancuso y otros (Judgment) Tribunal Superior del Distrito de Bogotá, Sala de Justicia y Paz, Case No 11-​001-​22-​52-​000-​2014-​00027 (20 November 2014) [2141]–​[2156], [2223]–​[2226]: referring to incidents of forced abortion of women raped by paramilitaries. 85 Olimpo de Jesús Sánchez Caro (Judgment) Tribunal de Medellin, Sala de Justicia y Paz, Case No 110016000253200883621 (16 December 2015) 1022–​23 (hereafter Sánchez Caro Judgment).

Gender in Latin American ICL cases  341 of their nexus to the repression.86 In certain cases, prosecutors have adduced evidence of the restrictions imposed on a woman’s reproductive autonomy to prove other charges. For instance, in the Sepur Zarco case, the prosecution led evidence that the army forced the plaintiffs to take birth control pills and use contraceptive injections to establish that the soldiers intended to sexually enslave them at their military base.87 Argentinean prosecutors are using the torture framework to reflect the violence against pregnant prisoners forced to give birth in captivity. The cases dealing with the systematic plan to steal the children of political prisoners have revealed the premeditated nature of the violence against pregnant women.88 The military regime set up secret maternity wards at various detention centres for the specific purpose of holding women who were about to give birth.89 Many were ‘transferred’ for execution after giving birth.90 To root out the left-​wing ideology of their parents, the children were handed over to families linked to or supportive of the military, or were abandoned, and they grew up under false identities.91 In 2011, examining one such case, the Inter-​American Court of Human Rights referred to this practice as ‘one of the most serious and reprehensible forms of violence against women’ perpetrated by the military regime.92 The trauma and suffering of pregnant prisoners are now being examined in greater detail.93 For example, in an October 2018 decision,94 a first instance 86 Aebi, Maria Eva (Judgment) Tribunal Oral en lo Criminal Federal de Santa Fe, Case No 54000012/​ 2007/​TO1 (16 October 2018); Menéndez Judgment (n 8) 660–​61. See also Arsenal-​Police Headquarters judgment (n 8) 17, 1949–​50, 1952. 87 Sepur Zarco Judgment (n 1) 47, 200, 205, 208, 232, 234, 252, 480, 483. 88 Approximately thirty per cent of those who disappeared during the dictatorship were women. At least ten per cent of these women were pregnant. Some were pregnant when they were arrested, while others became pregnant from rapes by guards and torturers: CONADEP Report (n 3) Part II ‘The Victims: The disappeared according to sex’. 89 Franco Rubén O (Judgment) Tribunal Oral Federal en lo Criminal No 6 de Buenos Aires (Oral Criminal Federal Tribunal No 6 of Buenos Aires), Case No 1351 (17 September 2012) 281 (hereafter Systematic Plan Judgment). See also Bignone (Judgment) Tribunal Oral Federal en lo Criminal No 6 de Buenos Aires, Case No 1894 (26 February 2015) 85–​104 (hereafter Bignone Judgment): referring to the military’s high degree of organization in running the clandestine maternity wards. 90 Bignone Judgment (n 89) 102–​4; Systematic Plan Judgment (n 89) 505, 582–​91. 91 The Abuelas de Plaza de Mayo—​a civil society organization formed in the 1970s to find stolen children of political prisoners—​has persistently advocated for accountability. By June 2019, 130 children (now adults) born to disappeared women had been identified: see Carmen Menéndez, ‘Encuentran en Argentina al nieto 130 desaparecido durante la dictadura’ (Euronews, 14 June 2019) accessed 29 May 2020. 92 Juan Gelman et al v Uruguay (Judgment) Inter-​Am Ct HR (24 February 2011) [98]. 93 See Arsenal-​Police Headquarters Judgment (n 8) 1953–​58: examining the abuses against pregnant women in clandestine detention centres. 94 Bignone, Reynaldo Benito Antonio (Judgment), Tribunal Oral Federal en lo Criminal No 3 (Oral Federal Criminal Tribunal No 3), Case No 9243/​2007 (30 October 2018) 573–​79, 623–​25 (hereafter Campo de Mayo Judgment).

342  Daniela Kravetz tribunal in Buenos Aires heard evidence on the treatment of pregnant prisoners at the Military Hospital of Campo de Mayo, located in a military area outside Buenos Aires.95 The case considered the responsibility of General Santiago Riveros, the highest-​ranking officer in charge of the respective military zone, and Raúl Martin, a military doctor, for the arbitrary detention and torture of four women and the illegal appropriation of their newborn children.96 After discussing the conditions under which the women were forced to give birth, the tribunal stated: It has been established that, in all the cases, the conditions of detention that the women suffered were excessively inhumane, not only due to the manner in which they were held, but also because of the conditions in which they had to face their births, tied, blindfolded, on occasion without even being able to see their newborn child, and after the birth they had to suffer the pain of not having information about their babies, and having their breastfeeding abruptly interrupted.97

The tribunal found that these abuses were not captured by the charge of illegal appropriation of children and had been correctly charged separately as torture, a crime against humanity.98 While the judges recognized the brutal treatment of the women, their analysis fell short in that they failed to examine the factors of gender that ‘legitimized’ the instrumentalization of the mothers’ bodies for political ends. General Riveros was convicted and sentenced to forty-​five years’ imprisonment for his role in the crimes,99 but Dr Raúl Martin was acquitted,100 and the appeal is pending. In Guatemala, courts have examined reproductive crimes as part of the army’s genocide campaign against the indigenous Mayan Ixil communities. In the 2018 judgment against Rodríguez Sánchez, mentioned earlier, the first instance tribunal considered the imposition of measures to prevent births within

95 See CONADEP Report (n 3) ‘Chapter I (D)’. 96 Campo de Mayo Judgment (n 94) 36, 618–​36. 97 ibid 623–​24 (author’s translation). 98 ibid 623–​24, 641. 99 As the officer in charge of the military zone where the hospital was located, Riveros controlled the transfer of the women to and from this facility, as well as their final fate and that of their children: ibid 638. 100 ibid 696–​708. See also Ailín Bullentini, ‘Juicio Hospital Militar de Campo de Mayo: Una Condena y una Absolución’ (Abuelas de Plaza de Mayo, 4 September 2018) accessed 29 May 2020.

Gender in Latin American ICL cases  343 the Mayan Ixil population as an underlying act of genocide.101 The prosecution led evidence on instances of forced miscarriages, killings of pregnant women, and feticide to show that army’s persecution of Mayan Ixil women entailed a direct attack on the ability of the group to reconstitute itself.102 The judgment concluded that these attacks were aimed at preventing the births within their group.103 Finally, a contemporary charging issue in Colombia is whether crimes of sexual and reproductive violence against female fighters by members of their own group can amount to war crimes. Colombian law requires victims of war crimes to be protected persons under international humanitarian law (IHL). The status of demobilized female fighters, who suffered violence by their own side, is unclear. Some Colombian courts have recognized female combatants as war crimes victims for the violations committed against them by their own side. A 2015 Justice and Peace judgment in the Sánchez Caro case, involving former members of the now disbanded Ejército Revolucionario Guevarista (ERG),104 found that subjecting female fighters to forced contraception and forced abortion within the ranks was a war crime.105 After examining these practices in detail, the tribunal also found that they amounted to torture.106 The tribunal held that while the victims were ERG fighters at the time, they did not lose their rights to sexual and reproductive autonomy, including the rights to decide whether and when to have children.107 The group’s leader and several of his men were convicted,108 and these convictions upheld on appeal.109 In 2019, Colombia’s Constitutional Court examined the legality of an administrative decision rejecting a reparations claim filed by a former female FARC fighter, under Colombia’s Law on Victims and Land Restitution (Law 1448 of 2011).110 101 See also José Mauricio Rodríguez Sánchez and José Efraín Ríos Montt (Judgment), Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente por Procesos de Mayor Riesgo C-​01076-​2011-​00015 (10 May 2013). 102 Rodríguez Sánchez Judgment (n 69) 99, 170, 403, 406, 410, 419, 469, 482, 845–​46. 103 ibid 184, 840–​41. 104 An offshoot of the Ejército de Liberación Nacional (ELN). 105 See Sánchez Caro Judgment (n 85) 1023: The case provided an extensive overview of the practice of forced abortion, noting that many female fighters were recruited when they were children: ibid 277–​ 82, 294–​307, 330–​51,583–​93, 1023–​64. 106 ibid 305–​7 (noting that some victims underwent multiple abortions in unhygienic and inhumane conditions), 1066–​67 (calling the attention of the prosecution for not charging torture). 107 ibid 307–​8 (acknowledging the long-​term effects of the forced abortions, the tribunal ordered reparations, including psychosocial support and medical assistance). 108 ibid 2025–​30, 2410–​11, 2417–​19, 2421. 109 Alejandra Bonilla Mora, ‘Corte Suprema confirma primera condena contra la antigua del ERG’ (El Spectador, 18 June 2018) accessed 29 May 2020. 110 This administrative decision was made on the basis that Law 1448 excludes FARC members, except child soldiers; the plaintiff had demobilized as an adult: Corte Constitucional de Colombia

344  Daniela Kravetz The NGO Women’s Link Worldwide brought this case on behalf of ‘Helena’ (pseudonym), a young woman who was forcibly recruited by the FARC at the age of fourteen, forced to use contraception, and made to undergo an abortion when she became pregnant as a young adult. She suffered severe and long-​lasting consequences from the unsafe abortion. In its ruling, the Court affirmed the state’s duty to provide reparations to victims of sexual and reproductive violence. Relying on the International Criminal Court’s (ICC) decision in Ntaganda,111 the Court confirmed that IHL prohibits sexual violence under all circumstances, irrespective of the status of the victim, noting that members of the same armed force are not excluded from this protection.112 It also noted that the plaintiff was both a victim of sexual violence and of child recruitment, and as such was entitled to reparations under Law 1448. This ruling is significant because it provides a gendered understanding of life within armed groups, recognizing the control exerted by these groups over the sexual and reproductive autonomy of women and girls within their ranks.113 In recent years, women’s rights groups in Colombia have called on the JEP to address the issue of reproductive violence within FARC ranks and recognize the status as war crime victims of former female rebels.114 The JEP has been seized of a case against a FARC medic, accused of performing forced abortions on female fighters.115 Like the ERG, the FARC leadership subjected its female members to forced contraception and forced abortions.116This issue will likely (Constitutional Court of Colombia) (Judgment) Case No SU-​599/​19 (11 December 2019) (hereafter Colombian Constitution Court 2019 Judgment). See also Dieneke De Vos, ‘Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict’ (European University Institute, 11 January 2020) accessed 29 May 2020. 111 See Prosecutor v Ntaganda (Judgment) [2019] ICC-​01/​04-​02/​06 [406]–​[413], [965]. See also Prosecutor v Ntaganda (Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’) [2017] ICC-​01/​04-​02/​ 06-​1962 [65] (hereafter Ntaganda Jurisdiction Decision). 112 Colombian Constitution Court 2019 Judgment (n 110) 57–​62, 69–​70. 113 Christine Chinkin and Keina Yoshida, ‘Colombia’s recent ruling on reproductive violence and forced recruitment is a significant step for ex-​combatant women and girls’ (London School of Economics, 19 February 2020) accessed 10 May 2020. 114 See Juan Esteban Silva, ‘Queremos que JEP investigue sobre abortos forzados en filas de FARC: Women’s Link’ (Bluradio, 8 October 2019) accessed 29 May 2020. 115 The case concerns Héctor Arboleda Buitrago, a former FARC medic known as ‘El Enfermero’ (‘the Nurse’), who was extradited from Spain in 2018: Héctor Arboleda Buitrago (Decision on request for provisional release) JEP, Chamber of Amnesty and Pardons, Case No SAI-​LC-​XBM-​046 (25 February 2019). 116 ibid [48]–​[50]: referring to the brutal conditions under which the abortions were carried out and the severe trauma for the victims. A preliminary ruling on Arboleda’s provisional release relied on a 1950 Dutch Court of Cassation decision in the Pilz case to state that IHL does not recognize violations

Gender in Latin American ICL cases  345 be addressed as part of Case 007 dealing with the illegal recruitment and use of children.117 The JEP’s jurisprudence on this matter could have important repercussions for ex-​combatants victims of sexual and reproductive violence in Colombia and beyond. There is definitely scope for national systems to examine violations of reproductive autonomy more closely and explore the untapped potential of the international criminal law (ICL) framework.118 Recognizing the impact of crimes on a victim’s reproductive life is important not only for accountability purposes but also to guarantee their right to reparations, as noted recently by Colombia’s Constitutional Court.

D.  Conclusion There is now a strong recognition in Latin American national systems that grave and systematic violations, including gender-​based crimes, cannot be subjected to a statute of limitations for prosecution under international law. In the countries discussed in this chapter, national systems are prosecuting these crimes decades after the fact. Through the use of the ICL framework, different categories of gender-​based crimes have been characterized as grave violations and as international crimes. Important progress has also been made in holding different categories of accused, including high-​level leaders, to account for their role in campaigns of mass violence. National practice from this region shows that improving justice outcomes for victims requires assessing gender-​ based crimes on par with other violations, taking the gender dimensions of these crimes into account in the case construction and legal argumentation, and avoiding discriminatory and biased attitudes towards victims. Finally, specific attention needs to be paid to consolidating gains. Progress in gender justice is not linear, as illustrated by Guatemala’s recent experience. The victims in the landmark Sepur Zarco case are still awaiting the implementation of the wide-​ranging reparations set out in the 2016 judgment. Inspired by the women of Sepur Zarco, a group of eleven Mayan Achi women from Rabinal, against combatants as war crimes when perpetrated by members of their own group: ibid. See also Ntaganda Jurisdiction Decision (n 111) [62]: noting that the Pilz decision ‘appears to have been wrongly decided on this point’ as it ignored the unconditional nature of the protection afforded to the wounded and sick. 117 See JEP, ‘JEP abre caso 007 sobre reclutamiento y utilizacion de niñas y niños en el conflict armado’ (1 March 2019) accessed 29 May 2020. 118 Grey, Ch 9 (n 81).

346  Daniela Kravetz Alta Verapaz, came forward seeking justice for the sexual violence they suffered during the conflict.119 However, in June 2019, their case was dismissed by the pre-​trial judge, in part, because their testimonies were deemed insufficient evidence to establish the responsibility of the physical perpetrators.120 The judge was later removed from the case following a recusal motion by the plaintiffs on grounds of bias, and in 2022 a new tribunal heard the case and convicted five perpetrators.121 As this case made evident, in order to erode impunity for gender-​based crimes at the national level, it is necessary to identify and reverse problematic trends and obstructions that (re-​)emerge, and to devise adequate mechanisms to implement remedies and reparations. Only by maintaining the attention over time on the need for accountability and redress can the progress made thus far be sustained.

119 A total of thirty-​five women came forward, but only eleven were included in this case because they identified the physical perpetrators. 120 Jo-​Marie Burt and Paulo Estrada, ‘In Major Setback, Judge Dismisses Charges in the Maya Achi Sexual Violence Case’ (International Justice Monitor, 26 June 2019) accessed 10 May 2020. Proceedings are moving forward in a related case. See Jo-​Marie Burt and Paulo Estrada, ‘Former Civil Defense Patroller Sent to Trial in Maya Achi Sexual Violence Case’ (International Justice Monitor, 16 October 2020) < https://​www.ijmoni​tor.org/​2020/​10/​for​mer-​civil-​defe​nse-​patrol​ler-​sent-​to-​trial-​ in-​maya-​achi-​sex​ual-​viole​nce-​case/​> accessed 13 January 2021. 121 The Guardian, ‘Victory in Court for Indigenous Women Raped during Guatemala’s Civil War’ (25 January 2022). See also United Nations Office of the High Commissioner for Human Rights, ‘Strategic Litigation for Gender-​Based Violence: Experiences in Latin America, Workshop Report’ (2021) 12.

13 Fragmentation Fears or Interaction Opportunities? The Role and Potential of International Human Rights Law in Shaping International Criminal Law’s Gender Jurisprudence Catherine O’Rourke*

A. Introduction Interaction between international human rights law (IHRL) and international criminal law (ICL) is formally envisaged by article 21(3) of the Rome Statute, which includes ‘internationally recognised human rights’ as a source of law for the International Criminal Court (ICC). The provision ostensibly offers significant potential for productive interactions between the regimes and progressive gender jurisprudence, for example through the adoption of articulations of women’s and girls’ rights based on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in ICC jurisprudence. In fact, however, evidence of interaction is limited and the Court has adopted a narrow approach to article 21(3). This chapter sets out to do three things: first, it illuminates the Court’s narrow approach to article 21(3) in its gender jurisprudence through the case study of the ICC’s child soldier jurisprudence emerging from the conflict in the Democratic Republic of the Congo (DRC); second, it contextualizes these findings within broader debates on fragmentation and women’s rights in conflict under international law; and third, the chapter proposes strategies for the pursuit of more productive interactions between ICL and IHRL in order to enhance the overall protection of women’s rights in conflict under international law. * This chapter draws on content from Catherine O’Rourke, Women’s Rights in Armed Conflict under International Law (CUP 2020).

​

​

348  Catherine O’Rourke

B.  The Fragmented Protection of Women’s Rights in Conflict Under International Law The regulation of women’s rights in conflict has travelled a great distance since initial feminist interventions into international law, which identified a ‘masculine world’ of international law with reinforcing organizational and normative structural factors that excluded women from its practice and women’s lives from its areas of concern.1 States have agreed to limit the lawful conduct of armed conflict—​including against female combatants and civilians—​under international humanitarian law (IHL),2 and provided for international criminal jurisdiction over individuals bearing the greatest responsibility for the most serious violations of these laws, including when they are perpetrated against women.3 The extent to which states can limit the human rights of women, even in times of violent conflict, has been negotiated, litigated, and interpreted in various instruments, consensus, and interpretative documents grouped under IHRL.4 Meanwhile, United Nations Security Council (UNSC) responses to threats to international peace and security now recognize—​and bring UNSC enforcement procedures—​to the threat posed to women by armed conflict.5 Thus has arisen separate regime activity with implications for women’s rights in conflict. Initial feminist interventions into the field of international law identified a ‘masculine world’ as an overarching problem.6 The contemporary domain, with its tapestry of normative and legal commitments across regimes and regions of international law, posits instead a more subtle and complex set of challenges for feminist analysis and engagement. The possibility that international law’s regulation of women’s rights in conflict is fragmented gives rise to specific legal questions. For example, what is the legal basis for the CEDAW Committee to monitor state party compliance with the UNSC resolutions? Moreover, when members of the UNSC are not parties either to CEDAW or the Rome 1 Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613 (hereafter Charlesworth, Chinkin and Wright, ‘Feminist Approaches’). 2 For an overview, see Françoise Krill, ‘The Protection of Women in International Humanitarian Law’ (1985) 25(249) International Review of the Red Cross 337. 3 Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2006). 4 eg UN Committee for the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No 30 on women in conflict prevention, conflict and post-​conflict situations’ (18 October 2013) UN Doc CEDAW/​C/​GC/​30 (hereafter CEDAW Committee, ‘GR30’). 5 United Nations General Assembly (UNGA) and UNSC, ‘Compendium of the High-​Level Review of the United Nations Sanctions’ (November 2015) UN Doc A/​69/​941-​S/​2015/​432 46. 6 Charlesworth, Chinkin and Wright, ‘Feminist Approaches’ (n 1).

Fragmentation Fears or Interaction Opportunities?  349 Statute, under what conditions should they be engaged in activities to interpret both treaties? Is it appropriate for human rights treaty-​monitoring bodies to make recommendations to state parties concerning their cooperation with the ICC? How is the ICC to interpret and apply a diverse body of human rights jurisprudence on women’s rights in conflict in its implementation of the Rome Statute? To what extent can the ICC rely on the determinations of human rights treaty-​monitoring bodies concerning impunity and accountability for sexual and gender-​based violence in order to determine whether its complementary jurisdiction is engaged? What happens if IHRL and IHL advance conflicting principles, such as state liability for violations by non-​state actors versus direct liability of non-​state actors? Uncertainty about the interaction between these regimes presents practical and conceptual problems for those responsible for maintaining, understanding, and complying with international law, as well as for advocates who engage international law to advance women’s rights in conflict. In order to address this uncertainty, it is important to investigate the relevant laws and institutions to ascertain whether there is indeed fragmented regulation of women’s rights in armed conflict. The next step is to determine strategies to address problems associated with such fragmentation, not to contribute to coherence in international law (which may not be a useful goal in itself, given possible advantages of diversity),7 but to promote effective efforts, for both institutions and law, in securing improved protection of women’s rights in conflict. Feminist scholarship in international law likewise identifies potential opportunities and dividends from increasing specialisation in international law. These opportunities can be broadly characterized as: diversity and pluralism; more tailored and targeted norms; and forum-​shopping and forum-​shifting.

C.  Interaction Opportunities 1.  Diversity and Pluralism There is, in the broader literature on fragmentation, a rich debate between opposed ideals of ‘coherence’ and ‘diversity’.8 Koskenniemi has been a key 7 Wilfred Jenks, ‘Conflict of Law-​Making Treaties’ (1953) 30 British Yearbook of International Law 401, 452; Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553 (hereafter Koskenniemi and Leino, ‘Fragmentation of International Law?’). 8 See Koskenniemi and Leino, ‘Fragmentation of International Law?’ (n 7).

350  Catherine O’Rourke advocate for diversity and the rejection of undue ‘formalism’9—​the idea that there are clearly rules that can be uncontroversially applied—​by international lawyers. The potential for ‘systemic integration’—​the pursuit of international law as a rule-​system with a clear hierarchy of rules—​to become hegemony is a particular concern.10 Koskenniemi and colleagues attribute concerns about coherence largely to institutional concerns by adjudicatory bodies worried about their own status in international law.11 In their view, institutionalist battles between ‘specialist’ and ‘generalist’ systems, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ), reflected efforts to make particular institutional interests and perspectives the general (and dominant) perspective.12 Koskenniemi advocates recognition of these inherently political (as distinct from ‘legal’) dynamics and for broadly endorsing legal pluralism.13 Discussions and tensions between the specialist and generalist systems adopt particular resonance in respect of women’s rights. CEDAW is the only treaty across the four regimes specifically dedicated to the articulation of women’s rights, though broad guarantees of non-​discrimination on the basis of gender can be found across the generalist systems.14 Fragmentation in the regulation of women’s rights in conflict thus underpins institutional conflict over which has dominance in the definition of women’s rights in conflict. While the institutions and courts dedicated to the protection of civil and political rights are critical actors in advancing women’s rights, it is the CEDAW Committee that is uniquely capable of leading the development of a broad swathe of women’s rights through its robust interpretation of the Convention. Experience from the campaign to recognize violence against women as a human rights violation evidences the importance of the CEDAW Committee in articulating and advancing subaltern interpretations of human rights obligations that ultimately penetrate the mainstream human rights system.15 It was the CEDAW Committee, in particular through its General Recommendation 19 (1992) that elaborated how the ostensibly private sphere concern of violence 9 International Law Commission (ILC), ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/​CN.4/​L.682 (hereafter ILC, ‘Fragmentation’) [487]. 10 Martti Koskenniemi, ‘Hegemonic Regimes’ in Margaret A Young (ed), Regime Interaction in International Law: Facing Fragmentation (CUP 2012) 305 (hereafter Koskenniemi, ‘Hegemonic Regimes’). 11 ILC, ‘Fragmentation’ (n 9) [282]. 12 ibid [51]. 13 Koskenniemi, ‘Hegemonic Regimes’ (n 10). 14 eg Charter of the United Nations (24 October 1945) 1 UNTS XVI art 1(4). 15 Alice Edwards, Violence Against Women under International Human Rights Law (CUP 2011) (hereafter Edwards, Violence Against Women).

Fragmentation Fears or Interaction Opportunities?  351 against women was in fact a human rights violation, due to the clear gender patterns in victims, perpetrators, state inaction, and the adverse effect on women’s ability to enjoy other human rights.16 As Merry observes: ‘culture is as important in shaping human rights conferences as it is in structuring village mortuary rituals (though typically it is associated only with the latter)’.17 The Committee has, to date, fostered broad cultural change within the international human rights system through constructive dialogue, General Recommendations, and, more recently, through the jurisprudence developed under its individual communications and inquiries.18 Although a halting and contingent process, it is the diversity and pluralism of international law that provides unique opportunities for subaltern feminist interpretations of international law to enter the mainstream.

2.  More Tailored and Targeted Norms Documenting the emergence of fragmented institutional activity on women’s rights in conflict reveals the significance of soft law in this area. Non-​binding consensus documents emerging from international conferences were influential. For example, in 1993, violence against women emerged as the central policy concern of the Vienna World Conference on Human Rights.19 Further, the Fourth World Conference on Women and the resulting Beijing Declaration and Platform for Action convened by the General Assembly in 1995 was a critically important milestone. Due largely to effective advocacy by the large civil society presence at the conference, one of the twelve identified ‘critical areas of concern’ to emerge as consensus areas of priority for the Beijing Platform for Action was ‘women and armed conflict’.20 These soft law developments were important in building consensus towards the Rome Statute. This experience vindicates the belief that soft law instruments can offer some noted advantages to feminist advocates. Certainly, they are generally more susceptible 16 CEDAW Committee ‘General Recommendation No 19’ (1992) UN Doc A/​47/​38. 17 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006) 16. 18 See Andrew Byrnes and Eleanor Bath, ‘Violence Against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women—​Recent Developments’ (2008) 8 Human Rights Law Review 517. 19 The World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (adopted 25 June 1993) UN Doc A/​CONF.157/​23 (hereafter Vienna Declaration) [38]. 20 UN Fourth World Conference on Women, Beijing Declaration and Platform of Action (15 September 1995) UN Doc A/​CONF.177/​20 [131]–​[149] (hereafter Beijing Declaration and Platform for Action).

352  Catherine O’Rourke to feminist participation in their formulation.21 Relatedly, it is often easier for drafters to adopt specific and precise terms in non-​binding international agreements.22 Further, soft law instruments can produce legal effect, as they influence the interpretation of legally binding commitments. Thus, fragmentation and proliferating normative activity has provided a critical entryway for the development of more tailored and targeted norms addressing the specifics of, for example, the right of women to reparations in armed conflict.23 To illustrate, significant human rights developments in state obligations to liberalize access to abortion have occurred within the mainstream and regional treaty-​based systems for the protection of civil and political rights.24 Nevertheless, progress secured through civil and political rights avenues evidence a general reluctance to engage with the substantive issues of gender equality, including the rights of individual women to appropriate healthcare and to control their reproduction and sexuality.25 Rather it has been the CEDAW Committee’s identification and robust denouncement of the gender stereotypes that inform the denial of reproductive rights to women26 that 21 eg Hilary Charlesworth, ‘The Unbearable Lightness of Customary International Law’ (1998) 92 Proceedings of the Annual Meeting (American Society of International Law) 44 (hereafter Charlesworth, ‘The Unbearable Lightness’). 22 ibid 192. 23 ‘The Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation’ (21 March 2007). accessed 25 May 2020, cited in Prosecutor v Lubanga (Decision establishing the principles and procedures to be applied to reparations) [2012] ICC-​01/​04-​01/​06 [21], [185], [192]. 24 See Christina Zampas and Jamie M Gher, ‘Abortion as a Human Right—​International and Regional Standards’ 8 Human Rights Law Review 249; There is recognition of the potential for highly restrictive abortion regimes to constitute violations of the right to freedom from torture, and cruel, inhuman, and degrading treatment, where the denial of abortion leads to the threshold level of physical and mental harm: UN Human Rights Committee, Karen Noelia LLantoy Hauman v Peru (3 November 2005) CCPR/​C/​85/​D/​1153/​2003. Further, a related set of procedural obligations have been articulated, most notably by the European Court of Human Rights, around the need for an effective mechanism to vindicate rights to abortion where domestic regimes establish limited provision for lawful abortion: Tysiac v Poland (2007) 5410/​03 ECHR [116]; A, B, and C v Ireland (2010) 25579/​05 ECHR [249]; RR v Poland (2012) 27617/​04 ECHR [187]. 25 See Catherine O’Rourke, ‘Advocating Abortion Rights in Northern Ireland: Local and Global Tensions’ 25 (2016) 25 Social and Legal Studies 716. 26 CEDAW Committee, ‘Summary of the inquiry concerning the Philippines under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women’ (22 April 2015) UN Doc CEDAW/​C/​OP.8/​PHL/​1 [42]: ‘The Committee considers that Article 5, read together with Articles 12 and 16, requires state’s parties to eliminate gender stereotypes that impede equality in the health sector and in marriage and family relations’; ibid [43]: ‘Thus, the Committee finds that the implementation of Executive Orders Nos 003 and 030 with regard to the delivery of reproductive health services and commodities in Manila reinforced gender stereotypes prejudicial to women, given that they incorporated and conveyed stereotyped images of women’s primary role as child bearers and child rearers, thereby perpetuating discriminatory stereotypes already prevalent in Filipino society. Such stereotypes further contributed to the belief that it was acceptable to deny women access to modern methods of contraception because of their natural role as mothers and had the effect of impairing the enjoyment by women of their rights under Article 12 of the Convention. The Committee concludes that the state party has violated its obligations under Article 5 of the Convention.’

Fragmentation Fears or Interaction Opportunities?  353 reveals, once again, the critical role of the CEDAW Committee in advancing feminist-​informed interpretations of human rights norms. Likewise, despite prolific normative activity in the area in, for example, the UNSC, the CEDAW Committee’s General Recommendation 30 (GR30) constitutes the most comprehensive statement of women’s rights in conflict.27 Further, resulting norms are not only more tailored in substantive focus, but can also be more targeted as to the entities being addressed by the norm. International human rights laws and standards are addressed to states and state actors, while ICL addresses individual perpetrators of war crimes, crimes against humanity, genocide, and aggression. IHL, as well as much normative and enforcement activity by the UNSC, is often directed to non-​state armed groups. The more tailored targeting of norms suggests an obvious direction for productive norm reinforcement and implementation.

3.  Forum-​Shopping and Forum-​Shifting Each regime implicates different monitoring bodies and enforcement procedures, which in turn offer different opportunities for women’s civil society participation and feminist influence. Forum ‘shopping’ and ‘shifting’ are terms that tend to be used with disapproval by scholars of international law. The terms imply opportunistic exploitation of international law’s de-​formalism. The diversity of interpretative and adjudicative bodies with relevance to women’s rights certainly poses a threat to international law’s coherence. From the perspective of women’s rights advocates, however, the diversity of available bodies can present opportunities to ‘shop’ for more sympathetic adjudicative fora or to ‘shift’ institutions in order to consolidate or strengthen a particular norm.28 Examples abound of such practice in advocacy for women’s rights in conflict. For example, advocacy for the adoption of UNSC Resolution 1325 provides a useful case of forum-​shifting. The resolution is viewed as the product and outcome of the women’s movement, and belonging to transnational feminist momentum since the UN’s Fourth World Conference on Women in Beijing.29 The desire for clear legally binding obligations on states was a key motivation

27 CEDAW Committee, ‘GR30’ (n 4). 28 These terms are defined and explained further in Margaret A Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (CUP 2011). 29 See Cynthia Cockburn, From Where We Stand (Zed Books 2007) (hereafter Cockburn, From Where We Stand); Sanam N Anderlini, Women Building Peace: What they do, Why it matters (Lynne Reinner 2007).

354  Catherine O’Rourke for transnational and insider activists moving feminist demands from the international human rights system and UNGA to the UNSC.30 While critical questions might be asked as to the efficacy and wisdom of this strategy, it nevertheless was a clear strategy to exploit the diversity of institutions regulating women’s rights in conflict.

D.  Fragmentation Fears 1.  ‘Fragmentation Strategies’ The fragmented location of gender equality norms within an increasingly fragmented international legal system should likewise sound a feminist doctrinal alarm bell.31 More dispersed gender equality norms are more difficult to enforce, as it is unclear what institution has key responsibility for enforcement.32 There are a plethora of specialized agencies, institutions, and subsystems involved in the contemporary business of generating gender equality norms. One can argue that this is broadly positive in reinforcing the norm. Nevertheless, the general trajectory is that such norms are emerging from less representative and less democratic forums, which are in turn more vulnerable to powerful states and non-​state actors.33 Together, these factors can mean the reduced coherence and reduced legitimacy of the resulting gender equality norms.34 In order to circumvent their obligations, powerful states may deliberately pursue a number of ‘fragmentation strategies’.35 The coincidence in 2000 of the adoption of Resolution 1325 by the UNSC and the entry into force of the Optional Protocol to CEDAW might be read as a high watermark of feminist influence in international law. Alternatively, it might be read as the dislocation of feminist energies from the treaty-​based human rights system, with its established systems of state accountability, monitoring and enforcement. Benvenisti and Downs identify four state ‘fragmentation strategies’ for the avoidance of international obligations: 30 Cockburn, From Where We Stand (n 29). 31 Fionnuala Ní Aoláin, ‘International Law, Gender Regimes and Fragmentation: 1325 and Beyond’ in Cecilia Bailliet (ed), Non-​State Actors, Soft Law and Protective Regimes: From the Margins (CUP 2012) 53 (hereafter Ní Aoláin, ‘International Law’). 32 ibid. 33 Alan Boyle and Christine Chinkin, The Making of International Law (OUP 2007) (hereafter Boyle and Chinkin, The Making of International Law) 124–​25. 34 ibid. 35 Eyal Benvenisti and George Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ (2007) 60 Stanford Law Review 595, 600.

Fragmentation Fears or Interaction Opportunities?  355 (1) avoiding broad, integrative agreements in favour of a large number of narrow agreements that are functionally defined; (2) formulating agreements in the context of onetime or infrequently convened multilateral negotiations; (3) avoiding whenever possible the creation of a bureaucracy or judiciary with significant, independent policymaking authority and circumscribing such authority when its creation is unavoidable; and (4) creating or shifting to an alternative venue when the original one becomes too responsive to the interests of weaker states and their agents. 36 In light of Benvenisti and Down’s fourth ‘fragmentation strategy’—​the creation of alternative venues when the original one becomes too responsive—​it bears reflection that, unlike the human rights treaty monitoring system, the UNSC’s Women, Peace and Security resolutions operate with a considerably more diffuse understanding of accountability, that carries no ‘concrete outcomes, commitments [or] review’.37

2.  ‘A Women’s Ghetto’ It was in response to the identified gendered shortcomings of the human rights canon that CEDAW was adopted in 1979 and the CEDAW Committee was established to monitor its implementation.38 The Convention’s radical departure from the established canon at the time of its adoption was demonstrated in its broad definition of discrimination against women encompassing both public and private life,39 its integration of civil and political40 and social and economic rights,41 the permissive provision for temporary special measures to remedy gender inequality,42 and its requirement on state parties to modify discriminatory social and cultural patterns.43 The CEDAW Convention and its

36 ibid. 37 Ní Aoláin, ‘International Law’ (n 31) 137. 38 Charlotte Bunch, ‘Women’s Rights as Human Rights: Toward a Re-​Vision of Human Rights’ 12 Human Rights Quarterly 486; R Cook, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination of Women’ (1990) 30 Virginia Journal of International Law 643. 39 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) art 1. 40 ibid arts 7–​9. 41 ibid arts 10–​13. 42 ibid art 4. 43 ibid art 5.

356  Catherine O’Rourke monitoring Committee are therefore optimally placed to overcome the persistent gendered shortcomings of the human rights canon. The problem for CEDAW advocates is that the Convention and Committee are ill-​equipped to ensure that progressive and feminist-​informed interpretations of human rights law can suitably permeate and influence the so-​called ‘mainstream’ of IHRL, as adjudicated through the Human Rights Committee of the International Covenant on Civil and Political Rights; the Committee on Economic, Social and Cultural Rights; and the Committee Against Torture. While the ‘mainstream’ human rights bodies interpret general principles of IHRL, the interpretative activities of the ‘specialist’ bodies are typically of more limited application. The CEDAW Committee can legitimately lay claim to considerable successes in informing ‘mainstream’ practice in certain respects, most notably concerning violence against women.44 By contrast, an understanding of how ‘gender stereotypes’ underpin discriminatory law, policies, and practices is increasingly central to the adjudication activities of the CEDAW Committee through its reasoning in individual petitions and inquiries.45 Nevertheless, it is a concept that has received little traction to date within other human rights treaty-​monitoring bodies.46 In terms of article 21(3) of the Rome Statute, these concerns about a women’s ghetto have important resonance when considering the extent to which CEDAW activities and outputs satisfy the definition of sources in the ICC’s practice.

3.  ‘A Compliance Paradox’ An enduring problem for feminist doctrinalists, or formalists, is that the advancement of the official recognition of women’s equality and human rights is disproportionately contained within proliferating soft law documents. Thus, feminist doctrinal critique displays a preoccupation with the sources of international law and the binding or non-​binding nature of gender equality and women’s rights norms therein. The areas that lack clarity in the sources of international law are legion and Boyle and Chinkin argue that the ICJ Statute’s

44 See Edwards, Violence Against Women (n 15). 45 Marsha Freeman, Christine Chinkin, and Beate Rudolf, The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (OUP 2012) 141–​67 (hereafter Freeman, CEDAW Commentary). 46 See Rebecca Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press 2010).

Fragmentation Fears or Interaction Opportunities?  357 articulation of sources47 is ‘dated and increasingly misleading’.48 Importantly in terms of feminist engagement, they identify the proliferation of soft law as challenging the clarity of article 38’s neat typology of sources.49 This analysis troublingly locates women’s rights and equality under shadowy legal protection. Soft law instruments can offer some advantages to feminist advocates. They are generally more susceptible to feminist participation in their formulation. Formalists therefore acknowledge the efficacy of soft law as democratizing the making of international law.50 Further, as mentioned earlier, it is often easier for drafters to adopt specific and precise terms in non-​binding international agreements.51 Soft law instruments can ‘produce legal effect’, as they influence the interpretation of legally binding commitments. The interpretative power of soft law is particularly valuable against the backdrop of weak enforcement attached to the CEDAW Convention.52 Soft law can provide an entry-​way for women into international law-​making when formal sites have been so exclusionary. Soft law clearly also can pose threat to feminists. Formalists are concerned about what Charlesworth has called a ‘compliance paradox’ that has emerged with the diversification of sites and agents of international law-​making. In 1998, she noted that the gender equality norms emerging from international conferences were weak.53 Moreover, their greater distance from state consent has a resultant impact on the likelihood of state compliance.54 The ‘compliance paradox’ therefore emerges that, while civil society (including feminists) have greater involvement in the development of norms, the legal status—​and thus compliance pull—​of these norms on states is markedly weaker.

4.  The Gender of Jus Cogens Concerns about the marginalization of women’s rights within a fragmented international system are compounded by the silence on gender equality within most accepted determinations of jus cogens. The Vienna Convention on the

47 Statute of the ICJ (18 April 1946) 33 UNTS 993 art 38(1). 48 Boyle and Chinkin, The Making of International Law (n 33) 211. 49 ibid. 50 eg Charlesworth, ‘The Unbearable Lightness’ (n 21). 51 ibid 192. 52 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press 2000) 104. 53 Charlesworth, ‘The Unbearable Lightness’ (n 21). 54 ibid.

358  Catherine O’Rourke Law of Treaties affords clear primacy only in respect of the UN Charter55 and jus cogens.56 Jus cogens designates norms from which no derogation is permitted by way of particular agreements. Jus cogens is frequently viewed as a set of superior norms sanctioning fundamental values that constrain states objectively rather than voluntarily.57 Most states and authors agree that jus cogens exist in international law. Opinions diverge however as to its exact content, sources, means of identification, and application, as well as to its precise effects and role within the international legal order. Despite persistent debates on these matters, jus cogens are now referred to in several legal instruments within and beyond the law of treaties. Overall, the most frequently cited candidates for the status of jus cogens include: the prohibition of aggressive use of force; the right to self-​defence; the prohibition of genocide; the prohibition of torture; the prohibition of crimes against humanity; the prohibition of slavery and slave trade; the prohibition of piracy; the prohibition of racial discrimination and apartheid; the prohibition of hostilities directed at civilian populations (‘basic rules of international humanitarian law’); and the right to self-​determination. 58 In none of the authoritative statements of jus cogens does the prohibition on discrimination against women appear. Feminist scholars robustly contest the supposed universality of jus cogens.59 The basis for feminist critique is manifold. Most obviously problematic is a system that singles out racial discrimination, but not also gender discrimination. Moreover, jus cogens condemns arbitrary detention, but not death by

55 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 103. 56 ibid art 53. In its Commentary to the 2001 Draft Articles on State Responsibility for Internationally Wrongful Acts, the ILC gave as examples of jus cogens the prohibition of aggression, slavery and slave trade, genocide, racial discrimination and apartheid, torture (as defined in UNGA Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [adopted 10 December 1984, entered into force 26 June 1987] 1465 UNTS 85 [Convention Against Torture]), basic rules of IHL applicable in armed conflict, and the right to self-​determination: ILC, ‘Draft Articles on State Responsibility, Commentary on art 40’ in ILC, ‘Official Records of the General Assembly, Fifth-​sixth Session’ UN Doc A/​56/​10 26, 112–​13 [4]‌–[​ 6]. 57 Anne Lagerwall, ‘Jus Cogens’ (Oxford Bibliographies, 29 May 2015) accessed 26 May 2020. 58 ILC, ‘Fragmentation’ (n 9) [374]; Brownlie lists as the least controversial examples of the class the prohibition of the use of force, the law of genocide, the principle of racial non-​discrimination, crimes against humanity, and the rules prohibiting trade in slaves and piracy: Ian Brownlie, Principles of Public International Law (OUP 2008) 515; Aust sees as perhaps the only generally accepted examples the prohibition on the use of force (as laid down in the United Nations Charter) and on genocide, slavery, and torture: Anthony Aust, Handbook of International Law (CUP 2010) 11; Rosalyn Higgins mentions as examples the prohibition of genocide, torture, and killing of prisoners of war: Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 21–​22. 59 See Hilary Charlesworth and Christine Chinkin, ‘The Gender of Jus Cogens’ (1993) 15 Human Rights Quarterly 63 (hereafter Charlesworth and Chinkin, ‘The Gender of Jus Cogens’)

Fragmentation Fears or Interaction Opportunities?  359 starvation and finds no place for rights as basic as access to primary healthcare.60 Thus, the feminist critique of jus cogens draws on and reiterates in important ways the prior feminist critique of the hierarchy of human rights, which privileges civil and political rights over economic and social rights.61 Further, the collective right to self-​determination allows ‘all peoples . . . to freely determine their political status and freely pursue their economic, social and cultural development’.62 Yet the oppression of women within groups claiming a right to self-​determination has never been considered relevant to the validity of their claim. For example, the United States (US) supported the Afghan resistance movement after the Soviet invasion despite the status of women in Afghanistan. Likewise, the political status of women within Kuwait played no role in the international community’s authorization of a forceful response to the Iraqi incursion into Kuwait.63 Consequently, jus cogens is revealed to be not incidentally silent on gender in its prevailing formulations, but instead structurally blind to gender in its foundational tenets.

E.  Formal Interaction Between ICL and IHRL The Rome Statute makes robust formal provision for interaction between ICL and IHRL in article 21(3): The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender . . . age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.64

The Statute thereby provides for the influence of what are ‘evolving norms and principles’.65

60 Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ [1992] 12 Australian Year Book of International Law 82, 94. 61 Charlesworth and Chinkin, ‘The Gender of Jus Cogens’ (n 59) 79–​82. 62 ibid. 63 ibid 81. 64 Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) art 21(3). 65 Rebecca Young, ‘ “Internationally Recognized Human Rights” before the International Criminal Court’ (2011) 60 International and Comparative Law Quarterly 189 (hereafter Young, ‘Internationally Recognized Human Rights’).

360  Catherine O’Rourke In his Commentary on the Rome Statute, Schabas argues that article 21(3) of Rome Statute is ‘rich with potential’.66 Moreover, he claims ‘it is analogous to constitutional provisions in national law that authorize courts to interpret and even disallow legislated texts to the extent they are incompatible with fundamental human rights standards or that they are discriminatory’.67 The jurisprudence in this regard is more mixed. The Chambers of the Court have differed to date in their approach to the more fundamental question of how IHRL should inform its reasoning. The Appeals Chamber determined that IHRL is an underlying rule of interpretation of the entire treaty and therefore applies to all Court activities (‘Human rights underpin the Statute’68), but this has not been the consistent position of the Court. More modest interpretation has designated IHRL to be ‘gap-​filling’.69 Human rights sources may have particular potential in developing issues relating to victim participation and protection, given the range of sector-​specific protections to victims,70 women, and children, under international human rights hard and soft law. For some feminist analysts, the benefit of interactions between ICL and IHRL are already evident. Oosterveld, for example, attributes her broadly positive assessment of the use of the term ‘gender’ (as distinct from the more controversial issue of its definition) in the Rome Statute to the fact that it mirrors the use of the term in IHRL.71 At the time of negotiating the Rome Statute, the term ‘gender’ was already commonly used throughout UN ‘soft law’ and consensus documents, such as the Beijing Declaration and Platform for Action and resolutions of the General Assembly and the Commission on Human Rights.72 In Oosterveld’s view, this history and context in IHRL opens the door for more progressive interpretations of the Rome Statute’s ‘broad and flexible’ though also ‘spare and circular’ definition.73 Oosterveld’s optimism has been 66 William Schabas, The International Criminal Court: A Commentary (OUP 2010) 398. 67 ibid. 68 Prosecutor v Lubanga (Judgment) [2006] ICC-​01/​04-​01/​06-​772 [37]. 69 Young, ‘Internationally Recognized Human Rights’ (n 65) 201. 70 UNGA, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian law’ (16 December 2005) UN Doc A/​RES/​60/​147. 71 Valerie Oosterveld, ‘Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court’ (2014) 16 International Feminist Journal of Politics 563 (hereafter Oosterveld, ‘ “Gender” for the ICC’); ICCSt (n 64) art 7(3): ‘For the purposes of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’ 72 eg Vienna Declaration (n 19). See also ‘Copenhagen Declaration on Social Development’ (14 March 1995) UN Doc A/​CONF166/​9 [5]‌, [6], [8], [7], [16], [20], [22], [27], [28], [29], [30], [36], [45], [47], [53], [56], [70], [73], [74], [77], [83], [91]. But see ‘World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (31 August–​8 September 2001) UN Doc A/​ CONF 189/​12 5, 75: in which the ICCSt (n 64) definition of ‘gender’ was included. 73 MO, ‘ “Gender” for the ICC’ (n 71) 83.

Fragmentation Fears or Interaction Opportunities?  361 vindicated in important ways in the Office of the Prosecutor’s (OTP) 2014 Policy Paper on Sexual and Gender-​Based Crimes. The Policy Paper is explicit that ‘[t]‌he Office will take into account the evolution of internationally recognized human rights’, specifically noting the significance of GR30 to that end.74 Further, the Policy Paper relies on article 21(3) to advance an interpretation of the Statute that, inter alia, recognizes violence perpetrated on the basis of sexual orientation or gender identity as ‘gender-​based’ within the terms of the Statute.75 This could be a very significant development if borne out in the Prosecutor’s charging strategy. Human rights violations that rise to the level of crimes against humanity can now be prosecuted as international crimes, without any connection to an armed conflict.76 This has had specific implications for the protection of women’s rights in conflict. The international criminal tribunals for the former Yugoslavia, Rwanda, and Sierra Leone, for example, have all had to consider human rights law to determine the scope of the crimes under consideration (especially torture, sexual violence, slavery, and recruitment of children).77 A parallel development has been the adoption of treaties that define certain human rights violations (for example torture and enforced disappearances) as offences and obligate state parties not only to create jurisdiction over such crimes, but also to prosecute or extradite anyone found within their jurisdiction who is alleged to have committed such human rights offences (even in times of armed conflict).78 To the extent that torture is interpreted to include sexual and gender-​based violations in conflict,79 it is likewise accompanied by the duty to prosecute. In practice, to date, article 21(3) of the Statute and resulting Court jurisprudence has principally addressed fair trial rights. This is presaged in the travaux80 as well as borne out in the existing jurisprudence.81 Young therefore characterizes the Court’s use to date of article 21(3) as ‘regular but understated’. She attributes this to the fact that the areas of the Court’s activities in which human rights is most apparently relevant, namely victims’ rights and rights to fair trial, are enumerated in some detail in the Statute and accompanying 74 ICC OTP, ‘Policy Paper on Sexual and Gender-​Based Crimes’ (ICC 2014) [26]. 75 ibid [26]. 76 See Andrew Clapham, ‘Human Rights and International Criminal Law’ in William Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 11 (hereafter Clapham, ‘Human Rights’). 77 ibid 13. 78 eg Convention Against Torture (n 56) art 7. See also Clapham, ‘Human Rights’ (n 76) 20–​24. 79 On violence against women as torture under IHRL, see Edwards, Violence Against Women (n 15). 80 ibid 198. 81 ibid 200.

362  Catherine O’Rourke Rules of Procedure and Evidence. The potential for future positive development in this vein, in particular in respect of women’s rights, is nevertheless considerable.

F.  ICL–​IHRL Interactions on ICC Child Soldier Jurisprudence The DRC has one of the highest rates of child soldiers in the world, with an estimated 30,000, 12 per cent of the global total of child soldiers and an estimated 40 per cent of some armed groups in the Eastern DRC.82 Although there is abundant evidence that girls are recruited and used by armed groups in the DRC in very large numbers, most continue to be invisible. Indeed, the global literature on girl soldiers reveals that, until relatively recently, the term child soldier meant, in reality, a ‘boy soldier’.83 Girls are estimated to represent up to 40 per cent of these children.84 In early 2005, it was believed that around 12,500 girls were associated with the armed forces and groups.85 Reporting in 2015 by the UN Organization and Stabilization Mission in the DRC (MONUSCO) estimated that between 30 per cent and 40 per cent of all children recruited to armed groups in the DRC were girls, based on evidence from hundreds of witnesses interviewed.86 (However, only 7 per cent were documented by MONUSCO and partners in their reintegration programming for former child soldiers.87) This underrepresentation of girls is due to a variety of reasons. Girls are frequently considered by armed group commanders as dependents, as their roles in the group as ‘wives’ or concubines is not considered

82 UN Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), ‘Invisible Survivors: Girls in Armed Groups in the Democratic Republic of the Congo from 2009 to 2015’ (25 November 2015) accessed 25 May 2020 (hereafter MONUSCO). 83 Milfrid Tonheim, ‘Where are the Research Gaps? Reviewing Literature on Former Child Soldiers’ Reintegration in the African Context’ in Bård Maeland (ed), Culture, Religion, and the Reintegration of Female Child Soldiers in Northern Uganda (Peter Lang 2010) 13, 19. 84 Reporting from 2006 suggested that between 30 and 40 per cent of them were girls: UNICEF, ‘Child Alert, Democratic Republic of Congo: Martin Bell Reports on Children Caught in War’ (UNICEF July 2020)   accessed 26 May 2020. 85 Amnesty International, ‘Democratic Republic of Congo: Children at war, creating hope for the future’ (Amnesty International, 11 October 2006) accessed 25 May 2020. 86 MONUSCO (n 82). 87 ibid. In 2009 alone, the percentage of girls released from armed groups was 7 per cent of the total, compared to 8 per cent in 2014, indicating a small improvement over the reporting period.

Fragmentation Fears or Interaction Opportunities?  363 by their recruiters as making them eligible for formal reintegration processes, which is where the majority of children are separated from armed groups and documented.88 On the whole, therefore, the typically reduced visibility of girl soldiers can be attributed to the different and gendered roles they perform in armed groups. Whereas boys are more often engaged in direct combat and bodyguard duties for commanders, girls are typically involved as domestic servants to individual commanders and responsible for food preparation for entire armed groups. Further, there is widespread evidence of sexual violence and forced marriage between girls and male soldiers.89 The prohibition of the recruitment and use of child soldiers is clearly established under IHL, IHRL, and ICL. The question that persists, however, is whether and to what extent the prohibition captures the most common activities of girl soldiers. IHL prohibits the recruitment as well as the participation of children in hostilities under Additional Protocols I and II (AP I and AP II).90 This prohibition now constitutes customary IHL.91 Further, the Rome Statute makes explicit the prohibition of the recruitment and use of child soldiers in international92 and non-​international93 armed conflicts under ICL. Article 38(2) of the Convention on the Rights of the Child (CRC) urges states parties to take all feasible measures to ensure that those aged less than fifteen years do not take a direct part in hostilities, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict contains more detailed proscriptions.94 88 ibid. 89 ibid. 90 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I) art 77(2): requires parties to international conflicts to take ‘all feasible measures’ to ensure that children under fifteen years of age do not take a direct part in hostilities nor be recruited into the armed forces; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-​International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (AP II) art 4(3)(c): specifically forbids the recruitment and participation of children under the age of fifteen in non-​international armed conflicts: ‘[C]‌hildren who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities’. 91 See International Committee of Red Cross, Customary International Humanitarian Law (CUP 2005) r 156. 92 ICCSt (n 64) art 8(2)(b)(xxvi). 93 ibid art 8(2)(e)(vii). 94 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 art 1: States parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of eighteen years do not take a direct part in hostilities; ibid art 4(1): Armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen years.

364  Catherine O’Rourke Despite the consistency of the prohibition of the recruitment and use of child soldiers in hostilities, there are considerable and legitimate questions about the extent to which this prohibition captures the most common activities of girl soldiers, given the heavily gendered forms of child participation in armed groups.95 For the purpose of understanding the regulatory legal framework, there are four pertinent types of child soldier activities and these are differently regulated under the different regimes. The categories of activities might be understood as: (1) direct participation in combat and active military operations; (2) indirect participation, namely military activities linked to combat, such as scouting, spying, sabotage, use of children as decoys, couriers, or military checkpoints, bringing supplies to the frontline; gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage; (3) support functions, such as food deliveries to an airbase or the use of domestic staff in an officer’s accommodation; and (4) sexual abuse of girls by their own armed groups.96 The Commentary on the Additional Protocols acknowledges some ambiguity of the expression ‘direct participation’ in AP I’s guarantee that: ‘Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities’.97 However the ICRC view is that customary IHL prohibits ‘participation in hostilities’ encompassing both direct and indirect acts that affect the enemy forces.98 An alternative approach towards interpreting the notion of ‘direct/​active participation’ in hostilities set forth in AP I is to refer to the travaux preparatoires of the Rome Statute, which recognizes ‘conscripting or enlisting children under the age of 15 and using 95 Christine Byron, ‘Legal Redress for Children on the Front Line: The Invisibility of the Female Child’ in Cecilia Bailliet (ed), Non-​State Actors, Soft Law and Protective Regimes: From the Margins (CUP 2012) 32; Noelle Quenivet, ‘Girl Soldiers and Participating in Hostilities’ (2008) 16 African Journal of International and Comparative Law 219 (hereafter Quenivet, ‘Girl Soldiers’). 96 This language is taken from the Cape Town Principles and Best Practices, Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa (27–​30 April 1997) (hereafter Cape Town Principles) accessed 25 May 2020. 97 International Committee of the Red Cross, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (CUP 2016) para 1679. 98 The operation of a weapon and participation in combat obviously fall within the ambit of this definition. The ICRC has advanced the position that, since the intention of the drafters of the article was clearly to keep children under fifteen outside armed conflict, indirect participation in international armed conflict should also be ruled out. See Quenivet, ‘Girl Soldiers’ (n 95) 228.

Fragmentation Fears or Interaction Opportunities?  365 them to participate actively in hostilities’ as a war crime.99 The definition of ‘participation’ advanced in the travaux covers many activities and ‘is therefore not limited to taking direct part in combat or deployment to the frontlines’. The activities of girls in military-​related activities such as scouting, spying, sabotage, and the use of children as couriers fall within the remit of the proscription and those using them can be prosecuted for doing so. However, according to the travaux, activities ‘unrelated to the hostilities such as food deliveries to an airbase [or] the use of domestic staff in an officer’s married accommodation’100 would not qualify as participation in the hostilities, suggesting very gendered distinctions. In addition, the cognate question emerges of whether sexual abuse of girl soldiers by their own forces can be understood to constitute direct or indirect participation. To the extent relevant soft law guides policy and programming for child soldiers, they adopt broad definitions. The 1997 Cape Town Principles, emerging from a UNICEF meeting of policy experts, use an encompassing definition.101 Notably, instead of defining participation in armed conflict, it focuses on ‘child soldiers’, describing them as: Any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.102

This definition embraces a broader interpretation than the provisions of international humanitarian, criminal, and human rights law, as it covers many tasks that are related to the hostilities but that are not aiming at causing harm to the opponent, even indirectly. Further, the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (2007), which may more legitimately lay claim to ‘soft law’ status as the agreed outcome of a meeting of states, introduces the term ‘child associated with an armed force or armed group’ (CAFAG) to capture a similarly broad definition of child soldiers 99 In international (art 8(2)(b)(xxvi)), and non-​international (art 8(2)(e)(vii)), armed conflict: ICCSt (n 64). 100 UN, ‘UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court’ (14 April 1998) UN Doc A/​Conf.183/​2/​Add.1 21, fn 12. 101 Cape Town Principles (n 96). 102 ibid.

366  Catherine O’Rourke beyond those directly participating in hostilities.103 Nevertheless, this broad definition constitutes a weak norm, given its legal basis in soft law consensus documents. Further, to the extent that the Paris Principles engage established legal categories, they reiterate existing criteria of direct and indirect participation. Thus, operative paragraph 6 of the Paris Principles specifically employs the expression ‘used them to participate actively in hostilities’, attesting that participation must take an active form.104 The absence of gender-​sensitivity in prevailing categories is exacerbated by the relative silence of the CEDAW Committee on the issue of ‘direct and indirect’ participation. GR30 does address the needs of girl soldiers, and draws on the gendered division of labour in armed groups: At the end of conflict, women face particular challenges as female ex-​ combatants and women and girls associated with armed groups as messengers, cooks, medics, caregivers and forced labourers and wives . . . Disarmament, demobilization and reintegration programmes also fail to recognize the status of girls associated with armed groups by characterizing them as dependants rather than abductees, or by excluding those who did not have visible combatant roles.105

While this discussion evidences a good understanding by the Committee of the gendered nature of girl soldiering and its impacts, the Committee frames the issue as one purely of due diligence obligations post-​conflict (the obligation to ensure that girls are included in disarmament, demobilization, and reintegration programming) as distinct from a duty to prevent their recruitment and use in the first instance. Further, there is no indication of a duty to prosecute unlawful recruitment and use of child soldiers. Thus, the Committee does not assert an avowedly feminist perspective of existing legal obligations in its interpretative activities, nor does it engage with the other regimes in the pursuit of positive regime interactions. Further, a review of the Committee’s broad activities in periodically reviewing states parties with girl soldiers suggest the

103 CAFAG ‘refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities’. UN Children’s Fund (UNICEF), ‘The Paris Principles: Principles and Guidelines on Children Associated With Armed Forces or Armed Groups’ (February 2007) accessed 25 May 2020. 104 Quenivet, ‘Girl Soldiers’ (n 95). 105 CEDAW Committee, ‘GR30’ (n 4) [67].

Fragmentation Fears or Interaction Opportunities?  367 Committee has given little clear priority to their gendered experiences, needs and rights.106 Given the clear gendered exclusions in the definition and prohibition of child soldiering, some effort to challenge established categories in the DRC child solider jurisprudence was to be anticipated. The ICC presented itself as the clearest opportunity to advance judicial development of the law. Nevertheless, while the DRC jurisprudence evidences regime interactions between IHL/​ICL and IHRL, it is difficult to contend that its ultimate effect was the improved protection of women’s rights in conflict. Broadly speaking, throughout the Lubanga and Ntaganda jurisprudence—​the most significant of the DRC cases on the issue of child soldiers—​there was a striking silence about women’s human rights protections under ICL, even in the reparations jurisprudence, an issue in which ICL offers little precedent or guidance. Uniquely, in Ntaganda, it was the victims’ submission that argued a role for IHRL in determining whether civilian status was indeed a requirement for successful prosecution of the war crime of sexual violence. The victims’ submission argued a particular role for international legal norms dealing specifically with the rights of children and women. They argued that the ‘established framework of international law’ should be interpreted broadly to include other sources: The ordinary meaning of the terms would imply that it includes not only all conventional and customary rules applicable to armed conflicts, but also other legal instruments such as international human rights treaties. For the purpose of the present proceedings and pursuant to article 21 of the Rome Statute, it seems even more appropriate to consider the international legal norms dealing specifically with the rights of children and women. It is therefore clear that the Court is required to consider and give effect to the full range of IHL norms and is not limited in its analysis to a particular provision, including Common Article 3.107

This was an invitation that crystallized the potential of article 21(3) to advance women’s rights through the Court’s jurisprudence. Nevertheless, it was an invitation not taken up by the Court majority. The only exception—​ an important exception—​ occurred at the Trial Chamber stage in Lubanga in the dissenting opinion of Judge Odio Benito, 106 Freeman, CEDAW Commentary (n 45). 107 Prosecutor v Bosco Ntaganda (Former Child Soldiers’ observations on the ‘Appeal from the Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’) [2017] ICC-​01/​04-​02/​06-​1798 [29].

368  Catherine O’Rourke which gave considerable weight to article 21(3). In particular, Judge Odio Benito emphasized the prohibition of discrimination under ICL. Judge Odio Benito determined that: ‘By failing to deliberately include within the legal concept of “use to participate actively in the hostilities” the sexual violence and other ill-​treatment suffered by girls and boys, the Majority of the Chamber, is making this critical aspect of the crime invisible’.108 Of particular concern to her was the exclusion of harms children had suffered at the hands of their own militia; notably, sexual violence and enslavement offences with ‘a clear gender differential impact’.109 In arriving at this conclusion, Judge Odio Benito demonstrated an openness to article 21(3), its significance and possible implications that was not replicated elsewhere among either her judicial colleagues or the OTP. In sum, the approach and reasoning of the ICC in the DRC child soldier jurisprudence evidence that confidence in the ‘rich’ or ‘transformative’ potential of article 21(3) appears misplaced, at least at this time, for the rights of women and girls. The apparent optimism has not been borne out to date in respect of DRC jurisprudence.

G. Conclusion Despite the considerable optimism that accompanied the inclusion of article 21(3) in the Rome Statute, requiring the Court to ensure consistency in its jurisprudence with IHRL, the interactions were in practice of limited utility in enhancing the protection of women’s rights in conflict. Concluding more generally about the Court’s practice regarding article 21(3), Young observes that ‘Human rights sources have proven to be particularly useful in developing 108 Prosecutor v Lubanga (Separate and Dissenting Opinion of Judge Odio Benito) [2012] ICC-​01/​ 04-​01/​06 [16]. 109 ibid [21]; Judge Benito’s dissent continued, [6]‌: ‘Article 8 of the Rome Statute (n 64) includes as war crimes the enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities. Since neither the Statute nor the Elements of Crimes define further these three criminal conducts, the Chamber is required to define them taking into consideration other applicable law. Furthermore, pursuant to Article 21(3) of the Rome Statute, the Chamber is compelled to interpret and apply the law consistent with internationally recognized human rights. The recruitment of children under the age of 15 is prohibited under the Rome Statute, international treaties and international customary law. All these sources of law seek to protect children under the age of 15 from the multiple and different risks which they are subject to in the context of any armed conflict, such as ill treatment, sexual violence and forced marriages. It would consequently be contrary to the “object and purpose” of the Rome Statute, contrary to international recognized human rights and discriminatory under Article 21(3), not to define the legal concepts of enlistment, conscription and use to participate actively in the hostilities, independently of the evaluation of the evidence tendered during trial or the scope of the charges brought against the accused.’

Fragmentation Fears or Interaction Opportunities?  369 issues relating to victim participation and protection’.110 In this context, reference was made to the Convention on the Rights of the Child,111 as well as to so-​called soft law instruments such as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.112 However, throughout Lubanga and Ntaganda jurisprudence, there was a striking silence about women’s human rights protections under IHRL, even in the reparations jurisprudence, an issue in which ICL offers little precedent or guidance. The only exception at the Trial Chamber stage was Judge Odio Benito. Significantly, her dissent gave considerable weight to article 21(3) and the prohibition of discrimination under IHRL. While the CRC and its Optional Protocol were given extensive consideration throughout, and the Basic Principles113 (an instrument of soft law) and even the Nairobi Declaration114 (a civil society initiative) are cited at some length in the reparations litigation, reference to the CEDAW treaty was scant. It would appear that, other than a fairly narrow strain of European Court of Human Rights jurisprudence drawn on to address fair trial issues, article 21(3) is understood and applied narrowly in all aspects of the trial until reparations are considered. CEDAW, notably in human rights terms, does not include express provision regarding reparation for violations of the Convention, thus it is not invoked in the reparations litigation. This apparent structural limitation to the Court’s use of CEDAW to inform its decisions poses obvious obstacles to the utilization of ICL–​IHRL interactions to substantially advance the rights of women in conflict. Further, the most striking aspect of article 21(3) and women’s rights was the reticence across all parties to litigation to invoke novel and potentially progressive arguments drawing on protection of women’s rights under IHRL. For example, in a novel regime interaction, the Court agreed to permit an amicus curiae submission from the Special Representative of the UN Secretary-​ General on Children and Armed Conflict, addressing, inter alia, the question of:

110 Young, ‘Internationally Recognized Human Rights’ (n 65). 111 Prosecutor v Lubanga (Decision establishing the principles and procedures to be applied to reparations) [2012] ICC-​01/​04-​01/​06-​2904 [58]. 112 ibid [16]. 113 ibid [187]–​[193]. 114 ibid [21], [185], [192].

370  Catherine O’Rourke The interpretation, focusing particularly on the role of girls in armed forces, of the term ‘using them to participate actively in the hostilities’.115

The expert input of the Secretary-​General’s Special Representative on Children in Armed Conflict was that ‘participate actively’ must be interpreted to protect girls recruited into armed forces for sexual purposes and that this is the primary reason for their recruitment, though she advanced this argument without any reference either to CEDAW or to article 21(3) of the Rome Statute.116 If women’s rights advocates decline to invoke IHRL as part of strategies to advance women’s rights in conflict through the Court, the evidence suggests that the Court is unlikely to arrive at such an approach on its own initiative. Given the definition of legal sources in the Rome Statute, the ICC is arguably uniquely positioned to pursue a productive and creative synthesis of existing women’s rights protections in conflict under international law. While it has, to date, shown itself willing to make some extraordinary departures from established canon of IHL and ICL, it has entirely declined to do so, in the jurisprudence reviewed, on the basis of interactions with IHRL. More robust articulations by the CEDAW Committee on the issues of relevance, most urgently the definition and rights of girl soldiers in diverse roles in armed groups, may productively advance norm reinforcement in the area.

115 Prosecutor v Lubanga (Decision Inviting Observations from the Special Representative of the Secretary-​General of the United Nations for Children and Armed Conflict) [2008] ICC-​01/​04-​01/​06-​ 1175, [11](b). 116 Prosecutor v Lubanga (Judgment on art 74) [2012] ICC-​01/​04-​01/​06-​2842 [598] quoting ‘Written submissions of Ms Coomaraswamy’ EVD-​CHM-​00007 [21].

14 Contemporary Armed Conflict and Gender Helen Durham and Laura Green*

A.  Introduction The legal framework that regulates armed conflict, international humanitarian law (IHL), has traditionally demonstrated a degree of blindness to the more nuanced gender examinations required to understand thoroughly the ‘lived’ experience of war. This same gap is replicated when IHL is translated into international criminal law (ICL) through the prosecution of war crimes.1 Recent writings, interpretations, and legal analysis are applying a more complex understanding of how gender is implicated in IHL (and, with respect to war crimes, ICL).2 This chapter contributes to those developments by locating such reflections within the realities of conflicts today. The often ‘hidden’ gendered impact of the changing nature of warfare needs to be surfaced, to ensure those elements of ICL prosecutions relating to armed conflict do not miss capturing and addressing the full range of harms. Warfare is changing, as can be seen in the overall length, location, and types of participation in armed conflict. Additionally, current trends point to the increasing role of new technologies in war and the impact of ‘counterterrorism’ activities and response. The aim of this chapter is to briefly explore the gendered aspects of these patterns and to do so with a focus on the operational * The views expressed in this chapter belong solely to the authors, and do not necessarily reflect the views of our organizations. 1 eg Patricia Viseur Sellers, ‘Gender Strategy Is Not a Luxury for International Courts’ (2009) 17 American University Journal of Gender, Social Policy and the Law 301, 304; Catherine O’Rourke, Women’s Rights in Armed Conflict under International Law (CUP 2020) 57–​71 (hereafter O’Rourke, Women’s Rights). 2 eg Helen Durham and Katie O’Byrne, ‘The Dialogue of Difference: Gender Perspectives on International Humanitarian Law’ (2010) 92(877) International Review of the Red Cross 31 (hereafter Durham and O’Byrne, ‘The Dialogue of Difference’), and all of the articles included in the same volume. For other examples of publications analysing gender and IHL, see Orly Stern, Gender, Conflict and International Humanitarian Law: A Critique of the ‘Principle of Distinction’ (Routledge 2020) (hereafter Stern, Gender, Conflict and International Humanitarian Law); O’Rourke, Women’s Rights (n 1); Patricia Viseur Sellers, ‘(Re)Considering Gender Jurisprudence’ in Fionnuala Ní Aoláin and others (eds), The Oxford Handbook of Gender and Conflict (OUP 2018) 211.

372  Helen Durham and Laura Green work of the International Committee of the Red Cross (ICRC),3 bringing the field experiences regarding IHL into ICL’s discourse on war crimes. This chapter explores four specific developments (1) protracted urban conflict and undefined battlefields, (2) shifting parties to conflict, (3) new technology, and (4) counterterrorism. The link between gender and IHL is examined under each of these themes, which in turn should support and enrich the broader dialogue on how war crimes prosecutions in ICL can be more gender-​informed and how gendered harms can be better understood and more fully redressed under ICL.

B.  Protracted Urban Conflict and Undefined Battlefields 1.  Societal Effects of Protracted Urban Warfare Whilst armed conflicts that last for many years are not new, a number of high profile conflicts (from the Middle East to Africa) have lasted for years or decades, affecting generations and changing the needs of much of the population.4 Such chronic fighting has a long-​term transformative impact upon societies, often correlating to high levels of violence, poverty, and economic underdevelopment, and regular failures of governance.5 Added to this is the fact that ‘[b]‌attles are [increasingly] fought in populated areas, risking thousands of civilian lives and destroying critical infrastructure’.6 In these situations, millions 3 The ICRC is a neutral, independent, and impartial humanitarian organization. Since its creation in 1863, the ICRC’s sole objective has been to ensure protection and assistance for victims of armed conflict and other situations of violence. Its work is based on the Geneva Conventions of 1949, their Additional Protocols, its Statutes—​and those of the International Red Cross and Red Crescent Movement—​and the resolutions of the International Conferences of the Red Cross and Red Crescent. See further accessed 15 September 2020. 4 ‘This is evident in the sheer scale of time and resources spent in such situations as a proportion of the ICRC’s global operations. The average length of time the ICRC has been present in the countries hosting its current top ten operations is now more than 36 years, and approximately two thirds of the ICRC’s budget is spent in protracted conflicts’: ICRC, ‘Protracted Conflict and Humanitarian Action: Some Recent ICRC Experiences’ (ICRC, 2016) 7 accessed 15 September 2020. For more information on ICRC operations, see the annual reports available at accessed 15 September 2020. 5 See further ICRC, Strategy 2019–​2022 (ICRC 2018) accessed 15 September 2020 (hereafter ICRC, Strategy 2019–​2022). 6 Peter Maurer, ‘ICRC President to UN Security Council: Space for Impartial Humanitarian Action Under Threat’ (ICRC, 1 April 2019) accessed 19 September 2020; see also ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflict on the 70th Anniversary of the Geneva Conventions’ (2019) 101(911) International Review of the Red Cross 869, 884 (hereafter ICRC, ‘Recommitting to Protection’).

Contemporary Armed Conflict and Gender  373 are trapped in a vicious cycle of violence and underdevelopment, with those discriminated against in times of peace, such as women and girls, finding themselves in even more dangerous and difficult positions. Further, ‘the systemic, long-​term, and intangible needs created by protracted crises often remain invisible’7 or hidden behind war-​affected social and familial structures. For example, longer-​term protracted warfare, particularly when it occurs within urban environments, can leave scars on entire societies, including psychological trauma affecting generations, negative impacts on livelihoods, and widespread harm to the social fabric. In particular, the impacts on women, including the specific challenges and harms they face in such conflict settings, may not be readily apparent, as their roles and responsibilities are often focused in the private sphere. As illustrated in the examples below, the socially prescribed gender roles assigned to women in most societies mean they are disproportionately responsible for family unity, caring for children and the elderly in a context in which the infrastructure of the state (from schools to hospitals) has eroded over the longer period. Women and girls are also at greater risk of sexual violence and other physical attacks during protracted armed conflict,8 which are often exacerbated by cultural norms associated with their gender, and their perceived place in an increasingly fragile society. For example, in societies that place a high value on notions of female sexual purity and virginity or prohibit any sexual activity outside marriage, married women subjected to sexual violence may be rejected by their husbands and girls may be ostracized and excluded from the possibilities of marriage. These further harms, in turn, lead to other social, economic, and health-​related harms. If children are born as a result of rape, these harms are further compounded. Protracted conflict also compounds gendered impacts for men, linked to gendered expectations of their roles as the primary providers and protectors of their families. In short, social norms are put under long term and significant pressure in such situations. Studies of communities affected by long-​term conflict demonstrate the issues raised above. For example, looking to shifts in household dynamics, coercive, ‘[c]‌ontrolling behaviors from husbands/​partners and reductions in women’s autonomy in household decision making are heightened in locations

7 ICRC, Strategy 2019–​2022 (n 5) 14. 8 eg UN Security Council, ‘Conflict-​related sexual violence: Report of the Secretary-​General’ (30 March 2021) UN Doc S/​2021/​312 [44]–​[46], [56]–​[57]: discussing conflict-​related sexual violence in protracted armed conflicts such as those in Somalia and Syria.

374  Helen Durham and Laura Green that are impacted by . . . insurgency, indicating that the . . . insurgency adversely affects women’s agency’9 and exacerbates intimate partner violence. A study of ISIS-​affected communities in Iraq found that participants attributed ‘higher prevalence of domestic and intimate partner violence, usually committed by adult male household members, to “pressures on the head of the family to provide for the household due to the lack of job opportunities” ’.10 Those included in the study framed the increase in domestic and intimate partner violence as an expression of the armed conflict, and demonstrated ‘how men’s perceived failure to live up to gendered expectations as income providers has resulted in [them] compensating by resorting to violence’.11 Protracted armed conflict creates a subculture of violence in affected societies. Violence becomes normalized and weapons, especially guns, become more accessible and gun violence more prevalent. A number of studies of the impact of protracted armed conflicts and the resultant availability of small arms have demonstrated this fact. For example, a study in Timor Leste highlighted the proliferation of small arms and light weapons as a contributor to domestic violence, including when combatants ‘go home’ for the day.12 Protracted conflict can also challenge gendered expectations of women, as it often forces them to step into roles traditionally filled by men, for example as heads of households and principal income earners. Literature and studies have highlighted the range of challenges this can create,13 including marginalization of women if they are without husbands,14 lack of access to infrastructure,15 and exclusion from justice.16 In societies that adhere to rigid gender hierarchies

9 Uche Eseosa Ekhator-​Mobayode and others, ‘Effect of Armed Conflict on Intimate Partner Violence: Evidence from the Boko Haram Insurgency in Nigeria’ (World Bank Group Policy Research Working Papers, 2 April 2020) 3 accessed 17 September 2020. 10 Luisa Dietrich and Simone Carter, ‘Gender and Conflict Analysis in ISIS Affected Communities of Iraq’ (Oxfam, May 2017) 17. 11 ibid. 12 Saleh Abdullah and Henri Myrttinen, ‘Now They Have Guns, Now They Feel Powerful’ in Vanessa Farr, Henri Myrttinen, and Albrecht Schnabel (eds), Sexed Pistols: The Gendered Impacts of Small Arms and Light Weapons (United Nations University Press 2009) 177. 13 OECD, ‘Gender Equality and Women’s Empowerment in Fragile and Conflict-​affected Situations: A Review of Donor Support’ (Policy Paper No 8, October 2017) 18 accessed 15 September 2020. 14 Stern, Gender, Conflict and International Humanitarian Law (n 2) 191. 15 Center for Human Rights and Global Justice, A Decade Lost: Locating Gender in US Counter-​ Terrorism (New York School of Law 2011) 64 (hereafter HRGJ, A Decade Lost). 16 Jamila El Abdellaoui, ‘Consequences of Evicting Widows: Displacement and Women’s Housing, Land and Property Rights in the Central African Republic’ (NRC 2015); Juliette Syn, ‘Housing, Land and Property Rights for Somalia’s Urban Displaced Women’ (NRC 2016).

Contemporary Armed Conflict and Gender  375 in which men dominate and women are subservient, these challenges will be most severe. Consideration of these wider gendered impacts of protracted urban warfare can provide important context for those involved in ICL investigations. Understanding the typology of the environment, the challenges to power, and social expectations adds depth to the more focused process of prosecuting those who have breached ICL. In particular, when investigators and prosecutors understand this gendered context, they can better recognize and characterize the criminal conduct and subsequent harms in a gender-​sensitive manner. Additionally, it allows them to better interact with victims and their communities in a manner that is more likely to aid in effective evidence collection and creation of effective witness protection measures.

2.  Explosive Weapons in Populated Areas Battlefields today are less clearly defined, and move increasingly into urban centres, with devastating impacts on civilian populations, as well as legal and operational challenges. In urban warfare, critical infrastructure essential to the lives of the civilian population is frequently damaged or destroyed. For example, an urban battlefield can create regular interruptions to the supply of electricity sufficient to power homes and businesses, inadequate health services to treat injuries, vaccinate, or cure disease,17 and a shortage of safe water to drink.18 This is caused by ‘the complexity of urban systems and their dependence on large-​scale interconnected infrastructures’: war in cities creates a ‘domino effect’ on services, severely accentuating the humanitarian consequences.19 With women typically responsible for the home environment and family care of elders and children due to their socially prescribed gender roles, 17 Michael Talhami, From Gaza to Mosul: Ensuring Life-​Saving Services When Cities are at War (Thomson Reuters Foundation 2017); Mark Zeitoun and others, ‘Urban Warfare Ecology: A Study of Water Supply in Basrah’ (2017) 41 International Journal of Urban and Regional Research 904 (hereafter Zeitoun and others, ‘Urban Warfare Ecology’); Mark Zeitoun and Michael Talhami, ‘The Impact of Explosive Weapons on Urban Services: Direct and Reverberating Effects Across Space and Time’ (2016) 98(1) International Review of the Red Cross 53 (hereafter Zeitoun and Talhami, ‘The Impact of Explosive Weapons’). 18 ICRC, ‘Bled Dry: How War in the Middle East is Bringing the Region’s Water Supplies to Breaking Point’ (ICRC, 2015) accessed 15 September 2020; Zeitoun and others, ‘Urban Warfare Ecology’ (n 17). 19 ICRC, ‘Urban Services During Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People’ (ICRC, 2015) 5 accessed 15 September 2020; Talhami and Zeitoun, ‘The Impact of Explosive Weapons’ (n 17).

376  Helen Durham and Laura Green the destruction of civilian infrastructure raises many challenges particular to them, including interrupted access to health care, water, and food supplies. The gendered impact of the use of heavy explosive weapons in populated areas, especially those weapons that have a wide impact area, is often overlooked. The direct effects in relation to civilian casualties and destruction of property raises serious concerns in terms of the risk and extent of incidental civilian harm. However, the different social roles of men and women influences who will be injured or killed. For instance, women are less likely to be combatants and therefore more likely to be present in populated areas. A study by Oxfam on the use of explosive weapons in populated areas in the armed conflict in Yemen found that ‘[w]‌omen and children accounted for some 33 per cent of direct casualties, a high figure given they are generally not combatants’ in this context.20 The same study also found, however, that: [In these] conservative societies, men are more likely than women to buy and sell items at markets, which are often attacked. They are also more likely to be rescue workers and to die or be injured during the collapse of buildings after explosive weapons attacks, or to be casualties of secondary attacks which are deliberately designed to target emergency services. These gendered impacts specific to men are less frequently considered than those affecting women, which receive far greater attention from the international community.21

Societal gender roles can affect the kinds of injuries suffered, as well as the recovery process. For example, pregnant women may suffer miscarriages from blast waves from explosions.22 They may have greater difficulty accessing rehabilitation for injury or adequate healthcare due to social inequalities. In addition, research by the United Nations (UN) Mine Action Service has found that injured, disfigured, or disabled women are more vulnerable to social stigma and marginalization than men similarly injured, leading to increased vulnerability in societies in which women already face the burden of gender discrimination.23

20 Martin Butcher, ‘The Gendered Impact of Explosive Weapons Use in Populated Areas in Yemen’ (Oxfam International, 2019) 9 accessed 16 April 2021. 21 ibid 12. 22 ibid 9. 23 UNMAS, ‘United Nations Gender Guidelines for Mine Action Programmes’ (3rd edn, 2019) 49 accessed 15 September 2020.

Contemporary Armed Conflict and Gender  377 These concerns relate not only to direct effects of attacks in populated areas, but also the series of indirect ‘reverberating’ effects, intensified by the interdependence of the critical civilian infrastructure.24 These impacts affect a much larger part of the civilian population than the immediate impact area, and the known and foreseeable consequences are exacerbated in protracted violence, leading to long-​term and irreversible degradation of essential services. The threat of bombing and shelling and the lack of vital services force countless civilians to flee. Displaced populations, of which women often make a large percentage, are exposed to a variety of health risks. Displaced women and girls are particularly vulnerable to sexual exploitation and other forms of gender-​based violence.25 Moreover, the destruction of education and health infrastructure may deepen pre-​existing gendered harms in these areas. For instance, regarding schooling, ‘girls may be more likely to be kept home for fear of sexual violence; girls who drop out may be less likely to return; boys may be more likely to be recruited as combatants’.26 It is important that ICL processes do not overlook these and the many other gendered impacts stemming from the use of explosive weapons in populated areas. At first glance, many war crimes provisions appear gender-​neutral. An example is the war crime of ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’ found in art 8(b)(ix) of the Rome Statute of the International Criminal Court (ICC).27 In reality, the impacts of such attacks are far from gender-​neutral, and should be considered by ICL actors. Understanding the nature and scope of these crimes from a gender perspective is important to ensure the full impacts are taken into account by investigators, prosecutors, and judges.

24 Isabel Robinson and Ellen Nohle, ‘Proportionality and Precautions in Attack: The Reverberating Effects of Using Explosive Weapons in Populated Areas’ (2016) 98(1) International Review of the Red Cross 107, 125. 25 Ray Acheson and Beatrice Fihn (eds), ‘Women and Explosive Weapons’ (Reaching Critical Will of the Women’s International League for Peace and Freedom, 2014) 18. 26 ICRC, ‘Recommitting to Protection’ (n 6) 914. 27 Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (hereafter ICCSt) art 8(b)(ix).

378  Helen Durham and Laura Green

3.  Urban Displacement ‘Heavy bombing and shelling is a major cause of displacement’,28 and a growing proportion of people internally displaced by this aspect of armed conflict live in cities and towns: [They] are displaced because their own town or city has become the scene of armed conflict . . . or they move from rural areas to seek refuge in a city, contributing to global urbanization trends. Displaced people often end up living with the urban poor in peripheral slums where housing is low-​quality and access to jobs and services is limited.29

Displacement itself has specific gendered impacts on women and girls, who are disproportionately exposed to certain dangers when they are without homes or shelters. For example, they may face movement restrictions without a male family member in societies in which women cannot leave the home without a male family relative, or because of an increased exposure to sexual violence. Women and girls are sometimes forced into survival prostitution,30 for example, trading sexual acts for basic necessities, such as food and medicine, or access to services, for themselves, their children, or other family members. These societal changes can have a significant impact on girls. In Yemen, for instance, UN Women found that ‘child marriage rates have escalated to 66 per cent as of 2017’, and that ‘nearly 21 per cent of households of internally displaced persons as well as host communities are headed by women below the age of 18’.31 ICRC research conducted in Maiduguri, Nigeria found significant ‘knock-​ on effects’ of urban displacement as a result of armed conflict. The research found that lack of assets and income has profound consequences for [people’s] ability to secure stable accommodation and meet the needs of their families. This lack of stable accommodation then threatens people’s ability to keep a job, as they move from one neighbourhood to another, re-​establish social networks 28 ICRC, ‘Recommitting to Protection’ (n 6) 883. 29 ICRC, ‘Displaced in Cities: Experiencing and Responding to Urban Internal Displacement Outside Camps’ (ICRC, 2018) 8 accessed 17 September 2020 (hereafter ICRC, ‘Displaced in Cities’). 30 See ICRC, ‘Sexual Violence in Nigeria—​Lives Abandoned in the Name of Survival’ (ICRC, 5 February 2020) accessed 15 September 2020. 31 UN Women, ‘Take Five: “Yemeni Women and Girls are the Ones Who are Paying the Price of War” ’ (UN Women, 12 September 2018) accessed 15 September 2020.

Contemporary Armed Conflict and Gender  379 and, more generally, normalize their situation. In turn, this may foster harmful survival strategies [with gendered impacts].32 For instance, women surveyed by the ICRC in Maiduguri spoke of undertaking transactional sex and marriages, with grave consequences including negative effects on their physical and mental health33 and violations of a range of fundamental human rights. It is relevant to note, however, that the gendered social changes brought about by urban displacement are not exclusively negative. For example, when families are displaced from rural areas to cities, girls may have greater opportunities to go to school, when education is available. In some cases, women who become their families’ main income-​earner can shift power dynamics toward gender equality.34 The gendered impacts on those displaced in cities are relevant to ICL. Prosecutors can systematically bring evidence of the harms caused by war crimes, including urban displacement and its subsequent gendered effects, to explain the actual harms suffered by victims. Acknowledging the changing nature of the location of conflict, the specific social, cultural, and economic pressures that this places upon the communities, and the wider gendered impacts provides a deeper understanding of the extent of victimization, which is important for explaining the crime base and for sentencing.

C.  Shifting Parties to Conflict ‘[A]‌vast array of armies, Special Forces, armed groups, . . . [private military and security companies,] and criminal gangs now fight— ​directly or by proxy, openly or secretly.’35

Armed groups are proliferating and fragmenting, perpetuating a constantly shifting landscape. With research showing that ‘[m]‌ore armed groups have emerged in the last six years than in the previous 60’,36 challenges to identifying 32 ICRC, ‘Displaced in Cities’ (n 29) 9. 33 ibid 24. 34 Sheila Meintjes, Anu Pillay, and Meredeth Turshen, ‘There is No Aftermath for Women’ in Sheila Meintjes, Anu Pillay, and Meredeth Turshen (eds), The Aftermath, Women in Post-​Conflict Transformation (Zed Books 2001) 3, 7. 35 Peter Maurer, ‘Moving from Outrage to Action on Civilian Suffering’ (Speech to the United Nations General Assembly, 26 September 2018) accessed 16 April 2021. 36 ICRC, ‘Study Shows More the Conflicts, Greater the Danger for People’ (ICRC, 19 June 2018)

accessed 19 September 2020. See also ICRC, ‘The Roots of Restraint in War’ (ICRC, 2018) accessed 17 September 2020.

380  Helen Durham and Laura Green the parties involved in the fighting has become a critical factor. In this complex global landscape, many of the actors using force often operate as trans-​national coalitions in a violent cycle of conflict-​related violence and criminality, both ‘continuously fed by war economies’.37 This fluidity in the fighting forces of contemporary armed conflicts includes an interesting gender dimension: more women than ever before are voluntarily joining these armed groups. In non-​State armed groups from South America, to Europe, to Africa, to Asia, female members have served in roles including commanders of battalions and heads of operations. And while women have played lynchpin roles in State armed forces throughout history, the last decade has seen gender-​ based restrictions on combat positions increasingly lifted such that women are more and more visible on the front line. Female combat pilots can join the air forces of China, India, and Japan. And, as of 2016, all combat roles in the Australian, British and U.S. militaries are open to women.38

This shift in the composition of armed groups challenges gendered assumptions of women as victims and men as perpetrators.39 This has implications for international criminal investigations: it affects who investigators need to investigate as potential perpetrators, the types of questions they ask victims and witnesses, and the consideration of complex perpetrators, such as those who may have perpetrated crimes but also may have been victims of crimes, for example, sexual violence carried out by fellow combatants.40 Additionally, the shifting nature of parties to the conflict makes it increasingly difficult to clearly identify chains of responsibility and joint criminal enterprise at specific points in time, as well as making investigations dependent on 37 ICRC, Strategy 2019–​2022 (n 5) 2. 38 Helen Durham and Vanessa Murphy, ‘Equal Treatment for Women in State Armed Forces: Three Practical Implications for Medical Care’ (ICRC Humanitarian Law and Policy Blog, 8 March 2019) accessed 17 September 2020. See also Australia Department of the Prime Minister and Cabinet, ‘Landmark Moment for Women in the ADF’ (Press Release, 24 October 2018); Army Be The Best, ‘All British Armed Forces Roles Now Open to Women’ (Army Be The Best, 25 October 2018) accessed 17 September 2020; Matthew Rosenberg and Dave Philipps, ‘All Combat Roles Now Open to Women, Defense Secretary Says’ New York Times (New York, 3 December 2015). For an analysis of the significance of lifting gender-​based restrictions, see Jennifer G Mathers, ‘Women and State Military Forces’ in Carol Cohn (ed), Women & Wars (Polity Press 2013) 124, 136–​40. 39 Durham and O’Byrne, ‘The Dialogue of Difference’ (n 2) 40–​42. 40 A version of this complexity was examined by the ICC in Prosecutor v Ntaganda, which convicted the accused for sexual violence committed by his troops on their own female members: Prosecutor v Ntaganda (Judgment) [2019] ICC-​01/​04-​02/​06 [409]–​[411], [1199].

Contemporary Armed Conflict and Gender  381 the execution of requests for cooperation with a larger number of states. From a gender perspective, this fluidity makes it more challenging to prove links between high-​ranking individuals and sexual violence committed by armed groups in the field.41

D.  New Technology Technology for the carrying out of armed conflict is always evolving, and the contemporary battlefield is no exception, with a wide array of new technologies giving rise to new methods and means of warfare, for example, cyberattacks and the use of armed drones and robots.42 Each new technology poses novel humanitarian, legal, and ethical challenges, including the potential of gendered impacts. In recognition of this, article 36 of the 1977 Additional Protocol I to the Geneva Conventions of 1949 (AP I) requires states to conduct a legal review of new weapons, means, and methods of warfare that they are in the process of developing or acquiring.43 In a series of articles and a study on IHL and gender, the Swedish Red Cross highlighted the importance of understanding how the legal review process could be impacted by a gender analysis.44 The study identifies that: In practical terms, a gender perspective in the legal review process may have its central relevance in identifying where the reviewing authority needs to attach conditions to the use of the weapon, and how these are integrated into the rules of engagement or operating procedures associated with the weapon.45

Recommendations from the study include consideration of a number of factors, such as ‘how gendered differences in status and functions in society create different vulnerabilities to specific types of weapons in conflict zones’; and

41 Barbara Goy, Michelle Jarvis, and Guilia Pinzauti, ‘Contextualizing Sexual Violence and Linking it to Senior Officials: Modes of Liability’ in Serge Brammertz and Michelle Jarvis (eds), Prosecuting Conflict-​Related Sexual Violence at the ICTY (OUP 2016) 220, 230–​31. 42 ICRC, ‘Recommitting to Protection’ (n 6) 891. 43 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I) art 36. 44 Cecelia Tengroth and Kristina Lindvall (eds), IHL and Gender—​Swedish Experiences (Swedish Red Cross and Swedish Ministry for Foreign Affairs 2015). 45 ibid 118.

382  Helen Durham and Laura Green ‘how biological differences lead to men and women being impacted differently by the direct and indirect effects from weapons’.46 For instance, the study notes that, whilst ‘a 45 kilogram barefoot, female fighter, and a 125 kilogram, Kevlar-​ vest protected, male soldier would both be killed by a direct hit by most lethal weapons and ammunitions today’, considering both merely as casualties ‘fails to address how the different roles, patterns and functions of men and women respectively during armed conflict lead to weapons affecting men and women differently’.47 When examining the nature of new weapons that involve technology, there is a real need to apply a gender perspective to reveal potentially gendered impacts.48 Take the example of autonomous weapons systems using artificial intelligence. Autonomous weapon systems relying on artificial intelligence to select targets raise risks of misclassification in particular with regard to female targets, including female civilians. This is because gender bias is often built into artificial intelligence targeting algorithms, albeit unwittingly, as women, and especially women of colour, are significantly less accurately recognized by face recognition algorithms.49 This raises the possibility that use of autonomous weapons systems could lead to the commission of war crimes through improper targeting. Thus, a careful gender analysis of the review of weapons, especially those involving new technology, is critical.50 When considering ICL, analogous considerations arise: investigators need to understand the range of impacts of weapons during conflict, including those with a differential gender effect, in order to create an accurate and complete assessment of the extent of potential criminal conduct.

46 ibid. 47 ibid 112. 48 It is important to note that this is not new in itself; a life span study of survivors from the 1945 nuclear weapons attacks on Hiroshima and Nagasaki in Japan found that the risk of developing and dying from solid cancer due to ionizing radiation exposure was nearly twice as high for women: Kotaro Ozasa and others, ‘Studies of the Mortality of Atomic Bomb Survivors, Report 14, 1950–​2003: An Overview of Cancer and Noncancer Diseases’ (2012) 177(3) Radiation Research 229, 232. 49 Noel Sharkey, ‘The Impact of Gender and Race Bias in AI’ (ICRC Humanitarian Law & Policy Blog, 28 August 2018) accessed 17 September 2020. 50 These provisions include the prohibition to employ weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury of unnecessary suffering (AP I (n 43) art 35(2)) and the prohibition to employ methods or means of warfare which cannot be directed at a specific military objective and consequently, that is of a nature to strike military objectives and civilians or civilian objects without distinction (ibid art 51(4)(b)). See further ICRC, ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977’ (2006) 88(864) International Review of the Red Cross 931.

Contemporary Armed Conflict and Gender  383

E.  Terrorism and Counterterrorism This chapter ends with a discussion of terrorism and counterterrorism. There is no fully coherent ICL regime, with accompanying mechanisms, governing terrorism and counterterrorism. However, the Rome Statute imports from IHL several war crimes that might cover acts of terrorism if they are committed in the context of an international or non-​international armed conflict. Among the most obviously relevant are the war crimes of intentionally targeting and killing or injuring civilians.51 Terrorist activities in the context of armed conflict could also amount to a number of other war crimes, including hostage-​ taking and intentionally attacking civilian objects or buildings dedicated to religion or education.52 These gender-​neutral war crimes can have gendered dimensions, either in terms of the specific harms they cause to people because of their socially defined gender roles, as discussed above, or if they are used to target a group of people on the basis of their gender. These could include, for example, terror attacks such as bombings that target a women’s hospital, a girls’ school, or a cultural site where men gather. At the same time, certain acts of terrorism may amount to one of the specific gender-​based war crimes enumerated in the Rome Statute, such as the war crime of sexual slavery, which requires the exercise of ‘any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’.53 The ICC’s Elements of Crimes explicitly confirm ‘that the conduct described in this element includes trafficking in persons, in particular women and children’.54 Human trafficking is a criminal activity that some terrorist groups rely on to fund their activities, including in the context of armed conflict.55 It is also an activity, along with rape and pillaging, sometimes used by commanders to reward members of the group and terrorize targeted ‘enemy groups’. Two contemporary examples of armed groups simultaneously involved in armed conflict and terrorism include the designated terrorist groups Boko 51 ICCSt (n 27) arts 8(2)(b)(i), 8(2)(e)(i). 52 ibid arts 8(2)(b)(iv), 8(2)(e)(iv), 8(2)(b)(ix), 8(2)(e)(ix) respectively. 53 ICC, Elements of Crimes (ICC 2011) arts 8(2)(b)(xxii), 8(2)(e)(xxii) (hereafter ICC, Elements of Crimes). Sexual slavery can also amount to a crime against humanity under the ICC Statute: ICCSt (n 27) art 7(2)(g). 54 ICC, Elements of Crimes (n 53). 55 See eg Counter-​Terrorism Committee Executive Directorate (CTED) and the Munk School of Global Affairs of the University of Toronto, Identifying and Exploring the Nexus between Human Trafficking, Terrorism, and Terrorism Financing (2019) [17]–​[20] accessed 18 April 2021.

384  Helen Durham and Laura Green Haram—​engaged in a non-​international armed conflict with the Nigerian government—​and ISIL, operating in Iraq and Syria. Boko Haram has, among other things, repeatedly attacked girls’ schools and abducted the pupils and teachers, forcing many of them into sexual slavery.56 The other example, ISIL’s attacks on Yazidi communities, enslaving and slave trading women and girls for the purpose of sexual exploitation, is well documented.57 Where designated terrorist groups are engaged in international or non-​ international armed conflict, and commit war crimes or other crimes under international law as part of that engagement or to fund their activities, there may be a place for ICL prosecutions. Additionally, as the interplay between counterterrorism and ICL develops, it is important that those conducting ICL prosecutions are acutely aware of the gendered impacts and inherent complexities in this space. Some gendered aspects of counterterrorism may also be relevant to ICL with excesses in the name of counterterrorism during detention and interrogation also potentially amounting to war crimes if there is a sufficient nexus with the armed conflict. Many states use overly broad definitions of terrorism, resulting in the criminalization of any form of material support of association with terrorists. As a result, family members of alleged terrorists, in particular wives, have been arrested and detained in the context of counterterrorism operations,58 or prevented from returning home with their children.59 Moreover, even when not suspected of terrorism-​related offences themselves, female relatives of suspected terrorists have been unlawfully detained and ill-​treated to gain information about male family members.60 56 The ICC Office of the Prosecutor (OTP) has found that there is a reasonable basis to believe that Boko Haram has committed a variety of war crimes in the context of non-​international armed conflict, including murder, torture, hostage-​taking, intentionally attacking civilians and educational and other civic buildings, as well as sexual slavery and other crimes of sexual and gender-​based violence: OTP, Report on Preliminary Examinations Activities (ICC 2020) [255]. 57 Independent International Commission of Inquiry on the Syrian Arab Republic, ‘ “I lost my dignity”: Sexual and gender-​based violence in the Syrian Arab Republic’ (8 March 2018) UN Doc A/​HRC/​ 37/​CRP.3 [88]–​[89]; Independent International Commission of Inquiry on the Syrian Arab Republic, ‘ “They came to destroy”: ISIS Crimes Against the Yazidis’ (15 June 2016) UN Doc A/​HRC/​32/​CRP.2 [42]–​[80]. 58 For reports see the following: ‘Police Quiz 7 July Bomber’s Widow’ BBC News (London, 9 May 2007); Andrew Norfolk and Sean O’Neil, ‘Bomber’s Widow is Held in Anti Terror Raid’ The Times (London, 10 May 2007); J Clarke and C Gammell, ‘Lawyer for Bomber’s Widow Condemns Police’ The Independent (London, 16 May 2007). See also HRGJ, A Decade Lost (n 15) 76. 59 United Nations Development Programme and the International Civil Society Action Network, ‘Invisible Women: Gendered Dimensions of Return, Rehabilitation and Reintegration from Violent Extremism’ (2019) 26, 37 accessed 18 April 2021. 60 HRGJ, A Decade Lost (n 15) 87. See also Center for Human Rights & Global Justice, ‘Off the Record: U.S. Responsibility for Enforced Disappearances in the “War on Terror” ’ (HRGJ, 2007) 19–​20 accessed 18 September

Contemporary Armed Conflict and Gender  385 Second, gendered violations are particularly acute in contexts of interrogation and detention. Counterterrorism strategies often deploy gender discriminatory interrogation techniques against individuals suspected of terrorism such as torture through targeting of sexual organs, in violation of IHL standards and which may amount to war crimes. Acts or threats of sexual violence have been used against detained female terrorist suspects,61 and against male detainees, alongside other techniques aimed at emasculating or humiliating the person.62 Quantitative and qualitative research is needed to better understand the gender dimensions of terrorism and counterterrorism and should not be limited only to the role of women.

F. Conclusion It is necessary, from an operational, legal, policy, and protection point of view, to remain deeply engaged in understanding changes and trends during times of armed conflict. This is also true for those involved in international criminal prosecutions. Mapping and analysing events to determine whether there are patterns of harm, both obvious and hidden from first sight, is part of the body of work of ICL. Applying a gender perspective to these reflections aims to uncover impacts that are regularly overlooked, hopefully leading to a more balanced and authentic attempt to gain international justice for all. It has been the aim of this chapter to provide a gendered perspective to some key trends noted in armed conflict today, to add to such considerations. Additionally, this chapter has aimed to highlight the interplay of IHL and ICL when considering gendered effects of changing warfare. This interplay is not only evident in the context of conflict, it is present in the law itself. The authoritative ICRC Commentaries to the Geneva Conventions are important source material for the interpretation of IHL by international criminal justice bodies, such as the ICC. It is critical, therefore, that these types of materials 2020: discussing cases in which family members of US terrorism suspects held in US Secret Detention have been detained; Human Rights Watch, ‘Open Secret Illegal Detention and Torture by the Joint Anti-​ terrorism Task Force in Uganda’ (Human Rights Watch, 2009) accessed 18 September 2020. 61 Human Rights Watch, ‘Collective Punishment: War Crimes and Crimes Against Humanity in the Ogaden Area of Ethiopia’s Somali Region’ (Human Rights Watch, 2008) accessed 18 September 2020. 62 Both male and women can be subject to rape and sexual abuse in detention but the nature of the acts differ. See Independent International Commission of Inquiry on the Syrian Arab Republic, ‘I Lost My Dignity: Sexual and Gender-​Based Violence in the Syrian Arab Republic’ (Human Rights Council, 8 March 2018) UN Doc A/​HRC/​37/​CRP.3.

386  Helen Durham and Laura Green reflect contemporary IHL and gender issues. For example, a number of references in the original Commentary of the 1950s are no longer appropriate and are out of step with current interpretation and jurisprudence on IHL. For example, outdated references to women indicating their inherent weakness because of their sex, calling for protection of their honour rather than their person, and assuming they are solely victims of violations and never perpetrators,63 are no longer tenable. By contrast, the updated Commentary abandons these assumptions and biases, addressing how armed conflict, IHL violations, and the application of the provisions of the Geneva Conventions may affect women, men, girls, and boys differently on the basis of gender.64 Exposing the gender dimensions of the impacts of armed conflict in all its contemporary forms, and especially violations of IHL, is essential to meeting the twin objectives of the international criminal justice project—​prevention of and ending impunity for all crimes under international law. This requires questioning paradigms about who causes suffering, who suffers, and how that suffering is experienced in armed conflict. This requires prioritizing the unpacking of assumptions about gender and armed conflict, even as conflict continually evolves.

63 For example, Lindsey Cameron and others, ‘The Updated Commentary on the First Geneva Convention—​A New Tool for Generating Respect for International Humanitarian Law’ (2015) 97(900) International Review of the Red Cross 1221. 64 ibid. ‘In addition to the updated commentary on Article 12(4) of the First Convention that deals specifically with the treatment of women, examples of the inclusion of a gender perspective in the revised Commentary on the First Geneva Convention can be found in the discussions of concepts such as humane treatment, non-​adverse distinction and the obligation to care for the wounded and sick in common Article 3 and in Article 12, and in the commentaries on Articles 6, 11, 23 and 31 of the First Convention.’ See ibid 1222.

15 Is International Criminal Law Particularly Impervious to Feminist Reconstruction? Legally Authorized Resistances to Feminist Judging Dianne Otto

Working on a feminist approach to international criminal law allowed for deeper reflection as to whether feminism and international criminal law are compatible. Feminist Judgments in International Law project1

A. Introduction Legal decision-​making, in the form of judgment, presents particular challenges for feminist reform, especially in the sphere of international criminal law (ICL), as I will argue. Legal method tightly circumscribes what evidence can be considered—​in the name of objectivity and neutrality—​and is committed to applying the law strictly as it stands at the time of the events in issue—​ consistent with the principle of legality. Reinterpreting or developing the law in the process of judging is constrained, with most judges fearful of the tarnish of ‘judicial activism’, which is understood as diverging from the letter of the law and forsaking neutrality by applying the judge’s own personal or political perspective. Indeed, those serving on the benches of international criminal courts and tribunals who have applied feminist methods of judging have routinely, in one way or another, had to face such accusations. Feminists working in and with the law, whether domestic or international, are familiar with the conundrum of how to engage critically with the law’s gendered and imperial languages and practices, while also seeking to use law to 1 Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart 2019) 406 (hereafter Hodson and Lavers, Feminist Judgments).

388  Dianne Otto advance the rights of women, redistributive economics, and world peace in the present. Aptly described by Sari Kouvo and Zoe Pearson as caught ‘between resistance and compliance’,2 feminist encounters with law are always fraught with danger for feminist politics and goals.3 But it was on reading the cautionary reflections of those who rewrote three ICL judgments for a Feminist Judgments in International Law project that I wondered whether criminal law, and ICL in particular, may present even more impermeable barriers to the use of feminist methodologies in judging than other areas of law.4 One feminist bench, which rewrote aspects of the Armed Forces Revolutionary Council Trial Judgment (AFRC Judgment), decided originally by the Special Court for Sierra Leone (SCSL),5 described the ‘judicial prism’ as more like a ‘[judicial] prison, perhaps, as it was ultimately a more constrictive process than we had anticipated’.6 This reminded me of the work of Carol Smart, who warned many years ago of law’s persistent resistances to feminism, and her use of the criminal law of rape as her paradigm example of incompatibility.7 Could it be that the established framework of criminal law is even more committed to maintaining the imperial, masculinist, heteronormative status quo than other areas of law? Yet feminists have a long history of looking to the criminal law to hold men accountable for male violence directed against women. Initially, this turn to the state to punish violent men, while at the same time condemning the state for incarcerating women for crimes of poverty (disproportionately women of colour), was one of many examples of feminism’s contradictory relationship with the state. Over the years, however, the caution that was demanded by the earlier recognition of the contradictions seems to have disappeared. By the early 1990s, feminists had succeeded in globalizing concern about violence against women and, along the way, demanding a more robust response from the criminal law, in both domestic and international jurisdictions.8 2 Sari Kouvo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Onati/​Hart 2011). 3 Dianne Otto, ‘Feminist Approaches to International Law’ in Anne Orford and Florian Hoffman (eds), Oxford Handbook of International Legal Theory (OUP 2016) 488. 4 Mary Jane Mossman, ‘Feminism and Legal Method; The Difference It Makes’ (1986) 3 Australian Journal of Law and Society 30 (hereafter Mossman, ‘Legal Method’): Mossman was the first to suggest that legal method may be impervious to feminist challenge. 5 Prosecutor v Brima, Kamara, Kanu (Judgment) SCSL-​04-​16-​T (20 June 2007, as revised 19 July 2007). 6 Olga Jurasz and others, ‘AFRC Trial Judgment (Prosecutor v Brima, Kamara, and Kanu)’ in Hodson and Lavers, Feminist Judgments (n 1) 373, 402 (hereafter Jurasz, ‘AFRC Trial Judgment’). 7 Carol Smart, Feminism and the Power of Law (Routledge 1989) (hereafter Smart, Feminism and Power). 8 Karen Engle, ‘Feminist Governance and International Law: From Liberal to Carceral Feminism’ in Janet Halley and others (eds), Governance Feminism: Notes from the Field (University of Minnesota Press 2019) 3, 17–​21.

Impervious to Feminist Reconstruction  389 Feminists have rightly claimed many law reform ‘successes’ in ICL. Doris Buss observes that, for better or worse, rape is now seen as integral rather than incidental to war.9 Yet these developments have required significant feminist efforts from both within the legal establishment and outside and, even then, these reforms have not been consistently reflected in judgments. Each of these successes has also been accompanied by robust feminist critiques of their limits, costs, blind spots, and unintended consequences.10 Yet most of this critical analysis falls short of questioning the wisdom of feminist engagement with ICL at all, seeking instead to build on the footholds that have so painstakingly been created in the hope of yet achieving fuller justice for victims of gendered crimes committed during armed conflict. While my usual inclination is to embrace this hopeful approach to critique, the acquittal on appeal of former military commander Jean-​Pierre Bemba felt like the final straw.11 The Trial Chamber had unanimously found Bemba guilty of the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR).12 The appeal judgment left the International Criminal Court (ICC), at the end of 2018, sixteen years after the entry into force of its statute, without a single final conviction for sexual or gender-​related crimes. Consequently, this chapter is devoted to questioning what role, if any, ICL has to play in advancing a feminist world that is free of gendered hierarchy and violence, in which politics is cooperative and economics is redistributive, and militarism has been abandoned. My focus is on examining the many resistances to feminist judging in international criminal courts and tribunals. In so doing, I draw on the methodologies and reflections of those involved in the Feminist Judgments in International Law project. I start with a brief account of the long history of feminist engagement with the criminal law and reference a number of cautionary critiques, paying attention to their resonance with feminist reform efforts in ICL. I go on to examine the responses to feminist interventions by judges in three cases, 9 Doris Buss, ‘Rethinking Rape as a Weapon of War’ (2009) 17 Feminist Legal Studies 145 (hereafter Buss, ‘Rethinking Rape’). 10 Eg Nicola Henry, ‘The Fixation on Wartime Rape: Feminist Critique and International Criminal Law’ (2014) 23 Social and Legal Studies 93; Janet Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’ (2008) 9(1) Melbourne Journal of International Law 86 (hereafter Halley, ‘Rape in Berlin’). 11 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment on the appeal of Mr Jean-​Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to art 74 of the Statute”) [2018] ICC-​01/​05-​01/​08-​3636-​ Red (hereafter Bemba Appeal). 12 Prosecutor v Jean-​Pierre Bemba Gombo (Judgment pursuant to art 74 of the Statute) [2016] ICC-​01/​ 05-​01/​08 (hereafter Bemba Trial).

390  Dianne Otto from the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and the ICC, highlighting the corrosive charges of judicial activism and lack of impartiality that they have elicited. Finally, I turn to the critiques of judicial methods and procedures enacted by several non-​governmental organization (NGO)-​organized women’s tribunals, which nevertheless remain hopeful about enhanced legal justice in the present. I conclude that ICL works against feminist goals by individualizing responsibility for armed conflict and its many inhumanities, diverting attention from their structural and political causes for which not only states, but all of us, in various ways bear some responsibility. While feminist engagement with ICL remains necessary because of law’s power to shape our realities, it is important not to cede too much power to law, as Smart has warned. Instead, we need to recognize that any feminist footholds are likely to remain precarious, and therefore that law alone is unlikely to be a vehicle for transformative change.

B.  Feminist Engagement With the Criminal Law With the arrival of second-​wave feminism in the West,13 a very broad agenda for change quickly emerged. By the mid-​1970s, this agenda included tackling women’s economic inequality, advancing non-​sexist education, challenging the patriarchal bias of knowledge generally, demanding free childcare, contraception, and abortion on demand, as well as exposing the pervasiveness of domestic and sexual violence. While feminists established women’s refuges and rape crisis centres to provide support for victims of sexual violence and opportunities for escape, the state was pushed to deal with the newly visible epidemic of violent men through the criminal justice system.14 In this early turn to the criminal law, the focus of feminists was more on forcing the patriarchal system to take responsibility for the systemic violence against women that it relied upon rather than on individual criminal responsibility, although the latter was also important in individual cases. This systemic focus helps to explain the coexistence of feminist demands for decriminalizing crimes of poverty, seen as a pretext for punishing and controlling poor, black, and nonconformist women,

13 What is known as ‘second-​wave’ feminism emerged during the late 1960s and early 1970s, and was concerned with challenging patriarchal knowledges and practices in both the public and private spheres of life. The ‘first wave’ refers to the suffragette movements of the early twentieth century. 14 Susan Brownmiller, Against Our Will: Men, Women and Rape (Secker and Warburg 1975).

Impervious to Feminist Reconstruction  391 and abolishing prisons, understood as serving elite interests by brutalizing disadvantaged and working-​class people of all genders.15 This systemic orientation was adopted by the International Tribunal on Crimes against Women held in Brussels in 1976 (Brussels Women’s Tribunal). It was organized by feminist activists as a ‘counter-​action’ to the equality goals of International Women’s Year (1975), which were seen as a hypocritical effort to ‘integrat[e]‌women into the existing patriarchal structures’.16 Ultimately, women from forty countries participated in the Brussels Women’s Tribunal.17 In her opening remarks, in absentia as she was ill, Simone de Beauvoir described the tribunal as ‘the start of a radical decolonization of women’,18 indicating that the crimes identified by the tribunal were to be understood in the context of the patriarchal oppression of women as a group, rather than as crimes for which individual perpetrators were primarily responsible. The organizers sought to ‘expose crimes unrecognized as such by the legal system and question the sincerity of a number of laws which pretend to defend the rights of women’.19 Drawing from decolonization struggles, they reasoned that ‘oppressed peoples have the right to disassociate themselves from those definitions of crimes which have been developed by their oppressors to serve their own interests’.20 The laws whose ‘sincerity’ was questioned included laws criminalizing abortion and contraception (which limited women’s sexual freedom), the law of homicide (which concealed the prevalence of femicide), and laws against rape and family violence (which were seldom enforced). The new crimes that emerged from women’s testimonies included forced/​compulsory motherhood, female castration, compulsory heterosexuality, the persecution of non-​virgins, unmarried mothers, and lesbians, women’s enforced economic dependency on men, no wages for housework, and the double oppression of Third World, immigrant, and religious minority women. In short, ‘all man-​made forms of women’s oppression were seen as crimes against women’.21 Curiously, at least in retrospect, the laws of war and mass atrocity were not considered—​not as laws of questionable sincerity or as a body of law that fails to recognize crimes against women. 15 Bree Carlton, ‘Penal Reform, Anti-​Carceral Feminist Campaigns and the Politics of Change in Women’s Prisons, Victoria, Australia’ (2018) 20 Punishment and Society 283; Women Against Prison, ‘Objection! Women, Imprisonment, Law and Order’ (1990) 26 Scarlet Woman 12. 16 Diana Russell and Nicole Van de Ven, Crimes against Women: Proceedings of the International Tribunal (Les Femmes 1976) 218–​19 (hereafter Russell and Van de Ven, Crimes Against Women). 17 ibid 230. 18 ibid xiii. 19 ibid 240. 20 ibid 219. 21 ibid (emphasis in original).

392  Dianne Otto It did not take long before this radical vision of a transformed criminal justice system disappeared, with the time-​consuming vagaries of law reform, the confounding technicalities of the criminal law, and the many inbuilt resistances to changing the way things had always been done. The feminist focus narrowed to challenging law’s ‘sincerity’ by demanding that individual criminal responsibility become a reality. Feminist attention turned to reforming substantive criminal law, as well as its procedural and evidentiary rules and practices. As a result, an expanding list of gendered harms have been criminalized, particularly in relation to crimes of sexual violence.22 This shift in focus has been described as ‘carceral feminism’ by Elizabeth Bernstein, which she defines as a ‘commitment to carceral paradigms of social, and in particular gender, justice’.23 While these efforts resulted in many apparent law reform successes, these hard-​won reforms seldom translated into an increase in the number of successful prosecutions or effective remedies for women survivors.24 More recently, there has been a similar feminist turn to ICL. This shift was initially propelled by the conflict-​related sexual violence, particularly rape, that became so painfully visible in the armed conflicts of the early 1990s. It was also part of more general turn to anti-​impunity by human rights advocates, as Karen Engle has argued.25 Feminists drew on earlier domestic patterns of criminal law reform to inform their international advocacy, culminating with the 1998 adoption of the Rome Statute establishing the ICC.26 The statute recognizes an unprecedented number of sexual violence crimes,27 inspiring the hope that their long history of neglect had ended.28 And in relation to procedure, the Rome Statute requires, for example, ‘appropriate measures to protect the safety, physical and psychological well-​being, dignity and privacy of victims and witnesses’, particularly where the crime involves ‘sexual or gender violence or violence against children,’29 and the ICC Rules exclude evidence of the victim’s 22 Prabha Kotiswaran, ‘Feminist Approaches to Criminal Law’ in Markus D. Dubber and Tatjana Höernle (eds), The Oxford Handbook of Criminal Law (OUP 2014) 59, 61–​62 (hereafter Kotiswaran, ‘Feminist Approaches’). 23 Elizabeth Bernstein, ‘Militarized Humanitarianism meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-​Trafficking Campaigns’ (2010) 36 Signs: Journal of Women in Culture and Society 45, 46. 24 Kotiswaran, ‘Feminist Approaches’ (n 22) 63–​64; Angela P Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1989–​90) 42 Stanford Law Review 581. 25 Karen Engle, ‘A Genealogy of the Criminal Turn in Human Rights’ in Karen Engle, Zinaida Miller and DM Davis (eds), Anti-​Impunity and the Human Rights Agenda (CUP 2016) 15. 26 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (ICCSt). 27 ibid arts 7(1)(g) (crimes against humanity) and 8(2)(b)(xxii), 8(2)(e)(vi) (war crimes). 28 Kelly Askin, ‘Prosecuting Wartime Rape and Other Gender-​Related Crimes: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288. 29 ICCSt (n 26) art 68(1).

Impervious to Feminist Reconstruction  393 past or subsequent sexual conduct.30 Most potentially powerful for feminist change is the Rome Statute’s endorsement of a feminist legal method in article 21(3), which requires that ‘the application and interpretation of law . . . must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender’. Before these international developments, in 1989, Smart famously concluded that it was ‘increasingly apparent’ that feminist-​sponsored domestic reforms of rape law ‘are not simply slow but . . . may be injurious to women or they may simply hide or relocate the fundamental problem’.31 She argued that the underlying phallocentric assumptions (the masculine heterosexual imperative) of the criminal law and the trial process remained, despite reforms that inter alia sought to make the trial process more tolerable for victims, give victims a chance to tell their own story and diminish the centrality of ‘consent’ to the definition of the crime of rape by treating it as violence rather than sex32 (also a live issue in ICL33). Smart argued that the reforms were having the unintended consequences of strengthening the state’s regulation of sexuality, supporting conservative ‘law and order’ arguments which promote harsher penalties and pro-​family values and, ironically, increasing the criminal law’s power and legitimacy by its apparent responsiveness to feminist demands.34 She argued that ‘in accepting law’s terms in order to challenge law, feminism always concedes too much’.35 While not proposing abandonment of the law as a site of feminist struggle, she argued that it must be more fundamentally challenged and that feminists ‘should not make the mistake that law can provide the solution to the oppression that it celebrates and sustains’.36 In support of her argument, Smart refers to Mary Jane Mossman’s critique of legal method, which provides a helpful framework for examining prosecutorial and judicial resistances to feminist reconstruction.37 Mossman is critical of the ‘received notions’ of objectivity, and accepted ways of ‘knowing’ in legal method.38 She argues that it is the process of legal decision-​making, ‘which usually “sees” present questions according to patterns established in the past’ that makes law especially impervious to feminist challenge.39 In the context 30 ICC, Rules of Procedure and Evidence (2nd edn, ICC 2013) r 71. 31 Smart, Feminism and Power (n 7) 43. 32 ibid 45–​49. 33 Valerie Oosterveld, ‘Sexual Slavery and the International Criminal Court’ (2004) 25 Michigan Journal of International Law 605. But see Halley, ‘Rape in Berlin’ (n 10). 34 Smart, Feminism and Power (n 7) 45–​49. 35 ibid 5. 36 ibid 49. 37 ibid 21–​23. 38 Mossman, ‘Legal Method’ (n 4) 147–​48. 39 ibid 149.

394  Dianne Otto of ICL, Louise Chappell has described this inheritance as ‘gender legacies’ that have ‘congealed’ in judicial processes40 (although she misunderstands these legacies as ‘informal’). As Mossman argues, this entrenched system of knowledge serves to reinforce the masculinist status quo as normative and protect it from fundamental questioning. In her analysis, this stasis is achieved by three processes of exclusion which are lauded by legal orthodoxy as producing objective facts and enabling neutral decision-​making. First, she says, legal method polices the boundaries of legal inquiry by determining what are ‘legal’ issues and what are not; second, by determining what facts are relevant, legal method excludes unfamiliar knowledges and perspectives; and third, by the apparent ‘choice’ available to judges in their selection of precedents or methods of statutory interpretation which, while offering some hope of change, is severely restricted by law’s limiting boundaries and concepts of relevance.41 It should come as no surprise then, that the feminist judging in the Feminist Judgments in International Law project turns the tables on orthodox legal methodologies, which routinely dismiss feminist, queer, and postcolonial perspectives as ‘biased’ and ‘political’. Viewing the same facts and interpreting the same laws through a feminist lens, it becomes clear just how ‘political’ supposedly neutral legal method is—​in the way that facts are abstracted, context is considered largely irrelevant, and structural hierarchies of power are ignored, despite their influence on the presentation and interpretation of the facts and on the judicial reasoning that follows. The judicial methodologies utilized in the rewritten judgments counter the processes of exclusion identified by Mossman. Some methods extend the boundaries of the legal inquiry by paying more attention to the broader context42 and by ‘reframing and renaming’ the issues in dispute.43 Others expand what is considered to be relevant by making gendered harms visible and incorporating them into substantive offences,44 and crafting remedies that address the structural dimensions of gendered harms, as well as their individual effects.45 While yet other methods involve selecting precedents and methods of statutory interpretation that challenge 40 Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (OUP 2016) ch 2 (hereafter Chappell, Gender Justice). 41 Mossman, ‘Legal Method’ (n 4) 163–​65. 42 Christine Chinkin and others, ‘Bozkurt Case, aka the Lotus Case (France v Turkey): Ships that Go Bump in the Night’ in Hodson and Lavers, Feminist Judgments (n 1) 36 (hereafter Chinkin, ‘Bozkurt Case’). 43 Sarah Bengtson and others, ‘Christine Goodwin v the United Kingdom’ in Hodson and Lavers, Feminist Judgments (n 1) 175. 44 Yassin M Brunger, Emma Irving, and Diana Sankey, ‘The Prosecutor v Thomas Lubanga Dyilo’ in Hodson and Lavers, Feminist Judgments (n 1) 409, 432–​35 (hereafter Brunger, ‘Lubanga Case’). 45 Shazia Choudhry and Jonathan Herring, ‘Opuz v Turkey’ in Hodson and Lavers, Feminist Judgments (n 1) 253.

Impervious to Feminist Reconstruction  395 taken-​for-​granted hierarchies of power and privilege, which rely on and reproduce hierarchies of gender,46 and refusing to treat women/​girls as perpetual victims and/​or always needing state protection.47 These methods challenge law’s gendered exclusionary processes and its claim to be uniquely able to objectively determine fair and equitable legal justice. The project reorients feminist attention, beyond seeking the inclusion of women through law reform, to concern with fundamental, structurally embedded principles and practices that give law its power to define and disqualify, ‘legal logic, legal values, justice, neutrality and objectivity’.48 Like Smart, many other feminists working in criminal law reform have become frustrated with its false promises, acknowledging that extensive reform has not changed the low prosecution rates of sexual offences, and has made little difference to the humiliations suffered by victims in the judicial process, especially in cross-​examination. As a result, as Smart suggested, attention has turned to legal method, and how far it might be possible to invest feminist knowledges and feminist judicial methods with legal authority. One of the questions that kept returning to the feminist judges, as they were rewriting the AFRC case, was whether, ‘from a feminist viewpoint, is it more valuable to have a project that speaks the language of law or one that completely reworks the way judgments are presented?’49 With this question in mind, I turn now to examine more closely the impact of feminist judging in ICL and the legally authorized formal resistances it has elicited from the legal establishment.

C.  Systemic Resistance to Feminist Judging in International Criminal Law In ICL, discussion of feminist methods of judging has usually been conflated with or subsumed into debates about the under-​representation of women in the judiciary. The focus of the discussion has been on what difference, if any, the presence of female judges might make to judicial decision-​making. It has been argued, for example, that the inclusion of women judges increases the legitimacy of international adjudication by improving its impartiality

46 Jurasz, ‘AFRC Trial Judgment’ (n 6) 373. 47 Amel Alghrani, Amal Ali and Jill Marshall, ‘Leyla Şahin v Turkey’ in Hodson and Lavers, Feminist Judgments (n 1) 203, 223. 48 Smart, Feminism and Power (n 7) 66. 49 Jurasz, ‘AFRC Trial Judgment’ (n 6) 406.

396  Dianne Otto and representativeness,50 and that women bring a ‘different voice’ to judicial decision-​making which, interestingly, is a claim often made by female judges themselves.51 However, my focus here is on ‘feminist judging’, which is not about the gender of judges but about the methods that judges use in the process of judging. Rosemary Grey and Louise Chappell prefer the term ‘gender-​ just judging’ because it suggests a broader concern with the position of men vis-​à-​vis women, in addition to women’s relationship with law.52 I prefer ‘feminist judging’ which, for me, is no less broad in scope, but points to the structural dimensions of the struggle to challenge the power of law as a system of knowledge that sustains and celebrates masculinist and imperial versions of reality as universal, neutral, and rational, as ultimate/​legal truth.53 It may be more likely that judges who identify as female, and/​or have experienced marginalization in some other way, understand the importance of feminist methods in challenging the framework of the law and the engrained assumptions of judicial method, but this does not mean that all such judges will do so, or that privileged men cannot engage in feminist judging. Indeed, loosening the attachment of all judges to what has previously passed for impartial and objective decision-​making is an important transformative justice goal. That said, feminist efforts in ICL to promote women’s participation as judges and ensure that prosecutors are provided with gender expertise, have clearly increased the opportunities for feminist interventions in both judicial and prosecutorial decision-​making. Commencing with the creation of the ICTY, feminists lobbied for the appointment of women judges and prosecutorial staff, fearing that otherwise sexual violence during armed conflict would continue to be ignored,54 a fear that soon proved to be well-​founded.55 Building on developments at the ad hoc tribunals, the Rome Statute requires the selection of ‘a fair representation of female and male judges’56 and consideration of 50 Nienke Grossman, ‘Sex on the Bench: Do Women Judges matter to the Legitimacy of International Courts?’ (2012) 12 Chicago Journal of International Law 647 (hereafter Grossman, ‘Sex on the Bench’); Chappell, Gender Justice (n 40) 51. 51 Sara Sharratt and Gabrielle Kirk McDonald, ‘Interview with Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the Former Yugoslavia’ (1999) 22 Women & Therapy 23, 32–​33 (hereafter Sharratt and Kirk McDonald, ‘Interview’); Patricia Wald, ‘Women on International Courts: Some Lessons Learned’ (2011) 11 International Criminal Law Review 401, 403. 52 Rosemary Grey and Louise Chappell, ‘  “Gender-​ Just Judging” in International Criminal Courts: New Directions for Research’ in Susan Harris Rimmer and Kate Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar 2019) 213, 214 (hereafter Grey and Chappell, ‘Gender-​Just Judging’). 53 Smart, Feminism and Power (n 7) 160. 54 Jennifer Green and others, ‘Affecting the Rules for the Prosecution of Rape and Other Gender-​ Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique’ (1994) 5 Hastings Women’s Law Journal 171. 55 Sharratt and Kirk McDonald, ‘Interview’ (n 51) 30–​31. 56 ICCSt (n 26) art 36(8)(a)(iii).

Impervious to Feminist Reconstruction  397 the need for judges with ‘legal expertise’ in specific issues, including violence against women and children.57 Following the adoption of the Rome Statute, the Security Council added a sex-​representation provision to the statutes of the ICTY and ICTR, although only for ad litem judges.58 This shows a general acceptance that the presence of female judges will make some difference, at least to the likelihood that sexual violence will be addressed in indictments and to strengthening perceptions of the legitimacy of judgment which, as Smart suggests, may have the adverse effect of increasing the power of the law, without any real improvement in outcomes for survivors of sexual violence and other gendered crimes.59 Nevertheless, female judges, often together with male colleagues, are responsible for several significant feminist interventions in ICTY, ICTR, and ICC cases. I turn now to examine three of these interventions and the discouraging responses they provoked from many in the criminal law establishment, which expose just how highly resistant to feminist change ICL is. I start with the ICTR’s landmark judgment in Akayesu,60 which recognized rape and sexual violence as constitutive acts of genocide for the first time, examining the criticisms of the interventions by the Trial Chamber which made this finding possible. Second, I examine disparaging responses to the feminist methods utilized in the ICTY’s Furundžija judgment,61 which is significant for its expansion of the legal definition of rape and finding that non-​penetrative acts of sexual violence could also amount to torture. I then discuss the ICC’s Lubanga case,62 where the feminist intervention took the form of a much-​criticized dissenting opinion on the majority’s treatment of sexual violence experienced by child soldiers. In reporting on the lead up to Akayesu, Rhonda Copelon recalls that, despite global awareness of widespread rape and sexual violence perpetrated in the earlier conflict in the former Yugoslavia, there were many months of deafening silence about the pervasiveness of sexual violence during the Rwandan genocide.63 Notwithstanding reports from Human Rights Watch (HRW) and other non-​governmental organizations, which attempted to break the silence 57 ibid art 36(8)(b). 58 Grossman, ‘Sex on the Bench’ (n 50) 663. 59 Smart, Feminism and Power (n 7) 45–​49. 60 Prosecutor v Jean Paul Akayesu (Judgment) ICTR-​96-​4-​T (2 September 1998) (hereafter Akayesu Trial). 61 Prosecutor v Furundžija (Judgment) IT-​95-​17/​1 (10 December 1998) (hereafter Furundžija Trial). 62 Prosecutor v Lubanga (Judgment) [2012] ICC-​01/​04-​01/​06-​2842 (hereafter Lubanga Trial). 63 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against Women into International Criminal Law’ (2000) 46 McGill Law Journal 217, 224 (hereafter Copelon, ‘Gender Crimes’).

398  Dianne Otto by providing detailed evidence of rape and other forms of sexual brutality that had occurred in the conflict,64 the ICTR’s first trial, of the Taba Commune’s bourgmestre (mayor) Jean Paul Akayesu, commenced without any charges or evidence of rape. According to the HRW report, which included specific testimonies of rape that occurred in the Taba Commune,65 those responsible for investigating rape lacked the political will because they saw it as a ‘lesser’ or ‘incidental’ crime and, according to the Deputy Prosecutor, rape was impossible to document because women would not talk about it.66 As Patricia Viseur Sellers, legal adviser on gender issues for both ICTY and ICTR later observed, her experience was that women usually wanted to talk, which made her ‘very curious . . . about who does not want them to testify’.67 The situation in Akayesu changed, but only after the three Trial Chamber judges,68 commencing with Judge Navanethem Pillay, had drawn out evidence of sexual violence from two witnesses who had been called by the Prosecutor to provide evidence of other crimes.69 And even then, according to Copelon, the Prosecutor had no plans to amend the indictment. There followed the submission of an amicus curiae brief, prepared by feminist lawyers and activists, which appealed to the court to call on the Prosecutor, or to step in itself, to ensure inclusion of rape in charges of genocide, crimes against humanity, and war crimes.70 Only then did the Prosecutor request amendment of the indictment, although he told the court that the amendment was motivated by the evidence drawn from one of the witnesses, mentioned earlier.71 However this transpired, the amended indictment marked a significant shift in the heavily policed boundaries of legal inquiry, highlighted by Mossman, by redefining sexual violence, previously considered incidental or ‘unspeakable’,72 as a legitimate legal issue. However, on appeal, other powerful impediments to feminist reconstruction emerged. The defence challenged Akayesu’s convictions for sexual violence,

64 Human Rights Watch/​Africa, Human Rights Watch Women’s Rights Project and Fédération Internationale des Ligues des Droits de L’Homme, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (Human Rights Watch 1996) (hereafter HRW, Shattered Lives); African Rights, Rwanda: Death, Despair and Defiance (2nd edn, African Rights 1995). 65 HRW, Shattered Lives (n 64) 42–​43. 66 ibid 94–​95. 67 Sara Sharratt and Patricia Viseur Sellers, ‘Interview with Patricia Viseur-​Sellers, Legal Officer in Gender Issues’ (2008) 22 Women & Therapy 53, 70 (hereafter Sharratt and Sellers, ‘Interview’). 68 Grey and Chappell, ‘Gender-​Just Judging’ (n 52) 223. 69 Akayesu Trial (n 60) [416]–​[417]. 70 Copelon, ‘Gender Crimes’ (n 63) 225–​26. 71 ibid. 72 Nicola Lacey, ‘Unspeakable subjects, Impossible Rights: Sexuality, Integrity and Criminal Law’ in Nicola Lacey, Unspeakable subjects: Feminist Essays in Legal and Social Theory (Hart 1998) 98–​124.

Impervious to Feminist Reconstruction  399 including on the grounds of improper amendment of the original indictment, and lack of impartiality of two of the Trial Chamber judges, Judge Pillay and Judge Laïty Kama (presiding).73 The all-​male Appeals Chamber found both grounds to be unsubstantiated. In relation to the first, they held that belatedly amending the indictment to include the three charges relating to sexual violence, was not ‘seriously prejudicial’ to the accused, as claimed by the defence.74 With respect to the accusations of lack of impartiality, the defence argued that Judge Pillay’s questioning of a witness about his knowledge of sexual violence committed at Taba showed that she was biased, at least in referring to events of sexual violence of which she had prior knowledge.75 In relation to Judge Kama, the defence contended that his interruption of the defence counsel’s extended (hostile) cross-​examination of a witness (about how many time she had been raped) was overly protective and showed that he believed her in advance, thus violating the presumption of innocence.76 In dismissing both allegations of bias, the Appeals Chamber relied on the ICTY’s judgment in the Furundžija case,77 which was prompted by another complaint of bias in relation to feminist judging (see below). Subsequently, a number of legal scholars accused the Akayesu Trial Chamber of ‘legal activism’ in finding sexual violence to be a constitutive act of genocide.78 Alexander Zahar and Göran Sluiter, for example, suggested that ‘the Akayesu judges perhaps felt they were in tune with the times, but the unchartered reaches of international criminal law demand a far more conservative attitude’.79 They derided the Court for taking ‘an intuitive and commonsensical approach to legal reasoning, neither scholarly nor informed by comparative law, confident rather than cautious, declamatory rather than inquisitive’.80 More generally, they described the case as one in which ‘sentimentalism and high-​handedness’ prevailed over ‘reason and analysis’, dealing ‘a heavy blow not only to the early credibility of that tribunal but to the understanding and development of the law of genocide’.81 The language they use to express their complaint is revealing. Their argument is, essentially, that the bench is not properly legal (masculine) enough because it has been swayed by outside 73 Prosecutor v Jean Paul Akayesu (Judgment) ICTR-​96-​4 (1 June 2001) (hereafter Akayesu Appeal). 74 ibid [102]–​[114]. 75 ibid [195]–​[197]. 76 ibid [201]–​[207]. 77 Prosecutor v Furundžija (Judgment) IT-​95-​17/​1-​A (21 July 2000) (hereafter Furundžija Appeal). 78 Alexander Zahar and Göran Sluiter, International Criminal Law: A Critical Introduction (OUP 2008) 171. 79 ibid. 80 ibid 172. 81 ibid xi.

400  Dianne Otto political pressures, been intuitive and sentimental in its decision-​making, and pronounced a new development in the law rather than reaching it through accepted (exclusionary) legal method. These invectives are very familiar to feminists who work in the law, as well as those who provide post-​colonial, post-​ modern, and queer critiques. Margaret Thornton has aptly described this as ‘attacking the messenger, rather than engaging with the message’.82 Earlier at the ICTY, as mentioned, another accusation of bias, or at least the appearance of bias, was made on appeal in Furundžija, which was the first case to focus exclusively on sexual violence crimes.83 The judgment is significant for its expansion of the definition of rape to include oral, anal, and vaginal penetration and for finding that coercion, in the definition of rape, can be directed towards the victim or a third party.84 Relatedly, the Trial Chamber held that acts of sexual violence amounted to torture, not only when committed against a (female) victim, but also against a (male) victim who knew the woman and was forced to watch.85 The Trial Chamber also noted that rape and serious sexual assault should be prosecuted as a grave breach and, in appropriate circumstances, genocide, as well as a crime against humanity as provided for in the ICTY Statute.86 The judgment thus addresses Mossman’s second concern, about the exclusionary effects of habitual rules and practices that determine what facts are considered relevant, by making gendered harms visible and reading them into substantive offences. In this way the judgment disrupts the certainties of the hierarchies of gender and power sustained by previous interpretations of these offences. Yet on appeal, it was argued that one of the trial judges, Judge Florence Mumba, should have been disqualified because she had previously worked with the UN Commission on the Status of Women (CSW).87 The defence argued that because one of the CSW’s concerns during this period had been the mass rape and sexual abuse of women during the conflict in the former Yugoslavia, there was an appearance of bias and therefore, that Furundžija’s conviction should be vacated.88 In finding no bias, it is notable that the, again all-​male, Appeals Chamber took the view that even if Judge Mumba had expressed her support for the objectives of CSW, her impartiality would not be impeded.89 They made 82 Margaret Thornton, ‘Discord in the Legal Academy: The Case of the Feminist Scholar’ (1994) 3 Australian Feminist Law Journal 53 (hereafter Thornton, ‘Discord’). 83 Furundžija Trial (n 61). 84 ibid [185]. 85 Grey and Chappell, ‘Gender-​Just Judging’ (n 52) 227–​28. 86 Furundžija Trial (n 61) [172]. 87 Furundžija Appeal (n 77) [166]–​[169]. 88 ibid [169]–​ [170]. See also Judge Gabrielle Kirk McDonald, ‘The International Criminal Tribunals: Crime and Punishment in the International Arena’ (2001) 25 Nova Law Review 463, 479–​80. 89 Furundžija Appeal (n 77) [199]–​[200].

Impervious to Feminist Reconstruction  401 the further point that one of the Security Council’s reasons for establishing the ICTY was to ensure perpetrators of sexual violence were brought to justice.90 The suggestion that support for women’s equality and rights is evidence of lack of impartiality has always dogged feminist engagement with law.91 It exposes the hold that patriarchal ways of knowing and seeing-​the-​world have on the legal conception of neutrality. It might be hoped that the Appeal Chamber’s vehement rejection of the law’s masculinist conventions of assessing impartiality would deter others from impugning feminist judging as biased—​but this was not to be, as seen in Akayesu (above) and Lubanga (below). Years later, Pillay observed, referring to Judge Mumba’s experience as well as her own, that ‘this is the kind of prejudice that women judges have to contend with’.92 She also said that, from her own personal experience ‘having men and women with gender sensitivity in judicial deliberations can make all the difference’,93 dismissing the charge of ‘prejudice’ as a means of resisting change. Another ground of appeal in Furundžija was the—​all too common—​ assertion that the sexual violence was not serious enough to constitute torture. As Grey and Chappell emphasize, the Appeals Chamber’s dismissal of this argument was ‘emphatic’ which, they hope, will help to ‘dispel the long-​standing myth that sexual violence is “less serious” than other wartime offences’ and affirm more generally that non-​penetrative sexual violence can amount to torture.94 But this mythology, like the idea that feminist judging lacks impartiality, remains stubbornly acceptable in legal method. A decade after Akayesu was decided, the ICC heard its first case. The rebel leader of a powerful militia in the Democratic Republic of Congo (DRC), Thomas Lubanga Dyilo, was on trial95 pursuant to a single charge: the war crime of ‘conscripting or enlisting children under the age of fifteen . . . or using them to participate actively in hostilities’.96 In an uncanny replay of Akayesu, no specific charges of sexual violence were presented in the indictment, despite the availability of considerable evidence and a number of attempts by victims’ legal representatives to introduce charges of sexual slavery and cruel, inhuman, and degrading treatment.97 The Prosecutor, on the first day of the trial, drew 90 ibid [201]. 91 Margaret Thornton, ‘ “Otherness” on the Bench: How Merit is Gendered’ (2007) 29 Sydney Law Review 391. 92 Navanethem Pillay, ‘Equal Justice for Women: A Personal Story’ (2008) 50 Arizona Law Review 657, 666 (hereafter Pillay, ‘Equal Justice’). 93 ibid. 94 Grey and Chappell, ‘Gender-​Just Judging’ (n 52) 228. 95 Lubanga Trial (n 62). 96 ICCSt (n 26) art 8(2)(b)(xxvi). 97 Brunger, ‘Lubanga Case’ (n 44) 414.

402  Dianne Otto the court’s attention to evidence of sexual violence against girl soldiers, and argued in his closing brief that such sexual violence was part of ‘using children to participate actively in hostilities’.98 But, ignoring lessons from Akayesu, the Prosecutor did not apply to amend the indictment to include separate sexual violence charges.99 During the trial the judges, particularly Judge Elizabeth Odio Benito, drew out further evidence of sexual violence while questioning witnesses. The defence counsel objected to this line of questioning arguing that it had no bearing on the crime charged and that its continuation could create an appearance of judicial bias.100 By this means, the corrosive suggestion that Judge Odio Benito lacked impartiality was introduced into the trial proceedings. In result, the Trial Chamber Majority (Judge Odio Benito dissenting) declined to consider evidence of sexual violence in interpreting the charge of ‘using [children] to participate actively in hostilities’, because the Prosecutor had not introduced this evidence at an appropriate stage of the proceedings.101 Their decision limits, to the Pre-​Trial hearings, the power of judges to propose changes to the indictment. Instead, the Majority ruled that this evidence should be reserved for the sentencing and reparations hearings.102 However, at the sentencing stage, sexual violence evidence was again rejected as irrelevant, as it had not formed part of the factual predicate for the child soldier crime Lubanga was convicted of. These provide yet other instances of judges treating sexual violence as peripheral, as less serious than other forms of violence. These moves were condemned by those who rewrote the Lubanga judgment, as part of the Feminist Judgments in International Law project, because it created a gendered hierarchy of harms by treating sexual violence as an ‘aggravating factor’ that was irrelevant to the crime itself, but might be relevant when awarding reparations.103 To make matters worse, the Trial Chamber Majority also held that the critical factor in determining a child’s ‘active participation in hostilities’ was whether their support exposed them to ‘real danger as a potential target’.104 As Grey points out, this test seems to exclude any danger perpetrated by members of their own group, including sexual violence.105 98 Prosecutor v Lubanga (Prosecutor’s closing brief) [2011] ICC-​01/​04-​01/​06-​2748-​Red [139]–​[143]. 99 ibid [629]. 100 Grey and Chappell, ‘Gender-​Just Judging’ (n 52) 236. 101 Lubanga Trial (n 62) [630]. 102 ibid. 103 Brunger, ‘Lubanga Case’ (n 44) 440. 104 Lubanga Trial (n 62) [628]. 105 Rosemary Grey, ‘Sexual Violence against Child Soldiers: The Limits and Potential of International Criminal Law’ (2014) 16 International Feminist Journal of Politics 601, 607 (hereafter Grey ‘Child Soldiers’).

Impervious to Feminist Reconstruction  403 The feminist intervention in Lubanga took the form of a dissenting opinion on the treatment of sexual violence. Judge Odio Benito accused the Majority of rendering sexual violence ‘invisible’.106 She points to the court’s responsibilities under the Rome Statute, which are not limited to the determination of the guilt or innocence of the accused, but also include attending to the harm suffered by victims.107 Referring to article 21(3), she reminds the Majority that they are required to interpret and apply the law in line with internationally recognized human rights and without discrimination.108 She considers it ‘irrelevant’ whether the prosecution charged the accused with separate sexual violence crimes or treated sexual violence as embedded within the crime charged.109 In her view, children are protected from recruitment and enlistment because of the risks of abuse inflicted by their ‘own’ armed group, not only from ‘enemy’ forces.110 Further, she considered sexual violence to be ‘an intrinsic element of the criminal conduct’ of using children ‘to participate actively in the hostilities’, and therefore the court had a ‘duty’ to explicitly include it in the definition of the crime.111 Fortunately, the ICC’s recent treatment of the issue of sexual violence perpetrated against child soldiers in Ntaganda112 was able to make up for some of the opportunities squandered in Lubanga, thanks to Prosecutor Fatou Bensouda’s last-​minute application to add the charge of war crimes in the form of rape and sexual slavery of child soldiers to the earlier indictments.113 Even so, confirmation of this addition was resisted by the defence on the ground of legality (nullum crimen sine lege) because these war crimes had previously been understood as committed only by an opposing party who had captured child soldiers.114 In dismissing the Prosecutor’s submission, the Pre-​Trial Chamber reasoned that a child soldier could not have been actively participating in hostilities when the sexual violence took place, so therefore retained their protections as a civilian.115 This important decision could have far-​reaching effects. As Grey suggests, the reasoning could be extended to the other crimes of sexual violence 106 Prosecutor v Lubanga (Separate and dissenting opinion of Judge Odio Benito) [2012] ICC-​01/​04-​ 01/​06-​2842 [16] (hereafter Lubanga Dissent). 107 ibid [8]‌. 108 ibid [6]‌. 109 ibid [8]‌. 110 ibid [19]. 111 ibid [16]–​[20]. 112 Prosecutor v Bosco Ntaganda (Judgment) [2019] ICC-​01/​04-​02/​06. 113 Prosecutor v Ntaganda (Transcript) ICC-​01/​04-​02/​06-​T-​10-​Red-​ENG (13 February 2014) [57]–​[58]. 114 Grey, ‘Child Soldiers’ (n 105) 610–​11. 115 Prosecutor v Bosco Ntaganda (Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) [2014] ICC-​01/​04-​02/​06-​309 [79].

404  Dianne Otto enumerated in the Rome Statute, when committed against child soldiers, and might also extend to soldiers of all ages who are subject to sexual abuse by fellow soldiers.116 However, Ntaganda is currently subject to appeals. Several international law scholars have argued that Judge Odio Benito’s interpretation of ‘using [children] to participate actively in hostilities’, to include using them for sexual purposes, is too broad—​so broad that it violates the principle of legality, as was argued by the defence in Ntaganda. This principle, which underpins the rule of law generally, requires that a criminal offence must be clearly defined in law before an individual can be held criminally responsible for its commission. The Rome Statute endorses the principle of legality in article 22, which requires the ICC to ‘strictly construe’ the definition of a crime and, in case of ambiguity, to adopt an interpretation ‘in favour of the person being investigated, prosecuted or convicted’. In his analysis of legal issues raised in Lubanga, Kai Ambos wrongly accuses Judge Odio Benito of not even mentioning the principle of legality in her dissent (see below).117 He derides her dissent as more like ‘a policy speech for certain constituencies in the NGO community than a strict judicial analysis’ which, he argues, violates the requirement of ‘strict construction’, despite her argument having some support from the Prosecutor.118 Ambos also accuses the Prosecutor of trying to ‘squeeze the sex crimes into the using-​conduct’ of the crimes.119 Joe Tan echoes Ambos’ concern, arguing that Judge Odio Benito’s ‘blanket declaration’ that sexual violence against child soldiers amounts to their use in hostilities as a matter of law, is ‘arguably’ in contravention of the principles of legality.120 He reads her judgment as going beyond ‘merely clarifying the law’ to creating ‘new law’—​a serious charge of judicial misconduct. Yet the language used here by critics is reminiscent of that used to impugn the feminist legal developments in Akayesu. The dissenting judgment is disparaged, in similarly feminizing terms, as bending to outside political pressure, as (soft, intuitive) policy rather than (hard, objective) law, and as pronouncing a development in the law rather than reaching it through accepted (exclusionary) legal method. Judge Odio Benito answers much of this criticism in her dissenting opinion. As she rightly observes, the Rome Statute requires article 22 to be read in 116 Grey, ‘Child Soldiers’ (n 105) 612. 117 Kai Ambos, ‘The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues’ (2012) 12 International Criminal Law Review 115, 137–​38. 118 ibid 138. 119 ibid. 120 Joe Tan, ‘Sexual Violence Against Children on the Battlefield as a Crime of Using Child Soldiers: Square Pegs in Round Holes and Missed Opportunities in Lubanga’ [2012] 15 Yearbook of International Humanitarian Law 117, 145.

Impervious to Feminist Reconstruction  405 conjunction with article 21(3).121 Yet as Mossman cautioned, the appearance of choice of interpretive methods can be illusory, as such openings are policed by law’s boundaries which, for the Majority in this case, and for many scholars, are defined by the principle of legality. In Judge Odio Benito’s view, the requirement of legality does not detract from the necessity and the duty of the court to interpret crimes in a non-​discriminatory way.122 Her argument receives strong support in Beth Van Schaack’s careful analysis of the principles underlying the defence of legality. In her view, an expansive interpretive approach is necessitated by the need to develop and update a field of law that has remained relatively unchanged since its inauguration following World War II.123 She argues that today, defendants have ‘sufficient notice of the foreseeability of jurisprudential innovations’ because of developments in, inter alia, international human rights law (IHRL), international humanitarian law (IHL), and domestic criminal law.124 The associated development of the law by judges, therefore, does not compromise the fairness of the trial and, in the event of lingering concerns about the rights of the accused, Van Schaack proposes they be dealt with in sentencing.125 The rewriting of the Lubanga majority judgment, in the Feminist Judgments in International Law project, takes inspiration from the dissenting opinion although, unlike Judge Odio Benito, the authors are also concerned with challenging the dualistic gender stereotypes perpetuated in the original judgment, which associate boys with combat and girls with non-​combatant roles.126 By refusing these stereotypes and paying more attention to the context, the rewritten judgment takes into account the multiplicity of roles and complexity of the experiences of child soldiers, supporting a broader approach to interpreting ‘using children’ than offered by Majority’s test of ‘risk of being targeted’. This approach also allows the inclusion of risks faced by children, both boys and girls, from the armed groups that have conscripted or enlisted them, including the risk of sexual violence.127 In drawing together this discussion of impediments to feminist judging in ICL, I would like to make two points. The first is that the milestones in ICL that I have outlined would not have occurred without feminist judging. Without the 121 Lubanga Dissent (n 106). 122 ibid [17]. 123 Beth Van Schaack, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals’ (2008) 97 Georgetown Law Journal 119. 124 ibid 124. 125 ibid. 126 Brunger, ‘Lubanga Case’ (n 44) 442. 127 ibid 423–​27.

406  Dianne Otto intervention of the Trial Chamber in Akayesu, the courage of the Furundžija bench, and the legacy of Judge Odio Benito’s dissenting opinion in Lubanga, there would be little disruption of the entrenched patterns of legal decision-​ making that systematically exclude or marginalize gendered experiences of harm. The cases illustrate that ICL could perhaps be reconstructed if the attachment of judges to exclusionary legal method is severed. However, this seems a very distant possibility as there really is no evidence that feminist reconstruction is becoming accepted practice. Even the very basic acceptance, that investigating, presenting, and charging sexual violence crimes is a routine part of the job of prosecutors, has yet to be institutionalized. Without this, judges are hamstrung, as in Lubanga. Even when this groundwork has been undertaken, it is not uncommon for charges of sexual violence to be withdrawn by the prosecutor if the defendant pleads guilty to other counts in their indictment,128 and sexual violence charges are particularly vulnerable to being withdrawn by the Prosecutor or struck down by the bench, as they progress through proceedings (as the burden of proof increases).129 This pattern reinforces again the mythologies that sexual violence crimes are less serious or particularly hard to prove. And even when sexual violence evidence is considered by ICC judges, they do not always follow progressive precedents from the ad hoc tribunals.130 Addressing a symposium in Amsterdam in 2017, Odio Benito despaired that the ICC’s gender mandate ‘has practically fallen into disuse’ and that, despite article 21(3), judicial interpretations have often been inconsistent with international human rights and discrimination has not been ‘correctly examined’.131 Before, she said, ‘[n]‌ot everything resulted in success, but now, in December 2017, the picture that has evolved is simply bleak’.132 Odio Benito’s view is supported by the Appeals (majority) decision in Bemba, ‘the final straw’ I mentioned in my introduction. Bemba was the first ICC case to result in a conviction for sexual violence at trial. In overturning the Trial Chamber’s unanimous finding, and acquitting Bemba, the Appeals Chamber created yet more hurdles for feminist reconstruction.133 The judgment modified the standard of appellate review of the accepted facts, significantly 128 Pillay, ‘Equal Justice’ (n 92) 665. 129 Chappell, Gender Justice (n 40) 108. 130 ibid 195–​96. 131 Elizabeth Odio Benito, ‘My Experience in Three International Tribunals’ (presentation at Symposium Gender-​Based Violence and Human Rights: International Perspectives, Atria Institute on Gender Equality and Women’s History, 8 December 2017) accessed 21 May 2020. 132 ibid. 133 Bemba Appeal (n 11).

Impervious to Feminist Reconstruction  407 departing from established practice of the ICTY and ICTR, as well as the ICC. Not only does this limit the usual deference to Trial-​Chambers’ exhaustive processes of making factual findings (which, in this case, took nearly four years), but as Susana SáCouto argues, the necessarily limited factual evidence that can be reassessed ‘bodes ill, particularly for cases involving sexual violence crimes, which often require a comprehensive analysis of context to understand how such violence is actually perpetrated’.134 Further, SáCouto argues that the judgment made it more difficult to prosecute sexual violence in at least two other ways: by limiting the power of the Trial Chamber to consider evidence of acts that have not been specifically confirmed by the Pre-​Trial Chamber, and in its interpretation of ‘all necessary and reasonable measures’ that a commander is required to take to avoid command responsibility.135 As the legally authorized hurdles multiply, the future looks bleak indeed for feminist reconstruction. The second point to draw from this discussion is that, while I have only discussed three cases, what they reveal are the repeated, often intensely personalized, criticisms of those involved with feminist judging, cloaked in the respectability of the legal language and conventions of rationality, neutrality, and fairness to the accused. As I have recounted, those who have applied feminist methods in judgment have had to face a barrage of hostile reactions, including charges of judicial activism, lack of independence and impartiality, and violation of the principle of legality. Sellers has also spoken of ‘perceptible backlash’ directed at her personally as a result of her work as the ICTY and ICTR legal adviser on gender issues.136 In this context, it is perhaps not surprising that many ICC judges have felt compelled to interpret the Rome Statute narrowly, and shown reluctance to apply its gender-​attentive interpretive methods when attending to the harms endured by victims. Yet those sitting in judgment bear an important burden of responsibility, not only to ensure that those accused receive a fair trial, but also to implement the mandate given to them by the Rome Statute, which includes developing the law so that the gendered harms of victims are addressed and ensuring their methods of judgment are not discriminatory.

134 Susana SáCouto, ‘The Impact of the Appeals Chamber Decision in Bemba: Impunity for Sexual and Gender-​Based Crimes?’ (International Justice Monitor, 22 June 2018) accessed 21 May 2020. 135 Susana SáCouto and Patricia Viseur Sellers, ‘The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-​Based Crimes?’ (2019) 27 William and Mary Bill of Rights Journal 599. 136 Patricia Viseur Sellers, ‘Gender Strategy is Not Luxury for International Courts Symposium: Prosecuting Sexual and Gender-​Based Crimes Before International/​ized Criminal Courts’ (2009) 17 American University Journal of Gender, Social Policy and the Law 301, 311–​12.

408  Dianne Otto This returns me to the question of ICL’s imperviousness to feminist reconstruction, and whether too much feminist energy is spent working within the law’s boundaries, on projects that ‘speak the language of law’ even as they seek to challenge the exclusionary foundational framework and adjudicative practices of international legal justice. To date, the experience of feminist judging confirms Smart’s fear that feminist engagement with law can have the adverse effect of increasing the power of the law by giving it a progressive veneer, without any real improvement in outcomes for survivors of sexual violence and other gendered crimes. While ICL’s gendered methods of exclusion have, to some extent, been tested, what has been revealed is the stubborn resilience of androcentric legacies, at every point in the criminal justice enterprise. So, where does this leave the project of feminist reconstruction?

D.  The Reconstructive Vision of NGO-​Organized Women’s Tribunals Another prism through which to assess the receptivity of ICL to feminist reconstruction—​and cast further light on what feminist reconstruction might aim for—​is provided by NGO-​organized women’s ‘tribunals’ or ‘hearings’. Such events have been organized for a variety of reasons, including to protest the lack of attention to crimes experienced solely or primarily by women, to urge the recognition of new crimes that more fully address gendered harms, and to enact a transformative performance of the law whereby it delivers a more complete justice for women.137 I have already referred to the 1976 Brussels Women’s Tribunal which criticized the ‘sincerity’ of a number of criminal laws and sought to force the patriarchal system to take responsibility for the violence it relied upon by criminalizing ‘all man-​made forms of women’s oppression’. This performance of feminist reconstruction challenged the individualized concept of criminal responsibility, seeking instead to put systemic causes of inequality on trial. The legal form of a trial was also subverted. There was, for example, no panel of judges as ‘the verdict is in our hands’,138 and no expert witnesses as ‘our analyses . . . must be informed by feelings, not just intellect’.139 This latter aspiration was echoed in the reflections of those involved in the Feminist Judgments 137 Dianne Otto, ‘Impunity in a Different Register: People’s Tribunals and Questions of Judgement, Law and Responsibility’ in Karen Engle, Zinaida Miller and DM Davis (eds), Anti-​Impunity and the Human Rights Agenda (CUP 2016) 291. 138 Russell and Van de Ven, Crimes Against Women (n 16) 124. 139 ibid 125.

Impervious to Feminist Reconstruction  409 in International Law project, that ‘the rigid structure and dry language of [legal] judgments is not conducive to engaging with crimes that, due to their heinous nature, require a degree of emotional response’.140 Perhaps the most well-​known, in international law circles, is the 1992 Women’s International War Crimes Tribunal (Comfort Women’s Tribunal) held in Tokyo.141 Its primary aim was to show that, contrary to received wisdom, under the international law applicable at the time, Japan, Emperor Hirohito, and others could—​ and should—​ have been prosecuted by the International Military Tribunal for the Far East (IMTFE) for the organized mistreatment and abuse of thousands of women in ‘comfort stations’.142 To achieve this goal, the tribunal staged a fictive continuation of the IMTFE. The judges, all leading international jurists and legal scholars,143 found Hirohito guilty, on the basis of command responsibility, for rape and sexual slavery as a crime against humanity,144 and the Japanese Government to be in violation of its treaty and customary obligations relating to slavery, trafficking, forced labour, and rape amounting to crimes against humanity.145 The final judgment provided detailed legal analysis,146 and called on Japan to make reparations for the harms inflicted on the comfort women, including a full and meaningful apology and the payment of adequate compensation.147 For surviving victims, many of whom participated in the Tokyo proceedings, this provided long-​ overdue recognition of the suffering they had endured, and, importantly, honoured their survival. Although neither apology nor compensation from the government has been forthcoming, the survivors experienced a much fuller sense of justice than offered by the criminal law, which had disqualified their experiences by denying them legal relevance.

140 Jurasz, ‘AFRC Trial Judgment’ (n 6) 373. 141 Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, Tokyo, December 1992. See also Christine Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ (2001) 95 American Journal of International Law 335. 142 ibid 338. 143 Gabrielle Kirk MacDonald (former President of the ICTY), Carmen Mari Arguibay (President of the International Women’s Association of Judges and former ad hoc judge at the ICTY), Christine Chinkin (Professor of International Law, London School of Economics), and Willy Mutunga (Professor of Law, University of Kenya, and President of NGO, Human Rights Commission of Kenya). 144 Prosecutor v Hirohita et al (Summary of Findings and Preliminary Judgment) PT-​2000-​1-​T [24]. 145 ibid [27]–​[30]. 146 Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, ‘The Prosecutors and the Peoples of the Asia-​Pacific Region v Hirohito Emperor Showa et al and the Government of Japan: Judgement on the Common Indictment and the Application for Restitution and Reparation (PT-​2000-​1-​T)’ (4 December 2001) accessed 26 May 2020. 147 ibid [31]–​[37].

410  Dianne Otto The Comfort Women’s Tribunal provides a model of the performance of feminist judging within the framework and procedures of the IMTFE. By re-​ framing and re-​naming the issues in dispute, the judges powerfully exposed the androcentric boundaries of ICL, which excluded extensive evidence of the comfort system possessed by the Allies.148 As we have seen, little has changed in this regard. Prosecutors, in the main, remain reluctant to act on such evidence. Furthermore, the Comfort Women’s Tribunal judgment shows just how much legal method matters to ‘surfacing’149 gendered harms in substantive offences that have routinely been interpreted through the experience of ‘Benchmark Men’.150 The Comfort Women’s Tribunal is a compelling demonstration of the masculinity of legal authority, and the power of feminist judging to challenge and redefine that authority, so that gendered harms are made visible and addressed seriously as crimes. Unlike the Comfort Women’s Tribunal, which made its point by emulating a criminal trial as closely as possible, many women’s tribunals seek to enact transformative reconstructions of legal justice, like the Brussels Women’s Tribunal. I have participated as a ‘judge’ in two women’s tribunals, both of which grew out of dissatisfaction with the treatment of sexual and gender-​based crimes by formal transitional justice mechanisms. One was the Asia-​Pacific Regional Women’s Hearing on Gender-​Based Violence in Conflict, held 10–​11 October 2012, in Phnom Penh (Asia-​Pacific Regional Tribunal).151 Its primary aim was to draw attention to the ‘inability or unwillingness’ of criminal justice mechanisms in the region to apply the law so as to provide justice for survivors of gender-​based violence;152 a goal that was particularly compelling in the context of the decision by the Co-​Investigative Judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC) to exclude charges relating to rapes, that occurred in Khmer Rouge security centres and work cooperatives, because they could not see a link between the evidence and the accused Khmer Rouge leaders.153 148 ibid [4]‌. 149 Rhonda Copelon, ‘Surfacing Gender: Re-​Engraving Crimes Against Women in Humanitarian Law’ (1994) 5 Hastings Women’s Law Journal 423. 150 Thornton, ‘Discord’ (n 82) 64. 151 T de Langis, ‘Asia-​Pacific Women’s Hearing on Gender-​Based Violence in Conflict: Report on the Proceedings’ (Cambodian Defenders Project, 2012) accessed 21 May 2020 (hereafter de Langis, ‘Women’s Hearing’). 152 Cambodian Defenders Project, ‘Concept Note’ in ‘Material Package for International Guests’ (Asia-​Pacific Regional Women’s Hearing on Gender-​Based Violence in Conflict, 2012) 31–​32 (copy on file with author). 153 Prosecutor v Khieu (Closing Order) [2010] 002/​19-​09-​2007-​ECCC-​OCIJ [1429]. Further, the co-​ investigative judges found that ‘rape did not exist as a crime against humanity in its own right in 1975–​ 1979’: Prosecutor v Khieu (Decision on Appeals by Nuon Chea and Ieng Thirith against the Closing

Impervious to Feminist Reconstruction  411 Together with an audience of over 200 people, I listened to the testimonies of survivors of sexual violence that occurred during four armed conflicts in the Asia-​Pacific—​Bangladesh (1971), Cambodia (1976–​9), Timor-​Leste (1974–​ 99), and Nepal (1996–​2006).154 For everyone who listened, the testimonies were riveting, unlike the tired weight of incomprehension and disappointment that I felt from those who were listening to the proceedings of the ECCC from the visitors’ gallery. Significantly, the injustices recounted were not just about crimes suffered during the conflicts but included their continuing effects of discrimination and stigma into the present. Culpability was not only understood in terms of individual or state responsibility, but in a broader frame of colonial histories, systemic racism, divisive nationalisms, institutionalized misogyny and homophobia, militarism, and inequitable economic and social structures. As Marguerite Waller has described in the context of the World Courts of Women, which have been held around the world to protest violence against women, new relationships were being forged between testifiers and listeners, which were prompting everyone to take responsibility for unlearning old ways of thinking.155 This process is very different to the lack of emotional response engendered by orthodox legal methods that was found to be so limiting by participants in the Feminist Judgments in International Law project. The other tribunal I participated in was the Women’s Court—​Feminist Approach to Justice, which was held 7–​10 May 2015, in Sarajevo (Sarajevo Tribunal).156 This tribunal was organized in response to the failures of ICL to comprehensively address the gendered harms experienced during the conflicts in the former Yugoslavia. The organizers157 set out to create a ‘feminist model of justice’ by working closely, ‘in the most democratic process possible’, with victims/​witnesses in the planning and design of the tribunal.158 The idea was to ‘begin with establishing the power of naming, rewriting the past, introducing and establishing new subjects, new authorities of history, and thus shaping new Order) [2011] 002/​19-​09-​2007-​ECCC-​OCIJ [11.2] (Thanks to Maria Elander for explaining this point to me). 154 Dianne Otto and others, ‘Panel Statement’ in de Langis, ‘Women’s Hearing’ (n 151). 155 Marguerite Waller, ‘The Courts of Women’ (2011) (manuscript on file with author). 156 Women’s Court—​Feminist Approach to Justice accessed 21 May 2020. 157 Women in Black (Belgrade) took the lead, working with nine other NGOs: Mothers of Srebrenica and Zepa & CURE Foundation (Sarajevo, Bosnia and Herzegovina); Centre for Women’s Studies and Center for Women War Victims (Zagreb, Croatia); Center for Women and Peace Education-​Anima (Kotor, Montenegro); Women’s Network of Kosovo (Pristina), Council for Gender Equality (Skopje, Macedonia); Women’s Lobby of Slovenia (Ljubljana); and Center for Women’s Studies (Belgrade, Serbia). 158 Women’s Court–​Feminist Approach to Justice, ‘Program’ (Sarajevo, 7–​10 May 2015).

412  Dianne Otto possibilities in the present for the future’.159 At the Sarajevo Tribunal, women testified to crimes clearly within law’s boundaries like widespread killings and disappearances, and extreme manifestations of sexual violence, torture, and humiliation; to new crimes like the imposition of militaristic gender roles, extreme deprivation, and incitement of violence against neighbours; and to neglected crimes like the looting of public assets, loss of property, and reduced access to education, employment, income, and social support. They also spoke of continuing trauma and grief, of ongoing ethnic and nationalist practices of hatred and exclusion, of increasing militarism and their fears of rising fascism, of continuing sexual violence and rigid gender roles, and the feminization of unemployment, poverty, and misery.160 Again, the entire audience listened intently. Reflecting on these grassroots experiences of feminist judging led me to Iris Marion Young’s views on responsibility for justice. While Young does not deny the importance of attributing direct causal responsibility to blameworthy states, international institutions, corporations, and individuals, she is concerned that this type of responsibility is too often the sole or primary focus.161 She argues that focusing exclusively on guilt in the form of criminal liability works to absolve others and also deflects attention from background conditions of structural inequality and oppression. Most women’s tribunals reflect Young’s concerns. In many respects, they are a response to the limits of conceiving responsibility only in terms of direct perpetrators, emphasizing that justice also requires challenging the gendered structures of economic and military power, which normalize impunity in a larger sense. As I discovered in Phnom Penh and Sarajevo, by engaging the politics of listening, women’s tribunals highlight that we all have responsibilities to speak out against those injustices, to mobilize with others to oppose them, and to act together to transform the institutions of which we are a part and from which we may benefit.162 Women’s tribunals are also deeply critical of the justice offered by ICL on its own terms. They aim to empower those who testify, unlike the treatment of victims of gendered violence in adversarial criminal trials, and they make room for testimonies about the related injustices of the present. Women’s tribunals 159 Dura G Duhacek, ‘The Women’s Court: A feminist approach to in/​justice’ (2015) 22 European Journal of Women’s Studies 159, 162. 160 Vesna Rakić-​Vodinelić and others, ‘Judicial Council of the Women’s Court: Feminist Justice, Preliminary Decisions and Recommendations’ (Sarajevo, 9 May 2015) accessed 21 May 2020. 161 Iris Marion Young, Responsibility for Justice (OUP 2011) 97–​104. 162 Dianne Otto, ‘Beyond Legal Justice: Some Personal Reflections on People’s Tribunals, Listening and Responsibility’ (2017) 5 London Review of International Law 225

Impervious to Feminist Reconstruction  413 also adopt methodologies that allow for feelings of empathy, solidarity, and ‘political’ responsibility. As one feminist bench in the Feminist Judgments in International Law project noted, it is important to ‘address the poverty of an international legal system that cannot see beyond the artificial entity of the state to understand the living human beings who feel its effects’.163 This concern stands in striking contrast to legal orthodoxy which, as was explained by the ICTY in the Krstić judgment: ‘The Trial Chamber cannot permit itself the indulgence of expressing how it feels about what happened in Srebrenica, or even how individuals as well as national and international groups not the subject of this case contributed to the tragedy’.164 A form of justice that cannot ‘feel’ or take account of other contributing factors is a curious form of justice indeed, despite the many good reasons that can be recited in defence of these aspects of the criminal law.

E.  Conclusion The means of challenging structural injustice lie largely outside the law, in the formal politics of the state and economic arrangements, and in the informal politics of the everyday. ICL, with its decontextualized concern with individual responsibility for specific harmful conduct, and its overriding commitment to protecting the rights of the accused, is possibly the area of law most ill-​equipped to address the systemic causes of violence and hierarchy. Yet, as Smart has argued, the law plays a powerful role in constructing our shared daily realities and conceptions of justice, so it continues to be important to expose its abiding commitment to the masculinist, imperial, anthropocentric status quo by challenging its foundational ways of knowing and adjudicating justice. As we have seen, this project faces countless legally authorized resistances which, in the view of former judge Odio Benito, make the prospects of change look ‘simply bleak’. There is also the problem of the contradictions inherent in feminist engagement with the criminal law. This involvement aligns feminism with the violence of the carceral state, something which many feminists have long critiqued. Over the years, however, the cautiousness demanded by the recognition of these contradictions has largely disappeared. As a result, ICL has been 163 Chinkin, ‘Bozkurt Case’ (n 42) 35. 164 Prosecutor v Radislav Krstić (Judgment) IT-​98-​33-​T (2 August 2001) [2]‌, cited in Marie-​Bénédicte Dembour and Emily Haslam, ‘Silencing Hearings? Victim-​Witnesses at War Crimes Trials’ (2004) 15 European Journal of International Law 151, 170.

414  Dianne Otto able to lay claim to progressive credentials because of the feminist reforms it has embraced, at least formally, and the few successful (approved) instances of feminist judging. This aura of improved gender justice deflects further from the systemic hierarchies of power that are located outside the boundaries of the criminal law’s justice project. The feminist struggle to reconstruct ICL over the last three decades confirms that fostering feminist justice requires systemic change—​for which everyone shares responsibility, as NGO-​organized women’s tribunals emphasize. ICL may yet provide opportunities to support such change through legal developments. Sellers, for example, expresses her exasperation that the stigma, experienced by so many victims of sexual violence, seems completely unchanged by its criminalization,165 which should have relocated the shame, as well as the blame, squarely with perpetrators. There is also the example of the first Women’s Law course offered at the University of Oslo in the 1980s, devised by Tove Stang Dahl, which focused not on the criminal law, but on realizing the redistributive potential of governmental systems of social support.166 Feminists still hope that the ICC’s reparations regime will provide some redistributive opportunities.167 This returns me to Smart’s warning about the necessity of feminist engagement with law, while not ceding law too much power. Some change has occurred in ICL because of courageous and tireless advocacy by feminist judges, prosecutors, lawyers, advisers, scholars, activists, and victims, and this needs to be celebrated. But these changes have proved to be precarious and are likely to stay that way because of systemic resistance camouflaged as neutrality, impartiality, and the conduct of a fair trial. This shows that while ICL has only limited potential to help advance a world that is free of gendered hierarchy and violence, it remains an important site of feminist struggle, and all the more if this struggle can be linked with grass roots justice projects and promote systemic change.

165 Sharratt and Sellers, ‘Interview’ (n 67) 74. 166 Smart, Feminism and Power (n 7) 23–​25. 167 Louise Chappell, ‘The Gender Injustice Cascade: “Transformative” Reparations for Victims of Sexual and Gender-​Based Crimes in the Lubanga Case at the International Criminal Court’ (2017) 21 International Journal of Human Rights 1223.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Abd-​Al-​Rahman  30–​31 abortion access to abortion abortion on demand  390–​91 state obligations to liberalize access  352–​53 under threat in Afghanistan  45 advocates for safe abortion  340 anti-​abortion advocates/​lobbies  238, 241 backyard/​unsafe abortions  237, 238, 308–​9, 343–​44 criminalizing  238, 246, 263–​64, 391 denial of/​bans on abortion  246–​47 China’s ‘one-​child’ policy  237 ECHR, violation of  246–​47 Romania 237 exclusion from medical care for wounded and sick in armed conflict 57 forced abortion  30, 232, 235, 237, 238–​ 39, 246, 340–​41 CEDAW Committee  246 China 237 female fighters in Colombia/​Colombian women  257, 340–​41, 343–​45 genocide, as  249 rape of female child soldiers, after  233 sexual violence, as  25 war crime and crime against humanity, as  248–​49 restrictions on abortion  238, 318–​19 enforced pregnancy, and  243–​44 act of a sexual nature  179–​80 Afghanistan abortion, access to  45 gender-​based persecution  31 status of women  358–​59 AFRC  213–​15

African Commission on Human and Peoples’ Rights SOGIE rights  198 Al-​Hassan  30–​31, 199–​200, 220, 221–​25 Al Mahdi  6, 294–​95, 300, 307–​8, 313, 315–​ 16, 321–​22 American Convention on Human Rights SOGIE rights  197–​98 Ansar Dine/​AQMI forced marriage  211, 221–​22 Argentina gender-​based violence  326, 327–​30 manifestations of state terrorism, as  327–​28 Molina case  327–​28 prosecutors adopting appropriate legal and investigative strategies  329 prosecutors leading different types of contextual evidence  329–​30 prosecutors prioritizing gender-​based crimes 329 responsibility of accused in leadership roles, establishing  336–​37 sexual violence against female political prisoners as systematic  327–​28 reproductive crimes  340–​41 torture of pregnant prisoners  341–​42 Ni Una Menos (‘not one less’) movement 340 armed conflict and gender  7, 371–​86 changing nature of warfare  371–​72 new technology  7, 381–​82 gender analysis impacting legal review of new weapons  381–​82 posing humanitarian, legal, and ethical challenges  381 sexual violence, and see sexual violence; sexual violence against men

416 Index armed conflict and gender (cont.) shifting parties to conflict  379–​81 armed groups proliferating and fragmenting  379–​80 challenges to gendered assumptions of women as victims  380–​81 increasingly difficult to identify chains of responsibility  380–​81 women joining armed groups  380 terrorism and counterterrorism see terrorism and counterterrorism urban conflict see urban conflict/​warfare women’s experience of see under women/​ females Armed Forces Revolutionary Council (AFRC)  141–​44, 213 Asia-​Pacific Regional Women’s Hearing on Gender-​Based Violence in Conflict  410–​11 Atala Riffo and Daughters v Chile  197–​98 Beijing Declaration and Platform for Action 2015  18, 351–​52, 360–​61 Bemba  6, 23, 120–​22, 233, 307, 389, 406–​7 forced nudity  27–​28 harms premised on discriminatory beliefs  310–​11 reparations  294–​95, 300, 305–​6, 309–​ 10, 315 Bensouda, Fatou  23, 42–​43, 403–​4 Boko Haram  31, 383–​84 Bosnia v Serbia 192 Brima, Kamara, and Kanu (AFRC case)  213–​15 Cambodia ECCC see ECCC Khmer Rouge  31–​32 forced marriage under see ECCC CEDAW 265 adoption  355–​56 Committee see CEDAW Committee forced marriage  209 gender-​based crimes, definition of  76–​77 Optional Protocol  349 progressive interpretations of IHRL, impact of  356 reparations 369

weak enforcement  357 women’s and girls’ rights, articulation of  347, 350 ‘women’s ghetto’, as  355–​56 CEDAW Committee  238 abortion, decriminalization of  238 definition of gender-​based crimes  76–​77 direct and indirect participation of girl/​ child soldiers  366–​67, 370 forced marriage  209 fostering broad cultural change in international human rights  350–​51 gender stereotypes  356 identification and denouncement of gender stereotypes  352–​53 intersex rights  201–​2 progressive and feminist-​informed interpretations of human rights law 356 reproductive violence/​crimes  246 SOGIE rights  196–​97 states’ obligations on intersecting forms of discrimination  196–​97 uniquely capable of leading the development of women’s rights  350 violations of women’s sexual and reproductive health  246 violence against women as human rights violation  350–​51 women’s rights in conflict  352–​53 CESCR Committee SOGIE rights  196–​97 Charter of Fundamental Rights of the European Union SOGIE rights  198 child soldiers CEDAW  366–​67 coercive, controlling environment, child soldiers in  152 DRC 7 child soldier jurisprudence  367–​68 girl soldiers  362–​63 high rates of child soldiers  362–​63 direct and indirect participation  364–​67 female child soldiers  4, 142–​43, 144, 150–​52 ‘bush wives’  143–​44, 212–​13, 216 courts treating ‘children’ as a homogenous group  153

Index  417 direct and indirect participation  364–​67 DRC, in  7, 362–​63 duties of girls  152, 212–​13, 363 forced abortion after rape of  233 forced marriage  31–​32, 144 girls playing multiple and changing roles 150 non-​sexual violence aspects of forced marriage  143–​44 sexual violence by members of same armed group  147–​49, 365 gendered division of roles/​expectations on girls and boys  142–​43, 144, 147–​ 48, 150–​51, 153–​54 gendered harms  145–​46 ICC prosecutions  140–​41, 144–​53 Abd-​Al-​Rahman see Abd-​Al-​Rahman Al-​Hassan see Al-​Hassan Al Mahdi see Al Mahdi Bemba see Bemba development of jurisprudence  144–​45 DRC jurisprudence  367–​68 integrating gender and child-​centred perspective into cases  145 Katanga see Katanga Lubanga see Lubanga Muthaura, Kenyatta, and Ali see Muthaura, Kenyatta, and Ali Ngaïssona see Ngaïssona Ngudjolo Chui see Ngudjolo Chui Ntaganda see Ntaganda Ongwen see Ongwen SGBC Policy Paper and 2016 Policy Paper on Children  145 Yekatom see Yekatom ICL–​IHRL interactions on ICC child soldier jurisprudence  362–​68 direct and indirect participation of girl/​child soldiers  364–​67 DRC child soldier jurisprudence  367–​68 DRC’s high rates of child soldiers  362–​63 girl soldiers  362–​64 prohibition of recruitment and use of child soldiers  363 image of the child soldier as a boy  151 prohibition of recruitment and use of child soldiers  4, 363

customary international law, prohibition in  142 psychological impact of crimes on child victims 142 reasons to target children for abduction as child soldiers  150–​51 SCSL prosecutions  140–​44 child-​sensitive approach  144 failure to examine sexual violence against boys  143–​44 forced marriage  143–​44 women and girls treated as a single category  143–​44 types of child soldier activities  364 children 4 child soldiers see child soldiers children not a homogeneous group  128–​29 ICL treating girls and boys as homogenous group  4, 134 children’s rights in armed conflict gender-​based crimes see children, gender-​based crimes against mass atrocities  131, 155, 156 Declaration of the Rights of the Child  130–​31 FGM, and see FGM forced marriage see under forced marriage gender-​based crimes against children see children, gender-​based crimes against gendered harms  129–​30 girls and boys subject to different gender norms 4 intersex children  201–​2 OTP Policy Paper on Children  134–​35, 145, 155 rights see children’s rights sexual violence see under sexual violence children, gender-​based crimes against  127–​30 children not a homogeneous group  128–​29 ICL treating girls and boys as homogenous group  4, 134, 153 CRC, and see CRC disproportionately affected by human rights abuses  127–​28

418 Index children, gender-​based crimes against (cont.) gender analysis, and  128–​29, 140 global awareness of consequences of, increased 155 ICC prosecutions  140–​41, 144–​53 development of jurisprudence  144–​45 integrating gender and child-​centred perspective to cases  145 Lubanga see Lubanga Ntaganda see Ntaganda Ongwen see Ongwen SGBC Policy Paper and 2016 Policy Paper on Children  145 ‘invisibilization’ of gender-​based crimes  135–​40 ECCC 140 ICTY and ICTR  137–​40 Leipzig trials  135 Nuremberg and Tokyo  136 limited recognition of specific harms on children  131–​32 meaning of ‘gender’, little understanding in ICL of  133–​34 nature of gender-​based crimes against children 128 need for deeper recognition of differential gendered impacts on children  153–​56 absence of ‘child-​centred’ consideration of other indicted crimes  154–​55 boys and girls targeted for genocide/​ war crimes for different reasons 154 charges of gender-​based crimes against children as separate crimes 156 courts grouping together women and girls 153 courts treating ‘children’ as a homogenous group  153 little attention paid to sexual violence against boys  153 need for prosecutors to conduct gender and child-​focused analysis 155 training requirements  156

SCSL, gender-​based crimes against children at  140–​44 child-​sensitive approach  144 failure to examine sexual violence against boys  143–​44 forced marriage  31–​32, 143–​44 women and girls treated as a single category  143–​44 underused/​limited statutory focus in IHRL, IHL and ICL on  130–​35 CRC see CRC international instruments, crimes against children and  131–​32 little understanding in ICL of the meaning of ‘gender’  133–​34 OTP policies rectifying misconceptions  134–​35 tendency to treat children as a homogenous group  134 Chile gender-​based violence  326, 333–​35 courts slow in addressing gender-​ based crimes  333–​35 reproductive crimes  339–​40 sexual violence crimes, progress towards addressing  333–​35 China forced abortion  237 forced sterilization  237 circumcision female circumcision see FGM male circumcision FGM, and  267, 277 forced circumcision  26–​27, 121–​ 22, 267 justified by reference to health benefits 267 sexual and cultural manhood  26–​27 Civil Defence Forces (CDF)  141–​44 coercive circumstances  68–​69, 76, 219, 226, 261 collective identities  106, 108–​20, 122–​23 Colombia FARC (Revolutionary Armed Forces of Colombia)  332–​33 child soldiers  333 kidnappings  38–​39 killings of civilian women  333 reproductive crimes  256, 257, 343–​45

Index  419 forced abortion  257, 340–​41, 343–​45 forced pregnancy  257 forced sterilization  257 gender-​based violence  326, 331–​33 Justice and Peace system (JEP)  331–​33 sexual violence crimes  38–​40 trials against right-​wing paramilitary groups  331–​32 JEP (Special Jurisdiction for Peace)  38–​ 39, 331–​33 command responsibility, evidence and  338–​39 creation of  332–​33 discriminatory violence based on sexual orientation  331–​32 Gender Commission, establishment of  332–​33 gendered impact of paramilitary violence  331–​32 jurisdiction  332–​33 kidnappings by FARC  38–​39 need to examine links between gender-​based crimes and armed conflict 333 reproductive crimes by FARC  344–​45 reproductive crimes  340–​41 reparations 345 sexual violence against female fighters by same group members  343–​45 Committee against Torture see under torture common purpose liability  34–​35, 36–​38 conflict-​related sexual violence (CRSV) CRSV as gender-​based crime  76–​77 definition of CRSV prosecutions  76 ICTY prosecutions see ICTY consent full and free consent to marriage  208, 209 torture with consent of public official  277–​78 context gender-​based atrocities in context  327–​39 ignoring context leading to failing on gender  36–​40 importance of  33–​42 recognizing importance of  40–​42

Convention for the Elimination of All Forms of Discrimination against Women see CEDAW Convention on the Rights of Persons with Disabilities  201–​2 Convention on the Rights of the Child see CRC co-​perpetration  34–​35 Cotton Fields  317–​18 counterterrorism see terrorism and counterterrorism CRC  130–​31, 368–​69 children in armed conflict  130–​31 children under 15 not taking part in hostilities  130–​31, 363 protection from sexual violence  131 Committee on the Rights of the Child intersex rights  201–​2 obligations under CRC  130–​31 Protocols  130–​31 focus on recruitment and use of children  131, 132–​33 SOGIE rights  196–​97 crimes child soldiers see child soldiers children, against see gender-​based crimes against children crimes against humanity see crimes against humanity disproportionate attacks see disproportionate attacks enslavement/​slavery see enslavement; slavery and the slave trade gender-​based atrocities see gender-​based atrocities children see gender-​based crimes against children grave breach see grave breach mass atrocities see mass atrocities reproductive crimes see reproductive crimes war crimes see war crimes see also criminality; ICC; Policy on Sexual and Gender-​based Crimes crimes against humanity  1–​2 abortion  248–​49 enslavement 255 FGM, and see FGM forced marriage  29, 152

420 Index crimes against humanity (cont.) forced pregnancy  243, 244, 245–​46, 252–​53, 261 forced sterilization  243 gender-​based persecution  30, 201–​2 lack of accountability for atrocities  192 persecution 258 rape  60, 78 sexual slavery  147–​48, 174–​75, 176–​ 77, 179–​80 sexual violence  60–​61 sexual violence, other forms of  256 state-​tolerated discriminatory practices against women torture 199 criminality collective criminality, gender analysis of  93 collective criminality through JCE  80–​81 gendered patterns of criminality  3, 11–​12 system criminality, JCE and  81 Democratic Republic of the Congo see DRC deportation  14–​15, 174–​75, 262–​63 dignity, personal see human dignity disabilities intersex rights  201–​2 SOGIE rights  196–​97 discrimination, gender see gender discrimination disproportionate attacks difficulty of prosecuting  63–​64 gender considerations, and  63–​64 draft crimes against humanity treaty  11–​ 12, 22, 187–​206 campaign for gender justice in the draft treaty  205–​6 definition of ‘gender’  187–​88, 193–​94 founding of a new treaty on crimes against humanity  192–​95 gender definition from Rome Statute  193–​95 lack of accountability for atrocities 192 international law on sexual orientation, gender identity and expression, and sex

characteristics  195–​205 ICL  199–​200 importance of defining gender: ISIS in Iraq  202–​5 intersex persons  201–​2 OTP Policy Paper  200–​1 sex characteristics (SOGIESC)  201–​2 SOGIE rights cemented in international rights mechanism  195–​99 protecting gender rights under international law  189–​91 DRC child soldiers see under child soldiers reparations programmes  299 sexual violence  36–​38 EAC enslavement  174–​75 sexual slavery  174–​75 East/​West African slave trade see under slavery and the slave trade ECCC enslavement  174–​75 failure to address gender-​based crimes against children  140 forced marriage under Khmer Rouge  5, 31–​32, 211, 216–​20, 227–​28, 233–​34 gender-​neutral forced marriage  217–​18 gendered elements of marriage policy  217–​18 Nuon and Khieu  218–​20 ‘slavery’ and the ‘slave trade’ not included as war crimes  175–​76 symbolic reparations measures  316–​17 Eichmann 249 emasculation see under men/​males enforced prostitution  24–​25, 29, 60–​61, 187–​88, 242–​43, 256 attack on women’s honour, as  56 war crime, as  60–​61 enslavement  4–​5, 60–​61 crime against humanity, as  255 forced diamond mining  32–​33 forced labour as  255–​56 forced marriage, as  31–​32 forced reproduction as part of  255–​56 gendered nature of  13–​14, 32–​33

Index  421 ICC  174–​75, 182, 183, 255 indicia of  32 key feature  255 part of wider systems of gender-​based crimes, as  83–​84 reproductive crime, as  255–​56 sexual practices  4–​5 sexual slavery, as see under sexual slavery see also Kunarac EU Agency for Fundamental Rights forced marriage  210 European Convention on Human Rights (ECHR) denial of abortion as violation of  246–​47 forced sterilization as violation of  246–​47 Extraordinary African Chambers see EAC Extraordinary Chambers in the Courts of Cambodia see ECCC FARC (Revolutionary Armed Forces of Colombia) see under Colombia female genital mutilation see FGM females see children; women/​females femininity  96–​97, 101–​2, 111, 112, 114, 329–​30 feminist/​feminism feminist analysis  15–​16 feminist engagement with the criminal law see under feminist judging feminist gender analysis for international criminal justice  94–​98 developing existing models of ‘gender analysis’ 98 developing more adequate legal concepts of gender-​based crimes  97–​98 developing understanding of gender-​ based crimes  96–​97 emphasizing social systems and structures 96 feminist judging/​reconstruction see feminist judging progressive and feminist-​informed interpretations of human rights law 356 feminist judging  7, 387–​414 feminist engagement with the criminal law  390–​95

conflict-​related sexual violence propelling turn to ICL  392–​93 demands for individual criminal responsibility 392 importance of  16–​17 International Tribunal on Crimes against Women  391–​92, 408–​9, 410 judicial methodologies in rewritten judgments, nature of  393–​94 legal decision-​making presenting challenges for feminist reform  387–​ 88, 393–​94 ‘political’ nature of supposedly neutral legal methods  394–​95 second-​wave feminism bringing broad agenda for change  390–​91 feminists globalizing concern about violence against women  373–​74 reconstructive vision of NGO-​Organized women’s tribunals  408–​13 Asia-​Pacific Regional Tribunal  410–​11 Comfort Women’s Tribunal  409–​10 justice requiring challenging gendered structures of economic/​military power 412 methodologies allowing empathy, solidarity, political responsibility  412–​13 Sarajevo Tribunal  411–​12 systemic resistance to feminist judging in ICL  395–​408 Bemba conviction overturned on appeal  389, 406–​7 hostile reactions to feminist methods in judgment  407–​8 interventions in Akayesu 397–​ 400, 405–​6 interventions in Furundžija 400–​ 1, 405–​6 interventions in Lubanga  401–​5 nature of feminist judging  395–​96 FGM  265–​88 background  269–​72 advocacy and public education, need for 272 arguments used by proponents of FGM 271 elders/​wider community influencing decisions on FGM  271

422 Index FGM (cont.) enforcement driving FGM underground 272 enforcement of legal FGM frameworks fluctuating over time  272 FGM increasingly performed by medical personnel  270 FGM maintained by local structures of power and authority  270 no medical benefits  269 mental health implications  270 national laws prohibiting FGM often unenforced  271–​72 physical, mental, and reproductive health consequences  266, 269–​70 transnational and mobile character of communities performing FGM  272 types of FGM  269 benefits of framing FGM as the crime against humanity of torture  286–​88 expressive value of characterizing FGM as torture  288 importance of wider non-​legal impact of criminal proceedings  287–​88 potential access to wider range of legal remedies for survivors  287 re-​characterization of FGM as tool for anti-​FGM movement  288 trying FGM as international crime as deterrent 287 trying FGM as international crime encouraging enforcement  287 circumcision, and  267, 277 discrimination, and  267, 271, 277 FGM as a crime against humanity of torture under Rome Statute  278–​79 girls under control of parents or community members  279 knowledge of the attack  285 pursuant to state/​organizational policy to commit such attack  281–​82 Rome Statute requirements  279–​85 state/​organizational policy to commit FGM: Somalia case study  282–​84 widespread or systematic attack directed against civilian population  279–​81 FGM as torture and a crime against humanity under UNCAT and ICL  266, 268, 273–​86

definition of torture under UNCAT  273–​78 harm must be inflicted by/​with consent of public official  277–​78 harm must be intentionally inflicted for a prohibited purpose  276–​77 intentional infliction of severe pain or suffering  274–​76 harm caused by FGM  288 gendered harms  6 other discriminatory practices as crime against humanity of torture  285–​86 benefits of framing as torture  286–​88 practices not prosecuted as crimes under international law  266 purpose of  267 forced abortion see under abortion forced labour  32–​33, 255 conjugal slavery, and  215–​16 definition  255–​56 slavery, and  168, 236–​37 women  215–​16, 233–​34, 254–​56, 366 forced marriage  5, 207–​29 atrocities, forced marriage during  207, 211–​27 Ansar Dine/​AQMI  211, 221–​22 ECCC see under ECCC gendering of forced marriage in atrocities  227–​29 ICC see under ICC Lord’s Resistance Army  211, 220–​21 Rwandan genocide  211 SCSL see under SCSL children/​girls  4 harmful nature of forced marriage  209–​10 crime against humanity, as  29, 152 definitions of  208–​10 domination and subordination as key elements 208 duties of girls  152 ECCC  31–​32 enslavement, as  31–​32 gendering of forced marriage in atrocities and ICL  227–​29 ICC, and see under ICC IHRL, forced marriage under  208–​10 definition of violence against women  208–​9

Index  423 forced marriage violating right of free consent to marriage  208 no agreed definition of forced marriage 209 Khmer Rouge  217–​18 marriage, need for full and free consent to  209 mass atrocities, and  207, 211 OTP 226 patriarchal norms and values, as expression of  207 physical and psychological harms associated with forced marriage 152 RUF  40–​41 sexual slavery, and  213–​14, 215–​16, 219, 224 sexual violence, as  25 Sierra Leone/​SCSL  31–​32, see also SCSL victims targeted for socially constructed assumptions about women’s roles 207 war crime, as  5 forced nudity  25, 26–​28, 133–​34, 184, 250 forced pregnancy  30, 97–​98, 150, 185–​ 86, 242–​43 abortion, and  243–​44 CEDAW Committee  246 Colombian women  257 crime against humanity, as  243, 244, 245–​46, 252–​53, 261 definition  244–​45, 252–​53 gender-​based violence, as  246 Hague Principles on Sexual Violence 258 human rights violation, as  243 forced pregnancy in 1970s  261–​62 Ongwen  253–​55 ‘other inhumane acts’, as  260–​62 OTP 226 reproductive autonomy, and  231, 243–​46 reproductive crime, as  29, 235, 252–​55 reproductive violence, as  150, 260–​62 Rome Statute  29, 60–​61, 187–​88, 233, 252–​53, 256, 261 slavery, and see under slavery and the slave trade torture, as  246

unlawful confinement, and  180, 244, 252–​53 Vienna Declaration 1993  243 war crime, as  150, 243, 244, 245–​ 46, 252–​53 forced prostitution see enforced prostitution forced sterilization  235, 237 CEDAW Committee  246 China 237 Colombia, in  257 crime against humanity, as  243 ECHR, violation of  246–​47 Hague Principles on Sexual Violence 258 Nazis, use by  237, 248–​49 reproductive autonomy, and  245–​ 46, 258 reproductive crime, as  29 reproductive violence, as  235 Rome Statute  29, 30, 60–​61, 187–​88, 233, 243, 256, 261 war crime, as  243 fragmentation see under IHRL and ICL’s gender jurisprudence Furundžija  397, 398–​99, 400–​1, 405–​6 gender  2–​3 analysis see gender analysis armed conflict, and see armed conflict and gender definition see gender definition discrimination see gender discrimination forced marriage, gender dimensions of see forced marriage gender competence  2–​3, 43–​45 gender hierarchy  3, 64, 66, 73, 107 gender inclusivity in ICC reparations proceedings see reparations gender neutrality see gender-​neutral approaches gender sensitivity  304, 308 gender strategies see under gender in ICL hierarchical power relations between men and women  75–​76 ICL, in see gender in ICL identity and expression see gender identity and expression Latin America, gender and ICL in see Latin America

424 Index gender (cont.) misconceptions about  3–​4, 13–​16 reparations, inclusivity and see reparations social construct, gender as  3, 5, 14–​ 15, 18–​22, 42, 43, 44–​45, 47–​48, 195, 200–​1 stereotypes  3, 57, 58, 59, 144, 147, 356, 405 CEDAW’s identification and denouncement of gender stereotypes  352–​53 male reluctance to be identified as sexual violence victim  67–​68 negative stereotyping of women: honour, modesty, weakness, vulnerability  67–​70 gender analysis  16, 72, 82–​83, 190 children, gender-​based crimes against 140 collective criminality, of  93 criminal organizations and systems, of  85–​86 CRSV, and  85–​86, 91 feminist gender analysis see under feminist/​feminism gender-​competent contextualization, and  41–​42 importance in ICL cases  42, 44 expert evidence, use of  330–​31 importance of integrating gender analysis in complex cases  327 interlinked violations, drawing together 141 intersectional gender analysis  138–​39 legal review of new weapons, and  381–​82 LGBTIQ+​victims, and  67 limited expertise in international courts and tribunals of  134 relevance for males, debate on  67 reparations, and  292–​93, 310, 315, 319, 322 SGBC Policy Paper, and  33, 66 surfacing gender in crimes  44 gender-​based crimes against children see children, gender-​ based crimes against child soldiers see child soldiers

definitions crimes affecting women disproportionately  76–​77 crimes directed against a woman because she is a woman  76–​77 crimes in which gender is an integral component  76–​77 equating gender-​based crimes with crimes against females  19–​20 forced pregnancy see forced pregnancy gender-​based atrocities  326, 327–​39 gender-​based violence not always sexual  29–​33 ICL failing to address  2 ICTY, and see ICTY Latin America, in see Latin America misconceptions about  1–​2, 14 new focus on  11–​14 power relations and structures producing  76–​77 Rome Statute  29–​30 sexual violence see sexual violence slow and limited recognition of gender as a cause of violence  64–​67 transforming structural causes of  317–​22 gender definition  5 biological sex, equating ‘gender’ to  133–​34 gender juxtaposed against ‘sex’  48 meanings of gender  133–​34 misconceptions in ICL see under gender in ICL non-​binary gender identities, gender applying to  18–​19 OTP  18–​19, 21–​22, 200–​1, 205, 360–​61 Rome Statute see Rome Statute UN Women  18 ‘women’ or ‘female’, equating ‘gender’ to  14–​15, 19–​20, 133–​34 gender discrimination  30–​31, 51–​52, 58 Afghanistan 45 discriminatory beliefs about roles of males and females  45 FGM see FGM gender as a social construction, and  188–​89, 195, 202 gender discriminatory interrogation techniques 385

Index  425 indirect 57 international crimes, in  88–​90, 146–​ 47, 154 jus cogens, and  357–​59 LGBTIQ+​ persons see LGBTIQ+​persons link between gender and endemic inequality and discrimination  51 public punishments against women and girls to maintain control  331–​32 reparations, and  292–​94, 307–​8, 310–​11 sexualized political violence used to punish female activists  329–​30 SOGIE see SOGIE stigma see stigma systemic/​structural discrimination  54–​ 55, 67, 69, 313, 315–​16, 317–​18, 319–​20, 355–​56, 372–​73, 376 during conflict  59, 62, 64 subordinate position of women  19–​ 20, 73, 76–​77, 208, 236 torture, as  199 gender identity and expression  5, 195–​205 CESR recognising gender identity as protected class  196–​97 ICTY, and see under ICTY SOGIE see SOGIE gender in ICL  6, 11–​45 context, importance of  33–​42 ignoring context leading to failing on gender  36–​40 recognizing importance of context  40–​42 draft crimes against humanity treaty see draft crimes against humanity treaty gender in international law  18–​22 gender in ICL  20–​22 usage and meanings of gender in the international system  18–​20 gender inclusivity in ICC reparations proceedings see reparations gender strategies, importance of  42–​45 gender analysis, importance of  42, 44 gender competence, importance of developing  43–​45 incorporating gender perspectives into investigations  42 SGBC see Policy Paper on Sexual and Gender-​Based Crimes

misconceptions about concept/​operation of gender in crimes,  13–​16 gender dimensions of crimes without sexual element  14–​15 gender refers to biological sex, misunderstanding that  14–​ 15, 133–​34 ‘gender-​based crimes’ referring only to rape/​sexual violence  14 impact of narrow conceptions of gender 15 importance of ICL being responsive to gendered experiences of armed conflict 15 LGBTIQ+​, failure to recognise on  14 males, failure to recognise attacks on  14–​15 misconception that gender equates to female  14–​15 misunderstanding gender in ICL, effects of  23–​42 context, importance of  33–​42 gender-​based violence not always sexual  29–​33 sexual violence, nature of  24–​29 sexual violence and gender-​based crimes, new focus on  11–​14 gender jurisprudence  347 gender-​neutral approaches forced marriage  217–​18 gender-​neutral language, use of  315 ICL’s gender-​neutral definitions of sexual and gender-​based violence 122 ICTY  81–​82 meaning 50 war crimes provisions  377, 383 gender non-​conforming people  301 sexual violence against remaining hidden  19–​20 gendered framework of IHL and development of ICL  47–​73 aspects of IHL potentially creating gendered consequences in ICL  59–​64 difficulty of prosecuting disproportionate attacks  63–​64 limited recognition of harms inflicted by victim’s own side  61–​62

426 Index gendered framework of IHL and development of ICL (cont.) omission of sexual violence as grave breach of Geneva Conventions  59–​61 gender of IHL in early 1990s  51–​58 gender factors, consequences of  58 gender operating in IHL on several levels  53–​58 special protection for women  52–​53 Law of The Hague  51–​52 gendered features of IHL framework replicated by ICL  64–​71 failure to hear experiences of females in ICL  70–​71 negative stereotyping: honour, modesty, weakness, and vulnerability  67–​70 slow and limited recognition of gender as a cause of violence  64–​67 gendered relationship between IHL and ICL  59–​71 aspects of IHL potentially creating gendered consequences in ICL  59–​64 gendered features of IHL framework replicated by ICL  64–​71 gender-​neutral approach, development of  50 ICL’s major role in developments  49–​50 gendered harms  3–​4, 13–​15, 407 child soldiers  145–​46 children  129–​30 criminalization of  392 FGM 6 gaps in understanding of gendered nature of sexual violence  14–​15 Latin America, in see Latin America males, experienced by  4 new crimes  408–​9 pre-​existing gendered harms  377 reparations, and  308–​9 slavery 160 substantive offences, and  394–​95, 400, 410 war, and  98 Yugoslavia, former  411–​12 gendered violence  91, 165, 329, 335–​ 36, 412–​13

Geneva Conventions  51–​53, 192–​95 child soldiers, prohibition of  363 children, perpetual special respect afforded to  149 equality and non-​discrimination, concepts of  52 ICRC Commentaries to  385–​86 legal review of new weapons  381 modesty and weakness of women, IHL provisions based on  56, 67 omission of sexual violence as grave breach of  59–​61 protection of women in terms of relationship with others  56–​57 rape not expressly designated as grave breach  56, 59–​60 special protection for women  52–​53 torture 260 genital mutilation see FGM genocide  1–​2, 249–​52 abortion, as  249 dolus specialis 88 exceptionally grave crime, as  88 imposing measures to prevent birth, by  232, 249–​52 reproductive crime, as  249–​52 forced abortion  249 forced birth control  250 forced marriage  251–​52 forced separation of men and women 251 prevention of marriages  251–​52 rape 250 sterilization 250 Genocide Convention  64–​65, 192–​ 95, 232 ‘imposing measures to prevent births’  232, 249 ‘serious bodily or mental harm to members of the group’  107 girls see child soldiers; children; FGM; forced marriage; reparations Gotovina 63 grave breach  55–​56, 59, 232 omission of sexual violence as grave breach of Geneva Conventions  59–​ 61, 72 rape and serious sexual assault  400 sexual slavery  60–​61

Index  427 Guatemala gender-​based violence  326, 330–​31 integrating gender analysis through use of expert evidence  330–​31 Molina Theissen case  330–​ 31, 336–​37 reliance on Guatemala’s Truth Commission to contextualize crimes 331 responsibility of accused in leadership roles, establishing  336–​38 Rodríguez Sánchez case  337–​38 Sepur Zarco case  325–​26, 330–​31, 340–​41, 345–​46 reproductive crimes  340–​41 Hague Principles on Sexual Violence   257–​58 sexual violence, definition of  28–​29 heteronormativity  91–​92, 102, 103–​9, 114, 118–​20, 122–​24 heterosexuality compulsory heterosexuality for women 391 heterosexual norms  94 heterosexual reproduction  91–​92 masculinity, and criminal law, masculine heterosexual imperative of  393 heterosexuality assumed within hegemonic notions of masculinity  107–​8 ‘proper’ masculinity of power and heterosexuality  113–​14 privileging of heterosexuality  102 dominance of white, heterosexual men of upper classes  103–​4 sexual violence heterosexuality of male torturers, preservation of  114–​15 male victims positioning themselves as heterosexual  108 perceived as only existing within heterosexual context  107–​8 homosexuality criminalization of  204–​5 emasculation, and  108 female homosexuality  114 ISIS, and  202–​3

sexual violence, and  104, 108, 112–​ 13, 114 homosexualization of perpetrator  114–​15 human dignity outrages on personal dignity as reproductive crime  259–​60 reproductive self-​determination as aspect of  259, 262 Human Rights and Gender Justice (HRGJ) Clinic  190–​91, 197–​98, 205 gender protections under ICL  203–​4 Human Rights Committee  356 criminalization of abortion  246 intersex rights  201–​2 SOGIE rights  195–​96 Human Rights Council child forced marriage  209–​10 forced marriage  209–​10 genocide by imposing measures to prevent births  252 human rights law, international see IHRL Human Rights Watch (HRW) forced marriage during Rwandan genocide 211 sexual violence during Rwanda genocide  397–​98 humanitarian law, international see IHL ICC charges for sexual and gender-​based crimes 23 children, and see child soldiers; children, gender-​based crimes against court of last resort, as  6–​7 creation of as  11–​12 ‘Elements of Crimes’  25, 253 enslavement  182, 183, 255 forced pregnancy  254–​55 sexual slavery  179–​80, 383 sexual violence  25 torture  260, 278, 279–​80, 281, 285 trafficking  131–​32, 182, 383 enslavement  174–​75, 182, 183, 255 explicit jurisdiction over child soldier crimes  131–​32 FGM see FGM forced marriage  211, 220–​28, 229

428 Index ICC (cont.) forced marriage in Mali under Ansar Dine/​AQMI and Al Hassan case  221–​22 forced marriage in Uganda and Ongwen case  220–​21 gender elements of ICC cases  224–​27 interpretation of forced marriage in Ongwen and Al-​Hassan  222–​24 no single final conviction y 2018 for sexual or gender-​related crimes  389 reparations see reparations Rome Statute see Rome Statute of the ICC SGBC Policy Paper see Policy Paper on Sexual and Gender-​Based Crimes ‘slavery’ and the ‘slave trade’ not included as war crimes  175–​76 ICC Office of the Prosecutor (OTP)  65–​66 forced marriage  226 gender analysis to crimes within jurisdiction, application of  66 gender violence, and  65–​66 gendered crimes  43 ICTY, and  67, 79 ISIS  203–​4 Policy Paper on Children  134–​35, 145, 155 reproductive autonomy  231 Rome Statute definition of gender, and  200–​1 SGBC see Policy Paper on Sexual and Gender-​Based Crimes trafficking, no jurisdiction over  182–​83 transformative reparations  319 ICL  1–​3 children, and see children draft crimes against humanity treaty see draft crimes against humanity treaty failing to address sexual violence and other gender-​based crimes  2 feminism, and  7 feminist judging see feminist judging gender analysis, and see under gender analysis gender, in see gender in ICL gender jurisprudence, IHRL and see IHRL and ICL’s gender jurisprudence

gender-​neutral definitions of sexual and gender-​based violence  122 gendering of forced marriage in ICL  227–​29, see also forced marriage grave breach see grave breach IHL, and see gendered framework of IHL and development of ICL mass atrocities see mass atrocities reproductive crimes see reproductive crimes SOGIE protections  199–​200 ICRC  47–​48, 58, 97–​98, 371–​72 civilians participating in hostilities  364–​65 Commentaries to the Geneva Conventions  385–​86 concept of women’s honour no longer ‘considered appropriate’  68 development of IHL, and  50 nature of  372nn.3–​4 sexual violence as grave breach  60–​61 urban displacement as result of armed conflict, effects of  378–​79 women under-​represented in  51–​52 few women witnesses  70 ICTR enslavement  174–​75 female judges, interventions in Akayesu by  397–​400 mass atrocities  139–​40 no explicit jurisdiction over crimes against children  131–​32, 137, 139–​40 rape  109–​10 sex-​representation provision in statute  396–​97 sexual violence crimes  11–​12 ‘slavery’ and the ‘slave trade’ covered implicitly 175 ICTY  11–​12, 75–​98 building feminist gender analysis for ICJ  94–​98 developing existing models of ‘gender analysis’ 98 developing more adequate legal concepts of gender-​based crimes  97–​98 developing understanding of gender-​ based crimes  96–​97

Index  429 emphasizing social systems and structures 96 charges for sexual and gender-​based crimes 23 concept of ‘identity’ in ICH paradigm of CRSV  86–​94 concept of identity not capturing structural dynamics of conflict  90–​91 CRSV ‘feminized’ and devalued  94 discrimination in substantive international crimes  88–​90 ethnicity privileged as primary dimension of identity  87 gender reduced to ideas of gender identity in ethnic group  91 identity as dominant framing of criminal culpability and victimization 86 integral gender component of crimes missed  92–​93 privileging of harm to ethno-​national group  87–​88 women seen as representing ‘collectivity’s identity and future destiny’  91–​92 women seen through identity assigned by perpetrator  86 women under-​represented as witnesses to other crimes  93 women visible as victims of violence only through ‘sexual’ crimes  93 concept of the ‘individual’ in ICJ paradigm  80–​86 ‘collective criminality’ through JCE  80–​81 conceptualizing sexual violence as opportunistic or incidental  84–​85 doctrinal focus on individual responsibility 80 gender dimensions for understanding structural nature of crimes  85–​86 gender shaping patterns of victimization and perpetration  82–​83 individual responsibility obscuring how rape enabled by system  84 individual cases hiding structures enabling gender-​based crimes  83–​84

individualized responsibility hiding gender ‘dimension’ of crimes  81–​82 mass atrocities, problem with prosecutions of  80 enslavement  32, 174–​75 ICTY prosecutions as most significant body of CRSV jurisprudence  76–​77 no explicit jurisdiction over crimes against children  131–​32, 137–​39 ‘problem’ of gender in CRSV prosecutions before ICTY  75–​78 purpose  400–​1 rape crimes  3, 11–​12, 60 sex-​representation provision in statute  396–​97 shaping prosecutions of sexual violence as international crimes  78–​80 CRSV as gender-​based crime not adequately addressed  79 importance of focusing on sexual violence prosecutions  79 prosecuting rape/​sexual violence as IHL serious violations  78–​80 sexual violence  3, 11–​12, 39–​40, 60 sexual violence as torture  260 ‘slavery’ and the ‘slave trade’ covered implicitly 175 IHL accountability  55–​56 armed conflict see armed conflict and gender basis of  49–​50 crimes against humanity see crimes against humanity disproportionate attacks see disproportionate attacks gender-​based atrocities see gender-​based atrocities gendered framework of IHL see gendered framework of IHL and development of ICL grave breach see grave breach non-​state armed groups  353 serving the interests of state security through military force  54 states limiting lawful conduct of armed conflict under IHL  348

430 Index IHRL  5, 347–​70 children, and see children, gender-​based crimes against forced marriage under see under forced marriage ICL’s gender jurisprudence and see IHRL and ICL’s gender jurisprudence principle of non-​discrimination  313 IHRL and ICL’s gender jurisprudence  347–​70 formal interaction between ICL and IHRL  359–​62 benefit of interactions between ICL and IHRL  360–​61 fair trial rights  361–​62 human rights violations as international crimes  361 interaction envisaged between IHRL and ICL  347, 359–​60 fragmentation fears  354–​59 CEDAW and ‘a women’s ghetto’  355–​56 compliance paradox from diversification of law-​making  356–​57 fragmentation strategies  354–​55 gender of jus cogens  357–​59 fragmented protection of women’s rights in conflict under international law  348–​49 states limiting lawful conduct of armed conflict under IHL  348 uncertainty about interaction between international regimes  348–​49 UNSC recognition of threat posed to women by armed conflict  348 ICL–​IHRL interactions on ICC child soldier jurisprudence  362–​68 direct and indirect participation of girl/​child soldiers  364–​67 DRC child soldier jurisprudence  367–​68 DRC’s high rates of child soldiers  362–​63 girl soldiers  362–​64 prohibition of recruitment and use of child soldiers  363 interaction opportunities  349–​54 diversity and pluralism  349–​51

forum-​shopping and forum-​shifting  353–​54 more tailored and targeted norms  351–​53 IIIM Syria  42–​43, 66 addressing witness gender imbalance  71 under-​representation of statements by females 70 International Covenant on Civil and Political Rights (ICCPR)  223, 265 sexual orientation protected  195–​96 International Criminal Court see ICC individual responsibility demands for individual criminal responsibility 392 doctrinal focus on individual responsibility 80 ICTY focus on individual responsibility, impact of  80 obscuring how rape enabled by criminal systems 84 International Committee of the Red Cross see ICRC International Convention on the Elimination of All Forms of Racial Discrimination SOGIE rights  196–​97 international criminal law see ICL International Criminal Tribunal for the Former Yugoslavia see ICTY International Criminal Tribunal for Rwanda see ICTR International human rights law see IHRL International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011 see IIIM Syria international law, gender in see gender in ICL International Law Commission draft crimes against humanity treaty see draft crimes against humanity treaty membership  189–​90 Rome Statute definition of gender, and  22, 187

Index  431 intersectional  42, 88–​89, 138–​39, 156 intersex rights  201–​2 Iraq gender-​based crimes  203 ISIS see ISIS OWFI  203–​4 sexual assault of men in custody  114–​15 ISIL sexual slavery  383–​84 terrorism  383–​84 ISIS 5 gender-​based persecution  202–​5 OWFI, and  203–​4 UNITAD, and  204 OTP  203–​4 sexual slavery  202–​3 slavery  184–​85 Japan ‘comfort women’ in WW2  262–​63, 387–​ 88, 410 JEP see under Colombia joint criminal enterprise (JCE) elements of  80–​81 JCE III  41 sexual violence  34–​35, 41 system criminality, and  81 judicial activism  7, 387, 389–​90, 407 judges/​judiciary female judges  395–​97 feminist judging see feminist judging gender jurisprudence see gender jurisprudence judicial activism  7, 387, 389–​90, 407 Jurisdicción Especial para la Paz (JEP) see under Colombia jus cogens gender discrimination, and  358–​59 nature of  357–​58 rape  147–​48 sexual slavery  147–​48 silence on gender equality  357–​59 slavery and the slave trade  173 structurally blind to gender  357–​59 Karadžić  81–​82, 83–​84, 86, 87, 91–​ 92, 242–​43 Katanga  6, 36–​38, 179–​80, 294–​95, 299–​ 300, 307, 312, 313, 314–​15, 320

Khmer Rouge see under Cambodia Krajišnik  39–​40 Krstić  41, 85–​86, 91–​92, 137–​40, 412–​13 Kunarac  32, 81–​82, 83–​84, 90–​91, 92–​93, 138–​39, 178–​79, 276–​77 Kvočka  81–​82, 88–​90, 92–​93 Latin America  6–​7, 325–​46 Argentina see Argentina barriers to prosecution of gender-​based violations 326 charging strategies for violations of reproductive autonomy  339–​45 reproductive violence and crimes  339–​43 sexual violence against female fighters by same group members  343–​45 Chile see Chile Colombia see Colombia connecting gender-​based crimes to the accused  336–​39 attribution of responsibility for mass atrocities, challenges of  336 responsibility of accused in leadership roles, establishing  336–​37 emerging jurisprudence on gender-​based atrocities 326 gender-​based atrocities in context  327–​39 connecting gender-​based crimes to accused  336–​39 connecting gender-​based crimes to campaign of mass violence  327–​36 importance of gender competency of justice operators  335–​36 importance of integrating gender analysis in complex cases  327 Guatemala see Guatemala Peru see Peru legality, principle of see principle of legality Leipzig trials  135 LGBTIQ+​-​ challenging culture of impunity for crimes against  202 definition of ‘gender’, and  187 discrimination against  20–​21, 199 SOGIE see SOGIE gender analysis, and  67 gender-​based torture  198–​99

432 Index LGBTIQ+​- (cont.) gender discrimination, torture as 199 hate crimes  45 OAS  197–​98 reparations 315 Lord’s Resistance Army (LRA) see under Uganda Lubanga  6, 152–​53, 199–​200, 368–​69 child soldiers, harms to  145–​47, 150, 367–​68, 401–​4, 405–​6 fear of stigmatization  303 reparations  291–​92, 294–​95, 297, 298–​99, 304, 305–​7, 311–​12, 313, 314, 319 reproductive violence, abortions and 233 MADRE  190–​91, 197–​98, 203–​4, 205 males see children; men/​males Mali forced marriage under Ansar Dine/​AQMI and Al Hassan case  5, 221–​22 marriage, forced see forced marriage masculinity 4 heterosexuality, and criminal law, masculine heterosexual imperative of  393 heterosexuality assumed within hegemonic notions of masculinity  107–​8 ‘proper’ masculinity of power and heterosexuality  113–​14 masculinist bias inherent in ICL  15–​ 16, 57–​58 power and heteronormativity  103–​9 heterosexual men of upper classes as dominant social group  103–​4 power and heteronormativity as essential elements of hegemonic masculinity 104 sexual victimization of men, losses and threats resulting from  104–​9 victimization in war as a man bringing multiple losses  104 virility, aggression, and violence celebrated as militarized masculine power 104

sexual victimization of men, losses and threats resulting from  104–​9 consequences for social group to which male victims belong  105–​7 emasculation as a consequence of sexual violence  107–​9 mutilations of male bodies, society’s response to  105–​7 sexual performance and fertility threatened by injury  104–​5 warfare, and  54, 57–​58, 118–​22 mass atrocities  80, 391 children’s rights, violations of  131, 155, 156 collective dimension of  86 forced marriage, and see under forced marriage former Yugoslavia, in  90–​91 ICTY focus on individual responsibility, impact of  80 JCE, and see joint criminal enterprise (JCE) lack of accountability for  192 problem with prosecutions of  80 attribution of responsibility in national systems 336 Rwanda, in  139–​40 men/​males boys see child soldiers; children circumcision see circumcision emasculation consequence of sexual violence, as  107–​9 male reluctance to be identified as sexual violence victim  67–​68 gender analysis, relevance of  67 gendered harms  4 masculinity see masculinity sexual violence see sexual violence against men military see armed conflict and gender; child soldiers; warfare Mladić  81–​82, 83–​84 modes of liability see common purpose liability; joint criminal enterprise (JCE) Mucić  84, 88–​89, 260 Muthaura, Kenyatta, and Ali 26–​ 27, 121–​22

Index  433 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation 294 guarantee of full participation of women and girl victims  301 involvement of women and girls in design of reparations  306 nature of reparations  313 period for applying for reparations  305 ‘transformative reparations’  317–​18 national courts/​prosecution attribution of responsibility in national systems 336 gendered crimes and harms experienced by children  129 Latin America, in see Latin America sexual violence cases  6 Nazis experimentation on children  127–​28 forced childbirth and abortion  237 forced sterilization  237, 248–​49 neoliberalism  94–​96 Ngaïssona 23 Ngudjolo Chui  179–​80 Nigeria Boko Haram  383–​84 FGM 280 gender-​based persecution  31 urban displacement as result of armed conflict  378–​79 Ntaganda  61–​62, 120–​21, 123, 145, 147–​ 50, 152–​53, 179–​80, 184, 367, 403–​4 nudity, forced see forced nudity Nuon and Khieu  218–​20 Nuremberg International Military Tribunal  80, 81, 232 acts of reproductive violence  258–​59 children no explicit jurisdiction over crimes against children  131–​32 recognition that children targeted for certain crimes in WW2  136 deportation to slave labour  174–​75 enslavement  174–​75, 255 Nuremberg Principles  174–​75 persecution 258 OAS SOGIE rights  197–​98

Unit for the Rights of LGBTI persons  197–​98 Ocampo, Luis Moreno  23 Ongwen  145, 152–​53, 179–​80, 184 enslavement  176–​79, 180–​81, 185–​86 fear of stigmatization  303 forced marriage  31–​32, 34, 219, 220–​ 21, 222–​28 forced pregnancy  30, 150–​51, 231–​32, 233, 253–​55 Organization for Women’s Freedom in Iraq (OWFI)  203–​4 Organization of American States see OAS persecution  60–​61, 137–​38 crime against humanity, as  258 definition 258 gender-​based persecution  5, 20–​21, 29, 199–​200 Abd-​Al-​Rahman  30–​31 Al-​Hassan  30–​31, 199–​200, 222–​23 crime against humanity, as  30, 201–​2 current investigation  31 FGM, as  268 ISIS  202–​5 rape as persecution  83–​84 reproductive crime, as  258–​59 personal dignity see human dignity Peru gender-​based violence  326, 335–​36 Manta and Vilca case  335–​36 reproductive crimes  339–​40 pillaging  14–​15, 299–​300, 383, 389 Policy Paper on Sexual and Gender-​Based Crimes (SGBC Policy Paper)  23, 63, 118, 134–​35, 145, 155, 292, 319 definition of gender  18–​19, 21–​22, 200–​ 1, 205, 360–​61 gender analysis to all ICC crimes, application of  33, 66 gender bias in identifying witnesses not addressed 71 gender-​competent perspective, integration of  42–​43, 134–​35 reparations 319 sexual violence, meaning of  28 pregnancy, forced see forced pregnancy principle of legality (nullum crime sine lege)  261–​62, 387, 404–​5, 407

434 Index proportionality principle  54–​55, 72 gender considerations, and  63 proportionality assessment  63–​64 prostitution, enforced see enforced prostitution rape  3–​4, 24–​25, 29, 30, 109–​12, 114, 116, 117 attack on women’s honour, as  56, 67–​68 consequences of  114 crime against humanity, as  60, 78 Geneva Convention  56, 59–​60, 67 genocide, as  11–​12, 139–​40, 250 ICTY, and see ICTY individual responsibility obscuring how rape enabled by criminal systems 84 jus cogens standing of  147–​48 men, rape of see under sexual violence against men nature of  11–​12 not expressly designated as grave breach  56, 59–​60 persecution, rape as  83–​84 protection of women under IHL from  53, 56 Rwanda  109–​10 South Asia  111, 112, 123 Sri Lanka  111–​12 underreporting of sexual violence  117 war crime, as  60–​61 Yugoslavia, former  109–​11, 112 Red Cross see ICRC reparations  15, 291–​323 applying to participate in reparations process  302–​6 assessment of ICC’s actions  304–​5 gendered information poverty  302 importance of setting appropriate deadlines for applying  305–​6 informing victims of ICC’s reparations process 302 need to understand gendered barriers and reach victims  303 Revised Victim Strategy  304 stigma associated with gender-​based crimes, addressing  303 victims’ need for support and practical assistance 303

causation, gender-​inclusivity dependent on court’s application of  311–​12 first ICC reparations order in Lubanga  298–​99 consequences for victims of slow progress  298–​99 excessively slow implementation process  298–​99 inadequate general assistance  299 forms of reparations  313–​17 broad range of measures to address the harms 313 gender analysis/​perspective in reparations awards  315 gender implications of forms of reparations 313 gender-​inclusive ‘symbolic reparations’  316–​17 need for substantive gender equality  315–​16 principle of non-​discrimination, importance of  313 Trust Fund determining specific forms of reparations  313–​15 victims having equal access to effective measures 313 gender analysis, and  292–​93, 310, 315, 319, 322 gender discrimination  292–​94, 307–​8 gender inclusivity in ICC reparations process  6, 301–​8 applying to participate in reparations process  302–​6 consideration that gender affects ability to apply for reparations  301–​2 involvement of victims in design of reparations  306–​8 need for ‘women-​centred processes of reparations’ 301 gender-​inclusivity in reparations decisions  308–​17 acknowledging gender inequality in design/​implementation of orders 322 determination of harm suffered  308–​12 forms of reparations  313–​17 gendered harms  299–​300, 308–​11

Index  435 harms exacerbated by discriminatory attitudes  310–​11 ICC principles relating to reparations  291–​92 requirement of a ‘gender-​inclusive’ approach  291–​93 ICC’s reparative mandate and first reparation proceedings  291, 295–​301 individual reparations or collective reparations 296 principles established on a case-​by-​ case basis  296 reparations order as expression of ‘principle of accountability’  297 reparations with symbolic, preventative, or transformative value 296 Rome Statute provisions on nature of reparations 295 Trust Fund for benefit of victims  297 involvement of victims in design of reparations  306–​8 empowering women and girls to determine forms of reparation  306 gender-​inclusivity, significant implications of  308 input leading to discriminatory outcomes  307–​8 under-​representation of women and girls in processes  306–​7 victims participating throughout reparations process  306 Nairobi Declaration see Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation Office of Public Counsel for Victims  309–​10 reproductive harms  262–​63 second ICC reparations order in Katanga  299–​300 symbolic reparations  296, 316–​17, 318–​ 19, 322 third ICC reparations order in Al Mahdi 300 transformative reparations  296, 317–​22 compatibility with ICC’s capacity and mandate  319–​21 grassroots mandate, need for  321

ICC, and  319–​22 lack of capacity for enduring structural transformations  320, 321–​22 meaning of  317 needed to ‘unsettle pre-​existing gender hierarchies’ 318 no democratic mandate for Court to drive structural reforms  320 redress for particular victims of crime or violation  321 reducing gender-​based discrimination in society  317–​15 requiring large-​scale and legal reforms  318–​19 structural causes of gender-​based crimes, ICC highlighting  322 symbolic reparations having transformative dimension  318–​19 Trust Fund for benefit of victims assistance programmes for CAR  300 determining specific forms of reparations  313–​15 funding  297, 320 gender analysis incorporated in implementation plans  315 gender considerations  313 implementing ICC reparations orders  297, 298, 314–​15 lacking capacity to ensure enduring structural transformations  320 new assistance programmes for DRC 299 providing general assistance to victims  297, 298 Trust Fund staff, qualifications and experience of  307 UN Secretary-​General’s Guidance Note on Reparations for Conflict-​ Related Sexual Violence  301, 318 reproductive autonomy see under reproductive crimes reproductive crimes  5, 29–​30, 231–​64 forced pregnancy  29, 235 forced sterilization  29 prosecuting reproductive crimes  247–​63 conduct ‘read into’ an existing crimes  248–​49 enslavement  255–​56

436 Index reproductive crimes (cont.) forced pregnancy  252–​55 genocide  249–​52 ‘other forms of sexual violence’  256–​58 outrages on personal dignity  259–​60 persecution  258–​59 post-​conviction strategies for responding to reproductive violence  262–​63 reimagining violence as criminal conduct 248 torture and other inhumane acts  260–​62 reparations, and  345 reproductive harms  262–​63 reproductive autonomy  5, 231, 235 courts and commissions protecting  246–​47 efforts to protect under international law, difficulty of  239–​46 forced pregnancy  231, 243–​46 forced sterilization  245–​46, 258 Hague Principles on Sexual Violence 258 human dignity, and  259–​60 importance of  247–​48 invisibility of  232 Latin America, and see Latin America meaning of  235 OTP 226 slavery, and see slavery and the slave trade state practice/​opinio juris 262 reproductive violence  5, 30 commission linked to gender, race, and ethnicity  236–​37 concept of  235–​39 criminalization of abortion, as  238 examples during conflicts  237 forced abortion see abortion forced pregnancy see forced pregnancy forced sterilization see forced sterilization international responses to reproductive violence  239–​47 most forms not yet expressly criminalized in international instruments 232

no ICL definition of  234 non-​state actors perpetrating reproductive violence  238–​39 slavery, and see under slavery and the slave trade slow progress towards prosecuting  232–​34 state-​enabled reproductive violence 237 sub-​set of sexual violence, as  236 reproductive violence see under reproductive crimes reproduction forced marriage see forced marriage forced pregnancy see forced pregnancy forced sterilization see forced sterilization abortion see abortion reproductive autonomy see under reproductive crimes reproductive crimes see reproductive crimes reproductive violence see under reproductive crimes responsibility, individual see individual responsibility Revolutionary United Front (RUF)  40–​41, 141–​44, 213 Rome Statute of the ICC  5 Art 21(3)  4–​5 child soldiers, prohibition of  363 children, crimes against  131–​32, 144–​45 enforced prostitution  60–​61 enslavement  179–​80 fair trial rights  361–​62 female and male judges  396–​97 FGM, and see under FGM forced marriage, and  5 forced pregnancy  29, 60–​61, 187–​88, 233, 252–​53, 256, 261 forced sterilization  29, 30, 60–​61, 187–​ 88, 233, 243, 256, 261 gender-​based persecution  30 gender, definition of  5, 20–​22, 133–​34, 187–​88, 200–​1, 360–​61 ambiguous nature of  21, 193–​96 criticisms of  21, 22, 194 interaction between IHRL and ICL  347, 359–​61

Index  437 non-​sexual gender-​based crimes  29–​30 persecution  258–​59 reparations see reparations sexual slavery  60–​61, 174–​75, 179–​80 sexual violence  24–​25, 60–​61 ‘slavery’ and the ‘slave trade’ not included as war crimes  175–​76, 183 need to amend  185–​86 sources of international law  356–​57 torture 5 trafficking  182–​83 RuSHA  248–​49 Rwanda ICTR see ICTR Sesay, Kallon, and Gbao (RUF case)  215 SCSL  11–​12 children, and see child soldiers; children, gender-​based crimes against enslavement  32–​33, 174–​75 forced marriage  211, 212–​16, 227–​28 Brima, Kamara, and Kanu (AFRC case)  213–​15 Sesay, Kallon, and Gbao (RUF case) 215 Taylor  215–​16 explicit jurisdiction over child soldier crimes  131–​32 forced marriage  31–​32 sexual slavery  174–​75 ‘slavery’ and the ‘slave trade’ not included as war crimes  175–​76 sex characteristics  5, 201–​2 sexual autonomy  5, 235 powers over person’s sexual autonomy, sexual slavery as  179–​80 sexual orientation  5 protected in ICCPR  195–​96 sexual slavery  24–​25, 28, 29 child soldiers  36–​37, 38, 40–​41, 61, 141, 143–​44, 147–​48 crime against humanity, as  147–​48, 174–​ 75, 176–​77, 179–​80 definition of  383 enslavement, as  179–​82 customary law  181 feminization of crime of sexual slavery  181–​82 forced pregnancies  181, 185–​86

grooming 181 powers of ownership over a person’s sexual autonomy  179–​80 sexual slavery compared to enslavement under Rome Statute  179–​80 victim caused to engage in an act of a sexual nature  179–​80 ways in which sexualized slavery is manifested  180–​81 forced marriage, and  213–​14, 215–​16, 219, 224 grave breach, as  60–​61 ISIL  383–​84 ISIS  202–​3 Japanese Military during World War II  262–​63, 409 jus cogens standing of  147–​48 trafficking of children  131–​32 war crime, as  60–​61, 147–​48, 174–​75, 176–​77, 179–​80 sexual violence  1–​3 abortion, as  25, 256 children 4 concept of the ‘Individual’, and see under ICTY conflict-​related see conflict-​related sexual violence (CRSV) context, importance of  33–​42 ignoring context leading to failing on gender  36–​40 recognizing importance of context  40–​42 crime against humanity, as  60 definition of  28–​29 forced nudity  25, 26–​28, 133–​34, 184, 250 gender-​based crimes as sexual violence against women  19–​20 gender-​based violence not always sexual  29–​33 Hague Principles on Sexual Violence   28–​29, 257–​58 ICL failing to address  2 ICTY, and see ICTY men/​males, against see sexual violence against men misconceptions about  33–​36 gaps in understanding of gendered nature of sexual violence  14–​15

438 Index sexual violence (cont.) sexual violence treated differently from other crimes  34–​35, 36–​40 viewed as less serious crimes  34 national courts/​prosecution, and see national courts/​prosecution nature of sexual violence  24–​29 international criminal jurisprudence, sexual violence in  25 sexual, meaning of  25–​29 omission of sexual violence as grave breach of Geneva Conventions  59–​61 opportunistic or incidental, sexual violence conceptualized as  84–​85 ‘other forms of sexual violence’  256–​58 sexual mutilation  25, 26–​27, 133–​ 34, 250 sexual violence crimes, new focus on  11–​14 rape see rape Rome Statute, and  24–​25 shaping prosecutions of sexual violence as international crimes  78–​80 torture, as  11–​12, see also torture war crime, as  60–​61 sexual violence against men  101–​25 attention to sexual violence against men and ICL  118–​22 ICL’s gender-​neutral definitions of sexual and gender-​based violence 122 increased attention to sexual violence against men within ICL  120–​21 little attention paid to male sexual violence  116, 117–​18 sexual violence against men becoming more visible  118–​20 victimization of men and boys under-​addressed  121–​22 gender, sexuality and armed conflict femininities and masculinities not symmetrical, or parallel  102 gender as constitutive of other social categories  101–​2 hierarchical relations and the privileging of heterosexuality  102 war as a productive process  102 failure to recognise attacks on males  14

male reluctance to be identified as sexual violence victim  67–​68 mischaracterization of sexual violence  25–​29 modern masculinities: power and heteronormativity  103–​9 heterosexual men of upper classes as dominant social group  103–​4 power and heteronormativity as essential elements of hegemonic masculinity 104 sexual victimization of men, losses and threats resulting from  104–​9 victimization in war as a man bringing multiple losses  104 virility, aggression, and violence celebrated as militarized masculine power 104 prosecuting sexual crimes against men  11–​12 rape of men  112–​18, 120–​21 impact of  109 Iraq  114–​15 knowledge seldom obtained from those directly affected  117 little attention paid to male sexual violence  116, 117–​18 sexual torture  115–​17 taboo topic in media, as  112–​13 Yugoslavia, former  112–​14 sexual violence experienced by  4 sexual violence against males remaining hidden  19–​20 torture victims experiencing sexual violence  115–​17 victimized bodies  109–​18 rape of men/​sexual violence  112–​18 rape of women/​sexual violence  109–​ 12, 114, 116, 117 SGBC Policy Paper see Policy Paper on Sexual and Gender-​Based Crimes Sierra Leone forced marriage  5 SCSL see SCSL slavery and the slave trade  4–​5, 157–​86 concubinage  163–​64, 168, 170–​ 71, 184–​85 East and West African slavery and slave trades  157, 161–​68

Index  439 concubines, eunuchs, wet nurses, other sexualized, gendered practices  163–​66 East African slave trade  161–​62 forced procreation or ‘breeding’, other reproductive violence  167–​68 numbers enslaved  161 enslavement see enslavement erga omnes obligations  173, 185 eunuchs  164–​65, 168 ‘fancy girls’  165–​66, 170–​71 forced procreation or ‘breeding’, other reproductive violence  162–​ 63, 167–​68 forced procreation as accepted slavery practice 167 male sexual violence and abuse  167–​68 sexual and gender-​based violence across multiple generations  168 gendered harms  160 harem slavery  163, 164–​65 historic existence of slavery  157–​60 abolition of slavery  159–​60 numbers enslaved  161 sexual practices innate to slavery  157–​ 58, 159–​60, 163–​66 slave trade taking multiple guises  158–​59 international criminal jurisprudence on  176–​79 Kunarac  178–​79 Ongwen  176–​79 international legislation on  174–​76 Charters of IMT for Germany and Far East  174–​75 EAC  174–​75 Geneva Conventions  174–​75 ICC Rome Statute  175–​76 ICTY, ICTR,  174–​75 SCSL, ECCC, and ICC  174–​76 modern slaver trade practices ISIS  184–​85 Libya  184, 185 need to amend Rome Statute  185–​86 plaçage  165–​66, 170–​71 sexual practices  4–​5, 157–​58 sexual slavery see sexual slavery

Slavery Convention see Slavery Convention 1926 trafficking, slave trade and  182–​83 Transatlantic Slave Trade to US and Caribbean  157, 159, 161, 168 breeding of slave/​forced procreations  162–​63, 167–​ 68, 236–​37 enslaved separated along gendered divisions of labour  162–​63 ‘fancy girls’  165–​66 nursing of white babies  166 rape of female slaves  165 rape of female slaves during transit 165 reproductive violence, gender and race contributing to  236–​37 slaves in New World colonies  161–​63 ‘wet nurses’  166 ‘wet nurses’  166, 255–​56 Slavery Convention 1926  160, 168–​73, 183 definition of ‘slavery’  169–​71 jus cogens, crimes of slavery and the slave trade as  173 prohibition against slave trade  171–​72 slavery and the slave trade proscribed as international crimes  168, 173 Supplementary Slavery Convention 1956  172–​73 criminalizing the transportation of slaves updating definition of slave trade  172–​73 SOGIE ICL protections  199–​201 intersex people  201–​2 rights cemented in international rights mechanism  195–​99 sex characteristics (SOGIESC)  201–​2 Somalia FGM case study  282–​84 South Asia, rape of women in  111, 112, 123 Special Court for Sierra Leone see SCSL Srebrenica  41, 85–​86, 137–​38, 251, 412–​13 Sri Lanka, rape of women in  111–​12 state-​tolerated discriminatory practices against women  3–​4, 6 crime against humanity, as  6 sterilization, forced see forced sterilization

440 Index stigma forced marriage  152, 212–​14, 219, 220–​ 21, 223–​24, 298–​99 children of forced marriage  223–​24 injured, disfigured, or disabled women  376 reparations, and  303 sexual violence, and  40–​41, 49–​50, 303, 305, 411, 414 male victims  67–​68 SOGIE status  201 symbolic reparations see under reparations Tadić 84 Taliban  31, 45 Taylor  31–​32, 141–​44, 215–​16 technology, new see under armed conflict and gender terrorism and counterterrorism  371–​ 72, 383–​85 acts of terrorism as gender-​based war crimes 383 acts of terrorism as war crimes  383 Boko Haram  383–​84 broad definitions of terrorism, effects of  384 gender-​based violence as manifestations of state terrorism  327–​28 gendered aspects of counterterrorism 384 gendered violations in interrogations and detention 385 ICL prosecutions of designated terrorist groups 384 ISIL  383–​84 no fully coherent ICL regime covering 383 Tokyo International Military Tribunal children no explicit jurisdiction over crimes against children  131–​32 recognition that children targeted for certain crimes in WW2  136 enslavement  174–​75 Toonen v Australia  195–​97 torture abortion, as  256–​57 Committee against Torture intersex rights  201–​2 SOGIE rights  198–​99

crime against humanity, as  199 definition  199–​200, 260, 273–​78 harm must be inflicted by/​with consent of public official  277–​78 harm must be intentionally inflicted for a prohibited purpose  276–​77 intentional infliction of severe pain or suffering  274–​76 female torturers as aberration  115–​16 gender-​based torture  198–​99 FGM, as see FGM forced pregnancy, as  246 gender discrimination, as  199 other inhumane acts, reproductive crime as  260–​62 reproductive crime as  260–​62 sexual violence see sexual violence; sexual violence against men United Nations Convention Against Torture (UNCAT)  265 definition of torture  199–​200, 273–​78 war crime, as  199 trafficking children, of  131–​32 no ICC jurisdiction over trafficking  182–​83 Rome Statute  182 slave trade, and  182–​83 transformative reparations see under reparations transatlantic slave trade see slavery and the slave trade Uganda forced marriage  5, 220–​21 Lord’s Resistance Army (LRA) forced marriage  211, 220–​21 Ongwen see Ongwen slavery  176–​77 UN Committee on Economic and Social Rights  196–​97 UN Committee on the Elimination of Discrimination against Women see CEDAW Committee UN Convention Against Torture (UNCAT) see under torture UN Declaration on the Elimination of Violence Against Women see under women/​females

Index  441 UN Security Council  11–​12, 64–​65, 72 ICTR see ICTR ICTY see ICTY recognition of threat posed to women by armed conflict  348 sex-​representation provision in ICTY and ICTR statutes  396–​97 UNITAD 204 UN Sustainable Development Agenda  18 UN Sustainable Development Goals 2015 18 UN Women  18 Universal Declaration of Human Rights  130–​31, 218–​19, 223 unlawful confinement  180, 244, 252–​53 urban conflict/​warfare explosive weapons in populated areas  375–​77 damaged civilian infrastructure, impact on women of  375–​76, 377 displaced populations, vulnerability of  377 gendered impact of heavy explosive weapons  376, 377 societal gender roles affecting kinds of injuries suffered  376 protracted urban conflict and undefined battlefields  7, 372–​79 societal effects of protracted urban warfare  372–​75 chronic fighting having long-​ term transformative impact on societies  372–​73 ICL investigations, wider gendered impacts and  375 ISIS-​affected communities in Iraq, domestic violence in  374 longer-​term protracted warfare, impacts on women of  373–​74 protracted conflict challenging gendered expectations of women  374–​75 subculture of violence in affected societies 374 urban displacement 14.S5 gendered impacts of displacement on women and girls  377, 378 heavy bombing and shelling as major cause  377, 378

lack of assets and income, effects of  378–​79 transactional sex and marriages resulting from  379 victim participation  360, 368–​69 Vienna Declaration 1993  243 Vienna World Conference on Human Rights  351–​52 violence armed conflict see armed conflict and gender forced pregnancy see forced pregnancy forced sterilization see forced sterilization gendered violence see gendered violence rape see rape reproductive violence see reproductive violence sexual violence see sexual violence torture see torture war crimes  1–​2 abortion  248–​49, 256–​57 civilian objects, attacking  14–​15, 382n.50, 383 deportation  14–​15, 174–​75, 262–​63 focus on war crimes committed by opposing side  61 forced marriage  5 forced pregnancy  150, 243, 244, 245–​ 46, 252–​53 forced sterilization  243 gender dimensions of  14–​15 gender-​neutral nature of war crimes provisions  377, 383 pillaging  14–​15, 299–​300, 383, 389 same side harms during conflict  61–​62 sexual slavery  60–​61, 147–​48, 174–​75, 176–​77, 179–​80 sexual violence, other forms of  256 slavery and the slave trade  173 torture  199, 260 warfare armed conflict see armed conflict and gender child soldiers see child soldiers counterterrorism see terrorism and counterterrorism

442 Index warfare (cont.) gendered harms  98 IHL, and see IHL increasing role of new technologies  371–​72 sexual violence in see sexual violence; sexual violence against men urban conflict/​warfare see urban conflict/​ warfare war as a productive process  102 women/​females abortion see abortion armed conflict and IHL child soldiers see child soldiers differing impact of particular attacks on male and female civilians  54–​55 disproportionate attacks, and  63–​64 experience of  54–​55 failure to hear experiences of females in ICL  70–​71 increased risk of violence from family and community  55, 61 limited recognition of harms inflicted by the victim’s own side  61–​62 negative stereotyping: honour, modesty, weakness, and vulnerability  67–​70 protection of women in terms of relationship with others  56–​57 reparations see reparations same side harms during conflict  61–​62 slow and limited recognition of gender as a cause of violence  64–​67 status doubly inferior as women civilians  55–​56 urban conflict/​warfare see urban conflict/​warfare women joining armed groups  380–​81 women largely invisible in IHL  56–​57 discrimination, and see gender discrimination enforced prostitution see enforced prostitution enslavement see enslavement female child soldiers see child soldiers femininity  96–​97, 101–​2, 111, 112, 114, 329–​30 feminism see feminist/​feminism FGM see FGM

forced marriage see forced marriage forced sterilization see forced sterilization gender, and see gender Geneva Conventions, and see Geneva Conventions girls see child soldiers; children; FGM; forced marriage; reparations reproductive crimes see reproductive crimes sexual violence, and see sexual violence slavery, and see under slavery and the slave trade UN Declaration on the Elimination of Violence Against Women  208–​9 Women’s Caucus for Gender Justice  190–​ 91, 205, 243 Women’s Court—​Feminist Approach to Justice  411–​12 Women’s Initiatives for Gender Justice  23, 190–​91, 257, 306, 307, 319 Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery  262–​63, 409–​10 women’s rights CEDAW see CEDAW conflict, in  347, 348–​49, 353–​54, 361, 367, 368–​69, 370 extension to ‘rights of the body’  122 human rights, as  95–​96 marginalization of  357–​58 protection of  356–​58 Rome Statute, and  188–​89, 361–​62, 367, 369, 370 women’s rights activists  188–​89, 190–​91, 205, 239, 241, 242–​43, 247, 264, 340 Yekatom 23 Yugoslavia, former gendered harms  411–​12 gendered patterns of criminality  3, 11–​12 ICTY see ICTY mass atrocities in  90–​91 rape and sexually violent attacks  11–​12, 59–​60, 78, 109–​11, 112 sexual assault of men  112–​14 Zarco, Sepur  325–​26, 330–​31, 340–​41, 345–​46