Reproductive Violence and International Criminal Law

By Tanja Altunjan

This book deals with the phenomenon of conflict-related reproductive violence and explores the international legal framework’s capacity to respond to it. The international discourse on gender-based violence in conflicts tends to focus on sexualized crimes, which leads to incomplete narratives of the gendered dimensions of armed conflicts. In particular, international law has often remained silent on conflict-related violence affecting or aimed at the victim’s reproductive system.

The author conceptualizes reproductive violence as a distinct manifestation of gender-based violence and a violation of reproductive autonomy. The analysis explores the historical approaches to reproductive violence and evaluates the current potentials of international criminal law for its prosecution as genocide, crimes against humanity, and war crimes. In this regard, it also develops proposals for a gender-sensitive interpretation of the existing legal framework as well as possible amendments toit. 

The book is aimed at researchers and practitioners in the fields of international criminal justice and international human rights law with an interest in gender perspectives on international law, sexualized and gender-based violence, and the discourse on reproductive human rights.

Tanja Altunjan is a former researcher at Humboldt-Universität zu Berlin where she obtained her doctoral degree in criminal law.

• Language: English
• Publisher: T.M.C. Asser Press
• Release date: Mar 13, 2021
• ISBN: 9789462654518

Book preview

© T.M.C. Asser Press and the author 2021

T. AltunjanReproductive Violence and International Criminal LawInternational Criminal Justice Series29https://doi.org/10.1007/978-94-6265-451-8_1

1. Introduction

Tanja Altunjan¹  

(1)

Berlin, Germany

1.1 Aim and Impetus of This Book

1.2 Structure

1.3 Terminology

1.3.1 Sex and Gender

1.3.2 Sexualized and Gender-Based Violence

1.3.3 Reproductive Violence

1.4 Theoretical and Methodological Background

1.4.1 International Criminal Law in the International Legal Order

1.4.2 Sources and Interpretation of International Criminal Law

1.4.3 Feminist Approaches to International Law

References

Abstract

Reproductive violence is prevalent in accounts of conflict scenarios from around the world and throughout history. Nevertheless, this type of gender-based violence has rarely come to the attention of international prosecutors and judges. In fact, though the related phenomenon of conflict-related sexualized violence is regularly condemned by the international community and increasingly addressed in international criminal trials, reproductive violence remains in the shadows. Against this background, this book aims to evaluate the historical development and current potentials of international criminal law to address different manifestations of conflict-related reproductive violence. This first chapter provides an overview on the aim and structure of the book. It also offers definitions for key concepts and describes the theoretical and methodological background upon which the subsequent chapters are built.

Keywords

International Criminal CourtICC StatuteOngwenSex and genderSexual violenceSexualized violenceGender-based violenceReproductive violenceInternational lawFeminist approaches to international law

1.1 Aim and Impetus of This Book

The trial against former rebel commander Dominic Ongwen concluded before the International Criminal Court (ICC) in February 2021, just as this book was going to press. One of the trial’s most significant aspects was its focus on gender-based crimes. Besides reflecting a new prosecutorial strategy in charging crimes of a gender-based nature,¹ this trial also marked the first prosecution and conviction of the reproductive crime of forced pregnancy.²

The Rome Statute of the International Criminal Court (ICC Statute) lists forced pregnancy as both a war crime and a crime against humanity.³ Its unprecedented inclusion was the result of exceptionally controversial negotiations before and during the Rome Conference in 1998. The crime’s complex definition, which the drafters added to the ICC Statute in order to enshrine the hard-won compromise, reflects these disagreements.⁴ Against this background, the interpretation of the crime’s elements poses significant challenges and its scope of application remains unsettled.

The inclusion of forced pregnancy in the ICC Statute and its first prosecution raise questions regarding the criminalization of reproductive violence under international law in general. International courts and legal scholars have paid increasingly close attention to conflict-related sexualized violence in the past two decades. There is vast jurisprudence on the commission of rape and similar crimes in conflict scenarios as well as academic literature on the criminalization and prosecution of such acts under international law. While sexualized violence was long regarded as a by-product of war, it is now frequently conceptualized as a weapon of war, and rightly seen as deserving of international attention and criminal prosecution. Despite this newfound awareness of the devastating reality of conflict-related sexualized crimes, international law has thus far remained silent on a closely related phenomenon: reproductive violence, meaning violence affecting the reproductive system. When international institutions and instruments address reproductive violence at all, they usually do not distinguish it from the related concepts of sexualized and gender-based violence. In fact, despite their frequent use in theory and practice, the scope of these terms remains remarkably unclear.

Like sexualized violence, reproductive violence has served as an instrument of war and conflict throughout history. The forcible prevention or promotion of reproduction can constitute an effective tool of asserting power and controlling individuals as well as collectivities. In preventing individuals from making their own reproductive choices, perpetrators are able to invade their victims’ most personal sphere and cause severe long-term consequences. On the collective level, interfering with a group’s reproduction may eventually bring about its social and even physical destruction. As Rosemary Grey asserted, reproductive violence dehumanizes its victims to mere people-generators, rather than bearers of aspirations, dignity, and rights by employing their reproductive capacity as a resource to be commandeered for political, ideological or economic ends.⁵ Against this background, it comes as no surprise that reproductive violence has been a feature of macro-criminal contexts in various manifestations.

This book seeks to describe and analyse the extent to which reproductive violence is criminalized under current international criminal law. This analysis will be conducted with a view to the historical context and development of international law pertaining to gender-based violence. In light of the interplay between international criminal law and international human rights law, it will also consider the treatment of gender-based violence and the protection of various aspects of reproductive autonomy under international human rights law. In order to analyse its criminalization, this book develops a conceptualization of conflict-related reproductive violence in distinction to the related notions of sexualized violence and gender-based violence. It examines the phenomenon of conflict-related reproductive violence in practice and evaluates whether substantive international criminal law—namely genocide, crimes against humanity, and war crimes—adequately reflects its manifestations and consequences. In doing so, this book explores the dynamic potentials of the ICC Statute for the prosecution of reproductive violence. In view of the controversial crime of forced pregnancy, the analysis mainly focuses on pregnancy-related violence, namely the acts of forced impregnation and forced pregnancy. Moreover, it will consider other forms of reproductive violence such as forced sterilization, forced abortion, and forced contraception. With regard to the crime of genocide, this book highlights possibilities to prosecute reproductive violence under the relevant provisions and points out the challenges relating thereto. Pertaining to crimes against humanity and war crimes, it delineates the historical development that led to the inclusion of the crimes of forced pregnancy and enforced sterilization in the ICC Statute and offers an interpretation of their elements. Furthermore, this book proposes avenues for the prosecution of other forms of reproductive violence under existing provisions of the ICC Statute.

This book concludes that it is possible to charge, prosecute, and punish various forms of reproductive violence under current international criminal law, as genocide on the one hand and as crimes against humanity and war crimes on the other hand. Nevertheless, the overarching focus of international law on sexualized manifestations of gender-based violence, both on paper and in practice, has concealed the widespread reality of conflict-related reproductive violence. Up until the trial against Ongwen at the ICC, international criminal legal practice addressed reproductive violence only in passing—and only when it was embedded in a broader attack against a certain group. However, in order to adequately reflect the unique harm imposed upon the victims, it is imperative to conceptualize reproductive violence as an attack against an individual’s reproductive capacity and autonomy. In practice, such an attack often (though not necessarily) overlaps with an act of sexualized violence. Nevertheless, the categorization of sexualized violence and reproductive violence as distinct manifestations of gender-based violence is essential to surface the reproductive dimensions of the victims’ experiences and to reflect the perpetrators’ individual criminal responsibility. Taking into account the developments of international human rights law with regard to the protection of reproductive human rights and the condemnation of reproductive violence, the international criminal legal framework is—with certain limitations—capable of responding to conflict-related reproductive violence. Although there is certainly room for amendments, several opportunities for its comprehensive treatment as crimes under international law exist. As is often the case in international criminal law, the main challenge lies in the translation of these opportunities into legal practice.

1.2 Structure

After providing relevant definitions and depicting the theoretical and methodological background in this first chapter, Chap. 2 addresses the treatment of conflict-related sexualized violence under international law. It highlights the manifestations of such violence in conflict scenarios and depicts the development and current framework of international humanitarian law, international criminal law, and international human rights law as related to sexualized violence. Building upon this foundation, Chap. 3 focuses specifically on conflict-related reproductive violence, which is understood as a distinct form of gender-based violence, in a historical perspective. Again, the analysis focuses first on the manifestations of such violence before examining its treatment under international law, particularly international criminal law and international human rights law. In this context, Chap. 3 develops a definition of reproductive violence and elaborates on the individual dimension as well as the collective dimension of this type of violence.

The remainder of the book focuses more specifically on genocide, crimes against humanity, and war crimes, highlighting the potentials to prosecute various manifestations of reproductive violence as crimes under international law. Chapter 4 addresses the crime of genocide under Article II of the Genocide Convention,⁶ focusing both on pregnancy-related (or positive) forms of reproductive violence, namely forced impregnation and forced pregnancy, as well as on negative manifestations such as forced sterilization, forced abortion, and forced contraception. Chapter 5 centers on forced pregnancy as a crime against humanity and war crime under the ICC Statute. It portrays the negotiating history and controversies behind the adoption of this crime and offers an interpretation of its elements informed by the protected value of reproductive autonomy. In this context, Chap. 5 also addresses the benefits of explicit criminalization of different manifestations of reproductive violence. Chapter 6 then deals with the crime of enforced sterilization, which is also included as a crime against humanity and a war crime in the ICC Statute. Furthermore, it evaluates avenues for the prosecution of other, i.e. not specifically criminalized, forms of reproductive violence and offers an interpretation of the ICC Statute’s residual crime of any other form of sexual violence in the context of reproductive violence. Finally, Chap. 7 summarizes the findings and contains the book’s conclusions.

1.3 Terminology

In order to conduct the analysis, it is necessary to clarify the terminology employed in the course of this book. This section offers relevant working definitions, which will be further elaborated on in the respective chapters.

1.3.1 Sex and Gender

For the purposes of this book, the terms gender and sex are defined in accordance with the following definition provided by the World Health Organization:

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 […]. Gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs.⁷

This definition clearly differentiates between gender, which is understood in a socially constructed manner, and sex, understood to refer to biological characteristics traditionally defining males and females.⁸ Dating back to Simone de Beauvoir’s seminal work Le Deuxième Sexe of 1949, the differentiation between gender and sex has been a key concept in feminist legal studies.⁹ It has also been acknowledged in recent international legal instruments.¹⁰

The term gender describes societal attributions and expectations concerning men and women, boys and girls, and persons with non-binary identities. It acknowledges the structural inequality and power hierarchy between men and women as well as stereotypical constructions of what is traditionally considered masculine and feminine.¹¹ Such an understanding of gender also allows for an analysis of the potential stigma and discrimination faced by those who do not conform to traditional gender roles and expectations.

As mentioned, the term sex describes biological differences between males and females. Though traditionally understood as binary categories, scientific research has demonstrated the fragility of this seemingly clear biological distinction.¹² Consequently, sex must be understood on a spectrum rather than as clear alternatives. Still, this book uses the term sex to describe biological and physiological differences between males and females, while acknowledging that the differentiation is not clear-cut and that sexes beyond male and female exist.¹³

The ICC Statute includes a definition of gender in Article 7(3).¹⁴ It is the first international instrument to codify this term. However, the definition has been criticized with a view to a lack of differentiation between gender and sex. This will be further analysed below.¹⁵

1.3.2 Sexualized and Gender-Based Violence

1.3.2.1 Definitions

A clear legal definition of the term gender-based violence does not exist. The International Criminal Court’s Office of the Prosecutor provided the following definition in its Policy Paper on Sexual and Gender-Based Crimes of 2014:

‘Gender-based crimes’ are those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.¹⁶

In accordance with this definition, gender-based violence is understood here to encompass all forms of violence directed against persons because of their sex or their gender.¹⁷

Similarly, a legal definition of the terms sexual violence or sexualized violence has not been established.¹⁸ The ICC’s Office of the Prosecutor provided the following definition of sexual crimes:

‘Sexual crimes’ that fall under the subject-matter jurisdiction of the ICC are listed under articles 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi) of the Statute […]. An act of a sexual nature is not limited to physical violence, and may not involve any physical contact – for example, forced nudity. Sexual crimes, therefore, cover both physical and non-physical acts with a sexual element.¹⁹

Thus, the Office of the Prosecutor uses sexual crimes as a general term for the crimes under the jurisdiction of the ICC listed in the relevant provisions,²⁰ but does not define it further.

As to the crime against humanity and war crime of any other form of sexual violence, considerable uncertainty exists regarding the exact nature of acts encompassed by the provision.²¹ Broadly speaking, sexual violence can be understood to refer to violent acts committed with a sexual component, i.e. violence exercised in a sexualized manner.

Irrespective of its precise definition, it is questionable whether the term "sexual violence" is entirely appropriate. In fact, sexual violence is not an exercise of sexuality as such, but rather an exercise of violence in a sexualized manner, using sexuality as a means.²² This differentiation is more appropriately captured by the term sexualized violence, which is commonly used in the German-speaking academic context.²³ Although the terms sexual violence and sexualized violence do not differ in the acts they label, the latter term is given preference in this book and will be used to refer to violence exercised in a sexualized manner.

1.3.2.2 The Relation Between Sexualized Violence and Gender-Based Violence

Though they are often used interchangeably, it is crucial to acknowledge that the terms gender-based violence and sexual or sexualized violence are not synonymous. Sexualized violence is the commission of violent acts in a sexualized manner, whereas gender-based violence is violence committed against persons because of their gender. As gender-based violence does not necessarily entail a sexualized element, it follows that the term gender-based violence is broader than sexual or sexualized violence.²⁴ In other words, the category of gender-based violence includes sexualized violence, but is not limited to it, meaning that sexualized violence can be seen as a sub-category of gender-based violence.

In contrast to the understanding outlined above, some have argued that not all forms of sexualized violence are necessarily committed against persons because of their gender, entailing that the category of sexualized violence would be broader than gender-based violence in some cases.²⁵ However, it is more convincing to conceptualize gender broadly and to take into consideration its necessary intersection with the concepts of sex and sexual identity. All acts of a sexualized nature are typically linked to socially constructed gender roles. Without relinquishing the distinction between gender and sex, all violations of a person’s sexual autonomy should thus be understood as forms of gender-based violence.²⁶

Conversely, based on the definitions provided above, it is clear that gender-based violence may also occur in non-sexualized manifestations. In fact, non-sexualized forms of gender-based violence are common both in peace and in conflict situations. For example, intimate partner violence and femicide, meaning the killing of a woman typically committed by her partner or ex-partner, are common forms of non-sexualized gender-based violence.

A further example, which is relevant particularly in the context of international criminal law, is the act of forced marriage.²⁷ Though there is typically a factual connection to sexualized abuse, the act of forced marriage itself does not necessarily entail a sexualized component.²⁸ In this regard, the ICC Pre-Trial Chamber II held that the central element of forced marriage is the imposition of ‘marriage’ on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s ‘wife’.²⁹ The Appeals Chamber of the Special Court for Sierra Leone also stated that forced marriage is not predominantly a sexual crime in the case against Alex Tamba Brima and others.³⁰ Nevertheless, forced marriage is often wrongly categorized as a form of sexualized violence.³¹ This example illustrates that the differentiation between sexualized and other gender-based violence is not clear-cut.³² Other examples of gender-based violations not necessarily of a sexualized nature are those relating to reproduction, for example forced sterilization, forced abortion, and forced pregnancy.

In view of the definition of gender-based violence, it is clear that it is not limited to violence against women. An example of non-sexualized gender-based violations affecting men are mere killings of men in order to destroy an ethnic group, for example the Srebrenica massacre of 1995: When such crimes are rooted in a construction of masculinity that regards men as the sole carriers of ethnicity, passing it on to their children, they are of a gender-based nature.³³

1.3.3 Reproductive Violence

The term reproductive violence concerns acts which affect the victim’s reproductive system, organs, process, or capacity to reproduce. In this regard, it is important to note that reproductive violence does not necessarily entail a sexualized component: While it may be committed in a sexualized manner, an act of reproductive violence may also be carried out in other, non-sexualized ways. Thus, reproductive violence is understood here as a further sub-category of gender-based violence, meaning that it is committed against persons because of their gender, and more precisely because of their reproductive capacity. The definition of reproductive violence, which is at the core of this book, will be further explored below.³⁴ The following subsections briefly define certain manifestations of reproductive violence which are dealt with throughout this book.

1.3.3.1 Forced Impregnation, Forced Pregnancy, Forced Maternity, and Similar Terms

The terminology on reproductive crimes relating to pregnancy and motherhood is often imprecise. Several terms are used, often interchangeably, to refer to a variety of forcible acts concerning (attempted or successful) conception, the pregnancy as such, as well as actual childbirth and maternity.

The most frequently used terms are forced impregnation and forced pregnancy, though the relationship between the two often remains foggy. During the 1990s, several authors called for the criminalization of forced impregnation.³⁵ The term that eventually surfaced in the ICC Statute, however, was forced pregnancy. For the purposes of this book, forced impregnation is defined as the forcible act resulting in pregnancy. The act of forced pregnancy is defined, in accordance with Article 7(2)(f) of the ICC Statute, as the confinement of a woman forcibly made pregnant. The act of forced pregnancy is thus preceded by the act of forced impregnation. The term pregnancy-related crimes will be used as an umbrella term encompassing both forced impregnation and forced pregnancy.

Furthermore, the terms forced maternity,³⁶ forced motherhood ,³⁷ forced childbearing ,³⁸ forced reproduction ,³⁹ enforced procreation ,⁴⁰ and forced continuation of pregnancy ⁴¹ have appeared in the literature and in international practice, though generally without clear definitions. This will be further discussed below.⁴²

1.3.3.2 Forced Contraception, Forced Abortion

Contraception can be defined as a method that prevents a pregnancy from taking place.⁴³ Whether taken before or after the fact of sexual intercourse (often called emergency contraception in the latter case), contraception may only prevent pregnancy, but does not affect a pregnancy that has already been established.⁴⁴ Forced contraception thus refers to all forcible acts undertaken surgically, medicinally, or physically in order to prevent pregnancy.

Conversely, abortion means all methods of terminating a pregnancy that has already been established, i.e. taking effect after the implantation of the fertilized egg into the lining of the uterus. Forced abortion can be carried out medicinally, surgically, or using physical force.

1.3.3.3 Forced Sterilization, Forced Castration

Sterilization refers to the act of depriving an individual of his or her capacity of reproducing,⁴⁵ usually by way of a surgical procedure. Castration is the removal of testes or ovaries⁴⁶ and can thus be considered a form of sterilization. In contrast to contraception, sterilization is a permanent, though not necessarily irreversible, measure to prevent reproduction.

1.4 Theoretical and Methodological Background

1.4.1 International Criminal Law in the International Legal Order

International criminal law encompasses all norms that establish, exclude, or otherwise regulate responsibility for crimes under international law.⁴⁷ It comprises the four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. International criminal law can be applied by international as well as domestic courts.⁴⁸ Specifically, the core crimes fall under the material jurisdiction of the International Criminal Court, which was established as a permanent court in 2002. The purpose of international criminal law is to protect the fundamental values of peace, security and well-being of the world.⁴⁹ Two other areas of international law are of relevance to this book, namely international humanitarian law and international human rights law.

1.4.1.1 International Criminal Law and International Humanitarian Law

International humanitarian law is a body of law that regulates conduct in wars (jus in bello).⁵⁰ It aims to limit the consequences of war on the affected persons, both combatants and civilians. There exists a historical division of international humanitarian law into two spheres, though there have always been overlaps. The Law of Geneva protects the victims of armed conflicts, namely civilians as well as combatants no longer taking part in hostilities. The most important instruments in this regard are the four Geneva Conventions of 1949 and the two Additional Protocols of 1977. The Law of The Hague aims to protect combatants by way of prohibiting certain means and methods of warfare. It consists of the two The Hague Regulations adopted in 1899 and 1907 as well as several conventions adopted after World War II.⁵¹

Certain violations of international humanitarian law are directly punishable under international law. In this sense, international criminal law functions as a mechanism to enforce international humanitarian law by way of punishing grave violations as war crimes.⁵² Accordingly, every war crime is based on a violation of a rule of international humanitarian law.⁵³

1.4.1.2 International Criminal Law and International Human Rights Law

International criminal law and international human rights law are both rooted in international humanitarian law and have both developed as a consequence of the atrocities committed by the Nazi regime before and during World War II.⁵⁴ Both areas of law have some common characteristics: They share the same objective, namely to guarantee a minimum standard of humane treatment.⁵⁵ Furthermore, they both deviate from the traditionally state-centered nature of international law. International criminal law ascribes criminal responsibility to the individual, whereas international human rights law establishes individual rights.⁵⁶ Despite these similarities, however, they are distinct bodies of law and cannot be equated.⁵⁷ Whereas human rights obligations are directed primarily towards states and the transgressors are typically state agents, international criminal law is directed towards individuals.⁵⁸

International criminal law can be seen as an alternative means of protecting human rights when states fail to respect their obligations under international human rights law.⁵⁹ Yet not every violation of internationally recognized human rights is criminalized under international law;⁶⁰ instead, the international criminalization represents the highest level of human rights protection,⁶¹ applicable only to the most serious violations of human rights.

A separate question is whether states have a duty to prosecute serious human rights violations. Such an obligation exists under certain circumstances,⁶² but is not a general principle of customary international law.⁶³ However, there is a growing tendency in international legal practice to assume such an obligation from the perspective of international human rights law, though the rationale given for this assumption varies.⁶⁴ According to Seibert-Fohr, not every serious human rights violation brings about a duty for states to prosecute under international human rights law—and neither should it, as criminal prosecution is not the only and not always the best way of protecting human rights.⁶⁵ Nevertheless, international criminalization and prosecution can function as enforcement mechanisms of international human rights law when human rights protection at the (primary) national level fails.⁶⁶

At the same time, international human rights serve as a limitation to international criminal law: First, the principles of legality and culpability must be adhered to, and second, international criminal procedure must respect human rights standards with regard to the accused, embodied particularly in the right to a fair trial.⁶⁷ Through this limitation, the protection of human rights also legitimizes the extension of international penal authority.

The legitimizing function of human rights in relation to international criminal law also comes into play as follows: International criminal law protects the peace, security and well-being of the world.⁶⁸ An attack upon these fundamental values affects the international community as a whole, and thus justifies the international character of the corresponding criminal norms. This international dimension is the reason why international criminal law pierces the veil of state sovereignty⁶⁹, meaning that the international community can legitimately prosecute these crimes. In this sense, international criminal law aims to protect a minimum standard of civilization, which is universally accepted.⁷⁰ This universally accepted minimum standard of civilization is manifested in internationally recognized, fundamental human rights.⁷¹ Thus, crimes under international law embody the protection of fundamental human rights .

1.4.2 Sources and Interpretation of International Criminal Law

The sources of international criminal law correspond with those of international law in general: They are listed in Article 38(1) of the Statute of the International Court of Justice.⁷² For the purposes of the International Criminal Court, Article 21 of the ICC Statute lists the sources of law and establishes a hierarchy.⁷³ As provided by Article 21(1)(a), the ICC Statute itself constitutes the main source of law, supplemented by the Elements of Crimes and Rules of Procedure and Evidence. Additional sources of law are applicable treaties and the principles and rules of international law (Article 21(1)(b)) as well as general principles of law derived from national legal systems (Article 21(1)(c)). The interpretation of international criminal law is guided, as international law in general, by Articles 31 and 32 of the Vienna Convention on the Law of Treaties.⁷⁴ Article 31(1) provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Accordingly, the classic interpretative methods apply: grammatical, teleological, systematic, and—in a supplementary manner—historical interpretation.⁷⁵

With regard to the current state of international criminal law, this book focuses on the Rome Statute of the International Criminal Court. Though this Statute was adopted in the form of an international treaty, and thus primarily binds its states parties, it constitutes the main source of international criminal law and to a large extent represents the current state of customary international law.⁷⁶ Pertaining to gender-based violence in particular, the codification of several specific acts as crimes against humanity in Article 7(1)(g) and as war crimes in Article 8(2)(b)(xxii) and Article 8(2)(e)(vi) of the ICC Statute refined and consolidated the international criminal legal framework.

In interpreting crimes under the ICC Statute, the Elements of Crimes constitute an important aid. Article 9 of the ICC Statute governs the relationship between the Statute and the Elements. According to Article 9(1), the Elements shall assist the Court in the interpretation and application of the provisions in the Statute. Furthermore, Article 9(3) postulates that the Elements must be consistent with the Statute. Thus, the Elements of Crimes are merely an ancillary instrument that is not legally binding. Nevertheless, they have proven to be very influential in the ICC’s practice.⁷⁷

Further, the international jurisprudence is an important tool for the interpretation of the ICC Statute. Beyond the ICC itself, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda has been influential in the development of the international legal framework pertaining to gender-based violence. To a lesser extent, this also applies to the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and other international criminal courts. Accordingly, this book will refer to the jurisprudence of these courts where appropriate.

1.4.3 Feminist Approaches to International Law

In dealing with gender-based violence under international criminal law, this analysis builds upon feminist approaches to international law. In their seminal 1991 article, Charlesworth, Chinkin, and Wright called attention to the necessity of applying a feminist lens to international law in order to challenge its traditional androcentric nature, which is manifested in both its organizational and normative structure.⁷⁸ Deconstructing the explicit and implicit values of the international legal system, according to Charlesworth and Chinkin, enables the revelation of its gendered nature.⁷⁹ In this regard, taking a gender perspective⁸⁰ to international law requires an unpacking of what Chappell identified as its gender legacies. This phrase refers to the existing social norms, practices, and expectations,⁸¹ which are embedded in and reinforced by international law. Among the approaches suggested in the feminist international legal discourse, particularly by Charlesworth, is the method of searching for silences and identifying gaps in the construction and application of the international legal framework.⁸² Similarly, Copelon advocated for surfacing gender by way of making visible and giving emphasis to the gender dimension of conflict-related violence.⁸³

Taking a gender perspective or surfacing gender necessitates an analysis of the legal framework in its historical context. In this regard, it deserves emphasis that the criminalization and prosecution of gender-based violence under international law is a relatively new phenomenon. Throughout much of its history, international law has remained silent on the gendered experiences of those affected by armed conflict. The widespread occurrence of gender-based violence in macro-criminal contexts remained unaddressed. Although the legal framework has progressed, these gender legacies of international law continue to influence, and sometimes undermine, the application of this framework in practice. Current challenges, such as the ICC’s rather poor record of accomplishment regarding the prosecution of gender-based crimes, can only be evaluated with a view to the historical development of international criminal law and legal practice.

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Footnotes

1

See The Office of the Prosecutor of the International Criminal Court 2014.

2

ICC, Prosecutor v Dominic Ongwen, Judgment, 4 February 2021, ICC-02/04-01/15 (Ongwen 2021), paras 2717–2729, 3056–3062; ICC, Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges, 23 March 2016, ICC-02/04-01/15 (Ongwen 2016), paras 96–101.

3

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), as a crime against humanity Article 7(1)(g); as a war crime Article 8(2)(b)(xxii) and Article 8(2)(e)(vi).

4

Ibid., Article 7(2)(f).

5

Grey forthcoming, p 5.

6

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 278 (entered into force 12 January 1951) (Genocide Convention).

7

World Health Organization, Gender and Health, https://​www.​who.​int/​health-topics/​gender (accessed 24 October 2020). See also Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, opened for signature 11 May 2011, CETS no. 210 (entered into force 1 August 2014) (Istanbul Convention), Article 3(c): ‘[G]ender’ shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.

8

See also Adamietz 2011, p 23; Charlesworth and Chinkin 2000, p 3; Durham and O’Byrne 2010, pp 32–34; Kappler 2019, pp 32–36; Odio-Benito 2005, pp 165–166.

9

de Beauvoir 1949. Without explicitly using the terms, Simone de Beauvoir understood the category woman independently from anatomical characteristics. The translation of her famous statement in this regard—On ne naît pas femme, on le deviant.—has been controversial. The most commonly used English version originates from the 1953 translation by H.M. Parshley: One is not born, but rather becomes, a woman. See also Kappler 2019, pp 32–33; Künzel 2012, pp 67–69.

10

See International Committee of the Red Cross 2004, p 7; International Law Commission 2019, paras 41–42; The Office of the Prosecutor of the International Criminal Court 2014, p 3; United Nations Committee on the Elimination of Discrimination Against Women 2010, para 5. See also Grey et al. 2019, pp 966–968 with further references.

11

See Odio-Benito