By Kristina Hatas
In the eyes of the international community, some crimes are so large-scale and so heinous that they must be sanctioned by international law. If national authorities are unable or unwilling to prosecute these crimes, international courts and tribunals can take over. Does gender-based violence meet this threshold?
“Never again”: The birth of International Criminal Law
The immediate aftermath of the Second World War is commonly regarded as the birth hour of International Criminal Law. Its core motive, the promise of “Never Again”, crucially informs International Criminal Law to this day. This central idea – to prevent and punish systematic violence – sometimes stands directly opposed to, some of the traditional principles of International Law. In the Westphalian state system, sovereignty means that states may not involve themselves in the domestic affairs of others, much less intervene in them. This paradigm has strongly shifted during the 20th century, through Human Rights and International Criminal Law. The underlying logic is that some crimes are so egregious that the international community cannot stand by idly as perpetrators go unpunished. Such crimes deserve international attention, and International Criminal Law can therefore, in a limited number of specific crimes, surpass the principles of International Law such as state sovereignty. Actions that qualify as international crimes are currently limited to three international, so called “core” crimes. These are war crimes, genocide and crimes against humanity.
A new type of law
International Criminal Law is also special in another respect: While International Law in general deals with the relationship among states, International Criminal Law looks beyond the state and towards the individual. International Criminal Law has repeatedly been employed by the international community after large-scale (political) violence and wars. Its appeal as a mechanism of post-conflict or transitional justice is two-fold. First, it can assist or replace a judiciary which is weakened or non-existent after a conflict. Second, justice can be administered in situations where there is no political will within the country to hold those most responsible for atrocities accountable. Often, international tribunals will concern themselves with high ranking perpetrators within politics and the military, while mid-level perpetrators are prosecuted locally or in hybrid courts.
Because of its global nature and reach, another characteristic of International Criminal Law is arguably its norm-setting or trickle down-effect – the idea that setting legal and moral rules on an international level will also have an impact regionally and locally. Through this, some view International Criminal Law as a possible avenue for advancing gender equality, notably through how it addresses and deals with gender-based violence.
Gender-based violence in International Criminal Law
Gender-based violence, while having no agreed upon single definition, is most commonly viewed as violence which targets a person because of their gender or disproportionately affects them because of it. As this definition is based on gender, it can include violence against a broader category of people, including men. It is, however, often used synonymously with violence against women and girls because they are thought to make up the majority of gender-based violence victims.
Because International Criminal Law deals with the individual criminal responsibility for committed atrocities, gender-based violence could very well be a crime to be addressed within this field of law. However, at this point, it can only be prosecuted as part of one of the three defined core crimes. In each instance, this has varying advantages as well as disadvantages and limitations.
Gender-based violence as a war crime
The oldest form of recognition of gender-based violence in International Law has been the recognition of sexual violence, particularly rape, as a war crime. Historically, war-time rape – often a form of gender-based violence since it affects women disproportionately – was long considered an unfortunate, yet inherent, part of warfare. This may explain why in the Geneva conventions, which deal with the law of war, rape has often been circumscribed only as a “crime of honor”. Additionally, the crime relies on a distinction between war and peace, since war crimes can only happen in the course of a war. This distinction is sometimes criticized as detached from reality, as much gender-based violence also happens on the sides of or in the aftermath of conflict. At the same time, the concept of war-time rape tends to focus on rape across enemy lines. In a recent development however, the International Criminal Court recognized that sexual violence perpetrated against own troops can also constitute a war crime.
Gender-based violence as genocide
Genocide – literally the act of killing a people – is a crime defined through specified categories which are protected. This, for now exhaustive, list of categories consists of race, nationality, ethnicity and religion. For gender-based violence this means that a woman experiencing violence because she is a woman, even if the intent is to destroy women as a group, would not count as genocide. The International United Nations Tribunal dealing with the genocide in Rwanda did however recognize that rape could constitute genocide. If somebody was targeted for belonging to one of the protected groups, rape can be a form of genocide. The case in which the tribunal decided this, Akayesu, is widely regarded as important for this reason. Moreover, the International Criminal Tribunal for Rwanda was applauded for using a particularly broad definition of sexual violence which did not rely on purely physical aspects, such as penetration, and also focusing on the psychological damage to women rather than just harm done to their reproductive ability.
However, it should be noted that the original indictments of the tribunal did not include a single count of rape or other sexual violence. It was not until a female judge started questioning witnesses on their knowledge of sexual violence that the court became aware of its prevalence and the prosecution amended their indictments. Some critics have also highlighted that trying to define crimes against women as genocide, by definition, puts their belonging to a certain group – and thereby the group – in the foreground, rather than the experience of the individual victim.
Gender-based violence as a crime against humanity
Finally, crimes against humanity may include crimes committed during peace time and against civilian populations more generally. Under this crime, gender is also a specifically named category protected from persecution. In order to qualify violence as a crime against humanity, an act must be part of a wide-spread or systematic attack against the population. This is usually understood as relating to certain policies or agendas pursued by the state, such as laws or official statements inciting grave breaches of human rights.
This means that many forms of gender-based violence against women, as for example the rampant and unpunished sexual violence and killing of women in parts of Mexico, do not qualify as systematic due to lack of such a public or official incitement or condonement. The problem with the “wide-spread or systematic” requirement in the context of such violence remains that the framework within which gender-based violence occurs often tends to be implicit rather than explicit. This raises the question whether certain cultural practices or the omission of the state to sanction crimes against women can be understood as a policy or agenda amounting to a crime against humanity. This has not yet been addressed by any court.
Studying the treatment of gender-based violence internationally and historically, two things are apparent. The first is that gender-based violence has been notably absent from international law for a long time and its recognition is still very slow. The second is that, while increasingly gender-based violence gains attention and is prosecuted, the framework of current crimes limits what kind of gender-based violence can constitute an international crime. The main criticism here is that victims and their experiences as well as structural problems, such as misogyny or patriarchy, play only a secondary role. For example, the narrative which is to large part reflected in the way the crimes are structured, is that gender-based violence is primarily a crime against the communities, nations, and populations which women are part of. Gender-based violence is reduced to a means to an end and the gender structures which can motivate such violence are not accounted for.
With these limitations that each of the existing definitions of international crimes poses, there are two options through which gender-based violence could become easier to address and prosecute internationally. The first is to expand the definitions of the current crimes. Here, a broadening of the legal concepts of crimes against humanity and “wide-spread or systematic attacks” would likely be the most attractive one. The second option is to introduce a new crime of “femicide” or more generally: gender-based violence. Its advantage would be the focus on the experiences of victims in the first place, rather than the accompanying circumstances of the crime, such as the belonging to a group or the instrumentalization of individuals by using rape as a strategy of war. Instead, gender-based violence as the pinnacle of gender discrimination would be at the front and center of such a new crime.
Currently, the idea of this new crime is yet to gain traction in the international legal community. However, with a growing number of governments pursuing an openly feminist foreign policy agenda – amongst them Sweden, France and Canada – such a change could some day become reality.
 Rome Statute Arts 6-8.
 See for example, Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes Against Women Into International Criminal Law’(2000) 46 McGill Law Journal 217-240; Kiran Grewal, ‘International Criminal Law as a Site for Enhancing Women’s Rights? Challenges, Possibilities, Strategies’ (2015) 23 Feminist Legal
Studies 149-165, 150.
 See on of the earliest codifications in: Instructions for the Government of the Armies of the United States in the Field, Prepared by Francis Lieber, LL.D. and Revised by a Board of Officers (1863). See also Kelly D. Askin,
‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 BJIL 288-349.
 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article XLVI; International Committee of the Red Cross, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, Article 27; International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Article 76.
Kristina Hatas holds an LL.M. in Public International Law and is currently completing a graduate program in International Affairs at the Hertie School of Governance, where she also works as a research assistant in International Human Rights Law.