By Guest Writer Shagnik Mukherjea
Image by the EU Civil Protection and Humanitarian Aid

In April 2023, the Sixth Committee of the United Nations initiated a two-year process to deliberate and negotiate the draft articles on the prevention and punishment of crimes against humanity. At the forefront of the multitude of issues being tackled by the International Law Commission (ILC) and numerous States are gender-based issues, with a particular emphasis on reinforcing legal obligations and ensuring safeguards for victims of sex and gender-based violence.

Over the past few decades, significant strides have been made in achieving justice for gender-based crimes. However, most of these legal frameworks have required incorporating gender-specific concerns into existing structures that were not originally designed to address these issues. For instance, the International Criminal Tribunal for the former Yugoslavia (ICTY) investigated and prosecuted individuals for wartime sexual violence, considering rape and sexual enslavement as crimes against humanity in the Kunarac et al. Case. Furthermore, the Furundžija Case emphasized that instances of rape could qualify as breaches of the laws governing armed conflicts or even as acts contributing to genocide, provided that their respective elements are also satisfied, broadening the scope of criminal responsibility imposed on such obligations. Likewise, the International Criminal Tribunal for Rwanda (ICTR) recognized rape as an act of genocide in the Akayesu Case, setting a precedent for future instances of prosecuting wartime sexual violence. These instances, however, required a gendered and harmonious interpretation of provisions that did not previously nor explicitly encompass such perspectives.

In this regard, of particular relevance is the recent judgment in the Ongwen Case, where the International Criminal Court (ICC) invited expressions of interest as amici curiae during the ongoing appeals proceedings. Notably, this invitation allowed diverse feminist and intersectional perspectives to shed light on the practical realities of gender  and the gendered-impacts of crimes against humanity. For instance, gender-based patterns of vulnerability persist across successive generations of children born in conflict zones. Young men, who are unregistered and underemployed, are particularly susceptible to being recruited as child soldiers due to the exploitation of their longing for belonging, often influenced by patriarchal ideals of masculinity. 

In parallel, female abductees are forced into domestic servitude until they reach a specific age of sexual maturity, after which they are converted into “wives.” As a result, soldiers are rewarded with multiple wives, leading to the prevalent commission of crimes such as rape, sexual slavery, forced pregnancy, among others. Moreover, this destructive cycle continues in conflict-affected regions due to the lack of overarching post-conflict reconstruction frameworks.

While the Ongwen Case represents a significant milestone in embracing intersectional approaches to comprehend the gendered consequences of crimes, the ongoing negotiations of the draft treaty present an ideal opportunity to integrate a comprehensive framework that acknowledges the role of gender in the prevention, punishment, and provision of rehabilitation within such contexts.

Within this broader objective, three overarching themes were widely embraced by the majority of States. First, concerning gender-specific provisions, most States endorsed the International Law Commission’s (ILC) opinion of not establishing a rigid definition of “gender” within the treaty. The ILC reasoned, in its commentary, that while the Rome Statute defined “gender” as encompassing the binary sexes of male and female, adopting a socially constructed understanding of gender allows for a more progressive interpretation and application. This approach is crucial in preventing the exclusion of at-risk groups such as gender non-conforming individuals, who may not have been adequately protected under a more restrictive definition. 

While many States have applauded this progressive approach to prosecuting gender-based crimes, five States, namely Qatar, Poland, Nigeria, Cameroon, and the Gambia have opposed removing the existing definition. In addition to their outdated argument relying on a biological nexus, their contention revolves around maintaining legal consistency across international frameworks. This perspective, however, fails to consider that the Office of the Prosecutor of the International Criminal Court (ICC) themselves interpret the definition of “gender” as encompassing socially constructed notions. Thus, an official endorsement of such an interpretation and a progressive approach to defining gender at the international level would provide much-needed protections for all groups, including vulnerable ones.

Second, several other States expressed willingness to expand the range of crimes encompassed in the treaty, particularly by incorporating forced marriage and forced pregnancy and thereby aligning the provisions with recent legal precedents. Furthermore, Belgium and the Philippines proposed the inclusion of dedicated protections for the LGBTQIA+ community, recognizing the necessity for targeted support in this particular regard.

Third, regarding the enforcement of these provisions, Sierra Leone, the United Kingdom, and other States expressed support for including a monitoring mechanism alongside the treaty. Such a mechanism would facilitate public review of State actions, enabling States to establish policies that comply with their treaty obligations.

Undoubtedly, the recent discussions have yielded remarkable progress in laying the groundwork for further development by States in the upcoming months. Among the numerous agendas recommended for expanded deliberation, it is imperative to prioritize a gendered analysis of atrocity crimes and ensure its prominent inclusion, as it is essential in formulating adequate provisions. The current draft articles, for instance, define persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” However, its requirement of a nexus with other acts, such as torture, murder, or apartheid, poses a significant obstacle to prosecuting gender-based crimes. 

Contrary to its customary international law definition, this requirement fails to address systemic forms of oppression that may not fall neatly into separate categories of atrocity crimes. Consequently, the rights and protections afforded to LGBTQIA+ populations, who often experience “unique forms of persecution” such as restrictions on expression and limited access to public facilities, could be undermined.

Nevertheless, as atrocities persist in various parts of the world, the charge of crimes against humanity is crucial for achieving inclusive justice. Consequently, the absence of a dedicated treaty on crimes against humanity, with special provisions revolving around gender-based violence, represents a significant gap in the international legal framework that necessitates prompt resolution.

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