(4) International Criminal Law and Gender

Question 1

main instrument covering ICL?

Answer 1

Rome Statute –> ICC –> ICC’s judgements legally binding

Question 2

what does the Rome Statute target?

Answer 2

• targets individuals accused of war crimes/serious crimes
• crimes covered by RS always HR violations
• no individual complaint mechanism

Question 3

What is the jurisdiction of the ICC?

Answer 3

(1) genocide
(2) CAH
(3) War crimes
(4) Aggression

Question 4

Despite long history of SGBV in conflict, it has traditionally

Answer 4

been unrecognised in ICL
–> see eg lack of real accountability for SGBV in Nuremberg and Tokyo Tribunals

–> focus of GCs on motherhood and protection and family honour etc

Question 5

In what tribunals was there greater recognition of sexual violence?

Answer 5

ICTY (1993-2017) and ICTR (1993-2015)

Question 6

What sort of factor is gender in the context of conflict?

Answer 6

contextual factor –> affects, how and where violence occurs –> a key part of intersectionality (anyone can be a victim of sexual and gender based violence and/or a perpetrator) (often be victim and perpetrator eg, child soldiers)

Question 7

Which case held that sexual assault can constitute acts of genocide

Answer 7

Akayesu (1998) - ICTR

Question 8

In Furundžija (1998) he was found guilty of

Answer 8

committing/planning etc of crimes of sexual violence against Bosnian muslim women

Question 9

What case recognized that rape could be used as an instrument of terror?

Answer 9

Kunarac et al (2002)

Question 10

How does the RS recognise gender?

Answer 10

just as there being 2 genders - it’s the first intl doc to have a definition of gender! It’s definition reflects a compromise - some groups wanted gender in there to protect sexual minorities and others who just wanted men and women

Question 11

what are gender based crimes?

Answer 11

crimes committed bc of people’s sex or gender - not necessarily sexual

Question 12

sexual crimes are

Answer 12

crimes w a sexual aspect (ie rape)

Question 13

Has there been a shift in the strategic approach of the ICC in respect of SGBV?

Answer 13

Yes, gender was a key priority in the 2nd chief prosecutor’s strategic plan

Question 14

What did the case of Prosecutor v Simone Gbagbo represent?

Answer 14

1. First warrant of arrest at ICC for a woman (2012)
2. First accusation of a woman for SGBV at ICC (Charged with crimes against humanity of rape and other sexual violence)
3. But: Prosecutor decided to withdraw application (2021) – nothing eventuated

Question 15

rape is criminalised how maby times in the RS?

Answer 15

3 times, all for different situations

Question 16

what ius. the first international document to have a definitoin of gender?

Answer 16

RS! reflects a compromise with its definition ( Some groups wanted gender in there to protect sexual minorities and others who just wanted men and women )

Question 17

dif btw standing for and acting for

Answer 17

standing for is substantive representation (content) vs acting for, is descriptive (looks)

Question 18

What is gender-persecution

Answer 18

• Crime against humanity of persecution on grounds of gender per art 7(1)(h) RS
• committed bc of sex characteristics and/or social constructs and criteria used to define gender

Question 19

all persons can be subjected to gender persecution because

Answer 19

all persons have gender identities just as all persons have racial and ethnic identities.

Question 20

Muthaura & Kenyatta (2011) ICC case concerned what

Answer 20

sexual based crimes - issue was whether forced circumcision of men constitutes sexual violence

Question 21

In the pre-trial chamber in the Muthaura & Kenyatta (2011) ICC, what was said about forced circumcision of men

Answer 21

it wasn’t considered to be of a sexual nature oer the definition but instead as ‘an other inhumane act’ per art 7(1)(k) vs 7(1)(g)

Question 22

In the 2012 pre-trial chamber in the Muthaura & Kenyatta (2011) ICC case what did the prosecutor conclude in respect of forced circumcision of men

Answer 22

to fall within art 7 - CAH (1)(g) being of a sexual nature, it has to be sexual nature –> prosecutor considered acts were not just attacks on sexual organs but on mens identities too
ICC chamber held: not every violent act targetig sexual parts is. anact of sexual violence –> acts were motivated by ethnic prejuudice and intended to demonstrate cultural superiority of one tribe over the other