Beyond Killing: The Critical Role of Gender in the Recognition, Prevention and Punishment of Genocide

“When we have the unique capabilities to help avert a massacre, then I believe the United States of America cannot turn a blind eye. We can act, carefully and responsibly, to prevent a potential act of genocide.”

That’s what President Barack Obama said on August 7, 2014, as he explained his decision to authorize operations in Iraq aimed at rescuing Yazidis trapped atop Mount Sinjar and under attack from the Islamic State, also known as ISIL. American and Iraqi airstrikes, together with Syrian Kurdish forces on the ground, saved the lives of hundreds of Yazidis who, having fled to the upper reaches of the mountain, were encircled and besieged by ISIL. Obama’s statement that day also hinted at the horrors taking place in the villages, which were scattered around the base of the mountain: “Chilling reports describe ISIL militants rounding up families, conducting mass executions, and enslaving Yezidi women.”

However, despite the frantic urging of Yazidi activists to the State Department, no further operations were authorized at that time, including any to rescue those who survived the initial killings–mainly women and girls–and were taken captive by ISIL. As a result, other acts of genocide were not averted and genocide remains ongoing for those still held captive, and subjected to violations by, ISIL.

One of the women who did manage to escape was Nadia Murad. Nadia, along with the rest of her village of Kocho, was trapped by ISIL until August 15, 2014. Then, ISIL executed most of the village’s men and older boys, and forcibly transferred women and children deeper into ISIL-controlled territory. After enduring three months in captivity as a sex slave, Nadia, who was 21 at the time, escaped through her own bravery and with the help of a Muslim family. Now, she campaigns to bring attention and justice for the Yazidi genocide, and the sexual violence committed as an essential part of ISIL’s annihilative violence. This week, she accepted the Nobel Peace Prize for her work.

Her acceptance speech came one day after the 70th anniversary of the U.N. General Assembly’s adoption of the Genocide Convention, which first codified the crime of genocide. The Convention’s understanding of the crime of genocide owes much to Raphael Lemkin, whose work, reflections, and advocacy spurred the international community and the then-fledgling United Nations to action. The Convention sets out binding legal obligations on States to not commit, and to prevent, suppress and punish genocide. These obligations did not protect Nadia and other Yazidis captured by ISIL in August 2014. ISIL’s genocide against the Yazidis was largely not prevented by the international community, and no prosecutions for genocide have yet occurred. This is not unique, as recent reports about attacks on Myanmar’s Rohingya community indicate. Despite the Convention’s venerated status, there has been relatively low compliance with the legal obligations it entails.

Article II of the Convention establishes that genocide is committed when a person or persons carry out a prohibited act or acts with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. These are commonly referred to as the “protected groups.” Prohibited acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. This definition was replicated, without amendment, in the Rome Statute of the International Criminal Court (ICC).

Nevertheless, genocide continues to be understood as a crime committed predominantly through organized mass killings – the majority of victims of which, both historically and today, tend to be male. Killings are the most recognized genocidal act, with the consequence that killings, or the potential commission thereof, are most likely to spur efforts to prevent and suppress genocide. Killings are also more likely to be indicted as genocide, in instances where justice is successfully pursued. Consequently, non-killing acts of genocide – more likely to be directed against female members of the protected group – are often cast out of the continuum of genocidal violence, and not recognized as signs of a nascent or ongoing genocide, and not indicted as genocide (or sometimes at all) in any trials that may follow.

And yet, gender permeates the crime of genocide. It is woven into the perpetrators’ planning and commission of coordinated acts that make up the continuum of genocidal violence. It is through these gendered acts of violence that perpetrators maximize the crime’s destructive impact on protected groups. Female and male members of targeted groups, by the perpetrators’ own design, experience genocide in distinct ways by reason of their gender. Men and older boys are targeted as a consequence of the gendered roles they are perceived to inhabit, including as heads of households, leaders, religious authorities, protectors, potential combatants, guardians of the group’s identity, and patriarchs.

Assaults on women and girls pay heed to their roles as mothers, wives, daughters, bearers of future life, keepers of community and family honor, and sources of labor within the home. An understanding of what it means to be male and female in a particular society thus saturates perpetrators’ conceptions of their victims, and of themselves. In particular, the violence directed at women and girls during genocide is fed by existing misogynistic attitudes in society, and the traumatic impacts are magnified by the financial, social, and cultural inequalities of women and girls.

The continuing failure to acknowledge the complexity of genocidal violence – and the distinct ways in which genocide is planned and committed against men and women, boys and girls, by reason of their gender – has undercut the development of an effective framework to mobilize the Genocide Convention’s legal obligations to prevent and punish genocide. It has limited political, diplomatic, and military authorities’ capacity to recognize where there is a serious risk of genocide occurring, and to identify and suppress genocides that are in progress. This has particular consequences for female victims, who are often subjected to a wider range of violations that occur over a relatively longer span of time.

Prosecutors have also been more likely to charge genocide in situations where mass killings have occurred, while non-lethal genocidal acts such as rape, torture, forced pregnancy, and enslavement—perpetrated disproportionately against female victims—are more likely to be indicted as crimes against humanity or war crimes, or not at all. While no less serious, this casts crimes against, and experiences of, women as girls outside of the continuum of genocide.

As women and girls are more likely to survive genocide, any ensuing trials rely heavily on what they have seen, heard and suffered. A conception of genocide that relies on them bearing witness to the killings of their fathers, brothers, sons and husbands, and which turns away from all non-lethal horrors visited on female and male members of the protected group, is a harm in itself. These prosecutorial decisions and judgments (as seen in the International Criminal Tribunal for Rwanda’s Ntagerura, Bagambiki, and Imanishwe indictments, and the Nyiramasuhuko Judgment) eclipse substantial parts of the community of genocide victims, mirroring the attempted erasure that the perpetrators of genocide intended, and distorting the historical record borne out of the trials.

Today, thousands of Yazidi women and children remain missing. Rohingya women and girls, many of whom have been subjected to horrific gender-based genocidal crimes, are at risk of being repatriated to the very site of the crimes, and back into the hands of their perpetrators. The failure of the international community to recognize, prevent and punish situations in which genocide is being committed, or where a serious risk of genocide exists, raises questions about the meaningfulness of the Convention’s legal obligations. If the Convention is to remain salient 70 years after its ratification, it cannot serve only as a law to be fondly celebrated but never applied.

The Genocide Convention and customary international law continue to offer a progressive framework for understanding genocide, and for preventing and punishing this crime. Failure to engage with the framework derives, in part, from the gender-blindness with which the international community has approached and interpreted the Convention. In failing to acknowledge the inextricable role that gender plays in genocide, limits have been placed on the ability to recognize genocide before and as it occurs, and consequently to prevent and punish the full spectrum of genocidal violence. Where States have been unwilling to act, gender-blindness affords space for equivocation, and for retreat from the legal obligations of the Convention.

Where one recognizes genocide as present only in its most murderous articulations, and rejects from the genocidal continuum the non-killing acts of genocide, the ability to uphold the legal obligations to prevent and punish is undermined. One cannot prevent and punish what one does not recognize. A gendered analysis of genocide casts a bright light on the multi-dimensional nature of this crime, and its victims. In this way we recognize, remember and protect all those whose lives have been, or may still be, ripped asunder by the scourge of genocide.

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On December 7, 2018, the Global Justice Center released a comprehensive legal analysis of gender and genocide, Beyond Killing: Gender, Genocide and Obligations under International Law. It examines the central role that gender plays in the crime of genocide, and the role it must therefore play in efforts to prevent and punish it.

Image: Human rights activist and co-laureate of the 2018 Nobel Peace Prize Nadia Murad gives her lecture after accepting her prize during the Nobel Peace Prize ceremony on December 10. Photo by BERIT ROALD/AFP/Getty Images

 

About the Author(s)

Sareta Ashraph

Barrister specializing in international criminal and humanitarian law; previously served as Chief Legal Analyst on the UN Commission of Inquiry on Syria.

Akila Radhakrishnan

President of the Global Justice Center, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality.