(Editor’s Note: This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions that resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)
Over the last 30 years, the world has seen progress, largely due to feminists, in delivering justice for gender-based crimes — particularly sexual violence. However, most of this progress has relied on retrofitting gender-specific experiences into pre-existing legal frameworks that didn’t care much for gender. Take, for example, the International Criminal Tribunal for Rwanda’s groundbreaking finding of rape as an act of genocide in the Akayesu case, or much of the jurisprudence out of the International Criminal Tribunals for Rwanda and the former Yugoslavia related to sexual violence, including finding rape as a form of torture. These precedents were built on gendered readings of crimes whose definitions make no explicit reference to sexual or gender-based violence.
The Rome Statute that created the International Criminal Court (ICC) was certainly an improvement on the Genocide and Geneva Conventions in its explicit codification of sexual and gender-based crimes. But the last 20 years of the Court’s practice have also shown its limitations, with only two standing convictions for sexual and gender-based crimes.
Given this track record, a new convention on crimes against humanity could be a gamechanger for the effective prevention and prosecution of gender-based crimes.
Accountability for Sexual and Gender-Based Crimes
As a starting point, there is no question that the Rome Statute was an important step forward in the codification of atrocity crimes, including in its explicit recognition of a broad range (at the time) of sexual and gender-based crimes beyond rape — sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and gender-based persecution. Despite a dismal record on securing standing convictions for such crimes, a concerted effort to improve prosecutions for crimes of sexual and gender-based violence (SGBV) by former ICC Prosecutor Fatou Bensouda has resulted in some important steps forward.
For example, the landmark prosecution against Dominic Ongwen, a brigade commander in the Lord’s Resistance Army, bore the broadest spectrum of gender-based charges in the Court’s history, including the first charge and subsequent conviction for the crimes against humanity of forced pregnancy and forced marriage. Significantly, the charge of forced marriage was brought as the crime against humanity of “another inhumane act,” as it was not a specifically codified crime on its own. Previous prosecutions of forced marriage had been subsumed under the crime of sexual slavery, which had the effect of erasing some of the non-sexual harms of forced marriage. In addition, the ongoing Al-Hassan case marks the ICC’s first inclusion of the crime of gender-based persecution at the confirmation stage for the defendant’s actions as de facto chief of Islamic police in Mali. These recent precedents demonstrate the potential for the crimes against humanity framework to further the fight for gender-justice.
In the broader field of public international law, more progressive understandings of gender justice have also taken root, which similarly highlight the opportunities posed by a new convention. The process to date of drafting the proposed Convention on the Prevention and Punishment of Crimes Against Humanity is itself a case in point. In 2019, after the concerted work of feminist and LGBTQI+ activists and legal experts, the International Law Commission removed the regressive definition of ‘gender’ in the draft convention that had been carried over from the Rome Statute. This removal reflected the fact that, in the 20 years since the creation of the Rome Statute, gender is no longer understood to reflect “the two sexes, male and female.” Other gender gaps in the current draft, including a limited definition of forced pregnancy with an unnecessary caveat on national abortion laws, as well as a limited framework for the crime of enslavement, offer further opportunities for a new convention to be more gender-competent.
However, the Rome Statute also remains the only international codification equipped to address new and emerging crimes against humanity. While ad hoc tribunals have been established to respond to specific crises, the ICC is the only permanent mechanism for criminal accountability at the international level. Thus the substantive, procedural, and practical limitations of the ICC restrict the justice outcomes for crimes against humanity. Neither was the Court intended to be the sole body responsible for seeking judicial remedies for mass atrocities, nor does it have the capacity to investigate every situation and try every individual. The ICC can only address one side of the accountability picture — individual criminal responsibility — leaving state responsibility for crimes against humanity aside.
In addition to the potential directly related to sexual and gender-based crimes, the concept of crimes against humanity also covers a broader range of contexts. Whereas war crimes are dependent on the existence of an armed conflict and genocide bears a specific intent requirement, crimes against humanity can be committed in times of peace or war and — with a few exceptions — do not require a determination of conflict or genocidal intent. The effective codification of crimes against humanity is essential to capturing a range of gender-related harms that are excluded from the existing frameworks on mass atrocity crimes.
State Responsibility for Crimes against Humanity
While the Rome Statute, as well as a patchwork of domestic laws on crimes against humanity allow for individual criminal responsibility for these crimes, one glaring gap in the current legal architecture of mass atrocities is the lack of specific obligations for States to act in the face of crimes against humanity and of a mechanism for holding them accountable when they fail in their obligations.
Importantly, the draft convention being considered by the United Nations General Assembly’s Sixth Committee lays out clear obligations for States to not commit crimes against humanity, as well as to prevent and punish them, including through the passage of domestic legislation, cooperative action at the multilateral level, and obligations to extradite or prosecute and to provide mutual legal assistance. These obligations are bolstered with provisions to hold States accountable for the violations of the convention, including at the International Court of Justice.
The ongoing Uyghur crisis is an apt illustration of why such obligations are needed. It is clear that widespread and systematic violations are occurring in Xinjiang against Uyghurs and Turkic Muslims, including gender-based crimes such as forced contraception and sterilization. Yet, far too much of the conversation is mired in a question of whether, for the purposes of triggering obligations under the Genocide Convention, these crimes are being committed with the specific intent to destroy the group as such and if, without mass killings, the evidence is sufficient to demonstrate serious risk of genocide. Despite commitments to prevent and suppress any mass atrocity crimes, including under the principle of the Responsibility to Protect, States have largely tied their capacity and duty to prevent these violations to the Genocide Convention’s explicit obligations to act. Closing the gap in the framework of State obligations to act — including to prevent other atrocity crimes — is an important and needed step forward, the one that the proposed convention would offer.
The decades since the Rome Statute first codified sexual and gender-based crimes have been marked by the continued use of sexual and gender-based violence by perpetrators exploiting existing power structures, patterns of discrimination, and gender roles. While the facts on the ground have always been gender-specific, neither State responses nor justice have always reflected that reality.
The opportunity to establish a new convention that incorporates lessons learned and progressive jurisprudence, as well as to redress gaps and regressive political compromises, can shift the paradigms around which experiences are deserving of justice and trigger State obligations to act. Such a legal framework could be transformative for so many who have been left out or on the margins of existing frameworks, including women.