Engendering justice: women and the prosecution of sexual violence in international criminal courts (original) (raw)
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Social Science Quarterly, 2007
Objective. This article examines gender justice at the International Criminal Tribunal for the Former Yugoslavia (ICTY) by analyzing sexual assault cases and the impact that gender composition has on sentencing outcomes.Methods. We employ regression analysis to explain the impact of male and female jurists as decisionmakers and the subsequent outcomes rendered for victims.Results. We find that gender is a determinate factor in sentencing outcomes, and that female judges have a distinctive role that varies depending on the gender of the victim in the case.Conclusion. Contrary to criticisms that the ICTY has not provided justice for victims in sexual assault cases, we find support for the exact opposite. Sentencing disparities indicate that female jurists more severely sanction defendants who assault women, while all male panels of judges do the same for male victims.
'But what about men?' Gender Disquiet in International Criminal Justice
Theoretical Criminology, 2019
This article explores the everyday remaking of patriarchy in international criminal justice. Drawing on 63 interviews at the International Criminal Court in The Hague and in Uganda, it argues that a gender backlash has been fomenting in international criminal justice, as practitioners express their disquiet about the 'ubiquitous gender discourse'. They claim that the Court's 'gender agenda' is in no small part driven from 'outside' and lament that it neglects the rape of men. The article traces how patriarchal norms are refashioned in international criminal justice by playing into legal sensibilities that see procedure rather than substantive change as the essence of (criminal) law. Ultimately, the article shows how attempts to foreground victims of Sexual and Gender-Based Violence in international criminal justice first failed to include men, and now, in a belated effort to rectify their omission, construct their competitive victimhood in ways that reinforce rather than challenge patriarchal norms.
Performing Legal Order: Some Feminist oughts on International Criminal Law
is article argues that international criminal law, like its domestic counterpart, is a contradictory site for feminist activism. While it off ers some important tools for recognising, naming and giving legal credence to the realities of women's lives in times of confl ict, international criminal law is also a limited and limiting arena for feminist-inspired social change. My objective in this article is to highlight some of these limitations, not to counsel against continuing feminist activism, but to start a conversation about some of the costs, risks and implications for feminist strategy in continuing to work within the structures of international criminal law. It is now widely recognised that the international criminal prosecution of war crimes – notably at the Yugoslav and Rwanda Tribunals and the Special Court for Sierra Leone – has made historic progress in recognising and condemning sexual violence crimes against women. e knock-on eff ects of those prosecutions are also well known: incorporation of sexual violence crimes into the International Criminal Court statute, increased media attention to large-scale sexual violence in confl ict zones, increased political attention to sexual violence crimes, notably at the United Nations Security Council, targeting of service delivery in confl ict zones to sexual violence victims, and so on. While these developments are far from perfect, they are historic departures from the international legal and political silence on wartime sexual violence that characterised most of the twentieth-century.
Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court
2013
This chapter analyses the investigative and prosecutorial strategy of the ICC over its first decade of operations, with a specific focus on the investigation and prosecution of sexual and gender-based violence. The prosecution of Thomas Lubanga Dyilo is used as a case study to highlight the numerous strategic failures made, at both the investigation and trial phase, by the ICC's first Prosecutor, Luis-Moreno Ocampo, including the over-reliance on evidence obtained pursuant to confidentiality agreements under Article 54(3)(e), the failure to properly supervise the use of intermediaries, inadequate field investigations, the entire absence of charges for gender-based crimes, and the inability or unwillingness to obey direct orders from the Trial Chamber that resulted in the unprecedented imposition of two stays of proceedings in the case. In light of the verdict in the Lubanga trial, the chapter argues that the serious systemic flaws and strategic errors that were exemplified in th...
Many scholars and activists have argued that the International Criminal Court (ICC) holds potential for advancing the rights of women and girls, leading to extensive feminist engagement with and investment in the Court. As the ICC enters its second decade of existence, this article offers a reflection on both the possibilities and the challenges facing feminists. Can the international criminal law really offer a site for enhancing the rights of women? And if so, how? To explore these questions I focus on the interaction between feminist activism and international criminal law institutions in relation to crimes of sexual and gender-based violence. I argue that some of the feminist strategies deployed to get sexual violence onto the interna- tional agenda have resulted in perverse outcomes. This should lead us to greater critical reflection regarding how international law conceives of sexual violence and direct our future engagements with international legal institutions. In particular feminist activists and scholars need to move away from focusing on the number of prosecutions towards challenging the international criminal law to characterise the nature of the harm in accordance with a recognition of sexual rights.
Feminist Perspectives on the International Prosecution of Conflict-related Gender-based Crimes
Journal of International Criminal Justice, 2022
Feminist legal scholars played a prominent role in surfacing gender-based crimes and developing the international criminal justice system in the last three decades, from as early as the first horrific reports of the systematic mass rape of mainly Bosnian Muslim women throughout the Yugoslav dissolution war of 1992–1995. Due to the failure of the international criminal tribunals and courts to adequately prosecute wartime rape and other forms of sexual violence in the past three decades, gender-based crimes were inflicted on a massive scale as an integral part of ethnic and civil armed conflicts, by both enemies and supporters, in Rwanda, the Democratic Republic of Congo (DRC), Sierra Leone, and other countries recently torn by sectarianism and civil war, particularly Libya and Syria. As a result of the rampant mass rape that prevailed in conflicts over the past three decades, international criminal law has witnessed unprecedented developments, including the emergence of several ad hoc international criminal courts (ICCs) and tribunals, as well as the establishment of the ICC. These prosecuted wartime rape and other forms of sexual violence, for the first time, as crimes of genocide, war crimes, and crimes against humanity. Simultaneously, this period has witnessed the publication of substantial legal scholarship underlining these developments, including the books under review. The significance of these carefully selected books lies in their study of the above crimes from several doctrinal and methodological angles, which together constitute an in-depth analysis that answers many complex questions about what these crimes are, why they are committed, how to resist them, how to bring perpetrators to justice, as well as the obstacles to accountability that have helped perpetrators enjoy impunity.
Gender and sexual crimes before ad hoc international criminal tribunals
Rape has been regarded as a weapon of war, a tool used to achieve military objectives such as ethnic cleansing, genocide, spreading political terror, breaking the resistance of a community, intimidation or extraction of information. The 1949 Geneva Conventions do not refer to acts of sexual violence as a 'grave breach'. The 1990s saw the establishment of the two flagship international criminal institutions -the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as well as codification of rape and other sexual violence as among the gravest international crimes in the Rome Statute of the International Criminal Court. The purpose of this paper is on the one hand to point to the achievements of the ad hoc international criminal tribunals in the recognition of gender crimes as war crimes, crimes against humanity and genocide and on the other, to indicate that there have been some mischaracterisations and misunderstandings in their jurisprudence, particularly as to the issue of consent of the victim of rape as definitional element of that crime.
Constructing Women Perpetrators of International Crimes: A Critical Discourse Analysis
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2020
Recognising rape and other sexual and gender-based violence as forms of, rather than being peripheral to, international crimes has been instrumental in bringing to the forefront the impacts of, and motivation for, crimes committed against women, in particular in the context of war. However, the prevailing silence about women who commit crimes has stagnated the recognition of the diverse roles that women play in war, including being directly involved in the commission of (most serious) crimes. This study attempted to challenge some of the dominant positionalities on women in war by conducting a critical discourse analysis of the relevant legal court material relating to the high-profile cases of Biljana Plavšić at the International Criminal Tribunal for the former Yugoslavia (ICTY) and Pauline Nyiramasuhuko at the International Criminal Tribunal for Rwanda (ICTR). Our findings indicate that it is necessary to recognise a multiplicity of personal, social, cultural and situational factors that might influence women's exercise of agency and women's propensity to engage in violence, including violence committed against other women. Consequently, law's gender neutrality is little more than gender blindness if it does not take account of the social, cultural and personal embodiment of gender practices, including in crime.