The initiative to define 'gender' in the international law arena was undertaken while drafting the Rome Statute of the ICC. The definition is considered to be a positive but often received criticism for not being all-inclusive. Besides there was dissatisfaction with the role of the ICC as an adjudicator. As it failed to deliver gender explanations that could have shed more light on the reasons underlying the commission of the gender based crimes. In this paper, we shall pore over the very presence of the Rome Statute that led to the SGBC being addressed. And also consider the evolving jurisprudence on the subject of gender.A brief overview of the Rome Statute
The process of incorporating gender equality within the framework on the ICC coupled with the varied stances of the states wasn't an easy accomplishment. To create a consensus amongst the states to have one unified frame of reference was vital. The Rome Statute successfully set out an unsuppressed view which lead to the recognition of crimes against women as crimes against humanity, war crimes and in some instances genocide.
In ensuring that the statute remained gender sensitive the Women Caucus for Gender Justice played an important role. They persuaded states to propose their ideas and suggestions on the floor to achieve this goal. While some states were viewed as allies of the Women Caucus, there were some conservatives like the Holy See and Arab states that opined against the inclusion of sex and gender based provisions in the statute. One of the most contested issues was the definition of the term 'gender'.
Despite the divide amongst the states as witnessed at the stage of negotiation, on the 17th of July,1998 the Rome Statute was successfully adopted and it is considered to be the most gender-sensitive criminal law document.The Gender Dimensions-The definition of gender and beyond
The term gender can be said to be a very subjective and may be interpreted in different ways by individuals. Likewise, even the states are bound to have a different perception and it gets tricky when they have to be in agreement of a unified framework. Article 7(3) of the Rome Statute defines gender as the "two sexes, within the context of the society and it doesn't indicate any other meaning to gender." The religious states pressed for a so-called 'two-sex model', which ruled out the possibility of granting that status of inclusion to the homosexual, transgender subjects and others.
Further, articles 7 and 8 of the Statute prohibit 'rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence.' It gave the above mentioned crimes acknowledgement as crimes against humanity, genocide and war crimes through gendered lenses. Recently, there have been reports regarding the sale of Yezidi women by the ISIS as sexual slaves, and Boko Haram's abduction of schoolgirls for forced marriages in Nigeria. Both of which can be seen in violation of the provisions of the Rome Statute.
While the states argue that the list of gender based crimes should go on to include many other harmful practices that are prevalent in parts of the world. The ICC deals with such claims by saying that the Statute can be interpreted to that extent to include offences of comparable gravity like forced marriages and female genital mutilation. The list cannot be said to be exhaustive in that regard. This is precisely what the ICC prosecutor's argument revolved around in the case of Lord's Resistance Army.
Lastly, persecution on the basis of gender is also prohibited under the Statute. Persecution is one crime under the Statute that requires corroboration that the victims were targeted by the virtue of their gender only. This corroboration isn't a requirement for the gender based crimes mentioned above.Criticism of the Statute's definition of Gender
The definition of gender under the Rome Statute can be seen as a classic example of how negotiations take place while forging diplomatic relation as it has to take place with the consensus of all. The Statute uses the two-sex model to define gender. The framers failed to distinguish sex and gender from one another. While sex is linked to the biological difference that exists between the sexes, gender refers to the societal construction of roles and other attributes. Charlesworth and Christine Chinkin argued that describing gender as an issue of biology has limited the 'transformative edge'. This limited outlook rules out the inclusion of socially and culturally constructed roles which implies that the ICC's jurisdiction is restricted only to the two sexes with respect to the victims. The critics wanted to replace gender by the term 'sex' so that 'biology isn't the foremost factor while interpreting the definition so provided.'
The definition is also criticized for failing to encompass the sexual orientation within it's boundaries. The Conservatives were determined to restrict the usage of gender to not include 'homosexuals'. This was intentionally confined to de-limit the persecution on the basis of sexual orientation. Yet some argue that it is dependent on the interpretation of the ICC and it may decide it on a case to case basis.
The next criticism stems from the unsettled meaning of 'within the context of the society' in the definition. The ambiguous nature of the phrase restricts the Court's power to scrutinize due to the inability to contemplate the elements that affect the social construct in any given society.
However, it is also argued that there was constructive ambiguity and that the above mentioned phrase can be said to be inclusive of the societal construction of the roles as well. For the ICC, this meant that they could be formable while interpreting it.
The Statute is also criticized on the ground that the exclusion of other groups from the definition contributes to the gender issues being neglected in the international arena. The perplexity of the words and its interpretation has rendered the working of the ICC in such gender based crimes very gloomy. The whole basis of the identification of gender based crimes would cease to matter if the ICC cannot provide any remedy to the victims due to the imprecise definition. The Chechen government was accused of persecution against homosexuals by France and to this the government officials denied that homosexuals exist in their country, they said that you 'cant detain what doesn't exist.'
Adjudication at the International Criminal Court (the interpretation of 'gender' in the Court)
Although the Rome Statute is regarded as the most gender sensitive document, the good intentions of the statute don't always get translated in practice. About 40% of the charges of gender based crimes have failed at the ICC as the prosecutors failed to prove to the required standard these charges. But the situation has improved since then.
The understanding of the ICC as what constitutes as an act of sexual violence is often reflected during the proceedings of a case. When the Statute was created after the existence of a few preceding tribunals like the ICTY and ICTR, it was expected to consider their judgments for the 'established jurisprudence of gender based crimes.' In the Akayesu case, which was tried by the ICTR forced nudity was said to be a part of sexual violence. This deserves appreciation in context of the expanded interpretation of sexual violence that was adopted by the ICTR. However, the ICC failed to be as broad while interpreting sexual violence. In the Muthaura case, the ICC observed that forced circumcision on men isn't an act of sexual violence. The need is for the judges as well as the prosecutors to be more gender conscious and gender sensitive while trying to get an understanding of gender based crimes. In addition to this, the prosecutor has not always explained why something is sexual and gender based and what that means in the context of the act that is being looked at.
As mentioned above, the intentions were good but the need was for the ICC to prioritize and have a more informed outlook while addressing crimes of such gravity. In 2014, the Office of the Prosecutor put forward it's policy paper on Sexual and Gender Based Crimes, with a set of objects to bear in mind while dealing with sexual and gender based crimes. The jurisprudence on gender based crimes is ever evolving. And in 2016 the ICC made its first conviction in the Bemba case for using sexual violence as a weapon of war. The ICC has definitely developed a stronger jurisprudence on the subject, along with other developments like the first witness testimony on charges of sexual violence, inclusion of an expert witness in the case to address SGBC, and the setting up of a women bench for a trial.Conclusion
The Rome Statute which provides the legal basis for the SGBC at the ICC, is a progressive document. The recent case against Chechyna at the ICC for 'genocide against gay people' is indicative of their presence being admitted within the definition of gender in international law.
The quest to ensure gender sensitivity at the ICC will not be achieved by a mere gender sensitive statute. It requires consistent efforts from within and outside the ICC. This is the beginning of understanding the role of gender in genocide, war crimes and crimes against humanity.Reference:
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