This blog was authored by Akila Radhakrishnan, Legal Director of the Global Justice Center. The ICRtoP would like to extend its thanks to Ms. Radhakrishnan for writing this piece, and to the Global Justice Center for the use of the below accompanying infographic.
“From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war.” – Judge Navi Pillay commenting on the decision in The Prosecutor v. Jean-Paul Akayesu
The International Criminal Tribunal for Rwanda’s (ICTR) revolutionary decision in the Akayesu case is often cited for setting the precedent that rape could be a constitutive act of genocide. And while the precedent is incredibly important, it’s what that finding represents that’s even more significant: women’s experiences of war and conflict may be different, but they are no less important or serious.
This is the same realization that underpins the Security Council’s now over 15-year old agenda on Women, Peace and Security and scaled up efforts in recent years to combat sexual violence in conflict. However, as the recent Global Study on Security Council Resolution 1325 found, while progress has been made, much remains to be done. Gender remains an ancillary concern in many cases and serious efforts need to be made to proactively incorporate a gender lens into modern efforts to respond to conflict and mass atrocities and counter terrorism and violent extremism.
One area where the consideration of gender has historically been and continues to be mired in complexities is in the context of genocide, where the defining of the crime element pertains not to gender, but rather membership in a protected group (national, ethnical, racial or religious). In fact during the drafting of the Convention on the Prevention and Punishment of Genocide (Genocide Convention), unlike other groups that were considered (e.g. linguistic and political groups), there was no consideration that gender would constitute a protected group.
However, while gender in and of itself is not protected, history has clearly shown us that the way that genocide has been perpetrated does have a gender dimension—an understanding of which is essential to fully understand the scope and consequences of genocide.
During the Armenian Genocide, while the genocide was perpetrated against men primarily through mass killings, women and children were targeted for forced deportations, abductions, forced assimilation and systematic sexual abuse. In the Holocaust, the Nazis subjected women, whether Jewish, Polish or Roma, to “brutal persecution that was sometimes unique to the gender of the victims.” In Bosnia, forced impregnation through rape was used to produce “Serb” babies; Bosnian rape survivors reported their rapists “triumphantly jeering after reaching orgasm that the woman was now carrying ‘Serb seed’ and would produce a ‘Serb baby.’” In Darfur, thousands of women belonging to the Fur, Masalit and Zaghawa groups have been subject to rape.
These precedents demonstrate the need to fully integrate a gender perspective in considering the full range of acts that can constitute genocide—because apart from precedents at the ICTR—justice and accountability for these acts as crimes of genocide remains elusive.
And it’s not that the framework for such a consideration does not exist—it does—we just need to make better use of them and interpret them progressively to respond to today’s conflicts and challenges, as the ICTR did. Take for example the Genocide Convention. When people think of genocide, they typically think only of mass killing. However, the Convention itself envisions a much broader range of measures that can be used to “destroy” a targeted group: causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about its physical destruction; imposing measures intended to prevent births; and forcibly transferring children. And while gender is not a protected group, the way that these non-killing crimes of genocide can be effected often has a distinct gender component.
For example, the Convention’s prohibition of measures intended to prevent births, which is directly tied to issues of biology and reproduction, inherently has gender lines in how it can be committed. In patrilineal societies, where group membership is determined through the father’s identity, this can be achieved by killing or sterilizing men, rendering them incapable of reproduction. For women, this can be achieved through rape, forced abortion or forced pregnancy.
Today we see this playing out in real-time in Daesh’s genocidal campaign against Yazidis. An examination of their ideology, strategies and policies indicate that there are strong gender dynamics that guide how these crimes are perpetrated. Daesh specifically and strategically targets Yazidi women and girls in carrying out an ideology predicated on gender inequality and male dominance over women and children. Its state-building strategy requires subjugation of women and control over their reproductive capacity to guarantee future generations for the Caliphate. Guided by this ideology, Daesh has committed horrific acts of abuse against Yazidi women and girls. They have been systemically captured, killed, separated from their families, forcibly transferred and displaced, sold and gifted (and resold and re-gifted), raped, tortured, held in slavery and sexual slavery, forcibly married and forcibly converted. The thousands of Yazidi girls and women who remain in Daesh’s captivity continue to be subjected to genocidal acts daily.
This is why in December 2015, the Global Justice Center (GJC)made a submission in support of the Article 15 filing by the Free Yazidi Foundation and Yazda calling on the International Criminal Court (ICC) to open an investigation into foreign terrorist fighters from ICC member states in Daesh, including for genocide. GJC’s submission focused on delineating the gender crimes perpetrated by Daesh under the Rome Statute, including acts which would be constitutive acts of genocide. GJC also encouraged the Office of the Prosecutor to both consider whether genocide is being committed and the role that gender plays in the ways in which the genocide is being carried out in any investigation. For example looking at Daesh’s actions though a gender perspective reveals that certain acts could constitute the genocidal crime of preventing births within a population:
“Separation of the sexes, rape, forced birth control and obstacles to marriage can each constitute measures intended to prevent births within a group. More specifically, in Yazidi society, where membership of the group is determined by the identity of both parents, prevention of births happens when Yazidi women and girls are separated from their husbands and other Yazidi men. Births are further prevented when women and girls are raped, subsequently stigmatized within their own group (see above) and forcibly impregnated by ISIS fighters. Finally, births within the Yazidi group are prevented when Yazidi women pregnant with Yazidi children are forced to undergo abortions, eliminating a chance for Yazidi heirs.”
In 1998, the ICTR demonstrated how a serious and comprehensive consideration of the role that gender plays in conflict and the commission of mass atrocities can foster a more complete understanding of how horrific acts like genocide can be committed. This understanding in turn can inform not only justice and accountability for genocidal acts after the fact, but also inform prevention and suppression efforts. It’s not enough to just recognize that acts such as sexual violence, abductions, enslavement, forced abortion, and forced impregnation—acts which are disproportionately committed against women—of protected groups can constitute genocide. Rather, the commission of such acts needs to impel action for states and international actors to fulfill their obligations to prevent, suppress and punish genocide.
Akila Radhakrishnan is the Legal Director at the Global Justice Center. In her role, she works to ensure justice, accountability and equal rights to people in conflict and in post-conflict situations, and to establish global legal precedents protecting human rights and ensuring gender equality. She has published articles in The Atlantic, Women Under Siege, RH Reality Check, the Denver Journal of International Law and Policy and Reproductive Laws for the Twenty First Century.