The study of Gender has always evolved through the perspective of a single lens and by doing so, the study of gender and its jurisprudence, which by itself requires an intersectional study, have been deprived of its essence due to the failure of looking through a spectrum. Due to the gendered nature of the judiciary, all genders are discriminated against on different aspects. Gender equality is the primary goal of human rights. However, laws that are framed to secure the goals of human rights often fail to achieve equity while fighting for equality. While the responsibility of protecting and promoting women’s human rights keeps shifting from State actors to non-state actors, many women around the world continue to experience discrimination in many forms. This article will be focused on the gender jurisprudence, feminist jurisprudence, and how study of gender crimes has evolved in time by looking at various international cases.
International perspective of Gender Jurisprudence – A dive into Sexual and Gender-Based Violence
It has been repeatedly seen in International crimes that sexual violence has been used a constant weapon in a systematic attack or an armed conflict as a method of control, humiliation, torture and to terrorize, degrade, and ethnically cleanse them. It escalates out of two situations, either to provide a tactical advantage by demoralizing an enemy and giving the troops the “spoils of war”, or when there is no organized plan and machinery to conquer a territory. Recognition of Sexual and Gender-Based Violence (hereafter, SGBV) in armed conflict was only slightly advanced in the late nineteenth and early twentieth centuries. Both men and women, regardless of their gender, were affected. However, one cannot deny that women and girls were targeted largely. Survivors were often marginalized and stigmatized in their communities.
Tribunals were established in various parts of the world to deal with the Crims against Humanity, out of which, sexual violence was dealt in different ways.
The landmark case of Prosecutor v. Tadic in the International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international criminal trial to recognize and prosecute sexual violence as a war crime. The case of Prosecutor v. Kunarac was also significant as it was the first case to recognise the crime of sexual slavery. In the case of Prosecutor v. Akayesu in the International Criminal Tribunal for Rwanda (ICTR), for the first time in history, recognized rape explicitly as an instrument of genocide and a crime against humanity. Additionally, the manner in which cases were dealt in Special Court for Sierra Leone ('SCSL') indicates both the growing awareness of SGBV in conflict and the necessity of prosecutions. A trial judgment by the SCSL relating to offences by the Revolutionary United Front (RUF) between 1991 and 2002 brought the first ever conviction for the crime of sexual slavery and forced marriage as inhumane acts.
The significance of recognizing sexual violence as a weapon used in armed conflict by courts has changed how gender crimes were looked at and dealt with in international courts. Moreover, rape and sexual assault were treated as a form of “humiliating or degrading treatment” (in Geneva Convention I) or as an offence against a woman’s honour and not as a crime of violence.
International Criminal Court
International Criminal Court (ICC) was established in the year 2002 which signalled a new era in international justice whereby the perpetrators of the most ‘unimaginable atrocities that deeply shock the conscience of humanity’ could be tried and prosecuted.
The International Criminal Court (ICC) passed its first verdict on March 14, 2012 in the case of The Prosecutor v. Thomas Lubanga Dyilo where the accused was convicted of committing, as co-perpetrator, war crimes consisting of enlisting and conscription of children under the age of 15 years into the Patriotic Force for the Liberation of Congo (FPLC) and using them to participate actively in hostilities in the context of an armed conflict not of an international character (punishable under article 8(2)(e)(vii) of the Rome Statute).
It is relevant to note that charges of sexual violence committed against child soldiers by the accused were not recognized or included in the charge sheet, and no amendment of charges took place later in the case. Several NGOs at that time gathered evidence of the same against the accused and presented it to the court which pushed the court to take cognizance of the matter. The case of Lubanga, which took 6 years for the courts to bring justice, has yielded certain positive outcomes, which has encouraged the ICC to look at cases through an intersectional lens and to be conscious of gender injustices prevalent at the time while passing judgements.
International Criminal Tribunal for Rwanda
One of the most ground-breaking verdicts in the history of international tribunals can be traced to ICTR where rape, for the first time, was recognized as an instrument of genocide, or armed conflict and a Crime Against Humanity. In the case of The Prosecutor v. Jean-Paul Akayesu, the judiciary took a different turn while convicting the accused for international crimes as initially, there were no charges of sexual violence in the original indictment.
One of the Judges presiding over the case, Judge Pillay, had reason to suspect that the crime of sexual violence was not an isolated crime and that it committed as a part of the armed conflict to inflict fear, terror, humiliation on the civilians. On this suspicion, the prosecution was ordered to conduct investigation on gender crimes which resulted in the Trial Chamber concluding and passing verdict that sexual violence was widespread and systematic in Taba and committed by the Hutus with the intention to terrorize, humiliate, and ultimately destroy the Tutsi group.
The ICTR found him responsible for:
Rape as a crime against humanity
Other inhumane acts as a crime against humanity
Rape as a crime of genocide
Torture tends to be experienced by those groups who are marginalized in the society and the status of the victim often becomes a factor in determining whether and how they face violation. Torture is most often bent to fit in a patriarchal society by way of asserting dominance over one gender, ethnicity, or society. Women become a substitute for punishment when their spouses or family members could not be captured. The concept of rape and the gravity of the issue is different and higher when it is during wartime or any armed conflict. During the armed conflicts, it is highly important to notice how several crimes are committed to not hurt a particular individual but to hurt or terrorize a society as a whole in order to assert dominance. The Akayesu judgment set the ball rolling in recognizing and charging perpetrators with Sexual and Gender-Based Violence.
International Criminal Tribunal for Former Yugoslavia
The Security Council formally established the International Criminal Tribunal for the former Yugoslavia (ICTY) on 25 May 1993 to hold the persons responsible for the crimes committed or ordering for these crimes to be committed and to stop the violence and safeguard international peace and security. The establishment of this tribunal marked the beginning of the end of impunity for war crimes in the former Yugoslavia.
The commencement of the ICTY’s proceedings with The Prosecutor v. Tadić case which successfully established the concept of ‘joint criminal responsibility’, a concept which existed in domestic criminal law of countries prior to this case but never in international criminal jurisprudence.
The case of Prosecutor v. Delalic, Mucic, Delic and Landzo (a.k.a. The Čelebići case) set a milestone in international justice by recognising and prosecuting rape as a form of torture, and as such both a grave breach of the Geneva Conventions. It was found that women were raped for purposes of extracting information, punishment for reporting previous abuse, coercion and intimidation, and these women were targeted for crime of sexual violence in order to terrorize the civilians by way of creating an atmosphere of fear and powerlessness in the camp.
In the case of Prosecutor v. Anto Furundzija, one of the presiding judges, Judge Mumbam was able to use her expertise in women’s issues and gender crimes which made her exceptionally qualified and with whose guidance and orders, the accused was convicted of torture (as a co-perpetrator) and outrages upon personal dignity (as an aider and abettor) as war crime. It is pertinent to take a look at the view of the Trial Chamber as it found that the role the accused played in facilitating the rapes allowing them to occur and continue, made the accused just as responsible as if he had raped the victim himself.
In the cases of The Prosecutor v. Kunarac, Kovac and Vukovic and Prosecutor v. Kvocka, the Trial Chamber was able to do justice as the court was able to adjudicate rape and enslavement which included exploitation, sex, prostitution, trafficking in persons, control of sexuality, and restriction on an individual’s autonomy as crimes against humanity. Similarly, the Trial Chamber took cognizance of other forms of gender related crimes, including forced marriage, forced abortion, forced impregnation, forced nudity, molestation, sexual slavery, sexual mutilation, forced prostitution, and forced sterilization, as international crimes of sexual violence.
Special Panel for Serious Crimes (East Timor)
In 1991, a widespread and systematic attack took place which was directed against civilians of all age groups, predominantly against individuals who supported or were perceived to support the independence movement. Civilians of East Timor participated and 78.5% voted against the autonomy proposal by the government of Indonesia which resulted in a reign of violence including Incitement, threats to life, intimidation, unlawful confinement, assaults, forced displacements, arsons, murders, rapes, torture, and other forms of violence which were carried out by the members of pro-autonomy militia, members of Indonesian Armed Forces and members of Indonesian Police Forces who supported autonomy within Indonesia.
As part of the widespread and systematic attack against the civilian population, the militia along with destruction of property, other crimes such as incitement, torture, persecution, deprivation of physical liberty, murder, and rape were committed to threaten the civilians from voting for or supporting independence of East Timor.
In several cases of SPSC East Timor, we can see that the act is committed against women who are either members of the independence movement or belong to a family that supports the independence movement, and it was tacitly accepted as unavoidable or inevitable. In the case of The Deputy General Prosecutor for Serious Crimes v. Manek et al., children were forcibly made to watch the act of rape committed on their mothers without their consent, disregarding their physical and mental health.
In the case of Prosecutor v. Francisco Soaeres, the court found the accused guilty of the charge of rape, however, there are certain aspects that the court and the Statute is silent on. During the case, the Court focuses on the fact that sexual intercourse occurred ‘outside of marriage’. During 2002, marital rape was not recognized in East Timor. In this instant case, if the accused and the victim were to be married, the offence of rape would have been deemed to be consensual and the victim would have continued to be a victim of marital rape.
However, in the year 2009, marital rape was recognized and criminalized in East Timor. Marital rape violates the East Timorese Constitution, where Article 17 provides for Gender equality as follow: “Women and men shall have the same rights and duties in all areas of political, economic, social, cultural and family life.”
The question arises whether silence amounts to consent. Consent is a grey area which plays a vital role in sexual offences. During the entire trial, the defence argues that since there was no explicit or express rejection of the act, the victim consented, hence it cannot be rape.
Through Sect. 34.3 U.R. no. 2000/30, the Judiciary, in this case, has successfully acknowledged the fact that the victim did not consent to the act and was under threat by way of the accused threatening her family and the victim was intimidated by the accused as he was a part of the militia.
The tactic of using sexual violence during an armed conflict impacts more on civilians as sexual violence has greater traumatic implications. Often sexual violence is used to either attack women directly or to use it as a weapon against the family. Sexual violence during an armed conflict can be an outcome of two strategies, it either could be a result of absence of a strategy and resorting to sexual violence to terrorize people, or it could be the result of a strategy that has been planned out to terrorize people. Either ways, sexual violence is used during an armed conflict as an extra weapon to threaten the civilians.
We must consider the wider angle when we look at this case. People involved in the independence movement were targeted and killed throughout. We see the narrative played differently when it comes to women, where they were tortured, raped, and then killed.
Conclusion – Where do we stand now?
Through International Tribunals, the judiciary was able to hold people responsible for crimes of sexual violence which otherwise would have been viewed as an isolated event. The establishment of these international tribunals signalled the start of the end of impunity for war crimes. Over the time, studies have revealed two aspects, one being an undeniable fact that Sexual and Gender-Based Violence committed against women and children was to dehumanize, destroy, and instil fear in civilians and assert dominance over the population. Second, by acknowledging the act of crime of sexual violence will dehumanize and destroy the civilians was acceptance of the fact that more importance was given to the honour of women in a society rather the mental trauma the victim would be undergoing as no measures were taken by courts to provide a safe space for the victims of Sexual and Gender-Based Violence.
The cases in the tribunals reveal that that males and females can be raped, that a person convicted of rape does not have to be the physical perpetrator; that forcible vaginal, anal, or oral sex constitutes rape; and that rape can be committed by foreign objects, such as guns, sticks, and broken bottles. They prove that the rape of a single victim is worthy of prosecution as a war crime and that persons can be held criminally responsible for sex crimes as individuals and superiors.
A closer look into the strategy of Prosecution in all the cases shows that violence against women was not prioritised as there was no legitimate material benefit to survivors of the heinous crime committed against them. One cannot deny the formal justice achieved through these trials, unfortunately, the establishment of these Tribunals neither stopped, nor prevented future war crimes. However, in the end, it shows the success of judiciary by taking cognizance of rape and other forms of sexual violence as crimes against humanity in the international tribunals as against the initial circumstance where a majority of the Chamber's judges systematically excluded such evidence of sexual violence which resulted in exclusion of Sexual and Gender-Based Violence.
Chappell, Louise (2014) Conflicting Institutions and the Search for Gender Justice at the International Criminal Court, Political Research Quarterly, vol. 67, no. 1.
Kelly D. Askin (2004) A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003, Human Rights Brief 11, no. 3.
Olga Jurasz (2017) Gender-Based Crimes at the ICC: Where Is the Future? Cambridge University Press.
The Deputy General Prosecutor for Serious Crimes v. Manek et al., 09/CG/TDD/2003.
The Prosecutor v. Anto Furundzija, IT-95-17/1-T.
The Prosecutor v. Delalic, Mucic, Delic and Landzo (a.k.a. The Čelebići case), IT-96-21-A.
The Prosecutor v. Francisco Soaeres, 14/2001.
The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-A.
The Prosecutor v. Kunarac, Kovac and Vukovic, IT-96-23-T.
The Prosecutor v. Kvocka, IT-98-30/1.
The Prosecutor v. Tadić, IT-94-1-A.
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06.
Author – Simi Zackariah
II LLB, St. Joseph’s College of Law, Bangalore.