Can One Be Willing to Destroy a Group Because of its Gender? Reflections on the Crime of Genocide in International Criminal Law (1/3)

24.01.2023

Written by: Louise Poelaert-Roch

Translated by: Sébastien Tiffon

Approximately 80000 Chinese women raped by Japanese soldiers in the events that occurred in Nanjing in 1937^[1]Chang, I. (1998). The Rape of Nanking: The Forgotten Holocaust of World War II, Penguin USA.; more than 8000 Bosnian Muslim men killed in Srebrenica in 1995^[2]Gendercide.org (n.d.). The 1995 gendercide on Bosnian Muslims in Srebrenica. https://www.gendercide.org/case_srebrenica.html; nearly 1200 cases of murders and disappearances within the two-spirit Indigenous community in Canada since 1990^[3]Réclamer notre pouvoir et notre place : le rapport final de l’Enquête nationale sur les femmes et les filles autochtones disparues et assassinées. (2019). Enquête nationale sur les femmes et … Continue reading; around 40000 women executed for witchcraft in Europe between 1450 and 1750^[4]Gendercide.org (n.d.), Witch-hunts in early modern Europe (circa 1450-1750). https://www.gendercide.org/case_witchhunts.html. Based on the data above, several events throughout history demonstrate that mass gender-based atrocities do indeed exist.

To understand the reasons behind the recurrence of these serious acts, we have to grasp these events globally. In that sense, these situations all happened within the frame of a patriarchal society where relations between genders are asymmetrical and in favour of men^[5]Leroy, A. (2021)., Violences de genre et résistances ». CETRI. https://www.cetri.be/Violences-de-genre-et-resistances-5724. Existing androcentric social and political institutions encourage acts of violence towards individuals who do not identify with the social codes of hegemonic masculinity. It explains the perpetuation of mass crimes towards dominated genders.

Yet, irrespective of gender considerations, the Law intervenes in situations where victims are numerous and the outcomes so serious that they affect the international community as a whole. This is the very essence of international criminal justice, regulated by the International Criminal Court (a.k.a “the Court” or “the ICC”) since 1998. The Court has jurisdiction to prosecute people accused of the crime of genocide, crimes against humanity, war crimes and the crime of aggression^[6]Cour pénale internationale. (1998). Statut de Rome, Article 5. https://legal.un.org/icc/statute/french/rome_statute(f).pdf. 

Regarding the introductory remarks, this article is part of a dossier, divided into three articles, whose ambition is to demonstrate if international criminal Law is immune to the influence of the prevailing patriarchal system and all the gender-based stereotypes it implies. The reality of mass gender-based atrocities leads to the necessity to acknowledge gender within the legal field, especially when it comes to international crimes, so everyone’s experience is considered during the criminal procedure. Hence, this analysis will focus on the crime of genocide because of its specific characteristics and since it represents the “crime of all crimes”^[7]Nahapétian, N. (2015). Le génocide est le crime des crimes : entretien avec Vincent Duclert. Alternatives Economiques, 314, 94. https://doi.org/10.3917/ae.347.0094 when it comes to international criminal justice. Besides, it is important to note that analysis does not focus on the masculine and feminine gender only but also focuses on every gender minority^[8]L’expression « minorité de genre » vise les personnes minorisées en raison de leurs identités ou expressions de genre en ce qu’elles ne seraient pas conformes aux normes culturelles sur le … Continue reading.

Furthermore, the issues highlighted in these three articles align with critical feminist theories regarding international criminal law. Even though these theories have shown that genocide is experienced differently depending on one’s gender^[9]De manière plus large, ces théories démontrent que les violences sexuelles touchent plus largement les femmes en temps de conflit. L’ONU a par ailleurs estimé que 96% des victimes de violences … Continue reading, this analysis, from another and less documented gender perspective, raises the following question: can gender be considered a motive when it comes to the crime of genocide in international criminal law?

To answer this question, along with its underlying implications, this dossier will be divided into three parts. The purpose of the first one is to question the part gender takes in the current definition of the crime of genocide and its application in practice. Hence, it is necessary to revisit the origin of the crime of genocide and how it connects with gender. Then, constituent elements of the crime of genocide must be analysed to draw consequences from the recognition of gender in Article 6 of the Rome Statute.

The origins of the term “genocide” and its interactions with gender 

The concept of genocide appeared in 1944 when the Polish lawyer Raphaël Lemkin published his book Axis Rule in Occupied Europe^[10]Lemkin, R. (1944). Axis Rule in Occupied Europe : Laws of Occupation, Analysis of Government Proposals for Redress. Washington Carnegie Endowment for International Peace Division of International … Continue reading. After World War II, the term “genocide” was created in response to the fear that a country or an entity might eradicate the memory, culture, traditions, and social institutions of a group^[11]Crevier, M. (2021)., Raphael Lemkin et le concept de génocide. Le Devoir. https://www.ledevoir.com/opinion/idees/616443/raphael-lemkin-et-le-concept-de-genocide. This fear, shared by Lemkin and other intellectuals coming from minority groups, had to be countered by a legal instrument that reinforces the protection of minorities among the international community^[12]Crevier, M. (2021)., Raphael Lemkin et le concept de génocide. Le Devoir. https://www.ledevoir.com/opinion/idees/616443/raphael-lemkin-et-le-concept-de-genocide.

The concept of genocide, created from the Greek term genos, meaning “race”, and the Latin term cide, meaning “to kill”^[13]Réseau Canopé (n.d.). Génocide. https://www.reseau-canope.fr/fileadmin/user_upload/user_upload/notion_genocide.pdf, is a success. The Convention on the Prevention and Punishment of the Crime of Genocide (a.k.a “the Genocide Convention” or “the CPPCG”) was adopted by the United Nations in 1948^[14]Organisation des Nations Unies. (1948). Convention pour la prévention et la répression du crime de génocide. … Continue reading. Then in 1998, the crime of genocide was included in the Rome Statute, thereby granting the ICC the authority to judge it. These two international legal documents give the crime of genocide the same definition: 

“[…] genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, such as:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”^[15]Cour pénale internationale. (1998). Statut de Rome, Article 5. https://legal.un.org/icc/statute/french/rome_statute(f).pdf

Yet, the definition of genocide given by Lemkin does not match the one provided by international legal documents^[16]Crevier, M. (2021)., Raphael Lemkin et le concept de génocide. Le Devoir. https://www.ledevoir.com/opinion/idees/616443/raphael-lemkin-et-le-concept-de-genocide. In fact, he was against an exclusive definition of protected groups as he promoted a more inclusive definition, recognising a group as soon as it is socially constructed in “people’s mind”^[17]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation State Responsibility Under International Law. Edward Elgar. and persecuted by a government. According to Lemkin, the forced implementation of the oppressor’s social structures is a main key in the conceptualisation of genocide. It means that the social and cultural annihilation of a group can be considered genocide^[18]Crevier, M. (2021)., Raphael Lemkin et le concept de génocide. Le Devoir. https://www.ledevoir.com/opinion/idees/616443/raphael-lemkin-et-le-concept-de-genocide.. Yet, the current definition of genocide does not recognise the notion of cultural genocide^[19]Voir par exemple la décision : Tribunal pénal pour l’ex-Yougoslavie (2001). Prosecutor v. Krstic Case No. IT-98-33-T. §576, https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf. Similarly, gender is excluded from the definition of the crime of genocide.

Furthermore, the notion of gender is subject to confusion in the Rome Statute. In the English version of the text, gender is defined as “the two sexes, male and female, within the context of society”^[20]Cour pénale internationale. (1998). Statut de Rome, Article 7. 3. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf (version anglaise).. This restricted vision creates an amalgam between the notion of gender, as a social construct, and the notion of sex, as a biological difference. The latter is used in the French version of the Rome Statute^[21]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation State Responsibility Under International Law. Edward Elgar.. 

However, several authors create a connection between gender and the crime of genocide. On this matter, researcher Andrea Dworkin uses the term “feminicide”^[22]Dworkin, A. (1974). Woman Hating. Penguin Books. to define a type of genocide that targets women because they are women, constituting a genocide based on gender. Author Rita Laura Segato prefers the term “femigenocide”^[23]Segato, L. (2016). La Guerra Contra las Mujeres. Cofás.. Other authors, such as Mary Anne Warren, prefer the term “gendercide”^[24]Warren, M.-A. (1985). Gendercide, The Implications of Sex Selection. Rowman & Allanheld Publishers. since it is perceived as more neutral. She argues that gender roles often lead to fatal consequences, and so do racial, religious, and social prejudices. Even though these reflections echo this article’s introductory remarks, most researchers are sceptical about considering gender when it comes to the application of the crime of genocide. This scepticism largely stems from the limitations imposed by the legal definition of genocide^[25]Voir par exemple : Messuti, A. (2015). La Dimension Jurídica Internacional del Feminicidio. Graciela Atencio.. It becomes necessary to analyse the definition of Article 6 of the Rome Statute to understand what challenges the recognition of gender in the crime of genocide.

The elements of the crime of genocide in international criminal law 

According to the definition provided by Article 6 of the Rome Statute, the crime of genocide is composed of two elements^[26]Cour pénale internationale. (1998). Statut de Rome, Article 6. https://legal.un.org/icc/statute/french/rome_statute(f).pdf. The first one is the actus reus, that is, the crime of genocide’s objective element. It is defined by five points that can be found from paragraph a) to paragraph e), as mentioned above. Then comes the mens rea, that is, the crime of genocide’s subjective element or the criminal intention. This intention is considered to be specific in the case of the crime of genocide. It means that beyond proving the intention to commit one of these five points, it is also essential to prove the intention to destroy, in whole or in part, one of the four protected groups. In other words, it is necessary to prove that the violence inflicted on these individuals is solely due to their affiliation with one of the four groups protected by the Rome Statute^[27]Chawda, R. (2021). Gendercide and Genocide: A Case for Legal Considerations of Gender. Nickeled & Dimed. … Continue reading.

This moral element turns out to be an obstacle to the recognition of gender-based genocide. The mens rea of the crime of genocide highlights three challenges regarding gender. The first one is to know if “gender” is part of the protected groups. Even though it is obvious that the notion of gender does not appear in Article 6, the comprehensiveness of the protected groups represents an additional difficulty. Besides, no gender has ever been considered a protected group, neither by texts nor by jurisprudence, within the meaning of the crime of genocide’s definition.

The second challenge is to be found in the notion of “destruction” as seen in the subjective element of the crime of genocide. Where preliminary works on the Genocide Convention stated that the intent to cause the physical or biological destruction, in whole or in part, of the protected group had to be evidenced^[28]Commission du droit international. (1996). Rapport de la Commission du droit international sur les travaux de sa quarante-huitième session. Annuaire de la Commission du droit international. Vol. II … Continue reading, international criminal jurisprudence seems to emphasise the intent to physically destroy, in whole or in part, the protected group^[29]Beyond Killing: Gender, Genocide, & Obligations Under International Law. (2018). Global Justice Center. https://www.globaljusticecenter.net/files/Gender-and-Genocide-Whitepaper-FINAL.pdf . That is evidenced by the excessive importance given to murders as constitutive acts of genocide. Comprehension of the mens rea gives more importance to the intent to physically destroy rather than the intent to biologically destroy. It results in a lack of recognition of the genocide intent behind acts that do not lead to instant death^[30]Gender and Genocide in the 21st Century: How Understanding Gender Can Improve Genocide Prevention and Response. (2021). New Lines Institute. … Continue reading, such as forced pregnancies and genital mutilations towards intersex people leading to medical complications. This restriction also prevents the recognition of cultural and social genocide that could be evidenced by established politics that endanger the lives of specific genders in the long run. On the matter, some authors point out American laws that ban appropriate care for trans people^[31]St. James, E. (2022). The time to panic about anti-trans legislation is now. Vox. https://www.vox.com/first-person/22977970/anti-trans-legislation-texas-idaho or their profiling^[32]Villarreal, D. (2022). GOP Texas attorney general’s office allegedly demanded a list of trans people in the state. LGBTQ Nation, … Continue reading.

The challenge is to know if the destruction of a group based on the gender of its people can be considered genocide. Beyond the absence of the notion of gender in the definition of protected groups, individuals in line with this perspective are not convinced that the intent to eradicate a gender exists. To that extent, researchers assert that it is impossible to prove the intention to destroy, in whole or in part, women for the sole reason that they are women. In that sense, from a gender duality logic, it would be difficult to wish for the disappearance of half of humanity, especially when one gender depends on the other when it comes to reproduction^[33]Dworkin, A. (1974). Woman Hating. Penguin Books.. Hence for some, it is more relevant to consider the recognition of the crime of feminicide apart from the crime of genocide. However, this reasoning has to be taken with a grain of salt given the restrictive traditional men-women dichotomy regarding the notion of gender. Besides, what can be verified in the case of women may not be applicable to other genders due to their diversity and characteristics.

Finally, even though some authors consider the recognition of gender in the definition of the crime of genocide, the majority sticks to the following observation: the actual status of positive law does not allow the recognition of a gender-based genocide. However, it is crucial to emphasise the effects of such a stance and to consider possible changes.

A crime of genocide disconnected from the reality of gender-based abuses

Regarding the constant increase of severe large-scale acts of violence towards women and the LGBTQIA+ community, international criminal justice does not provide appropriate solutions and even seems to be disconnected from the reality of gender-based abuses in a genocide context. Furthermore, the misogynist and LGBTphobic attitudes exhibited by certain public institutions, whether through their actions or their silence, contribute to a genocide-like logic^[34]Martinez Velasco, C. (2022). Génocide des femmes et travail dans les maquiladoras au Mexique. Presse-toi à gauche ! … Continue reading. For example, failing to acknowledge that the École Polytechnique massacre in Montreal on December 6th 1989, resulting in the death of 14 women, is embedded within a broader context of widespread gender contempt reinforces the continuum of violence that affects dominated genders. As it is impossible to prevent or sanction what is not recognised, the non-recognition of gender in the crime of genocide prevents the effective protection of genders^[35]Beyond Killing: Gender, Genocide, & Obligations Under International Law. (2018). Global Justice Center. https://www.globaljusticecenter.net/files/Gender-and-Genocide-Whitepaper-FINAL.pdf. 

On the other hand, the status of positive law remains unsurprising. In line with the reflections coming from international law’s critical theories, the Rome Statute provides a stereotypical vision of genocide and an obsolete gender definition. The fact that international criminal law is mostly designed by men based on historical events mostly described by men comes as an element of explanation. Moreover, a “patriarchal insensitivity” perpetuates resistance to acknowledging the implicit pursuit of eliminating a gender through actions, and thus, gender-based genocide, something unsurprising within a patriarchal system.

Conclusion: a mixed but not fixed observation

Finally, the current state of international criminal justice does not provide adequate solutions for the victims of gender-based violence in a genocide context. However, as the history of the crime of genocide has shown, international criminal law is by definition active and adaptable to social changes. Thus, even though the Rome Statute and the jurisprudence are, for the moment, not in favour of the recognition of a gender-based genocide, it does not indicate that this positioning cannot change. Therefore, the next article will analyse other legal interpretations allowing the integration of gender in the definition of the crime of genocide without reforming the Rome Statute.

To cite this article: POELAERT-ROCH Louis, translated by Sébastien Tiffon, “Can One be Willing to Destroy a Group Because of its Gender? Reflections on the Crime of Genocide in International Criminal Law”, Gender in Geopolitics Institute, 24.01.2023. https://igg-geo.org/?p=19003&lang=en  

The statements expressed in this article are solely those of the author.