Can One be Willing to Annihilate a Group Because of its Gender? Reflections on the Crime of Genocide in International Criminal Law 2/3

Integration of Gender as Part of the Protected Groups in the Crime of Genocide

The lack of specific references to gender in the Rome Statute’s listing of protected groups does not imply that gender can not be implicitly apprehended. First, a small part of the scientific literature on the matter suggests that gender could be included in groups already protected by the definition of the crime of genocide. Author Angela Hefti works on « ethnic » groups, defined as a group of persons who shares the same culture and language^[2]Tribunal pénal international pour le Rwanda. (1998). Procureur contre Jean-Paul Akayesu ICTR-96-4-T. §513. … Continue reading. More specifically, since “ethnicity, [is] by [its] very nature [a] social construct”^[3]Commission internationale d’enquête sur le Darfour. (2005). Rapport de la Commission internationale d’enquête sur le Darfour au Secrétaire Général des Nations Unies. … Continue reading, it means that social groups, including gender-based ones, can be considered as protected groups by law^[4]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Edward Elgar.. Also, according to researcher Filip Hassellind^[5]Hassellind, F. (2017). Gender Groups and the Genocide Convention’s Protected Groups. University of Gothenburg. https://gupea.ub.gu.se/bitstream/handle/2077/55459/?sequence=1, gender is linked with ethnicity since being part of a gendered group can represent an inherent value for one’s social existence and can constitute an important aspect of the notion of individuality^[6]Garet R. (1983). Communality and Existence: The Rights of Groups. Southern California Law.. For these authors, the historical subordination of specific gender minorities attests the reality of a common culture, which characterises the ethnic group^[7]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Op. cit..

However, this reasoning needs to be nuanced for the qualification of a group now depends on the subjective behaviour of the perpetrator of the genocide. This implies that the latter would have to consider the people they targeted for their gender as part of an ethnic or racial group for example, which is difficult to prove^[8]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Op. cit.. Nevertheless, this difficulty could be countered as other authors state that gender could be interpreted as part of the concept of protected group. In the past, international criminal law has considered the possibility to include “stable and permanent” groups to the list of groups protected from the crime of genocide. Several researchers claim that a legal shift could allow the inclusion of gender-based groups among protected groups as they could fit the criteria of stability and permanency^[9]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Op. cit.. However, this reasoning does not convince everyone within the doctrine as these criteria are exceptionally used by the jurisprudence. Indeed, these criteria were exclusively established in the Akayesu judgment of the International Criminal Tribunal for Rwanda^[10]Tribunal pénal international pour le Rwanda. (1999). Procureur contre Clément Kayishema ICTR-95-1. https://francegenocidetutsi.org/KayishemaRuzindanaJugement21mai1999.pdf , and the subjective approach to the crime of genocide further developed with the Kayeshema case. Plus, the stable and permanent qualifications of gender-based groups is not obvious given the plurality of genders and their presence on every continent.

In order to convince everyone within the doctrine, Hefti demonstrates that the absence of the “gender group” among the protected groups goes against the very essence of the crime of genocide^[11]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Op. cit.. As she bases her reasoning on the 1969 Vienna Convention on the Law of Treaties^[12]Organisation des Nations Unies. (1969). Convention de Vienne sur le droit des traités. https://legal.un.org/ilc/texts/instruments/french/conventions/1_1_1969.pdf, the author claims that the objective and the goal of the 1948 Genocide Convention was not to protect only four groups from the crime of genocide^[13]Organisation des Nations Unies. (1948). Convention pour la prévention et la répression du crime de génocide. … Continue reading. In that sense, an advisory opinion from the International Court of Justice indicates that the objective and the goal of the latter Convention is to protect the “very existence of any human group”^[14]Cour internationale de Justice. (1951). Réserves à la Conventions sur la prévention et la répression du crime de génocide. … Continue reading, addressing “humanity” as a whole. Plus, the drafters’ intention was not to grant a limited protection for the crime of crimes, but rather to consider a genocide that could adapt to social realities, such as gender which was not an acknowledged issue back in 1948^[15]Hefti, A. (2022). Conceptualizing Femicide as a Human Rights Violation. Op. cit.. That is why some countries have since decided to amend their national legislations to extend the protection for the crime of genocide to groups determined by other arbitrary criteria^[16]Par exemple, voir l’article 211-1 du Code pénal français, l’article 313 du Code pénal burkinabé ou encore l’article 1 de la loi n° 8-98 du 31 octobre 1998 de la République démocratique … Continue reading.

Historical Events Indicating a Will to Annihilate Individuals Because of their Gender

The stake here is to wonder if it is possible to want to annihilate women or trans people, for example, in whole or in part. Even though many authors oppose to such possibility on the matter, several phenomena or events show a specific will to annihilate people because of their gender. For example, the “incels”^[17]Le terme « incel » provient de la contraction de « involuntary celibacy », ce qui se traduit par « célibat involontaire » en français. community is composed of cisgender straight men who think that they are deprived of love and sexual life because of the hate society has towards them^[18]Grannis, T. (2019). Ces hommes qui détestent les femmes. Aux sources du masculinisme, 12, 4-21. https://doi.org/10.3917/crieu.012.0004. In response to this injustice, these men hate women whom they perceive as responsible for their problems. This hate and misogyny have led some incels to commit mass massacres. On Novembre 2nd, 2018, Scott Paul Beierle killed two women and injured four others in a Yoga class in the US^[19]Wikipédia (n. d.). 2018 Tallahassee shooting. https://en.wikipedia.org/wiki/2018_Tallahassee_shooting#cite_note-NPR-2. A few months prior to this, Alek Minassian killed 10 people and injured 16 others, mostly women, during a terrorist vehicle-ramming attack in Toronto^[20]Wikipédia (n. d.). Attaque à la voiture-bélier du 23 avril 2018 à Toronto. https://fr.wikipedia.org/wiki/Attaque_%C3%A0_la_voiture-b%C3%A9lier_du_23_avril_2018_%C3%A0_Toronto. Back in 1989, Marc Lépine killed 14 women and injured 13 other people at the École Polytechnique de Montreal, in Montreal^[21]Wikipédia (n. d.). Tuerie de l’Ecole polytechnique de Montéral. https://fr.wikipedia.org/wiki/Tuerie_de_l%27%C3%89cole_polytechnique_de_Montr%C3%A9al.

Numerous attacks, similar to the aforementioned ones, are considered to be antifeminists and show a global hatred towards gender minorities. Right before the massacre, Minassian stated that he wanted to kill “as many ‘Stacy'^[22]Stacy est le surnom donné à une femme par les incels. as possible”^[23]Boy, L. (2018). Attaque à Toronto : on vous explique qui sont les Incels, ces célibataires misogynes dont se revendique le suspect. Franceinfo. … Continue reading and expressed his fear towards women^[24]Pélouas, A. (2018). L’auteur de l’attaque de Toronto devra répondre de dix chefs d’accusation de meurtre. Le Monde. … Continue reading. Likewise, the killer Elliot Rodger, worshiped by numerous incels, declared before committing his crimes that he wanted to punish women and slaughter “every single spoiled, stuck-up, blond slut” that would cross his path^[25]Garvey, M. (2014). Transcript of the disturbing video ‘Elliot Rodger’s Retribution’. Los Angeles Times. … Continue reading. Furthermore, the murders of more than 1500 women since 1998 in Ciudad Juàrez, Mexico, which have gone unpunished for many years, show a tolerated hatred towards women^[26]Falquet, J. (2014). Des assassinats de Ciudad Juárez au phénomène des féminicides : de nouvelles formes de violences contre les femmes ? Contretemps. … Continue reading.

Besides incels, other tragedies demonstrate an intention to annihilate a group because of gender-based reasons. The June 12th 2016 Orlando shooting is the second most deadliest shooting in the US with 50 people killed and the worst act of violence committed against the LGBTQI+ community^[27]Ce qu’on sait de l’attentat commis dans une boîte de nuit LGBT à Orlando. (2016). Le Monde. … Continue reading. The Club Q, a LGBTQIA+ night club was also subjected to a mass shooting on November 19th 2022, the day before the International Trans Day of Remembrance^[28]Polverini, L. (2022). Fusillade meurtrière dans une boîte de nuit gay à Colorado Springs, aux États-Unis. Slate. … Continue reading. Many people were killed and injured on that day, mostly trans people^[29]Ahn, A. Kim, J. (2022). What we know so far about the Colorado Springs shooting. NPR. https://www.npr.org/2022/11/21/1138131985/what-we-know-colorado-springs-lgbtq-club-shooting. We can also mention the “concentration camps”^[30]Belin, M. (2017). La Tchétchénie accusée de persécuter et torturer des homosexuels. Europe 1. … Continue reading for LGBTQIA+ people in Chechnya since 2017 and, on a larger scale, the persecutions towards gender minorities in Russia^[31]Une femme transgenre s’exprime sur les persécutions en Tchétchénie et la vie avant Kadyrov. (2017). Global Voices. https://fr.globalvoices.org/2017/06/26/212121/.

Beyond the Physical Dimension of the Genocide Intention

The intention to annihilate a gender is more demonstrable when it is physical. Broadly speaking, recognised genocides in history are characterised by physical atrocities due to the shock these acts provoke for the international community. Yet, these violences are, most of the time, psychological violences or ones that do not lead directly to death^[32]Gender and Genocide in the 21st Century: How Understanding Gender Can Improve Genocide Prevention and Response. (2021). New Lines Institute. … Continue reading. The issue being that for the crime of genocide to be recognised as such, it must be evidenced with a physical intent to annihilate a protected group^[33]Pour plus de précisions, voir l’article précédent du dossier..

However, according to the literal interpretation of the Rome Statute, a crime of genocide could be considered as such even though no physical damage is caused. In fact, the severe harm of the mental integrity of group members stands as a constitutive act of the crime of genocide^[34]Cour pénale internationale. (1998). Statut de Rome. Op. cit.. Since the genocide definition recognises psychological acts, it seems incoherent to require the proof of an intention of the physical annihilation of a group. This reasoning is even stronger since a jurisdiction under the authority of the former Yugoslavia International Criminal Tribunal admitted that the notion of annihilation “is not limited to physical or biological destruction of the group’s members, since the group (or a part of it) can be destroyed in other ways”^[35]Tribunal penal international pour l’ex-Yougoslavie. (2006). Procureur c. Krajišnik IT-00-39-T. §854. https://www.refworld.org/cases,ICTY,48ad29642.html. Along the same lines, the first judgment of the International Criminal Tribunal for Rwanda evokes “a destruction of the mind, the will to live and the life itself”^[36]Tribunal pénal international pour le Rwanda. (1998). Procureur contre Jean-Paul Akayesu ICTR-96-4-T.  §732. Op. cit.as a definition for the crime of genocide, for which the former Rwandan mayor Jean-Paul Akayesu was recognised as guilty. Ultimately, it appears that the international criminal jurisprudence has not clearly defined the notion of annihilation which emphasises the necessity for the International Criminal Court to make a stand.

What Really Prevents the Evolution of the Crime of Genocide?

Considering the previous elements, interpretations in favour of the inclusion of gender in the qualification of the intentional element of the crime of genocide appear to be convincing from the legal perspective. However, if this adjustment has still not been made, it is because several obstacles beyond the legal field persist.

Among these limits, the main difficulty lies in the intentional omission of gender in the qualification of the intentional element of the crime of genocide. According to Filip Hassellind, the absence of gender is a political choice following a contingent hegemonic struggle^[37]Hassellind, F. (2017). Gender Groups and the Genocide Convention’s Protected Groups. Op. cit.. Even though the outcome of this observation is that the definition of this crime is not static, the recognition of the intention to psychologically annihilate a gendered group leads to the questioning of worldwide political systems. As long as these systems will legitimise the patriarchal domination, there will be a political obstacle for the evolution of the crime of genocide.

Such an evolution would lead to the recognition of the possibility of qualifying a genocide without any deaths required. This amended crime of genocide could be invoked if public policies turn out to be harmful for gender minorities. It could be used against States that tolerate “trans panic defense”^[38]La « trans panic defense » est une stratégie légale dans laquelle la défense explique la violence d’un.e accusé.e par une folie temporaire liée à des avances sexuelles d’une … Continue reading in judicial institutions as it legitimises physical and psychological violences towards trans people. The same goes for States authorising conversion therapies for members of the LGBTQIA+ community, as it condones physical and mental abuse by health services^[39]Une thérapie de conversion est une intervention organisée envers une personne qui vise à changer, réprimer ou réduire son orientation sexuelle, son identité de genre ou son expression de genre. … Continue reading. It could also be used to counter the inactivity of the police department regarding violence against women, as it contributes to the increase of murders, suicides and depressions.

Basically, such an evolution would imply the recognition that the current system legitimises violence towards gender minorities. Recognising the reality of gender-based genocide, admitting that it is primarily based on a desire to psychologically destroy a gender (through unfavourable public policies) and sometimes on a desire to physically destroy it (mass killings by private individuals), means criminalising the hegemonic masculinity maintained by global patriarchal institutions. Yet, it cannot be expected from the law, which is an instrument of domination among many, to exceed its role to question the social relations it controls. Besides, it would be unsustainable for the International Criminal Court to deal with such an amount of requests, and it would damage States’ sovereignty. Furthermore, that would contravene the roots of the concept of genocide as it was designed to be reserved for events considered unanimously to be the most serious. But getting everyone to agree on the reality of violence towards gender minorities is hard work.

Conclusion: the Utopian Evolution of a Crime that Might Not Be the Most Relevant to Protect Gender Minorities

In addition to the observation of the absence of gender in the qualification of the intention of genocide, this loophole seems far from being unintentional regarding the risk its integration to the international criminal law would represent. Especially within a system organised around hegemonic masculinity. Beyond that, the question ultimately arises about the relevance of using the conceptual framework of genocide to improve the situation of gendered groups. In other words, would a potential inclusion of gender among the protected groups in the definition of the crime of genocide necessarily improve the situation of victims of gender-based violence in such contexts? The final article in the dossier will then discuss and evaluate the various options considered by the doctrine in international criminal law to address, as effectively as possible, structural gender-based violence.