Abstract
It is indisputable that in times of armed conflict (international or non-international), specific categories of crimes are committed against women. While the commission of such heinous crimes such as forced pregnancy, rape, slavery, enslavement and other forms of sexual violence constitutes a flagrant violation of their human rights, they may also be qualified as gender-based violence and/or gender-based discrimination. These classifications are founded upon international instruments that define the substantive contents of what these crimes are. These characterisations, undoubtedly, have been imported into academic writings on international criminal law. Academic writers, notably legal scholars, have sought to influence the growth of the genre of crimes that are classified as serious crimes in international criminal law. In particular, the repeated usage of the phrase ‘gender-based crimes’, especially by legal scholars, seems to suggest the perpetration of crimes that violate the physical and mental integrity of women. In this context, offences of a sexual nature that affect women have been subsumed in this category. This line of thinking has, to a greater extent, been influenced and shaped by the unspeakable ordeals and gruesome atrocities that are inflicted on women in times of armed conflict, as evidenced by experiences narrated during court trials, in the media and in the personal testimonies of victims. Unfortunately, this categorisation of ‘gender-based crimes’ seems to be nothing more than an academic creation given the fact that no instrument in international criminal law, as well as the jurisprudence of international criminal tribunals, creates or recognises what is referred to as ‘gender-based crimes’. There is no denial that the commission of such atrocities against women may qualify as gender-based discrimination, gender-based violence, genocide, crimes against humanity or war crimes. However, as stipulated in international instruments, the definitions of these crimes are stipulated in a gender-neutral language. The prosecution of these atrocities, which may well be committed against women, must come within the specific category and definition of these crimes: either as genocide, crimes against humanity or war crimes. The current literature on international law, especially treaties that define the content of serious violations of international law, as well as the jurisprudence of international criminal tribunals, neither creates nor recognises such thing as ‘gender-based crimes’.
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Notes
- 1.
- 2.
http://217.218.67.231/Detail/2015/02/05/396273/Boko-Haram-kills-13-Chad-troops. Accessed 9 May 2016.
- 3.
See note 2.
- 4.
See note 2.
- 5.
http://www.bbc.com/news/world-africa-31604853. Accessed 9 May 2016.
- 6.
http://www.newsweek.com/report-boko-haram-beheads-two-men-claiming-they-are-spies-310603. Accessed 9 May 2016.
- 7.
- 8.
- 9.
See note 7.
- 10.
See note 7.
- 11.
- 12.
See note 11.
- 13.
- 14.
See note 13.
- 15.
At the global level, these instruments include the United Nations’ Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A, U.N.G.A. 3rd Session, U.N. Doc. A/RES/3/217A (1948) of 10 December 1948, (hereafter the UDHR); the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, (hereafter the ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3 (hereafter the ICESCR). In addition to these, there are regional human rights instruments such as the American Convention on Human Rights, 22 November 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992) (hereafter the American Convention); the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222, 312 ETS 5 (as amended by Protocols Nos. 11 and 14) (hereafter the European Convention); and the African Charter on Human and Peoples’ Rights, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5; 1520 U.N.T.S. 217 (hereafter the Banjul Charter).
- 16.
See, for example, Article 2(1) of the ICCPR; Article 2(2) of the ICESCR; Article 1(1) of the American Convention; Article 14 of the European Convention; Article 2 of the Banjul Charter.
- 17.
CEDAW, 18 December 1976, 1249 U.N.T.S. 13.
- 18.
Article 1, CEDAW.
- 19.
United Nations’ Declaration on the Elimination of Violence Against Women, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302.
- 20.
Article 1, Declaration on the Elimination of Violence Against Women, Resolution adopted by the General Assembly on the Report of the Third Committee (A/48/629) Resolution 48/104.
- 21.
Askin (2011), pp. 84–113.
- 22.
Cummings-John (2015), pp. 379–405.
- 23.
Mouthaan (2010), p. 17.
- 24.
Stephens (1999), pp. 1–23.
- 25.
Signed at Geneva on 25 September 1926 Entry into force: 9 March 1927, in accordance with article 12. The Convention was amended by the Protocol done at the Headquarters of the United Nations, New York, on 7 December 1953; the amended Convention entered into force on 7 July 1955, the date on which the amendments, set forth in the annex to the Protocol of 7 December 1953, entered into force in accordance with article III of the Protocol.
- 26.
Article 1(1) of the Slavery Convention, 1926.
- 27.
Article 1(2) of the Slavery Convention, 1926.
- 28.
See Charter of the International Military Tribunal (IMT), Nuremberg, and the Charter of the International Military Tribunal for the Far East (IMTFE), Tokyo.
- 29.
See for example the definitions of crimes against peace and crimes against humanity under Articles 6(a) and (c) and 5(a) and (c) of the Charters of the IMT, Nuremberg and Tokyo respectively. However, a major difference between these two Charters was the wording of Article 6(b) and 5(b) respectively: the Charter of the IMT, Nuremberg, made use of ‘war crimes’ (defined as follows: ‘…violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.). On the other hand, Article 5(b) of the IMTFE, Tokyo, created the offence of ‘conventional war crimes’ which was defined as ‘violations of the laws or customs of war’.
- 30.
See, for example, the definition of crimes against humanity:
Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population….
Article II(c) of Control Council Law No. 10.
- 31.
United Nations General Assembly Resolution 260(III), U.N. GAOR, 3rd Session, 179th meeting, U.N. Doc. A/RES/260A (1948).
- 32.
Adopted by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 608(XXI) of 30 April 1956 and done at Geneva on 7 September 1956.
- 33.
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85; U.N.G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197; U.N. Doc. A/39/51 (1984), entered into force on 26 June 1987.
- 34.
Statute of the International Criminal Tribunal for Rwanda (hereinafter referred to as the ICTR), annexed to United Nations Security Council Resolution 955, U.N. SCOR, 3453rd meeting, U.N. Doc. S/RES/955 (1994); Statute of the International Criminal Tribunal for the former Yugoslavia (hereinafter referred to as the ICTY), annexed to United Nations Security Council Resolution 827, U.N. SCOR, 3217th meeting, U.N. Doc. S/RES/827 (1993).
- 35.
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998), reprinted in 37 I.L.M. 999 (1998) (hereinafter referred to as the Rome Statute of the ICC).
- 36.
Statute of the Special Court for Sierra Leone (hereinafter referred to as the SCSL), annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone pursuant to United Nations Security Council Resolution 1315, U.N. SCOR, 4186th meeting, U.N. Doc. S/RES/1315 (2000).
- 37.
See Article II(a)–(e) of the Genocide Convention.
- 38.
See Article III(a)–(e) of the Genocide Convention which makes punishable the following acts: genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.
- 39.
See Article II(a) of the Genocide Convention.
- 40.
See Article II(b) of the Genocide Convention.
- 41.
See Article II(c) of the Genocide Convention.
- 42.
See Article II(d) of the Genocide Convention.
- 43.
See Article II(e) of the Genocide Convention.
- 44.
See Article II of the Genocide Convention.
- 45.
See note 44.
- 46.
The Prosecutor v Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4. T. Ch. I, 2 September 1998. The Trial Chamber held as follows:
On reading through the travaux préparatoires of the Genocide Convention, it appears that the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner. (Para 511)
Moreover, the Chamber considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group. (Para 516, emphasis added).
- 47.
Adopted by a Conference of Plenipotentiaries convened by Economic and Social Council Resolution 608(XXI) of 30 April 1956 and done at Geneva on 7 September 1956. It entered into force on 30 April 1957 in accordance with Article 13.
- 48.
Article 2 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.
- 49.
The International Law Commission was created by the United Nations for the purpose of promoting ‘the progressive development of international law and its codification’. See the United Nations General Assembly Resolution 174(II), U.N. GAOR, 2nd Session, 123rd meeting, U.N. Doc. A/RES/174(II) of 21 November 1947. United Nations General Assembly Resolution 177(II) mandated the International Law Commission to formulate ‘the principles of international law recognised’ in the Charter of the IMT, Nuremberg, and ‘in the judgment of the Tribunal’: see the United Nations General Assembly.
- 50.
The Draft Code of Offences against the Peace and Security of Mankind, 1954, was adopted by the International Law Commission, 6th Session, 1954, was submitted to the United Nations General Assembly as part of the ILC’s Report covering the work of that session (at para 54). The report, which also contains commentaries on the draft articles, appears in the Yearbook of the International Law Commission, 1954, Vol. II.
- 51.
This Draft Code of Crimes against the Peace and Security of Mankind, 1996, was adopted by the International Law Commission at its 48th session in 1996. It was submitted to the United Nations General Assembly as part of the ILC’s Report covering the work of the session (at para 50). The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 1996, Vol. II (Part Two).
- 52.
Article 1, Convention against Torture.
- 53.
Article 2, Statute of the ICTY.
- 54.
Article 3, Statute of the ICTY.
- 55.
Article 4, Statute of the ICTY.
- 56.
Article 5, Statute of the ICTY.
- 57.
Article 2, Statute of the ICTR.
- 58.
Article 3, Statute of the ICTR.
- 59.
Article 4, Statute of the ICTR.
- 60.
See Article 2 of the Genocide Convention; Article 4 of the Statute of the ICTY and Article 2 of the Statute of the ICTR.
- 61.
See Article 5 of the Statute of the ICTY and Article 3 of the Statute of the ICTR.
- 62.
See Article 3 of the Statute of the ICTR.
- 63.
See Article II of the Genocide Convention and Article 2(2) of the Statute of the ICTR.
- 64.
Article 1 of the Rome Statute of the ICC.
- 65.
Article 8 of the Rome Statute of the ICC.
- 66.
Article 5(1)(d) as read in conjunction with Article 5(2) of the Rome Statute of the ICC.
- 67.
Article 6 of the Rome Statute of the ICC.
- 68.
Article 7 of the Rome Statute of the ICC.
- 69.
For a comparative analysis of the definitions as expressed in international instruments, see for example Article II of the Genocide Convention; Article 4 of the Statute of the ICTY; Article 2 of the Statute of the ICTR and Article 6 of the Rome Statute of the ICC.
- 70.
Article 7(2)(a) of the Rome Statute of the ICC defines an attack to mean
…a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.
- 71.
See Article 7(2) of the Rome Statute of the ICC for the definitions of some of these acts under crimes against humanity.
- 72.
See Article 7(2)(c) of the Rome Statute of the ICC.
- 73.
See Article 7(2)(f) of the Rome Statute of the ICC.
- 74.
See for example Article 3 of the Statute of the SCSL which criminalised numerous acts including
outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.
- 75.
Annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 Aug 1945 (signed by Britain, France, the USA and the USSR, and acceded to by 19 other states (Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela and Yugoslavia)).
- 76.
Article 6, Charter of the IMT, Nuremberg.
- 77.
Reprinted in Trial of Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, Vol 1 (1947), pp. 27–92.
- 78.
See note 77, pp. 565–566.
- 79.
See note 77, p. 567.
- 80.
See note 77, p. 579.
- 81.
See note 77, p. 586.
- 82.
See note 77, p. 451.
- 83.
See note 77, p. 452.
- 84.
US v Oswald Pohl and Others, Judgement, 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol V (1997), p. 958 at p. 970. Other CCL 10 cases in which enslavement and related aspects were considered, include IG Farben (US v Carl Krauch and Others), summarised in Law Reports of Trials of War Criminals, The UN War Crimes Commission, Vol X (1997), pp. 1–68 at 53; and Flick (US v Friedrich Flick and Others), reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol VI (1997).
- 85.
US v Milch, Judgement, 31 July 1948, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol II (1997), p. 773.
- 86.
See note 85, p. 789. Milch was found guilty of war crimes charged in Count one of the indictment in that he was responsible for the ‘slave labor and deportation to slave labor of the civilian populations of countries and territories occupied by the German armed forces, and in the enslavement, deportation, ill-treatment and terrorization of such persons. […]’ (see note 85, p. 790). Milch was also found guilty of crimes against humanity (count three) for the same war crimes insofar as they related to foreign nations (see note 85, pp. 790–791). With reference to the definition of the crimes in CCL 10, Judge Fitzroy D Phillips in his concurring opinion stated that CCL 10 treats as separate crimes and different types of crime deportation to slave labour (as a war crime) and enslavement (as a crime against humanity) (see note 85, Concurring Opinion, p. 860 at p. 866). In the Krupp Case (US v Krupp and Others, Judgement of 31 July 1948, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Vol IX, Part 2 (1997), p. 1327), the US Military Tribunal adopted the statement of the law applicable to the deportation to slave labour and enslavement of the Milch Case made by Judge Phillips (see note 85, pp. 1432–1433). In that case, the Tribunal also held that the employment of concentration camp inmates under the circumstances disclosed was a crime (see note 85, pp. 1433–1435).
- 87.
‘Special Proclamation: Establishment of an International Military Tribunal for the Far East’, Order of the Supreme Commander for the Allied Powers, Tokyo, 19 January 1946, as amended on 26 April 1946.
- 88.
Article 5(a), Charter of the IMTFE, Tokyo.
- 89.
Article 5(b), Charter of the IMTFE, Tokyo.
- 90.
Article 5(c), Charter of the IMTFE, Tokyo.
- 91.
Reprinted in Pritchard, The Tokyo Major War Crimes Trial, The Records of the International Military Tribunal for the Far East With an Authoritative Commentary and Comprehensive Guide, Vol 2 (1998).
- 92.
‘Group Three: Conventional War Crimes and Crimes against Humanity’ (Counts 53–55): see note 91, pp. 12–14 of the indictment.
- 93.
Count 53 obliquely contained a conspiracy charge, also referring to ‘persons in charge of each of the camps and labour units for prisoners of war and civilian internees […]’ (see note 92, p. 13 of the indictment). Appendix D to the indictment was incorporated under Group Three of the charges in the indictment. Section Two of Appendix D referred to ‘Illegal employment of prisoner of war labour […]’ (see note 92, p. iii). Section Twelve of Appendix D referred to ‘Failure to respect family honour and rights, individual life, […], and deportation and enslavement of the inhabitants […], contrary to [Article 46 of Annex III (‘Military Authority over the Territory of the Hostile State’) of the 1907 Hague Convention] the Laws and Customs of War: Large numbers of the inhabitants of [occupied] territories were murdered, tortured, raped and otherwise ill-treated, arrested and interned without justification, sent to forced labour, and their property destroyed or confiscated’ (at p. vi).
- 94.
Röling and Rüter (1977), pp. 1–466.
- 95.
References to forced labour and slave labour in the Tokyo judgement include, in Chapter VIII (‘Conventional War Crimes (Atrocities)’): see note 94, p. 388 (‘Many of the captured Chinese were […] placed in labour units to work for the Japanese Army […]. Some of these captives […] were transported to Japan to relieve the labor shortage in the munitions industries.’); see note 94, pp. 403–406 (use of forced labour to construct Burma-Siam railway, including use of conscripted ‘native labourers’); see note 94, pp. 413–414 (labour of prisoners of war and civilian internees); see note 94, p. 416 (use of prisoners of war and internees to work on war-related projects); see note 94, pp. 416–417 (use of forced ‘native’ labour). References to forced labour and slave labour in relation to individual defendants include: Kimura (see note 94, p. 452, use of prisoners of war in forced labour, including work on the Burma-Siam railway); and Tojo (see note 94, pp. 462–463, ill-treatment of prisoners of war and internees, including use of prisoners of war in construction of Burma-Siam railway).
- 96.
See note 94, pp. 416–417 (the Chapter referred to is Chapter VIII (‘Conventional War Crimes (Atrocities)’) of the judgement.
- 97.
Article II of the Genocide Convention; Article 4(2) of the Statute of the ICTY; and Article 2 of the Statute of the ICTR.
- 98.
Akayesu note 46, paras. 516–517.
- 99.
Judgment, Case No. ICTR-95-54A-T, T. Ch. II, 22 January 2004.
- 100.
Kamuhanda note 99, para. 630. See also the cases of The Prosecutor v Ignace Bagilishema, Judgement, Case No. ICTR-95-1-A, T. Ch. I, 7 June 2001, para. 65; The Prosecutor v Alfred Musema, Judgment, Case No. ICTR-96-13-T, T. Ch. I, 27 January 2003, para. 161; The Prosecutor v Juvénal Kajelijeli, Judgment, Case No. ICTR-96-44-T, T. Ch. II, 1 December 2003, para. 811. As discussed above, in Akayesu (note 46), the Trial Chamber was unwilling to interpret the words ‘any such group’, and preferred to flow with the intention of the drafters of the Genocide Convention.
- 101.
Kamuhanda note 99, para. 630; The Prosecutor v Georges Rutaganda, Judgment, Case No. ICTR-96-3-T, T. Ch. I, 6 December 1999, para. 56; Musema note 100, para. 161; The Prosecution v Laurent Semanza, Judgment, Case No. ICTR-97-20, T. Ch. II, 15 May 2003, para. 317; Kajelijeli note 100, para. 811.
- 102.
Kamuhanda note 99, para. 630; Semanza note 101, para. 317; Kajelijeli note 100, para. 811. See the case of The Prosecutor v Sylvestre Gacumbitsi, Judgment, Case No. ICTR-01-64, T. Ch. III, 17 June 2004, para. 254, where the Trial Chamber held that ‘[M]embership of a group is a subjective rather than an objective concept…. Indeed, in a given situation, the perpetrator, just like the victim, may believe that there is any objective criterion for determining membership of an ethnic group on the basis of an administrative mechanism for the identification of an individual’s ethnic group.’
- 103.
Judgment, Case No. ICTR-95-1B-T, T. Ch. III, 28 April 2005.
- 104.
Muhimana note 103, para. 502.
- 105.
Kajelijeli note 100, para. 815.
- 106.
Akayesu note 46, para. 502; The Prosecutor v Clément Kayishema and Obed Ruzindana, Judgment, Case No. ICTR-95-1-T, T. Ch. I, 21 May 1999, para. 108; Semanza note 101, para. 320.
- 107.
Akayesu note 46, para. 502; Kayishema and Ruzindana note 106, para. 108; Kajelijeli note 100, para. 815; Semanza note 101, para. 320.
- 108.
Muhimana note 103, para. 502; Gacumbitsi note 102, para. 291. See also the ILC Report (1996) para. 14, under Article 17 of the Draft Code of Crimes. Bodily harm is defined therein as ‘some type of physical injury’, while mental harm is defined as ‘some type of impairment of mental faculties’. See Muhimana note 103, footnote 463. In Kayishema and Ruzindana (note 106, para. 110), the Trial Chamber construed ‘serious mental harm’ to include more than ‘minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat’. See also Semanza note 101, para. 321. The state of the law on this issue is well captured by the Trial Chamber in Semanza (note 101, para. 322) after a review of the case law: ‘The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema and Ruzindana as to the determination of serious bodily or mental harm. In addition, the Chamber finds that serious mental harm need not be permanent or irremediable’ (cited in Kajelijeli note 100, para. 815, emphasis added).
- 109.
Muhimana note 103, paras. 513, 519.
- 110.
Muhimana note 103, paras. 552–553, 562–563.
- 111.
Akayesu note 46, para. 516.
- 112.
Luban (2004), p. 93.
- 113.
Akayesu note 46, para. 596.
- 114.
Akayesu note 46, para. 598. See also Kamuhanda note 99, para. 705.
- 115.
Musema note 100, para. 965.
- 116.
Judgment, Case No. IT-95-17/1-T, para 176.
- 117.
Furundžija note 116, paras. 176–186.
- 118.
Judgment, Case No. IT-96-23-T, IT-96-23/1-T, 22 February 2001.
- 119.
Kamuhanda note 99, para. 707.
- 120.
Kamuhanda note 99, para. 709.
- 121.
Gacumbitsi note 102, para. 321. See also Akayesu note 46, paras. 597–598; Dragoljub Kunarac, Radomir Kovač and Zoran Vuković v Prosecutor, Judgment, Case No. IT-96-23 & IT-96-23/1-A, Appeal Chamber, 22 February 2001, paras. 127–133.
- 122.
Gacumbitsi note 102, para. 321.
- 123.
Akayesu note 46, paras. 507–508.
- 124.
Article 4 of the Statute of the ICTR.
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Agbor, A. (2018). Boko Haram and the Abduction of Schoolgirls in Nigeria: Reflecting on ‘Gender-Based Crimes’ as a Legal Misnomer. In: Iyi, JM., Strydom, H. (eds) Boko Haram and International Law. Springer, Cham. https://doi.org/10.1007/978-3-319-74957-0_14
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