scholarly journals On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

Author(s):  
Gregor Maučec

Abstract This article examines the relevant case law of the International Criminal Court (hereafter icc or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the icc Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the icc Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents—both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the icc Prosecutor—the Al Hassan confirmation decision, carii decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the icc case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in icc case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the icc should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier icc case law, the article turns to consider the prospects and space for the icc to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

Author(s):  
Ana Martin

Sexual and gender-based violence (SGBV) is often intertwined with and nested within other violations of international criminal law (ICL) as part of a broader attack against a group. However, ICL is not giving enough visibility to this nexus of crimes rooted in the intersection of identities and discrimination that underpins SGBV during conflict. Intersectionality is a concept originated in feminism and progressively recognized by international human rights law (IHRL). It posits that SGBV is caused by gender 'inextricably linked' with other identities and factors that result in compounded discrimination and unique aggravated harms. Based on case studies, this paper argues that ICL should integrate an intersectional approach based on identity and discrimination to address the nexus between SGBV and broader international crimes. Intersectionality enables a better understanding of the causes, harms, and gravity of SGBV, and it provides consistency with an IHRL interpretation. The article begins setting out the foundations of intersectionality in feminism and IHRL, and its applicability to ICL. It then applies intersectionality to two case studies that demonstrate the interlink of SGBV with broader violations of ICL: The Revolutionary United Front Case (RUF) trial judgment of the Special Court for Sierra Leone (SCSL) concerning SGBV and the war crime committing acts of terrorism, and Al Hassan, prosecuted at the International Criminal Court (ICC), concerning SGBV and the crime against humanity of persecution. It concludes with final remarks on why and how ICL would benefit from integrating an intersectional approach to SGBV.


Author(s):  
Gloria Atiba-Davies

This chapter catalogs the list of crimes against and affecting children during conflict and situations of war over which the International Criminal Court (ICC) has jurisdiction. It provides information on the mandate of the International Criminal Tribunals of Yugoslavia and Rwanda as well as the Special Court of Sierra Leone and how they addressed issues relating to crimes against children. The chapter describes the structure and functioning of the ICC. In addition, significant information is presented about the work of the Office of the Prosecutor (OTP) of the ICC relating to investigations and cases including crimes against children. Lastly, it gives an overview of the Sexual and Gender-based Crimes Policy and the Policy on Children of the OTP, which were launched in 2014 and 2016, respectively. Both policies provide the framework within which the OTP will conduct the preliminary examinations, investigations, and prosecutions of those crimes.


2011 ◽  
Vol 11 (4) ◽  
pp. 803-827 ◽  
Author(s):  
Melanie O'Brien

AbstractAllegations and confirmed cases of misconduct by peacekeeping personnel have been revealed by non-governmental organisations, the press and UN investigations. The majority of misconduct has fallen under the term 'sexual exploitation and abuse'. Sexual exploitation and abuse has encompassed rape, sex with minors, trafficking, prostitution-related conduct, sexual exploitation, and other sexual abuse. This article discusses accountability in international criminal law for such conduct, first exploring the development of gender-based crime in international criminal law. The core of this article consists of an examination of the applicable law under the Rome Statute of the International Criminal Court, to determine whether or not the provisions could be used to prosecute peacekeepers for the crimes of rape, sexual slavery, sexual exploitation, prostitution-related conduct, and trafficking. Real life examples of criminal conduct by peacekeeping personnel will be given to test the applicability of the Rome Statute provisions.


Author(s):  
Amrita Kapur

This chapter explores the opportunities present in the Rome Statute to promote justice for victims of sexual and gender-based violence in the International Criminal Court (ICC). It focuses on the concept of complementarity to show the ICC’s potential for reform and to catalyze the prosecution of international crimes (genocide, crimes against humanity and war crimes). It then describes the ICC’s broader approach to sexual violence and gender, as well as the domestic impact of this jurisprudence. The chapter concludes by suggesting that the Rome Statute’s standards should be introduced into national law. This could create broader benefits for women and victims of sexual and gender-based violence beyond the prosecution of criminal perpetrators.


2012 ◽  
Vol 94 (887) ◽  
pp. 981-1005 ◽  
Author(s):  
Joanna Kyriakakis

AbstractIn the wake of the mandate of the Special Representative of the United Nations Secretary-General for Business and Human Rights (SRSG), international criminal law looks set to play a role in measures towards the legal accountability of business actors involved in gross human rights and humanitarian law violations. Against the backdrop of the SRSG's now completed mandate, this article looks at three recent developments in international criminal law to consider the field's potential relevance to business actors involved in conflict. The first is the newest mode of liability recently adopted by the International Criminal Court, indirect perpetration through an organisation. The second is the aiding and abetting doctrine as applied by the Special Court for Sierra Leone in the Charles Taylor case. The third is the potential uptake of a practice of thematic prosecutions focusing on particular under-regulated issues of concern for the international community.


2021 ◽  
pp. 1-91
Author(s):  
Michael Lysander Fremuth

The establishment of the International Criminal Court (ICC) in 1998 constitutes a landmark in the development of International Criminal Law (ICL), which gained its first momentum after World War II through the foundation of International Military Tribunals in Nuremberg and Tokyo. ICL is, however, not confined to these most prominent courts or their statutes providing for definitions of international crimes under their respective jurisdiction; rather, ad hoc international, or internationalized and hybrid special tribunals and criminal chambers also contribute to the development and shape of ICL and reflect its diverse legal and institutional basis. Perceived as another tribunal of “international character,” on August 18, 2020, the Special Tribunal for Lebanon (STL) pronounced its judgment on the merits in the Ayyash case. The long-awaited verdict raises the question of the Tribunal's contribution to the further evolution of ICL.


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