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Violence Against Women During Armed Conflicts
women from violence has moved into ‘high politics’ which gives the issue a sense of
importance and urgency that did not previously exist. 53
The ICC Statute also provides another invaluable contribution to ensuring greater
protection for women against violence by explicitly stating that rape and other gender
violence is seriously prohibited and can constitute crimes of genocide and crimes
against humanity. Article 7(1)(f) clearly claims that ‘rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity’ can constitute crimes against humanity. In addition,
Article 7(1)(g) depicts how persecution of individuals because of their gender is
impermissible under international law. The ICC Statute further states that judges and
advisers with specific expertise on sexual and gender violence should be appointed to
ensure that proper skill and attention is given to the issue of violence against women.
The ICC Statute has made major progress in international law because gender-based
crimes are no longer linked to a woman’s honour or dignity. 54 It also depicts how
violence against women is worthy of international prohibition and prosecution.
However, although the groundwork is there to suggest that we can move away from
the focus on violence against women, it is submitted that the International Criminal
Court does not protect women to the extent that is necessary to allow for a shift in
attention. O’Connell has shown how the ICC has been unable to adequately deal with
gender-based crimes due to a lack of effective investigations and substantial proof to
prosecute individuals. For example, in the case of Lubunga 55 , the individual in
question was not charged with any gender based crimes despite common knowledge
that he had committed mass rape and violence against women in the DRC. Similarly,
with the cases of Katanga and Ngudjolo 56 , the ICC was only able to charge the
individuals for some of the gender based crimes that they had committed, thus
amounting to partial justice for the victims concerned. 57
Another disadvantage is that certain definitions within the ICC Statute are
incompatible with women’s rights. Article 7(2)(f) proclaims that forced pregnancy is
only prohibited when the perpetrator has an ‘intent’ to affect the ethnic composition
of any population. This raises the serious concern as to why all forced pregnancies are
not prohibited regardless of intent. The definition of ‘gender’ in Article 7(3) is also
problematic because it relies on the biological differentiation between men and
women, rather than taking a more acceptable approach that looks at the social
construction of gender. 58 Furthermore, the Court only has competence to deal with
those cases where States have consented in giving the ICC jurisdiction. Therefore,
State impunity can flourish when States decide to not bring a case forward to the
Court. Moreover, the ICC only has the capacity to deal with crimes that reach a
53 R. Charli Carpenter, ‘Recognising gender-based violence against civilian men and boys in conflict
situations’ (2006) 37 Security Dialogue, 85.
54 S. O’Connell, ‘Gender based crimes at the International Criminal Court’ (2010) 1 Plymouth Law
Review, 71.
55 ICC-01/04-01/06.
56 ICC-01/05-01/08.
57 S. O’Connell (n54) 73-75.
58 (n6) 9.
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