Document Type

Article

Disciplines

Criminal Law | International Law

Abstract

Sexual and gender-based violence is prevalent in armed conflicts throughout all corners of the world. The elevation—and recognition—of sexual and gender-based violence as violence qua violence is an arduous and continual struggle. Although international humanitarian and human rights law purports to proscribe sexual and gender-based violence, the language of the law often minimizes the gravity of this violence and fails to hold perpetrators accountable. This Article argues that to elevate sexual and gender-based violence crimes in the international humanitarian and criminal law hierarchy, there must be a radical reconceptualization of gender under international law. But, in order to envision the future of sexual and gender-based violence prosecutions, it is imperative to critically examine its past.

At its heart, this Article is a jurisprudential genealogy that traces the development of international feminist activism, culminating in the Women’s Caucus for Gender Justice’s language negotiations of the Rome Statute for the International Criminal Court. The Caucus sought to deinstitutionalize legal language from archaic heteropatriarchal norms that classify sexual and gender-based violence as chiefly a harm to honor in favor of language that emphasizes the gravity of the violence itself and actual individualized harm inflicted on victims. This Article further contends that the Caucus uniquely benefitted from the human rights wave of the 1990s and the fortuitous confluence of gender mainstreaming, international criminal tribunals, and the Rome Conference itself. A critical examination of the successes and defeats of the Caucus provides a window into the Rome Statute’s inadequate conceptual dealings with gender and illuminates a way forward to recognizing sexual and gender-based violence as violence qua violence.

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