Today marks the 60th anniversary of the introduction of the
UN Convention on the Prevention and Punishment of the Crime of Genocide. The Convention contains an absolute prohibition on genocide, which is also long recognised as a jus cogens norm in international law. Genocide is defined in Article 2:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group.The need for a Convention on the crime of genocide was, of course, starkly illustrated by the Holocaust, in which Jews, persons with disabilities, Roma, homosexuals and others suffered enormous harm and loss. Unfortunately, in the past 60 years, the absolute prohibition of genocide has not been sufficient to prevent other genocides from occurring. Scholarship on genocide is constantly evolving, and one of the most interesting areas of current and innovative inter-disciplinary work relates to gender, sexuality and genocide. This has arisen in a number of ways.
Adam Jones has been instrumental in the development of ‘gendercide’ as an area of scholarship, focusing mostly on the targeting of men of military age in genocidal campaigns. Other scholars, myself included, have focused on the use of sexual violence against women as part of the evolving law and scholarship of genocide.
The conflicts in the Former Yugoslavia and Rwanda in the 1990s were largely characterised by the extensive use of sexual violence and exploitation as a weapon of war and a genocidal method. Although sexual violence as part of armed conflict was not a new phenomenon, and indeed continues to occur, a number of matters suggested that any formal legal response taken by the international community to this violence would address the particular experiences of women and girls in these conflicts.
Firstly, the widespread use of sexual violence and exploitation in both cases had received sustained media attention and been the subject of extensive commentary by non-governmental organisations. Secondly, the international community’s record on addressing women’s particular sexualised experiences of women in conflict was especially weak. Thirdly, since the failures of the Nuremburg Tribunal and the International Military Tribunal for the Far East to address women’s experiences of sexual violence and exploitation a corpus of law on women’s human rights had been developed with a particular emphasis on ensuring that sexual violence and exploitation were addressed by law and were not consigned to the unregulated realm of the ‘private’.
As a result of this context, when the Security Council established the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda the inclusion of sexual violence within the tribunals’ statutes was to some extent to be expected.
That notwithstanding, experiences at both international and domestic levels taught that the mere inclusion of sexual violence and exploitation within courts’ and tribunals’ formal jurisdiction was no guarantee of effective prosecution of these crimes, or of the provision of an adequate or real remedy to women and girls affected by such violence. Rather, sustained attention to such crimes by both the prosecutor and the tribunals themselves, together with the creation of a juridical climate within which women’s stories can be told and heard, remain have been somewhat absent.
As has been well documented here on IntLawGrrls, particularly in the posts of Beth Van Schaak (
posts here) difficulties continue to arise in relation to the prosecution of sexual violence before the Yugoslav and Rwandan tribunals. However, on this day of commemoration we can, perhaps, choose to remember the momentous decision, handed down by
Judge Pillay (now UN High Commissioner for Human Rights) in
Prosecutor v Akayesu, where for the first time an international tribunal recognised that sexual violence can be constitute the actus reus of the crime of genocide in respect of measures designed to prevent births in the targeted group (para. 507)
For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
