Symbolic Judgments or Judging Symbols: Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes under the Statutes of the International Criminal Tribunals

Hilmi M. Zawati, Symbolic Judgments or Judging Symbols: Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes under the Statutes of the International Criminal Tribunals (D.C.L., Faculty of Law, McGill University, 2010)

13 Pages Posted: 23 Dec 2012

See all articles by Hilmi Zawati

Hilmi Zawati

Centre for International Accountability and Justice (CIAJ).

Date Written: October 22, 2010

Abstract

This thesis argues that the abstractness and lack of accurate description and labelling of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringe the principle of fair labelling, lead to inconsistent verdicts and punishments, and cause inadequate prosecution of such crimes. Accordingly, this inquiry deals with gender-based crimes as a case study and with fair labelling as a legal principle and a theoretical framework.

This topic is both critical and timely, and contributes to the existing scholarship in many different ways. This study is the first legal analysis to focus on the dilemma of prosecuting and punishing wartime gender-based crimes in the statutory laws of the international criminal tribunals and the ICC with reference to the principle of fair labelling. Moreover, this inquiry emphasises that applying the principle of fair labelling to wartime gender-based crimes would help the tribunals in delivering fair judgements and breaking the cycle of impunity for these crimes. Finally, this thesis presents a modest model of coherent legal analysis for reconceptualising, defining, and labelling gender-based crimes that would assist the tribunals in their efforts to reformulate and amend their basic laws, a substantial step towards effectively identifying and prosecuting gender-based crimes.

This analysis consists of four interrelated chapters, including an introduction and a conclusion. The introductory chapter begins by outlining the central focus and theoretical legal framework that guides my investigation and analysis of the dilemma of prosecuting gender-based crimes in the ad hoc international criminal tribunals and the ICC. As well, it discusses fair labelling, which has become a recognized legal principle in criminal law over the past three decades. Furthermore, this chapter provides justifications for the inquiry by elucidating why an analysis of the failure of the international criminal tribunals to adequately prosecute gender-based crimes in the light of the principle of fair labelling is of critical importance.

Chapter two concentrates on fair labelling as a common legal principle and a legal framework that guides my work. After examining the intellectual development of the principle of fair labelling, elucidating its scope and justification, and illustrating its applicability to gender-based crimes, this chapter analyzes its relation to other criminal law principles and concepts, including nullum crimen sine lege; mens rea; proportionality; multiple wrongdoing; the moral or socio-pedagogical influence of punishment; and the doctrine of joint criminal enterprise (JCE). It also looks into the landscape of international gender justice and examines the codification of gender-based crimes as crimes against humanity and war crimes under the statutory laws of the international criminal tribunals and in light of the principle of fair labelling.

Chapter three addresses the dilemma of prosecuting gender-based crimes in the international criminal tribunals. It starts by scrutinizing feminist legal literature and tracing its controversial arguments relating to the prosecution of gender-based crimes in these supranational judicial bodies. Then it moves on to examine the case law of the international criminal tribunals and to analyse, in the light of the principle of fair labelling, their shortcomings related to major cases of gender-based crimes. In this connection, it discusses violations of other principles and concepts, particularly the offender's right to fair warning or maximum certainty, the right to fair trial without due delay, and the right to fair sentencing. Finally, after summarising the main findings of this inquiry, chapter four concludes by confirming that the lack of accurate description and labelling of gender-based crimes in the statutory laws of the international criminal tribunals and courts violate the principle of fair labelling, lead to inconsistent verdicts and punishments, and inadequate prosecution of such crimes. Moreover, it underlines the options for reform within the statutory laws of these judicial bodies in the light of the principle of fair labelling. This reform would help the tribunals and the ICC to eliminate inconsistent prosecutions and overcome shortcomings in addressing gender-based crimes within their jurisprudence.

Keywords: international criminal law, fair labelling, international criminal court (ICC), international criminal tribunal for the former Yugoslavia (ICTY), international criminal tribunal for Rwanda (ICTR), international jurisprudence, Rome statute of the international criminal court, special court for Sierra

Suggested Citation

Zawati, Hilmi, Symbolic Judgments or Judging Symbols: Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes under the Statutes of the International Criminal Tribunals (October 22, 2010). Hilmi M. Zawati, Symbolic Judgments or Judging Symbols: Fair Labelling and the Dilemma of Prosecuting Gender-Based Crimes under the Statutes of the International Criminal Tribunals (D.C.L., Faculty of Law, McGill University, 2010), Available at SSRN: https://ssrn.com/abstract=2193128

Hilmi Zawati (Contact Author)

Centre for International Accountability and Justice (CIAJ). ( email )

404 - 2340 Gold Street
Montreal, Quebec H4M 1S4
Canada

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