Dusting Off the Law Books: Recognizing Gender Persecution in Conflicts and Atrocities

Abstract

War-time abuses against women, girls, lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ), non-binary and gender non-conforming persons are not new. They are as old as human history, appearing in modern international criminal law records as far back as World War II (WWII). In conflicts across the globe, from Iraq to Colombia, armed actors have perpetrated gender-based crimes amounting to persecution in an effort to reinforce oppressive, discriminatory gender narratives. Rarely documented when they happen, perpetrators are hardly ever held accountable for these crimes. As a result, the crimes are often excluded from consideration by international and domestic tribunals, and in effect, are left out of history. International criminal jurisprudence is silent on gender persecution, despite international law’s decades-long recognition of it as a crime. This silence derives from a lack of recognition and understanding of the intent to discriminate against a group based on their gender. The inclusion of gender persecution as a crime against humanity in the Rome Statute, which governs the International Criminal Court (ICC), provides a pathway forward for the international community to meaningfully challenge this type of harm. Such recognition would demonstrate to the world that targeting women, girls, LGBTIQ, non-binary and gender non-conforming persons because of their gender is a crime against humanity. This article contains three sections: (1) Understanding Gender Persecution; (2) Applying a Gender Persecution Lens, and (3) Recognizing Gender Persecution Survivors’ Rights to Participation. The article concludes with practical recommendations for the international community and local communities to increase recognition, prevention and redress for gender persecution and promote a survivor-centered approach for peace and transitional justice processes.

Keywords: Women, LGBTIQ, LGBT, Gender, War, Conflict, Persecution, Gender Persecution, Gender-Based Persecution, Sexual Violence, Atrocity, Rome Statute, International Criminal Court, ISIS, ISIL, Sexual Violence Against Men, International Human Rights Law

JEL Classification: K14, K33, K39