Boko Haram and the Abduction of Schoolgirls in Nigeria: Reflecting on ‘Gender-Based Crimes’ as a Legal Misnomer

Abstract

It is indisputable that in times of armed conflict (international or non-international), specific categories of crimes are committed against women. While the commission of such heinous crimes such as forced pregnancy, rape, slavery, enslavement and other forms of sexual violence constitutes a flagrant violation of their human rights, they may also be qualified as gender-based violence and/or gender-based discrimination. These classifications are founded upon international instruments that define the substantive contents of what these crimes are. These characterisations, undoubtedly, have been imported into academic writings on international criminal law. Academic writers, notably legal scholars, have sought to influence the growth of the genre of crimes that are classified as serious crimes in international criminal law. In particular, the repeated usage of the phrase ‘gender-based crimes’, especially by legal scholars, seems to suggest the perpetration of crimes that violate the physical and mental integrity of women. In this context, offences of a sexual nature that affect women have been subsumed in this category. This line of thinking has, to a greater extent, been influenced and shaped by the unspeakable ordeals and gruesome atrocities that are inflicted on women in times of armed conflict, as evidenced by experiences narrated during court trials, in the media and in the personal testimonies of victims. Unfortunately, this categorisation of ‘gender-based crimes’ seems to be nothing more than an academic creation given the fact that no instrument in international criminal law, as well as the jurisprudence of international criminal tribunals, creates or recognises what is referred to as ‘gender-based crimes’. There is no denial that the commission of such atrocities against women may qualify as gender-based discrimination, gender-based violence, genocide, crimes against humanity or war crimes. However, as stipulated in international instruments, the definitions of these crimes are stipulated in a gender-neutral language. The prosecution of these atrocities, which may well be committed against women, must come within the specific category and definition of these crimes: either as genocide, crimes against humanity or war crimes. The current literature on international law, especially treaties that define the content of serious violations of international law, as well as the jurisprudence of international criminal tribunals, neither creates nor recognises such thing as ‘gender-based crimes’.