No Man's Land: Does the Gender Crimes Framework of the ICC Statute Cover Gender Basedd Targeting through Signature Drone Strikes?

Abstract

The Rome Statute establishing the International Criminal Court has been hailed as a major advancement in the field of international law on the aspect of sexual and gender based crimes. For the first time ever, there is an international treaty that explicitly criminalizes sexual and gender based offences as standalone offences. As the experience of international criminal tribunals has developed over the years, the nature and extent of deliberate crimes against women — have increased in scale and intensity. The incorporation of gender based crimes in the finalized Rome Statute is thus an acknowledgement of the disparate nature of suffering that gender-specific discrimination and harm can cause. However while these are indeed sexual offenses, to categorize them as gender based crimes is a misnomer. Except ‘forced pregnancy’ which has an inbuilt biological bias (that it can be carried out only against women and not men), the remaining set of sexual offenses can be committed against both men and women and are therefore gender neutral. This paper using the context of targeted killings/drone strikes in the Global War on Terror (GWOT) proposes to demonstrate how the existing framework of gender and sexual crimes under the Rome Statute is not ‘gender neutral’ and focuses only on specific types of sexual offences, applicable largely to women, and thus deficient to meet the evolving needs of modern warfare. It argues that while the impact of drone strikes on civilian population is highly gender specific (both in terms of targeting and aftermath) — drone strikes fall outside the existing ‘gender based’ crimes framework of the ICC Statute simply because they do not arise out of sexual violence. While drone strikes may likely be prosecuted as war crimes, the war crimes framework under the ICC Statute does not present any specific provision which may be used to criminalize the harm to civilian population resulting from signature drone strikes, which are inherently gender biased. The only other gender based offense in the ICC statute is the crime against humanity of gender-based persecution, which however is inapplicable to the case of drone strikes. This lacuna thus creates “an accountability vacuum” which makes redress difficult. The paper concludes with a possible set of recommendations and suggestions to overcome these limitations.