On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

Abstract

This article examines the relevant case law of the International Criminal Court (ICC or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the ICC Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the ICC Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents - both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the ICC Prosecutor - the Al Hassan confirmation decision, CARII decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the ICC case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in ICC case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the ICC should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier ICC case law, the article turns to consider the prospects and space for the ICC to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.