Sexual and Gender-Based Violence: What Legacy for the New ICC Prosecutor?

Abstract

Sexual violence has always been used as an instrument of violence and a weapon during armed conflicts. Yet sexual and gender-based crimes (SGBC) were absent from instruments of international criminal law until very recently and charges are seldom brought in international criminal courts. In the 1990s, the Statutes and jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda laid the foundation for the recognition of SGBC in international criminal law. Their jurisprudence and lessons learned were incorporated into the Rome Statute of the International Criminal Court (ICC or the court) which has been presented as one of the most developed frameworks for gender justice. With a new Prosecutor coming into office in 2021, an assessment of the first decades of SGBC investigations, prosecutions, and adjudications is necessary to gauge the scope of the task left to be accomplished by the selected candidate. This chapter examines the efforts towards the investigation, prosecution, and adjudication of such crimes, with a particular focus on the ICC. It highlights that, despite providing one of the most advanced legal frameworks, the court still struggles to effectively address such crimes and continues to repeat the errors of the past. The chapter identifies promising and disappointing outcomes by looking at the ICC’s case law and exploring the developments undertaken under the leadership of the last two Prosecutors: from the silence of the Lubanga case to the recent changes in the ICC’s practice, including in the Al Hassan case.