The Women in International Law Interest Group's (WILIG) mission is to promote and enhance the careers of female-identifying professionals in the field of international law, as well as to promote awareness of gender and international law. Relevant to this mission and this panel presentation, in 2023, WILIG awarded its Scholarship Prizes for excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. The WILIG Scholarship Prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly. After careful consideration, and thankful to the committee members who reviewed submissions, in 2023, WILIG awarded the Scholarship Prize for Best Article to Dr. Ramona Vijeyarasa for “Quantifying CEDAW: Concrete Tools for Enhancing Accountability for Women's Rights” (Harvard Human Rights Journal, 2021). The committee awarded the prize for Best Book to Valerie Oosterveld, Indira Rosenthal, and Susana SáCouto for their edited volume, Gender and International Criminal Law (Oxford University Press, 2022). Honorable Mention in the category of Best Book went to Catherine O'Rourke for her book, Women's Rights in Armed Conflict Under International Law (Cambridge University Press, 2020).

I had the honor of moderating a panel discussion with our distinguished winners of WILIG's 2023 book prizes. The panel focused on whether and how feminist work, exemplified through the authors’ books, speaks to and permeates the “mainstream” of international legal scholarship and practice. The panelists reflected on how gender has become part of the mainstream of international law, how that mainstream sometimes misunderstands gender, and how gender is excluded from the mainstream in certain ways. Specific questions addressed by the panelists who contributed to the edited volume included: What prompted the editors to publish their book and what did they hope the book would contribute to the discourse on international law—especially as relates to the concept of gender? How is “gender” misunderstood by the “mainstream” and how does their book address this misunderstanding and attempt to illustrate the misunderstanding or help to educate readers on the concept? Whether and how gender may still be excluded from the mainstream and examples of how such misunderstandings may impact on accountability efforts and the protection of rights? As to the monograph, what is the focus of the book and its innovations? The panel concluded with an opportunity for all panelists to share challenges they have faced as feminist scholars seeking to engage with the mainstream and strategies for engaging productively with feminist international legal scholarship.

Below are brief summaries of the remarks made by each of the speakers during the panel in response to these questions.

I want to begin the discussion today by explaining the origins and the motivations behind the book, Gender and International Criminal Law. The idea came out of my experience working as a gender and legal adviser with Amnesty International at its International Secretariat in London, over a period of four years. During this time, I worked right across the organization with many different regional and thematic teams, and much of what I did focused on Amnesty's “international justice” research, advocacy, and campaigning work carried out by those teams.

Naively perhaps, I was somewhat surprised by the generally low level of understanding of the relevance of gender norms to the rights violations Amnesty was documenting, and the absence of even a rudimentary gender analysis to expose them in most cases. For example, even a simple question about whether women and men had the same or different experiences because of their gender went unasked far too often.

By the time I got to Amnesty in 2011, everyone had pretty much absorbed the message that rape was a serious crime under international law, and that it was endemic in armed conflict and other situations of mass atrocity. But there was only a limited understanding of rape and other sexual violence as gendered, or of the broader concept of “gender,” and the usual stereotypes and misconceptions about its meaning were widespread.

For instance:

• • Gender equals female;

• • “Gender crimes” are synonymous with rape of females;

• • Sexual violence is more difficult to document than other human rights violations;

• • Women and girls are the victims and males the perpetrators;

• • Women and girls are raped, but when males are raped, it is called torture;

• • Sexualized violence is heterosexual; and

• • Violations without a sexual element are not gendered or gender-based.

In practice, what I saw was that if these “stereotypes” were not evident in the research findings, for example they did not point to females having been raped, then too often the assumption was that there was no “gender” here. And so, no need to look further. And, as there were no processes or requirements for the systematic conduct of gender analysis in their work, and no accountability mechanisms, that is no one to check up on this, these stereotypes were largely unexamined and unchallenged. In my view, this led to lost opportunities to document the range of rights violations and identify the victims of those violations more fully. It was also a waste of precious resources and led to unjustifiable gaps in the organization's research and subsequent campaigning.

This was not, and is still not, a situation unique to Amnesty. This is the picture in many organizations, maybe nearly all of them. And it was not that the people working there did not care. They did. And I have enormous respect and admiration for the people with whom I worked. They were incredibly dedicated and talented. But many did not “get” gender and its effect on rights violations, how the organization selected its priorities, the design, scope, and content of its research and advocacy, as well as whose rights it chose to champion. While I was surprised by this situation, what made me the most concerned, was a lack of understanding about why any of this matters.

This was all happening against the backdrop of a quite remarkable and rapid shift away from ignoring sexual violence and other gendered crimes, to acknowledging them as the serious crimes under international law that they are. There had been a number of convictions of these crimes at the international level and in national courts, and an important body of progressive jurisprudence, primarily from the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the Special Court for Sierra Leone. Talk about “gender” was quite commonplace and the term was used routinely—gender-based crimes, gendered harms, gender balance, gender experts, gender sensitive reparations, gender equality, and so on.

All this “progress” led to a justifiable sense of accomplishment. We had come a long way in a very short period of time. But I saw another side of this that I thought was problematic—a complacency seemed to have set in. There was a sense that because of the change in the status of sexual violence and a greater awareness that “gender” was something to be reckoned with in international criminal law, it was all sorted. So long as sexual violence was taken seriously in the international justice work, “gender” was covered. I saw this same thinking elsewhere. For example, it was evident in much of the discourse about crimes against women during armed conflict, such as the UN Security Council's Women, Peace and Security Agenda, and in major state sponsored initiatives against conflict related sexual violence.

To me, this way of thinking was too simplistic and incomplete. It was also dangerous, because if we think that by asking “was anyone raped” that we have “covered off” gender, then we stop asking, we stop looking, and then we miss people, maybe entire groups of people, whose rights have been violated or who have been targeted for crimes under international law, and for whom we should also care and be taking action.

It was clear that the situation I was seeing at Amnesty and other places, was also happening in the world of international criminal courts and tribunals. There were the same gendered stereotypes about sexual violence, what it looks like, its perpetrators and victims; the same limited understanding of gender beyond sexual violence, and the same lack of a systematic practice of gender analysis and robust accountability to avoid falling into these pitfalls. The result: charges for sexual crimes did not survive, non-sexual gendered crimes were mischaracterized, and so on. These misconceptions led to lost opportunities too. In this case, lost opportunities to identify, investigate, prosecute, and punish the full scope of crimes, victims, and harms.

The book came out of this experience and my conversations with others working on these issues, especially Michelle Jarvis and my co-editors Valerie and Susana. It was clear we were all seeing similar dynamics. We agreed on the urgent need to open up discussion about what gender in international criminal law means, not only theoretically but practically. And also what it should mean from a feminist perspective, and why it matters that we get it right. Of course it was not possible to cover everything in one book, but we tried for a good cross-section so that someone going through the table of contents, or even reading the book, could see the extent to which gender is relevant to all aspects of international criminal law. We wanted to spark more nuanced discussion and analysis, and a deeper understanding of gender, so we have better, stronger accountability. If our book can contribute to this aspiration in any way, then I will be beyond thrilled.

It has been almost ten years since I left Amnesty, and there has been a lot of movement on these issues in that time. Good things are happening, but there is still a long way to go of course. For instance, there is more to do to ensure that all international criminal justice mechanisms have a strong understanding of the impact of gender norms on the commission of the crimes they investigate and adjudicate, how to respond to them appropriately and fully, and why it is important that they do so. There is also work to do to better understand the ways in which gender norms, together with social norms governing other identities, affect the commission and impact of crimes on people, as well as their investigation, prosecution, and punishment.

I am stopping here. This is a long conversation. I have tried to give an overview of the context in which the idea for the book came about and the reasons why we stayed committed to pulling it together despite a host of life events that threatened to derail it, like births, deaths, strikes, and pandemics.

I would like to conclude with a reminder to myself. This is something I try to do often and especially when I speak publicly like this. Much of my work is done on my own on my computer, in the realm of the intellect, and this book is an academic work. But behind it are real people who have suffered and continue to suffer horrendous acts against them, their families, friends, and communities, that we call crimes under international law. Perhaps some among you today, or your loved ones, have had this experience. This is the reality and I want to acknowledge, from my heart, all the victims/survivors and their suffering, their resilience and their fundamental rights to dignity, peace, safety, and justice. Thank you.

Despite nearly three decades of increased awareness about the commission of sexual violence and other gender-based crimes in situations of conflict and mass violence—most recently seen in the reporting of atrocities coming out of the Ukraine—there are numerous examples of how misunderstandings and stereotypes about gender continue to influence decisions made by the domestic and international tribunals adjudicating these crimes. As we discuss in our book on Gender and International Criminal Law, among the prevailing misconceptions about gender are that sexual violence is perpetrated primarily if not exclusively against females, that it mostly manifests in the form of rape, and that gender violence is limited to sexual violence. In the book, we highlight some examples of these misconceptions, particularly in the first chapter.

For instance, one of the examples we talk about has to do with the misconception that sexual violence is perpetrated only against females. When similar conduct is perpetrated against males, there has been a tendency to characterize that conduct as a crime but not necessarily a sexual violence crime. This is what happened in one of the cases arising out of the Kenya situation at the International Criminal Court (ICC), Prosecutor v. Muthaura, Kenyatta and Ali. There, the prosecutor charged the accused with the crime against humanity of “other forms of sexual violence” based on evidence of forced circumcision and genital mutilation of men and boys of Luo ethnicity who were perceived supporters of an opposition party, the Orange Democratic Movement, committed by Party of National Unity supporters of Kikuyu ethnicity. The Pre-Trial Chamber flatly rejected the categorization of these acts as “sexual” violence, finding that they were more properly categorized under the crime against humanity of “other inhumane acts,” a residual clause which covers acts causing severe physical or mental injury that cannot be charged as other crimes against humanity. The Chamber recognized that forced circumcision and genital mutilation occasioned physical and mental harm, but found that these acts of violence were somehow not tantamount to sexual violence even though they targeted the sexual organs of men and boys. Its decision reflects the misconception that acts recognized as sexual violence when committed against women cannot be recognized as such when committed against men.

The tribunals have also often missed, misunderstood, or misidentified the gender dimensions of crimes without a sexual element, such as the war crimes of pillaging, attacking civilian objects, or deportation, even though these crimes often have quite significant gendered impacts. What we see, in fact, is that there has been little recognition by international tribunals of non-sexual gendered harms as international crimes. For instance, although the Rome Statute includes a number of crimes that do not necessarily involve sexual violence, such as forced pregnancy, enforced sterilization, and gender-based persecution, to date only forced pregnancy has been successfully prosecuted by the ICC.Footnote ¹ Furthermore, while international tribunals have recognized that certain conduct, such as forced marriage, includes non-sexual harms and can be prosecuted as an international crime,Footnote ² many other non-sexual forms of gendered harms—including other forms of reproductive violence and gendered forced labor—have not been explicitly criminalized. For example, forced maternity, being forced to impregnate another person, or being forced to conceive, to breastfeed, to use contraception, to obtain an abortion, or to perform domestic labor have yet to be expressly criminalized in international instruments.

At first, some of these harms may not appear as grave as the harms that have been explicitly recognized as criminal by tribunals. Yet non-sexual harms may actually cause as much pain and suffering to victims and survivors as harms that have been explicitly recognized in international criminal law. For instance, in a case coming out of Guatemala, two former military members were convicted of, inter alia, acts of sexual violence, sexual slavery and domestic slavery committed against Maya Q'eqchi’ women near a military outpost in Sepur Zarco during the civil war in Guatemala. For months during 1982 and 1983, the women—respectfully referred to as the abuelas (Spanish for the grandmothers) —were not only subject to repeated rapes and other forms of sexual violence but also forced to take turns every few days washing, cooking, and cleaning for soldiers. Although the “shifts” eventually ended, some women were forced to continue to cook and wash for the soldiers for up to six years.

During the trial, expert testimony made clear that the gendered domestic labor that the abuelas were forced to perform—which might have been viewed by some as less serious than the crime of sexual slavery—had in fact been experienced by them as equally harmful. As gender anthropology expert Rita Laura Segato explained, being forced to leave their children and use their own food to cook for the soldiers while some of their own children went hungry and died caused the abuelas intense shame and guilt. As Segato noted, such was the harm that when the women testified about “their sexual subjugation and their domestic subjugation, they [did] it with the same pain, manifesting similar hardship [and] referring to [forced] access to their body [in the same way as forced] access to their work and their products.”Footnote ³

The recognition that the forced domestic labor was tantamount to domestic slavery—and that it was committed in the same context as the sexual slavery, that is as part of a broader, systemic pattern of violence intended to spread terror among the Indigenous population rather than isolated acts or the product of rogue soldiers—allowed for it to be appropriately prosecuted as a crime against humanity. Yet, without a gendered analysis, the grave harm experienced by the abuelas may well have been overlooked.

In sum, in the book we highlight some of these examples to point out that a limited, “mainstream” understanding of gender can lead to mischaracterizing, overlooking, or under-prioritizing sexual violence and other forms of gender-based harms. Significantly, impunity for these harms means not only that perpetrators are not held accountable for various forms of gender violence, but also that victims and survivors are then often cut out of other measures that might flow from convictions, like reparations for those harms.

In terms of strategies for engaging the mainstream with feminist international legal scholarship, one obvious way is through teaching. I teach a seminar on gender and international criminal law and try to raise these issues through the readings and discussions I have with students.

Another strategy is to demonstrate what feminist legal thinking actually looks like in practice through projects that reimagine and rewrite “mainstream” decisions using a feminist lens. Some of us have participated in these kinds of projects. Indira, Valerie, and I participated, for instance, in one such project where we were asked to rewrite various ICC decisions from a feminist perspective. These projects are an opportunity to model what a gender-competent approach to judging and decision making would look like. They are an opportunity to illustrate—not just talk about—the difference that gender-competent judging can make. In other words, they offer a hands-on practical example of how to answer the question of how courts can avoid mischaracterizing, overlooking or under-prioritizing sexual violence and other gender-based harms in their decisions.

There have been a number of positive developments within the field of international criminal law over the past three decades with respect to gender.

First, the jurisprudence crafted and created by gender-sensitive and gender-competent lawyers at the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and elsewhere is having lasting effect. We see this in recent International Criminal Court (ICC) decisions and judgments, such as in the Trial and Appeals Chambers judgments in the Ongwen case, in which a range of sexual and gender-based acts directed against girls and women were prosecuted.Footnote ⁴ In particular, Ongwen was convicted of certain crimes he carried out himself: forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity committed against seven females who were abducted and placed into his household. Ongwen was also convicted of crimes that were carried out by individuals under his command as part of a plan: forced marriage, torture, rape, sexual slavery, and enslavement committed against girls and women within the Sinia brigade, which was led by Ongwen.

A number of feminist lawyers submitted a series of amicus curiae briefs to, and appeared before, the Appeals Chamber in Ongwen to discuss, for example, forced marriage as an inhumane act and forced pregnancy. In the forced marriage briefs, the amici discussed relevant jurisprudence from the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia.Footnote ⁵ This cross-fertilization between tribunals is heartening to see, particularly after years of setbacks at the ICC with respect to gender-related crimes.

The development of gender-sensitive policy papers by the ICC's Office of the Prosecutor (OTP) has contributed to these positive developments. The central policy paper in this respect is the 2014 Policy on Sexual and Gender-Based Crimes. In that policy, the OTP committed to applying “a gender analysis to all crimes within its jurisdiction, examining how those crimes are related to inequalities between women and men, and girls and boys, and the power relationships and other dynamics which shape gender roles in a specific context.”Footnote ⁶ This policy created a detailed framework for the OTP's analysis of crimes. The resultant focus on gender-competent analysis by lawyers and others in that office has led to improved examinations, investigations, and prosecutions, resulting in convictions sustained on appeal in the Ntaganda and Ongwen cases. This policy paper is being updated in 2023.

As a gender-integrated approach to examinations, investigations, and prosecutions took deeper hold, we saw the adoption of the 2016 Policy on Children, which is also being updated in 2023. That policy is integrated with the 2014 policy and indicates that the OTP pays “particular attention to the gender-specific impact on, harm caused to, and suffering of children affected by” sexual and gender-based violence.Footnote ⁷ Additionally, the OTP's 2021 Policy on Cultural Heritage also integrates gender considerations throughout. For example, it recognizes that “[m]any forms of sexual or gender-based crimes may be designed to affect the cultural heritage of a community . . . individuals may be targeted for sexual slavery, or subjected to the crime of forced pregnancy, because of their shared cultural heritage, or because of their personal importance to the cultural heritage of that group, e.g., as religious or spiritual leaders.”Footnote ⁸

In December 2022, the prosecutor released a Policy on the Crime of Gender Persecution. This policy recognizes the role played by persecution on grounds of gender in conflict and situations of mass atrocity, and the benefits stemming from investigation and prosecution of this crime:

This ICC OTP policy paper, and the others mentioned above, have shown their usefulness not only in the practice of the OTP, but also as guidance documents for countries interested in their own investigations and prosecutions of genocide, crimes against humanity, and war crimes. For example Colombia's Special Jurisdiction for Peace has considered the Policy on Sexual and Gender-Based Crimes in implementing its own approach to these crimes. In recent years, we have seen domestic prosecutions of gender-based international criminal law violations, such as German cases with respect to crimes committed against Yazidis by members of ISIS. And, in Ukraine, the Office of the Prosecutor General has a specialized unit focused on sexual and gender-based crimes, advised and trained by feminist lawyers and investigators. We have also seen some incremental positive impact created by gender advisers at tribunals such as the Special Tribunal in the Central African Republic, and a gender-sensitive focus by some countries in the United Nations Sixth Committee on the draft Crimes Against Humanity Convention.

I will end by mentioning that the 2022 Gender Strategy and Implementation Plan of the International, Impartial, and Independent Mechanism for Syria (IIIM) deserves special note. I highly recommend it as an example of gender being understood in all of its complexity in international criminal law. According to the IIIM,

The Gender Strategy and Implementation Plan sets out the IIIM's commitment to pursue inclusive justice for victims/survivors and to center them in the Mechanism's decisions and strategies, such that “any disadvantage caused by gender does not reduce the prospects of justice and where justice is a vehicle to help overcome such disadvantage.”Footnote ¹¹

Certainly, there is much more to do, but these important steps represent current bright spots in gender-sensitive international criminal law.

In my comments, I want to use my book Women's Rights in Armed Conflict Under International Law—and my approach to writing the book—to demonstrate some of the common strategies and pitfalls for feminist scholars seeking to engage the mainstream of international law.