Gendered genocide: the Rome statute’s failure in recognising the inextricable role of rape and gender in genocide

Abstract

The Rohingya crisis in Myanmar, ISIS, Boko-Haram in Nigeria, South Sudan: these are just a few potentially genocidal, contemporary conflicts – in which rape seems to have predominantly taken root. Unfortunately, the genocide framework of the ICC under the Rome Statute, and the preceding ad hoc criminal tribunals, is an unamended replica of the definition within the Genocide Convention of 1948. This definition completely fails to recognise rape within the continuum of genocide, due to its non-fatal consequences. Genocidal rape in the aforementioned conflicts therefore, under this framework cannot possibly be redressed or even prevented, unless an entire paradigm shift is instituted. The risk and result of this current conception is that violence directed against women during genocide, despite its disproportionate perpetration based on gender, is ignored, unable to be prosecuted, and thus, a lethal threshold is reached. Just like the other elements of genocide, genocidal rape is designed to diminish a population. With no precedent or textual support, the Office of the Prosecutor in Akayesu had to make the unprecedented case that rapes are just as detrimental as murders during genocides. Like this decision, at the very least, the international genocide framework ought to recognise genocidal rape for what it is – a horrific crime where the suffering continues long after the actual crime. One cannot punish what one does not recognise – a gendered revision of genocide is therefore long overdue to rid the law of the prevalent gender-blindness to genocide.