Intersectionality and sexual and gender-based violence

: applicability and benefits for international criminal law

Abstract

The interpretation of sexual and gender-based violence (SGBV) has been challenging for international criminal law (ICL) due to the failure to understand gender as a social construction. Feminist legal scholars have critiqued ICL ́s narrow interpretation of SGBV stressing that gender intersects with other identities (e.g., race, religion, political opinion, class, sexual orientation) that compound the causes and harms of SGBV, also in armed conflict. The thesis investigates intersectionality as a tool to enhance the interpretation of SGBV crimes considering gender a social construction, in line with feminism and international human rights law (IHRL). Thus, it asks the question ‘What contribution can intersectionality, as a tool to interpret SGBV, make to ICL?’ Answering this question required a theoretical framework, based on feminism and IHRL, and an empirical analysis of ICL jurisprudence, illustrative of the practice in various jurisdictions.

Although the findings reveal inconsistent patterns in ICL ́s interpretations of SGBV, where narrow approaches (excluding gender) prevail, all the tribunals have applied (asymmetrically) intersectionality. After establishing its applicability, the thesis considers the specific benefits of intersectionality to ICL, identifying substantive and procedural aspects. Substantive contributions include helping to identify and substantiate i) the criminal intent, ii) the gravity of certain material elements, iii) the rationale to interpret the law, and iv) the strategic nature of SGBV as part of a common plan. Procedurally, intersectionality allows interpreting SGBV crimes in consistency with IHRL and without discrimination, which suits the needs of the International Criminal Court (ICC) under article 21(3) of the Rome Statute. The thesis concludes that an intersectional approach – based on the categories gender and discrimination – applies and has a huge potential advancing ICL interpretations, while considering the findings non-exhaustive. It suggests establishing an intersectional framework for the practice and makes policy recommendations to the judiciary to interpret SGBV using an intersectional lens.

Date of Award	Apr 2022
Original language	English
Supervisor	Catherine O'Rourke (Supervisor) & Thomas Hansen (Supervisor)