Written by Rosemary Grey
Gender-based violence can be a form of genocide, and has been recognised as such since Polish jurist Raphael Lemkin first coined the term ‘genocide’ in the aftermath of World War II.
Today the issue of genocide continues to loom large.
In 2018, the international community marks the 70th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, which defines the crime of genocide under international law and obliges states parties to prevent and punish this crime. It also marks the 20th anniversary of the International Criminal Tribunal for Rwanda handing down the first international conviction of an individual for genocide. Furthermore, it marks the 10th anniversary of the International Criminal Court Prosecutor’s request for an arrest warrant against Sudanese President Omar Al-Bashir on charges of genocide and other crimes against ethnic groups in Darfur.
It is the year that the UN Human Rights Council found that there were serious grounds to believe that Myanmar’s Rohingya people have been subject to genocide, just two years after concluding that Iraq’s Yazidi people had likewise been subjected to that crime. And it is the year that the Khmer Rouge Tribunal – a joint initiative of the Cambodian government and the UN – convicted two surviving leaders of Pol Pot’s regime for war crimes, crimes against humanity and genocide.
‘Genocide’, as understood in international law, means something different to mass murder. It means certain act when committed with intent to destroy a national, ethnic, racial or religious group in whole or in part.
Those acts are not limited to killing; they also include any acts that cause serious bodily or mental harm to members of the group; subjecting the group to conditions of life calculated to bring about its physical destruction (e.g. starvation); imposing measures intended to prevent births within the group; or forcibly transferring the group’s children to another group.
Without the intent to destroy a victims’ group, those same acts can be recognised as war crimes, crimes against humanity, violations of human rights law, and crimes under national law. But it is the intent to destroy the group – specifically, a national, ethnic, racial or religious – that transforms the atrocity into a genocide.
In the 70 years since the Genocide Convention came into force, there has been a growing awareness of the links between gender-based violence and genocide.
In genocide scholarship, writers including Helen Fein, Charli Carpenter, Patricia Sellers and Adam Jones have illuminated these links. Based on their analysis of historical precedents – particularly the experience of Jews and other minorities in Nazi rule; of Tutsi and perceived Tutsi-sympathising people in Rwanda; and of non-Serbs during the wars in the former Yugoslavia – they have shown that genocide has affected men and women in different ways.
For example, men from the targeted group may be killed first, because they are perceived as potential combatants. Pregnant women may be slaughtered in order to prevent them from giving birth to a baby from the targeted ethnic or racial group; and women may be purposely impregnated by the genocidal group in order to breed in a particular race or ethnicity.
In parallel with this scholarship, international criminal courts have played a part in “gendering” the concept of genocide.
The Akayesu trial judgment at the Rwandan tribunal, led the way in this respect. It was not only the first case of an international conviction for genocide, but also the first to recognise that sexual violence can be an act of genocide. Applying this argument to the Rwandan context, the judges held that:
“Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself.”
That interpretation has been followed in numerous cases since, including the International Criminal Court’s Al-Bashir case. In line with Akayesu, the Prosecutor in that case has alleged that women and girls from the targeted ethnic groups in Darfur were raped as part of the genocide, and that men from those groups were rounded up and killed in sex-selected massacres.
Most recently, in November this year, the Khmer Rouge Tribunal added to the case-law on gendered genocide. In finding that Cham and Vietnamese people in Cambodia had experience genocided during the Khmer Rouge period (1975-1979), the Tribunal held that Vietnamese women and children were particularly targeted because their ethnicity was thought to pass down the mothers’ line, but in families where only the father was Vietnamese, he alone would be killed. In this way, the judgment helps to show that genocide during the Democratic Kampuchea period was not ‘gender-neutral’, as had previously been thought.
Gender-based violence and genocide are not two separate issues. Often, they go hand-in-hand. During this important anniversary of the Genocide Convention and this #‘16 days’ campaign where there is a heightened awareness of gender-based violence, the prevention of genocide must remain part of international efforts to prevent and condemn gender-based violence in all its forms.
Rosemary Grey is a University of Sydney Postdoctoral Fellow, Sydney Law School and Sydney Southeast Asia Centre