How the International Criminal Court Has Failed LGBTQ Survivors

Against the backdrop of national discussions on combatting rampant violence against LGTBQ people in the United States, the failure of international law to address such violence on the global stage has been overlooked.

The International Criminal Court (ICC), as one of the foremost institutions of international justice, can change this by adopting an intersectional and critical lens in their work. Only then will it fully encapsulate crimes as they occur, hold perpetrators to account and provide justice to LGBTQ and other victims from vulnerable populations.

The thematic failure to address crimes of sexual and gender-based violence permeates international criminal law. Despite upwards of 500,000 men and girls raped during the Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) undertook minimal investigations of such crimes. The Extraordinary Chambers of the Courts of Cambodia (ECCC) failed to charge Khmer Rouge leaders with crimes of SGBV outside of forced marriages, despite evidence and testimony of widespread rape. Five years after the extensive sexual violence that took place during the Yazidi genocide, survivors are still waiting for justice.

However, the ICC broke this trend this year when it successfully held Bosco Ntaganda, a Congolese warlord, guilty of sexual and gender-based crimes in its Prosecutor v. Bosco Ntaganda decision. The ICC previously came close to a similar holding once before, but the charge was overturned on appeal. On its face, the Ntaganda decision suggests the ICC is heading in the direction of progress on sexual and gender-based violence. But if we look at it through a more intersectional lens, it casts a different light on this seemingly monumental shift forward.

#WerkForConsent dance party and rally in Washington, D.C. for LGBTQ rights and an end to violence. (Ted Eytan / Creative Commons)

The ICC is the most visible legal forum responsible for holding perpetrators accountable for mass atrocity crimes, including crimes against humanity, war crimes, genocide and crimes of aggression. The Rome Statute, responsible for the creation of the ICC, was the first international instrument to expressly include various forms of sexual and gender-based crimes. The statute defines “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity” as acts that qualify as mass atrocity crimes. Importantly, the ICC is the only permanent international legal forum with the authority to recognize crimes of a sexual nature by prosecuting perpetrators and providing survivors opportunities for justice.

Gender has long been used as a tool to carry out mass atrocity crimes. These persecutions include not only discrimination based on gender identity, but also sexual orientation. Members of targeted groups, by the perpetrators’ own design, experience violent crimes in distinct ways by reason of their sexuality and gender. Further, the enactment of violent crimes can vary based on cultural beliefs and prejudice against the targeted group held by the perpetrator and society. And yet, despite the inextricable role played by gender and sexuality, the ICC and international criminal law at large have generally failed to apply either in analyzing mass atrocity crimes. 

The ICC is no stranger to the international trend of failing to address sexual and gender-based crimes, and its tardiness to enforce accountability for these crimes is no coincidence. Although the Rome Statute’s definition is progressive in theory, issues have quickly arisen in practice. The few specified acts are far from a complete list of the ways in which sexual and gender-based violence can occur; in assessing what qualifies as an act “of sexual violence of comparable gravity,” the ICC has no established guidelines as to what makes a violent act inherently sexual; and the statute’s definition of gender is limited between male and female, which excludes people with gender identities outside of this binary understanding of gender. 

With narrow definitions and no guiding principles as to the spectrum of acts that necessarily qualify under the statute, the result is—with the exception of the Ntaganda decision—that perpetrators’ sexual and gender-based crimes go unnamed by the ICC. All while survivors whose experiences and identities fall outside of the enumerated acts and narrow definitions are denied opportunities for justice.

The shortcomings of the ICC and the Rome Statute’s heteronormative classifications become particularly acute when looking at sexual violence targeted at LGBTQ communities. IraQueer and other international human rights organizations argue that when groups are already marginalized within their own societies, wartime abuses against them are rarely documented, resulting in the exclusion of their narratives from human rights discourse and justice processes. The consequence of this marginalization is invisibility of LGBTQ survivors’ experiences with sexual and gender-based violence at legal forums.

Although the ICC has just begun to break its silence on sexual and gender-based targeted at who the court defines as “women and girls,” the same cannot be said for LGBTQ groups. In their 2019 petition to the ICC, IraQueer, MADRE and Outright Action International encouraged the international community to prosecute the militant group ISIL for its egregious crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity. The petition was accompanied by robust documentation of crimes against persons perceived to step outside of traditional gender roles, including LGBTQ persons in Iraq. 

Given the Iraqi government’s complicity in ISIL’s violent crimes targeted against the LGBTQ community, documentation of this magnitude was the first of its kind. Due to jurisdictional complications, the ICC has not implemented any action towards accountability for perpetrators of these crimes mostly due to jurisdictional complications. Nevertheless, this shortcoming of the ICC further exemplifies the court’s need to address the gaps in its framework to analyze sexual and gender-based crimes through an intersectional lens.

The ICC’s limitations are also evident in cases where there appear to be clear sexual and gender-based crimes against who the court’s defines as “men and boys.” Yet, in applying the Rome Statute’s narrow definition, the ICC has perpetually failed to find acts of violence to qualify as sexual. In the ICC’s Kenyatta case, for example, not even acts of forcible circumcision and penile amputation were held to support the prosecution’s charge of “other forms of sexual violence.” Instead, these acts were only categorized as “causing severe physical injuries.”

Attempting to categorize these incidences into a narrow legal definition is to uphold an erasure of the diverse narratives and experiences of survivors in a way that excludes many and eliminates viable paths to justice. The failure of the ICC to hold perpetrators of sexual and gender-based violence accountable, with the exception of the Ntaganda case, exemplifies the ICC’s complicity in this erasure.

For the momentum from the Ntaganda case to manifest from its promising potential to meaningful change in how sexual and gender-based violence is addressed by international criminal law, the ICC’s framework to hold perpetrators accountable must be analyzed through an intersectional and critical lens. Prioritizing the enforcement of justice for LGBTQ survivors is a necessity if the court is to make true progress. 

About

Claire McLeod served as a Summer Legal Intern at the Global Justice Center. She is currently a J.D. candidate at the Elisabeth Haub School of Law at Pace University focusing on international and environmental law. Claire works as a Research Assistant to Professor Smita Narula and serves as the Vice President of Pace Law’s ​Lambda Law Students Association​.