How can the International Criminal Court achieve justice for women?
- Written by The Conversation
Some say the law / ought not to bend. // That it should be a neutral, / certain thing. // But there are reasons / judgement and interpretation / are bequeathed / to human / – humane – / hearts, and heads.
– Excerpt from The Hope of a Thousand Small Lights, Maxine Beneba Clarke
On January 23 2025, the International Criminal Court’s (ICC) chief prosecutor applied for arrest warrants for the Taliban’s supreme leader and Afghanistan’s chief justice, charging them with the persecution of women, a crime against humanity. It was a long overdue decision.
These arrest warrants, said Amnesty International, gave
hope, inside and outside the country to Afghan women, girls, as well as those persecuted on the basis of gender identity or expression.
And hope in justice is important.
The ICC is a Hague-based court with the power to prosecute war crimes, crimes against humanity and genocide. Today, it explicitly recognises sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and gender-based persecution as distinct crimes.
But the recognition of gender-based abuses as distinct crimes under international law is relatively recent. The ICC has been widely criticised for its slow and lengthy processes, with an abysmal rate of convictions.
Review: Feminist Judgments: Reimagining the International Criminal Court – edited by Kcasey McLoughlin, Rosemary Grey, Louise Chappell & Suzanne Varrall (Cambridge University Press)
In its 23-year history of operation, only 11 ICC cases have resulted in convictions. Just two of those, relating to crimes in Congo and Uganda, included successful convictions for sexual and gender-based crimes.
What would it take for more of these cases to result in successful prosecutions of gender-based crimes? What would be required to bring “gender-sensitive judging” into practice? And might it be possible to imagine a world where laws are written with a specific focus on benefiting women and people of diverse genders?
These are some of the questions the feminist judgment “movement” seeks to answer. In this movement, scholars and practitioners rewrite judgments in decided cases from a feminist perspective.
A new book, Feminist Judgments: Reimagining the International Criminal Court, brings together nearly 50 authors, of all genders, from the Global North and Global South. In this collection, edited by Australian legal scholars Kcasey McLoughlin, Rosemary Grey, Louise Chappell and Suzanne Varrall, academics, advocates, and legal practitioners “re-envision a range of judgements” delivered at the ICC.
Feminist judgments can have an impact. A minority opinion, for instance, may one day become the prevailing orthodoxy. Feminist judgments are an exercise in consciousness-raising, primarily designed to educate and transform legal discourse.
This collection goes beyond traditional legal analysis by incorporating photography and poetry, including Beneba Clarke’s The Hope of a Thousand Small Lights. It recognises justice can have many different meanings; that it can be symbolic too, and still profoundly meaningful to victims.
Political constraints
Rewritten judgments in this collection offer clear guidance for ICC courts on how to advance gender-sensitive jurisprudence in cases of atrocity. But the ICC faces political constraints, including attacks on its authority from the Trump administration.
In November 2024, the court issued warrants of arrest for the now deceased Hamas leader, Mohammed Diab Ibrahim Al-Masri, allegedly responsible for the October 2023 attacks in Israel. These charges, withdrawn after his death, included sexual violence crimes committed in Israel on October 7.
The court also charged Israeli Prime Minister Benjamin Netanyahu, and former Defence Minister Yoav Gallant in relation to war crimes in Gaza, including starvation and targeting civilians, and crimes against humanity.
This month, the US State Department announced new sanctions on four ICC officials, including two judges and two prosecutors, claiming they were instrumental in efforts to prosecute Americans and Israelis. The US is not a member of the ICC. The court has denounced these sanctions as a “flagrant attack against the independence of an impartial judicial institution”.
If the ICC is perceived as lacking impartiality, this will limit its ability to address the gendered and intersectional dimensions of atrocity worldwide.
War and gender
War exacerbates previously existing gender inequalities. Around 110 instances of armed conflict are underway around the world; Africa and the Middle East are the most affected regions.
Many of these conflicts are intractable, dragging on for decades. With technology in warfare rapidly evolving, the growing application of AI and machine learning in weapons has gendered impacts. Attacks by explosive weapons in residential areas, for instance, disproportionately affect women and girls, since they often have primary responsibility for buying household goods or food at markets. Wars are also becoming less likely to be resolved politically.
The collective behind Feminist Judgments: Reimagining the International Criminal Court acknowledge that, even with its best efforts, the ICC can only achieve a limited and selective accountability. They encourage victims to pursue justice in other ways, not necessarily retributive. Perhaps those ways could be restorative or symbolic. Initiatives in arts, storytelling and memorialisation can bring some closure to survivors, while strengthening the social fabric of the nation.
With no meaningful recourse for women to Afghan courts and only limited access to courts of other states, the ICC remains the only viable judicial venue in which to prosecute the Taliban leaders for gender persecution.
However, the chances of seeing these leaders appear before the ICC are slim. They depend on arresting the defendants, who have publicly denounced the ICC warrants for their arrest. And the ICC has never conducted a trial in absentia. The court’s governing framework, known as the Rome Statute, states: “the accused shall be present during the trial”.
Almost 50% of individuals accused by the ICC are not brought to justice.
The court hopes charges confirmed in their absence could perhaps bring some redress to victims. Despite the absence of the accused, victims would still have an opportunity to finally speak out before a court – and the evidence would be examined, presented and documented for future reference.
