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Rosemary Grey and Louise Chappell

This chapter examines the contested narratives around sex and gender within the ICC, analyzing the ways in which feminist actors sought to challenge conventional narratives of the role of gender in conflict during the Court’s creation, and the extent to which these narratives have actually changed the practice of the ICC. It outlines narratives and counternarratives of different stakeholder communities engaging with the ICC on themes such as distinctive female and male experiences of sexual violence victimization, and changing explanations of sexual violence in conflict. It shows that the reforms sought by feminist actors to the dominant narratives have changed over time, including in response to decisions made within the Court. Initially, feminist actors prioritized making sexual violence visible in war narratives. More recently, feminist activism and scholarship has focused on seeking deeper explanations of sexual violence during atrocity, and on the linkage of socially-constructed gender roles to these considerations. In particular, some feminist actors have pressed for non-sexual gender-based crimes to be recognized, investigated and prosecuted. It also describes counter-counternarratives on these themes by feminist scholars, as well as religious and cultural groups. The chapter concludes that the Rome Statute is well-suited as a vehicle for a broad conception of gender violence which encapsulates, but is not limited to, sexual violence.

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Rosemary Grey and Louise Chappell

Despite the increased attention to gender in instruments of international criminal law, significant gender problems persist in the practice of international criminal courts. One problem is that conviction rates for gender-based crimes continue to be lower than for other common wartime offences, with the result that the ‘end of impunity’ for gender-based crimes remains a long way off. Another is the impoverished concept of gender presented in trial narratives – even where prosecutors and judges purport to analyse ‘gender-based crimes’, they offer little analysis of the ways in which violence in times of war and ‘crisis’ is linked to underlying gender hierarchies and norms. It is increasingly acknowledged that more gender-sensitive adjudication can help address these persistent problems. However, the potential role of judges in this respect remains under-researched and poorly theorised, with most scholars and activists starting from the premise that the key to improving gender competency in the judiciary is to increase the number of women on the bench. Drawing on the broader literature on ‘gender justice’, this chapter sets out a more ambitious agenda for research on gender and judging in international criminal courts. It considers how judges (of either sex) can act as agents of ‘gender justice’ in these courts, and proposes a framework for assessing the extent of their contribution in this regard. To make this analytic framework concrete, the chapter uses illustrative examples of ‘gender-just judging’ from the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Criminal Court (ICC). We hope that by developing concrete indicators of ‘gender-just judging’ in international criminal courts, the chapter will show that a commitment to gender justice is not necessarily inconsistent with a commitment to impartiality, and pave the way for future empirical research into the contribution of judges to ‘gender justice’ in international criminal courts.