Femicides as gender persecution

Introduction

I. Introduction

1. What is Femicide?

• Definition: Femicide refers to the killing of a woman because she is a woman, or the gendered killing of women. It represents one of the most extreme forms of gender-based violence (GBV).

• It can occur in both peace and wartime contexts and is often marked by a climate of indifference and impunity.

• The United Nations Office on Drugs and Crime (UNODC) has identified femicide as one of the most brutal forms of violence against women (VAW) and has called it “the most pervasive human rights violation” rooted in gender inequality and discrimination.

2. Femicide as an International Crime

• The article argues that femicide, as a severe form of gendered killing, should be treated as a crime under International Criminal Law (ICL).

• Although femicide is not yet explicitly recognized as a standalone international crime, the article suggests it can be approached under existing crimes, particularly the crime of gender persecution under ICL.

3. Femicide in Legal Contexts

• Latin America: Many countries in Latin America have criminalized femicide or made it an aggravating factor in homicide cases. This reflects growing legal recognition of femicide as a severe crime that demands specific legal attention.

• United States: While femicide is not formally recognized in U.S. law, the concept has appeared in legal discussions, particularly in Massachusetts, where a judge referred to a case involving a killing after a rape as a femicide.

• European Union: The European Institute for Gender Equality has recommended stronger legal frameworks to combat femicide and gender-based killings.

4. Challenges to Addressing Femicide

• Legislation vs. Enforcement: While many countries have passed laws criminalizing femicide, prevention and enforcement of these laws remain significant challenges.

• International Criminal Tribunals: Despite its serious nature, femicide is not recognized as genocide or a distinct international crime in international tribunals, such as the International Criminal Court (ICC).

• Activists have criticized international courts for not fully recognizing the role of gender dynamics in mass violence and gross human rights violations like femicide.

II. Femicide and International Law

1. The Legal Recognition of Femicide

• Latin America has led the way in criminalizing femicide and making it a distinct criminal offense in some countries. These countries are often praised for their legislative commitment, but practical implementation remains a challenge.

• International Human Rights Organizations: Many international organizations, including both governmental and non-governmental bodies, frame femicide as a gross violation of women’s human rights.

• The Inter-American Court of Human Rights: The court has addressed issues of gender-based violence, but it prefers the term “gender-based murder” instead of femicide, reflecting a more generalized approach.

2. The Importance of International Criminal Law (ICL)

• Femicide, as a form of gendered killing, could be addressed by international criminal law (ICL), which governs crimes of serious international concern.

• Gender Persecution: The article argues that femicide fits within the crime of gender persecution, which involves discriminatory acts against individuals based on their gender and can include violence, murder, and other abuses. This crime has been recognized in ICC prosecutions.

III. Gender and Sexual Violence at International Criminal Tribunals

1. Treatment of Sexual and Gender-Based Violence (SGBV)

• International criminal tribunals, including the ICC, have made significant efforts to address sexual violence and gender-based violence (SGBV), particularly in conflict settings.

• However, the ICC and other tribunals have been less attentive to gendered killings, such as femicide.

• The crime against humanity of gender persecution is an important tool for addressing violence that is motivated by gender discrimination.

2. Analogues of Femicide in ICL

• Genocide: Some advocates have argued that femicide should be considered a form of genocide due to its systematic nature and intent to destroy a gender group. However, genocide involves specific criteria, such as intent to destroy a group, and is often challenging to prove.

• Crimes Against Humanity: Femicide is more accurately seen as part of broader crimes against humanity, particularly when it involves a systematic attack against women based on their gender, which may constitute gender persecution.

IV. Strategic Approach: Gender Persecution as a Framework for Femicide

1. Advantages of Gender Persecution Approach

• Feasibility: Gender persecution is an established crime under ICL, and addressing femicide through this framework is more practical than creating a new, distinct international crime.

• Gravity of the Crime: By framing femicide as gender persecution, the gravity and systemic nature of the violence against women are highlighted, emphasizing its discriminatory and political nature.

• Inclusivity: Labeling femicide as gender persecution is more inclusive, addressing a broader range of gendered violence beyond the binary of men vs. women. This framework avoids gender stereotypes and better reflects the complexities of gender identity and oppression.

2. Disadvantages of the Gender Persecution Approach

• Failure to Center Femicide: One downside of framing femicide as gender persecution is that it might not fully center the particular gendered dynamics involved in femicide, especially fatal, discriminatory violence against women.

• Loss of Specificity: Advocates of femicide as a separate crime might argue that using the gender persecution framework dilutes the specificity of femicide and its unique role as a gender-based crime.

3. Addressing Gender Persecution at the ICC

• The ICC has recently issued a policy statement on gender persecution, making it a timely moment for advocates to push for femicide to be addressed under this framework.

• The ICC is uniquely positioned to address femicide as part of the broader fight for gender justice and can serve as a symbolic and legal authority in highlighting the gravity of femicide and encouraging national governments to take action.

• By addressing femicide through gender persecution, the ICC can also put pressure on domestic jurisdictions to improve their investigations, prosecutions, and responses to femicide cases.

V. Conclusion

1. Call to Action for Advocates

• This article emphasizes the need for femicide to be treated as a serious international crime. Advocates are encouraged to push for its recognition under gender persecution, utilizing existing frameworks within international criminal law to address the issue.

• Gender justice advocates can use this framework to advocate for policy change and legal recognition of femicide while also drawing attention to the broader patterns of gender discrimination that contribute to violence against women.

2. Future Directions

• Domestic and International Collaboration: The article does not argue for changing femicide laws in domestic jurisdictions but encourages the use of international criminal law frameworks to hold states accountable for femicide and gender-based violence.

• Moving forward, efforts must focus on raising awareness about the issue of femicide and mobilizing international legal mechanisms to provide justice for victims of gendered killings.

Key Takeaways:

1. Femicide is a grave violation of human rights, reflecting gender-based discrimination and violence.

2. International Criminal Law (ICL) offers avenues for addressing femicide, particularly through the crime of gender persecution.

3. Latin American countries have made strides in criminalizing femicide, but prevention and enforcement remain difficult.

4. The ICC can play a pivotal role in bringing attention to femicide and pushing for stronger domestic and international responses.

5. The strategic approach of recognizing gender persecution over a standalone femicide crime has its advantages, particularly in terms of feasibility and broader inclusivity.

Femicide in theory, in law, and in international human rights discourse

1. Origins and Evolution of Femicide

• Feminist Theory: The term "femicide" was initially coined within feminist theory to describe the gendered killing of women—the killing of women simply because they are women.

• Emergence in Latin America: The concept gained traction, especially in Latin American countries, where it became linked to feminist mobilization and a response to the widespread violence against women.

2. Catalysts for Femicide Recognition

• Ciudad Juarez, Mexico: The brutal killings of women and girls in Ciudad Juarez, Mexico, became a focal point in the advocacy for recognizing femicide. These killings were marked by prosecutorial and police indifference, with authorities failing to investigate the crimes effectively.

• Widespread Killings in Latin America: The growing number of gender-based killings of women across Latin America, coupled with the lack of official response, led to increasing calls to define and criminalize femicide.

3. Role of Activism and International Pressure

• Feminist Mobilization: Activists, particularly women's rights groups, played a crucial role in advocating for the recognition of femicide as a distinct crime. These activists pushed for legal reforms and the acknowledgment that such killings were not just isolated events but part of a broader pattern of gender-based violence.

• International Human Rights Organizations: Organizations such as the United Nations and Amnesty International also applied pressure, urging governments in Latin America to take stronger action to address femicide, including criminalizing it.

• Criminalization of Femicide: As a result of both local activism and international pressure, many Latin American countries began to criminalize femicide, recognizing it as a separate and serious crime. This shift was intended to address the gendered nature of the violence and to provide legal recourse for victims and their families.

4. Femicide vs. Feminicide

• Femicide: Refers to the killing of a woman because of her gender. The term emphasizes that the murder is a gendered crime and typically involves misogynistic motives or patterns of violence rooted in gender inequality.

• Feminicide: While closely related, feminicide is often used interchangeably with femicide in Latin American contexts. However, feminicide has also been used in some countries to describe a systematic and broader social pattern of violence against women, sometimes with an emphasis on structural inequality and state complicity.

5. Criminalization of Femicide in Latin America

• Legal Recognition: Many Latin American countries have formally recognized femicide as a criminal offense through national laws.

  • For instance, Mexico and Argentina were among the first countries in the region to pass laws addressing femicide, criminalizing the gendered nature of the killing.

• Aggravating Circumstance: In some countries, femicide is treated as an aggravating factor in homicide cases, leading to enhanced penalties for those found guilty of killing women.

• Pressure from International Bodies: The role of international human rights organizations was instrumental in influencing national governments to take action and pass femicide-specific laws.

6. The Role of International Human Rights Discourse

• Global Recognition: The recognition of femicide as a violation of women’s human rights has been promoted at the international level by human rights organizations.

• International Legal Frameworks: Calls for addressing femicide within international human rights law have gained momentum, especially in the context of gender-based violence and discrimination. International treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), have been used to argue for more robust responses to femicide.

• UN Involvement: The United Nations and other international bodies have called for legal reforms, increased protection for women, and stronger accountability measures for governments to combat femicide and related violence.

Key Takeaways:

1. Femicide arose from feminist theory to describe the gendered killing of women.

2. Activism in Latin America and international human rights organizations have been pivotal in pushing for the criminalization of femicide.

3. Ciudad Juarez killings highlighted the urgent need for recognition and legal response to femicide.

4. Femicide and feminicide are closely related but may differ slightly in their emphasis on gendered violence and structural inequality.

5. International pressure and feminist movements have led to the criminalization of femicide in several Latin American countries, with a focus on both recognition and legal enforcement.

A. Femicides in Theory

1. Introduction to Femicide

• Diana Russell’s Contribution: The term “femicide” was introduced by feminist scholar Diana Russell in the 1970s to describe the gendered killing of women, specifically the "hate killing of women". Russell's definition emphasizes the gendered motive behind such crimes, highlighting that these killings are driven by misogyny and gender inequality.

• Initial Definition: Russell initially defined femicide as the “hate killing of females perpetrated by males”, drawing on historical instances like the burning of witches and female infanticide. She argued that such killings should be differentiated from other homicides, with femicide reflecting a gender-based motive.

2. Russell's Shift in Definition

• Refinement of the Concept: Russell later refined the definition of femicide to specifically describe “the killing of females by males because they are female”, which included baby girls and older women.

• Focus on Gender Relations: This updated definition focuses on the gendered aspect, emphasizing male aggression against women as part of broader patriarchal dynamics and power imbalances between the genders.

3. The Gendered Dynamics of Femicide

• Asymmetric Injustice: Russell’s adaptation of the concept highlighted asymmetric injustice rooted in historical gender inequality. This violence is seen as men’s domination over women, where the killing is an extension of the systemic devaluation of women.

• Monique Widyono’s View: Widyono, a gender specialist, explains that femicide captures gendered violence, specifically male violence directed at women within unequal gender relations.

• Angela Hefti’s View: Hefti similarly highlights that femicide captures the “asymmetric injustice” and historic inequality between men and women, positioning femicide as a key term for describing gender-based violence against women.

4. Alternative Terms and Definitions

• Gynocide (Andrea Dworkin): Feminist writer Andrea Dworkin preferred the term “gynocide” to describe sexist violence against women. Dworkin’s concept did not focus solely on killings but also included other forms of violence, such as rape and persecution. In her view, gynocide was a broader critique of the systematic oppression of women.

  • Dworkin’s emphasis was on the sexual violence and exploitation of women rather than their deaths, suggesting that the reproduction of patriarchal control was more important than their survival.

• Gendercide (Mary Anne Warren): In 1985, Professor Mary Anne Warren introduced the term gendercide, a sex-neutral alternative to femicide. Warren argued that sexually discriminatory killings were harmful regardless of the gender of the victim. However, some critics argue that gendercide fails to recognize the prevalence of violence against women and perpetuates gender inequalities by not specifically addressing women’s oppression.

5. Femicide's Rhetorical and Legal Significance

• Evoking Genocide: The term “femicide” was chosen in part to evoke the gravity of “genocide”, the “crime of crimes” in international criminal law (ICL). The rhetorical link between femicide and genocide highlights the extreme, systematic violence against women.

• International Tribunal for Crimes Against Women (1976): Russell first presented the concept of femicide at the International Tribunal for Crimes Against Women, a mock tribunal that resembled the International Military Tribunal at Nuremberg. The tribunal emphasized women’s stories of violence and oppression, rejecting patriarchal definitions of crime and framing such violence as political oppression.

6. Femicide and Feminicide

• Development in Latin America: While interest in femicide waned in Anglo-American circles, Latin American feminists adopted and refined the term in the 1990s, particularly in response to the gendered killings in Ciudad Juarez, Mexico.

• Marcela Lagarde y de los Ríos: Mexican anthropologist Marcela Lagarde introduced the term feminicide to describe gendered killings of women in the context of state impunity. Feminicide not only focused on individual killings but also implicated state responsibility, highlighting the structural conditions that enable the violence, such as inequality and state indifference.

• Feminicide vs. Femicide: While femicide focuses on the gendered killing of women, feminicide adds an emphasis on state complicity and societal conditions, such as a culture of impunity and patriarchal dominance.

7. Key Strategies for Addressing Femicide in Latin America

• Naming, Bringing Attention, and Conceptualizing: Latin American activists and feminists used three key strategies to address femicide:

  • Naming: Creating and using the term femicide to describe gendered killings.

  • Bringing Attention ("Visibilizar"): Drawing public attention to the widespread nature of the violence.

  • Conceptualizing: Framing femicide as part of structural inequality and gender oppression to promote legal and societal change.

8. The Role of Women’s Insistence and Social Movements

• Rita Segato’s Observation: Anthropologist Rita Segato noted that femicide gained traction in Latin America because of women’s insistence on using the term, often against resistance from societal norms and state indifference. Women’s movements and feminist advocacy played a crucial role in popularizing the term and drawing attention to gender-based killings.

9. Femicide’s Legal Recognition in Latin America

• Criminalization in Latin America: Today, femicide is recognized as a distinct criminal offense in many Latin American and Caribbean countries. The criminalization process has been driven by a combination of feminist advocacy, international pressure, and state indifference to the violence against women.

• Ongoing Challenges: Despite the legal recognition of femicide, challenges remain in enforcement, prevention, and adequate investigation, with critics pointing to the persistence of impunity and lack of accountability for perpetrators.

Key Takeaways:

1. Femicide was introduced by Diana Russell in the 1970s to describe gendered killings of women, emphasizing male violence and gender inequality.

2. Russell’s shift in definition focused on male perpetrators killing women because they are female, highlighting patriarchal power dynamics.

3. Alternative terms such as gynocide (Andrea Dworkin) and gendercide (Mary Anne Warren) have also been proposed but face criticisms for insufficiently addressing women’s oppression.

4. The term “femicide” was linked to genocide to convey its extreme nature, with Russell introducing it at the International Tribunal for Crimes Against Women (1976).

5. In Latin America, the term evolved into feminicide, with an emphasis on state responsibility and impunity, especially in countries like Mexico.

6. The strategies of naming, bringing attention, and conceptualizing have been key in advocating for femicide laws in Latin America.

7. Despite legal recognition, femicide remains prevalent and under-enforced, highlighting the need for systemic societal and legal change.

B. Femicides as Crime

Introduction to Femicide as a Crime

• Femicide in Latin America: Femicide has evolved not only as a term to describe gender-based killings of women but has also been incorporated into criminal codes across many Latin American countries. Nearly every country in the region now has laws that either classify femicide as a distinct crime or make it an aggravated form of homicide. These laws reflect a broader effort to address gender-based violence and hold perpetrators accountable.

• Mexico’s Feminicide Provision: Mexico has developed a feminicide provision that goes beyond defining femicide as a crime. It allows for the prosecution of state officials who negligently or maliciously hinder or delay investigations into femicides. This provision emphasizes the importance of state accountability for failing to properly address gendered violence.

2. Feminist Activism and Legal Framework

• Human Rights and ICL: The criminalization of femicide in Latin America is largely driven by feminist activism that blends the language of human rights and International Criminal Law (ICL). Activists have drawn on concepts such as genocide and crimes against humanity to give femicide the legal weight it deserves.

• Marcela Lagarde’s Influence: Marcela Lagarde, a key Mexican feminist and anthropologist, played a critical role in advocating for the recognition of feminicide (a broader term to encompass state complicity in femicides). Her work sought to highlight state responsibility for allowing femicide to continue without intervention.

3. Chile’s 2020 Amendment: Gabriela’s Law

• The Shift in Chile’s Law: Chile’s legal response to femicide was initially narrow, only addressing intimate partner femicide. However, in 2020, the government introduced Gabriela’s Law (La Ley Gabriela), which expanded the definition of femicide to include gender-based killings beyond intimate relationships.

• Two Types of Femicide:

  1. Intimate Femicide: Femicide within the context of intimate partner violence.

  2. Gender-Based Femicide: A broader category that includes killings due to gender discrimination or gender inequality.

• Penalties: The law prescribes severe penalties, ranging from 15 years to life imprisonment, for both categories of femicide.

• Gender Motivation: The law defines "gender motivation" as a key element. It outlines several circumstances under which a killing of a woman is deemed to be motivated by gender:

  • Refusal of a relationship (sentimental or sexual).

  • Work in the sex industry.

  • Sexual violence.

  • Discrimination based on sexual orientation, gender identity, or expression.

  • Subordination due to unequal power relations.

• Additional Aggravating Circumstances: The law also includes aggravating factors for femicide, such as:

  • Pregnancy, age (minority), disability, elder violence.

  • Killing in the presence of the victim’s children or parents.

  • If the perpetrator had a history of physical or psychological violence against the victim.

• Heat of Passion: Gabriela’s Law explicitly prohibits the defense of “heat of passion” in femicide cases, ensuring that the perpetrator cannot claim temporary emotional distress as a mitigating factor.

4. Challenges and Questions in Defining Femicide as a Crime

• Broad vs. Narrow Definitions:

  • Should femicide laws be broadly defined, as in feminist theory (e.g., any killing of a woman due to her gender), or should they be limited to more specific contexts, such as intimate partner violence or hate crimes?

  • Chile’s Approach: Gabriela’s Law attempts to balance the broader feminist understanding of femicide with practical legal parameters by offering a clear but expansive framework.

• Vagueness Concerns: Some critics argue that broad definitions of femicide can lead to vagueness in how laws are applied, leaving room for inconsistent enforcement and challenges to legality.

• Gender Parameters: Most femicide statutes focus on men killing women, but there is debate over whether women who kill women (or individuals of other genders) should also be prosecuted under femicide laws.

  • Transgender Issues: Legal challenges arise regarding whether trans women are included as victims of femicide or if trans men could be considered victims, depending on their gender identity and the legal definition of gender.

5. Criticisms of Femicide Laws

• Performative Gestures: Critics argue that femicide laws can be performative—essentially symbolic actions aimed at complying with international human rights norms without making meaningful change. In some cases, such laws may not be adequately enforced or may lack the resources to effect real societal change.

• Gendered Stereotypes: Some commentators suggest that femicide laws might perpetuate stereotypes of women as eternal victims rather than addressing the structural issues that underpin gender violence.

• Expansion of the Carceral State: A more radical critique is that femicide laws, along with the broader human rights framework, are part of the expansion of the neoliberal carceral state, reinforcing the prison-industrial complex and increasing state control over marginalized groups, rather than addressing the root causes of femicide.

• State Inaction: Despite the legal changes, critics note that many countries still face significant issues with impunity, lack of investigations, and underreporting of femicides. Even with laws in place, state complicity and failure to act remain significant barriers to justice.

6. International Human Rights Community's Support

• Human Rights Recognition: Despite these criticisms, the international human rights community has largely supported the criminalization of femicide, viewing it as a step forward in addressing gender-based violence and challenging the longstanding state inaction on the issue.

• Pressure for Change: Efforts to criminalize femicide in Latin America have been part of a broader human rights agenda, with international organizations urging states to hold perpetrators accountable and ensure that femicide is no longer treated as a low-priority issue.

7. Key Legal Questions and Implications

• Gender Motivation: One of the central issues in defining femicide is the challenge of proving that the murder was motivated by gender, and not by other factors. Statutes must carefully define what constitutes “gender motivation” to avoid ambiguity.

• Perpetrator’s Gender: There is ongoing debate about whether femicide laws should be restricted to male perpetrators or whether other configurations (e.g., women killing women) should be considered.

• Inclusivity of Transgender Victims: The inclusion of transgender individuals as victims of femicide remains a critical issue for ensuring that gender identity and expression are properly recognized in legal definitions of femicide.

8. Conclusion

• Femicide as a Core Legal Response: Despite the criticisms, femicide laws represent a core legal response to the gendered violence faced by women in Latin America. By formally recognizing femicide as a distinct crime, these laws help to raise awareness and push for legal accountability.

• Ongoing Challenges: While femicide laws mark a significant legal development, much remains to be done in terms of enforcement, prevention, and addressing the social and structural inequalities that fuel gender-based violence. Effective implementation and accountability are key to ensuring that femicide laws lead to tangible change.

C. International Human Rights Community’s Support for Criminalization of Femicides in Latin America, but Ambivalence about the Label

1. International Human Rights Community's Role

• Feminist Groups and Human Rights Organizations: Many feminist groups, international human rights organizations, and regional human rights courts have framed violence against women (VAW) and femicide as a violation of women's human rights.

• Push for Criminalization: These groups have often advocated for the criminalization of femicide in Latin America as a response to the widespread killing of women due to gender-based violence.

2. Feminicide and Femicide in Human Rights Discourse

• Femicide & Feminicide: International human rights organizations often use the terms femicide and feminicide interchangeably, sometimes pushing for their criminalization. However, there is a division regarding the usage of the term femicide, with some groups embracing the label and others using more gender-neutral terms.

• Reluctance to Embrace Femicide: Some human rights bodies prefer using gender-neutral terms over "femicide," leading to some ambivalence in fully adopting femicide as a legal category.

3. International Efforts to Address Femicide

• Mechanism to Follow Up on the Implementation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Belem do Pará Convention):

  • In 2008, the Committee of Experts (CEVI) issued a Declaration on Femicide:

    • Femicide as the most serious form of violence against women: The CEVI emphasized that femicide is a violent death of women based on gender, often perpetrated in domestic, intimate partner, or other interpersonal relationships, as well as by state agents.

    • Causes: The Declaration identified factors like impunity, lack of access to justice, and gender discrimination as major causes contributing to femicide.

    • Recommending Actions: The CEVI recommended countries eliminate the "crime of passion" defense in femicide cases, improve women's access to justice, and strengthen public policies on women's empowerment.

• U.N. Women Initiatives:

  • In 2012, U.N. Women created a Handbook for Legislation on Violence Against Women, which includes guidance on addressing femicide.

  • In 2014, U.N. Women and the Office of the High Commissioner for Human Rights (OHCHR) developed the Latin American Model Protocol for Investigating Gender-related Killings of Women.

  • 2018 Report: U.N. Women and the Belém do Pará Follow-up Mechanism proposed a model femicide law for Latin American countries, advocating for the criminalization of femicide as a differentiated and specialized response to gender-based violence.

• OECD Recommendations (2020):

  • The Organisation for Economic Cooperation and Development (OECD) called for the criminalization of femicide in Latin American countries that had not yet done so, framing this as a crucial step in combating femicide.

4. Inter-American Court of Human Rights (IACtHR) Engagement

• Cotton Field Case (2009):

  • Background: The IACtHR addressed the gendered killing of three women in Ciudad Juárez, Mexico, finding the Mexican government at fault for failing to investigate and prosecute the killings.

  • Use of the Term Femicide: Although the IACtHR did not officially adopt femicide as a legal term, it used it frequently throughout the case, acknowledging it as a widely accepted term to describe misogynistic violence.

  • State Responsibility: Mexico was found in violation of various rights, including the right to life, personal integrity, and the right to non-discrimination under the Inter-American Convention on Human Rights. The Court also highlighted the failure of Mexico to adequately address gender-based violence in Ciudad Juárez.

• Key Findings from the Cotton Field Case:

  • The Court acknowledged the gendered nature of the murders and recognized that the state’s failure to investigate and prosecute these deaths reflected broader patterns of discrimination and violence against women.

  • While the IACtHR used "gender-based murders of women", it did not adopt femicide as a legal term, instead opting for a broader, gender-neutral category of "gender-based murders."

5. Controversies Over Labeling

• Transfemicide: In Vicky Hernández v. Honduras (2020), the IACtHR addressed the killing of a trans woman and the failure of the state to investigate. This case led to disagreements about the applicability of human rights instruments.

  • Differences of Opinion: The Court did not adopt the term transfemicide but acknowledged the context of gender-based violence. Judges expressed differing views about whether the Convention of Belém do Pará should apply to violence against trans women.

  • Judge Odio Benito’s Opinion: Argued that sex-based discrimination is distinct from gender identity and that applying the framework for violence against women to trans people risks diluting the understanding of violence against biological women.

  • Judge Pazmiño Freire’s Opinion: Disagreed with Judge Odio Benito, asserting that the Convention of Belém do Pará should apply to Vicky Hernández because she identified as a woman.

6. Ambivalence in International Human Rights Law

• Feminist and Human Rights Advocates: Many international human rights organizations have supported femicide criminalization in Latin America as a vital step towards combating violence against women and ensuring accountability. However, the reluctance to adopt the term femicide in international legal contexts reveals an ambivalence towards the label, as some argue it could hinder the broader fight against gender-based violence or be too specific to women as biological females.

• Convergence of Views: While there is widespread support for addressing femicide through legal reforms, some actors in the human rights community advocate for more inclusive terminology (e.g., gender-based violence) to avoid excluding certain groups like trans women.

7. Challenges and Future Considerations

• Legal Definitions: Different countries use varying definitions for femicide, leading to inconsistency in the application of laws. Some legal systems may use more inclusive or gender-neutral terms, while others focus specifically on the killing of women by men.

• Transgender and Non-Binary Individuals: The inclusion of trans women (and the debate over transfemicide) points to the complexities of applying femicide laws to gender-nonconforming individuals, leading to legal challenges over definitions.

• Potential for Broader Application: Some advocates push for gender-based violence to be understood more broadly, encompassing not just violence against women but also violence motivated by gender identity or sexual orientation.

Conclusion:

The international human rights community has largely supported the criminalization of femicide as a key response to violence against women in Latin America. While there has been some hesitation to officially adopt the term "femicide" in legal frameworks, the push for accountability and justice for gender-based violence remains strong. Controversies about the inclusion of transgender and non-binary individuals in femicide laws highlight ongoing debates about the definition and scope of gender-based violence.

Gender and Gendered Killing in International Criminal Law

A. Gender is everywhere in ICL, but not as basis for genocide

1. Gender and Gendered Violence in International Criminal Law (ICL)

• Gender in ICL: Although international criminal law (ICL) has progressively addressed gender and gendered violence, femicide (gender-based killings) is notably absent from the lexicon of international criminal tribunals.

  • Femicide in Legal Databases: A search in the ICC’s database reveals no cases using the term "femicide." Similarly, no decisions from other international jurisdictions or the ICC Legal Tools Database discuss femicide directly. Femicide is primarily discussed in human rights reports, focusing on Latin America’s ongoing struggles with under-enforcement of femicide laws.

• Progress on Sexual and Gender-Based Violence (SGBV):

  • ICL has made significant strides in addressing sexual and gender-based violence (SGBV). International tribunals began recognizing SGBV as worthy of international attention in the 1990s, particularly in relation to the ICTY (International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal Tribunal for Rwanda).

  • ICTY and ICTR Statutes recognized rape as both a war crime and a crime against humanity. The Rome Statute of the ICC further expanded the crimes covered, including sexual slavery, enforced prostitution, forced pregnancy, and sterilization, as crimes against humanity.

  • Gender as a Ground for Persecution: The ICC Rome Statute formally includes gender as a ground for persecution as a crime against humanity, a major advancement, as previous international legal efforts often focused on persecution based on ethnicity, race, or religion.

2. Criticism and Developments in Addressing Gendered Violence in ICL

• Feminist Critiques: Despite these advancements, feminist scholars have critiqued ICL for failing to adequately address gender-based violence:

  • “Telescoping” of Charges: One critique is the tendency to subsume gender-based violence charges under other charges (such as crimes against humanity or war crimes), thus downplaying their severity.

  • Excessive Focus on Sexual Violence: Another concern is that the focus on sexual violence might overshadow other forms of gendered violence, potentially leading to gaps in the prosecution of broader gender-based harm.

• ICL’s Focus on Gender Persecution: The ICC’s Prosecutor issued a 2022 Policy on Gender Persecution, marking a continued commitment to better address gender-based violence, specifically gender persecution as a crime against humanity.

3. Gender and Genocide in ICL

• Genocide and Gender: While ICL has made significant strides in recognizing gender-based violence, gender is not a protected or target group for genocide under international law. The Genocide Convention defines genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Gender does not feature in this list.

  • ICL’s Definition of Genocide:

    • Genocide includes actions such as killing members of a group, causing serious bodily or mental harm, imposing life conditions calculated to bring about destruction, preventing births, and forcibly transferring children.

    • The Rome Statute of the ICC adheres to this same definition.

  • Challenges to Expanding the Definition: There were early discussions on expanding the categories of groups protected from genocide to include gender, but states ultimately adhered to the existing categories (national, ethnical, racial, or religious groups).

  • Jurisdictional Consistency: The ICTR and ICTY adopted similar interpretations of genocide, refusing to recognize gender as a separate category for protection from genocide.

4. Gender and Genocide Case Law

• ICTR’s Key Case: In Prosecutor v. Akayesu (1998), the ICTR recognized that rape could be part of the actus reus (physical act) of genocide. The case specifically acknowledged that rape, if used to destroy a group, could contribute to genocide when it leads to serious harm or impedes the ability to reproduce.

  • Akayesu’s Impact: The judgment emphasized that sexual violence, such as rape, targeted Tutsi women in Rwanda and was used as a method of destroying the Tutsi group. The ICTR found that this violence contributed to the physical and psychological destruction of women, their families, and communities, and served as a precursor to their killing.

  • Genocidal Intent: The ICTR found that the intent to destroy the Tutsi group was clear, as evidenced by the coordinated sexual violence and killing of Tutsi women. It was found that rape and killing were often conducted together with the specific intent to destroy the Tutsi population.

5. Challenges of Addressing Femicide and Gender-Based Killings in Genocide Law

• Limited Recognition of Femicide: Despite significant efforts in addressing gender-based violence in other forms, femicide and other gender-based killings are not recognized as genocide under ICL. While rape has been recognized as part of genocide, there is no clear recognition of femicide as genocide.

  • MacKinnon’s Critique: Feminist scholar Catharine MacKinnon critiqued the tendency to dismiss sexual violence against women in conflicts as either simply part of a broader ethnic conflict or as an issue of rape. She argued that rape as genocide, particularly in conflicts like the Yugoslav wars, was often ignored or minimized.

  • ICL’s Conception of Gender and Genocide: While sexual violence (including rape) has been accepted as part of genocide, gender-based violence involving only women (e.g., femicide) does not fit the Genocide Convention’s narrow definition of targeted groups based on national, ethnical, racial, or religious identity. Consequently, gender-based killings, even when perpetrated with the specific intent to destroy a gender, are not considered genocide unless they are linked to the targeted destruction of an ethnic, racial, or religious group.

6. Conclusion and Implications for ICL

• Gender and Genocide in ICL: Although gendered violence is acknowledged within ICL, femicide and gender-based killings are not recognized as genocide unless linked to the destruction of a national, ethnical, racial, or religious group. This gap in the law highlights the ongoing tension between gender recognition in international law and the conservative definitions of genocide that prioritize ethnicity, nationality, and religion.

• Future Directions: The expansion of ICL’s understanding of gendered violence and a broader recognition of gender persecution could potentially pave the way for femicide to be considered as part of the scope of genocide in the future. However, significant legal and diplomatic challenges remain in aligning gender-based crimes with genocide’s traditional definitions.

Key Takeaways:

• SGBV has gained recognition in ICL, but femicide has not been fully embraced.

• Genocide remains narrowly defined, excluding gender as a target group, despite evolving case law around sexual violence.

• Gender persecution has been incorporated into the ICC’s mandate, but efforts to address gendered killings as genocide remain limited.

B. Femicides and ICL on a Collision Course

1. Femicide and International Criminal Law (ICL)

• Femicide: The gender-based killing of women, often associated with deeply entrenched social inequality and violence, is a growing concern in International Criminal Law (ICL). While femicide has not yet been formally included as a form of genocide, it is increasingly recognized as a serious international crime, particularly in contexts where it is explicitly criminalized, such as in Latin America.

• Femicide and Genocide: In ICL, femicide is currently excluded from the category of genocide, as gender is not recognized as a protected group under the Genocide Convention. However, femicide may constitute other international crimes, such as crimes against humanity, and could be prosecuted under certain circumstances, particularly in countries where the term is both commonly used and legally defined.

2. Femicide and Transitional Justice: A Collision Course in Latin America

• Latin American Context: Latin America is not only the epicenter of femicide criminalization, but also a critical region for transitional justice efforts and atrocity prosecutions blending international and domestic legal frameworks.

  • Criminalization of Femicide: In many Latin American countries, femicide is legally recognized as a distinct crime. For example, countries like Mexico, Guatemala, and Colombia have enacted laws criminalizing femicide due to the severe levels of gender-based violence, including murders of women due to their gender.

  • Transitional Justice and Femicide: Transitional justice efforts in Latin America, which often involve the investigation and prosecution of atrocity crimes from past conflicts (such as civil wars), face a challenge in addressing gender-based killings, including femicide. As part of these efforts, domestic courts and international tribunals (such as the ICC) may be called upon to address femicide, as it is increasingly recognized as a form of gender-based violence (GBV) linked to broader systems of gender inequality and violence.

  • Latin American Domestic Courts and Femicide: Domestic courts in Latin America are actively dealing with femicide cases and have taken steps to ensure the effective prosecution of femicides:

    • Guatemala: Femicide is recognized as a serious crime, and violent felonies, including femicide, can trigger the transfer of cases to High Risk Courts.

    • Colombia: Femicide has gained attention from the Special Jurisdiction for Peace (JEP), the court created as part of the Colombian Peace Accords, which deals with atrocities arising from the civil war. The JEP has been tasked with determining whether femicide cases should fall under its jurisdiction based on their connection to armed conflict.

3. Femicide and the International Criminal Court (ICC)

• The ICC’s Role: The International Criminal Court (ICC), tasked with prosecuting international crimes such as genocide, war crimes, and crimes against humanity, is increasingly confronted with issues surrounding femicide. As it investigates crimes in regions like Latin America, the ICC must grapple with how femicide fits into the broader landscape of ICL.

  • Colombia’s Preliminary Investigation: Colombia has been under a preliminary investigation by the ICC for crimes committed during its civil conflict, including sexual and gender-based violence (SGBV) and femicide. While the ICC closed its preliminary investigation in 2020, it continues to monitor developments in Colombian transitional justice institutions, particularly the work of the JEP, which is addressing cases of SGBV, including femicide, in the context of armed conflict.

  • Venezuela and Femicide: In Venezuela, femicide has emerged as a significant issue in the wake of the country's economic crisis and political violence. NGOs like the Women’s Initiative for Gender Justice have raised concerns that femicide, along with violence against women, is increasing amid political crackdowns and social unrest. While femicide is not explicitly categorized as genocide, its recognition in reports and investigations on Venezuela’s atrocities signals the increasing attention to gendered violence.

4. The ICC’s Engagement with Gender-Based Killing

• Case Involving Gendered Killing: The ICC has already addressed cases of gendered killings that involve men and boys. These cases indicate the ICC’s growing awareness of the phenomenon of gender-based killing, even when the victims are not women, and show that the ICC’s mandate could potentially extend to gendered violence in other forms, including male victims.

• Femicide in Transitional Justice Mechanisms: As transitional justice mechanisms in Latin America—such as the JEP in Colombia—actively tackle gender-based violence, including femicide, the ICC will need to consider whether it should engage with these efforts and how it might categorize gendered killings in its own legal framework. This could potentially involve a shift toward treating femicide as a crime against humanity or another category of international crime.

5. The Intersection of Femicide and ICL in Latin America

• Blending Domestic and International Law: Latin America is unique in that many countries in the region have integrated international criminal law principles with their domestic legal systems, particularly with regard to gender-based violence and femicide. This dynamic sets the stage for a collision between ICL, femicide, and transitional justice, as courts and international bodies are increasingly asked to prosecute femicide and other gendered crimes as part of broader efforts to address systemic violence and inequality.

  • Venezuelan Protests and Femicide: In Venezuela, NGOs have flagged femicide as part of the broader context of violence against women, especially amid economic collapse and political crackdowns. These efforts to address femicide at the domestic level in the context of atrocity crimes may also prompt the ICC to examine whether femicide could be prosecuted as a form of international crime under its mandate.

  • Latin American Prosecutions of Femicide: As femicide is prosecuted in national courts across Latin America, the ICC may be prompted to consider whether gender-based killings, particularly those related to conflict or political violence, constitute international crimes.

6. Conclusion: The Collision Course of Femicide and ICL

• Emerging Focus on Femicide: As femicide becomes more entrenched in both Latin American legal systems and international human rights discourse, ICL will face increasing pressure to address it as a form of international crime.

• Future Considerations for the ICC: The ICC will need to consider how to categorize gender-based killings, including femicide, in its legal framework. While femicide is not currently recognized as genocide, the ICC’s engagement with transitional justice mechanisms, like the JEP in Colombia and domestic legal systems in Venezuela, could pave the way for future legal developments in addressing femicide at the international level.

Key Takeaways:

• Femicide and ICL: Femicide is not yet categorized as genocide in ICL, but it may constitute an international crime, particularly as it is increasingly criminalized in Latin America.

• Latin American Focus: Latin America plays a key role in both the criminalization of femicide and in blending transitional justice with international criminal law, which sets the stage for a potential collision between femicide, ICL, and international human rights law.

• ICC's Role: The ICC is already grappling with gendered killings in its cases and will need to develop frameworks for prosecuting femicide and other forms of gender-based violence as international crimes in the future.

C. Femicide’s Existing ICL Analogue

1. Gendered killings as war crimes

1. Gendered Killings and War Crimes in International Criminal Law (ICL)

Under International Criminal Law (ICL), gendered killings, including femicide, can potentially qualify as war crimes, but certain legal and factual conditions must be met. These conditions primarily hinge on the connection between the killing and an armed conflict, also known as the “nexus.” The main points of analysis are:

• Nexus to Armed Conflict: To qualify as a war crime, the killing must be linked to an armed conflict (i.e., taking place during a period of war or armed conflict). This connection is crucial because, without it, the act of femicide may not meet the criteria to be classified as a war crime under ICL.

• War Crimes: Specific charges related to gendered killings in armed conflict may include:

  • Willful Killing of a Civilian: This refers to the unlawful killing of a civilian, a violation of the laws of war.

  • Violence to Life and Person: This encompasses the broader categories of murder, mutilation, cruel treatment, and torture.

These charges can apply to gendered killings when they occur during armed conflict, provided the appropriate connection (nexus) is established.

2. The Nexus Requirement: A Key Limitation

• The Nexus Challenge: A major limitation in prosecuting gendered killings (including femicide) as war crimes is that a nexus to an armed conflict is required. This means the killing must occur within the context of war or armed conflict. Without this connection, many instances of gender-based violence and femicide cannot be classified as war crimes under ICL.

  • Examples of Excluded Cases:

    • State Policy in Peacetime: A state policy that discriminates against or encourages the killing of trans women in peacetime would not qualify as a war crime, since there is no armed conflict involved.

    • Criminal Organizations in Peacetime: Similarly, a criminal organization's policy to kill women in a non-conflict environment (e.g., to intimidate others) would also not qualify for prosecution as a war crime.

  • Metaphorical View: Some theorists, like Segato, argue that femicide can be viewed metaphorically as part of a "war" where women's bodies are the battlefield. While these ideas are compelling and thought-provoking, they are unlikely to meet the strict legal requirements needed for war crimes prosecution in a criminal court, since the metaphor does not establish an actual armed conflict.

3. The Gendered Nature of War Crimes: A Secondary Concern

Even where the nexus to armed conflict is met, war crimes charges may fail to adequately highlight the gendered nature of the violence. This is because the legal definitions of war crimes do not inherently emphasize the gendered motivations behind the killings.

• War Crimes Elements:

  • The elements of common war crimes like killing, torture, and rape do not specifically require that the gender of the victim or the gendered nature of the crime be central to the prosecution.

  • Gendered Aspects of Violence: While prosecutors or courts could choose to emphasize the gendered nature of the violence (i.e., the fact that the victims are women or belong to a specific gendered group), this is not required by the legal elements of the war crimes themselves.

• Lack of Gendered Legal Categories:

  • Unlike with crimes against humanity, there is no specific war crime of gender persecution.

  • Gender persecution is only a distinct crime under crimes against humanity but does not exist as a category under war crimes, limiting the ability to explicitly categorize gender-based violence, such as femicide, as a separate or enhanced war crime.

4. War Crimes vs. Crimes Against Humanity

While femicide and other gendered killings may potentially qualify as war crimes when the nexus to an armed conflict is met, they may also qualify under the category of crimes against humanity, which is explored in the next section. The key differences are:

• Crimes Against Humanity: Unlike war crimes, crimes against humanity do not require a nexus to armed conflict. These crimes, such as gender persecution or other forms of widespread or systematic gendered violence, are applicable in both wartime and peacetime scenarios.

• War Crimes: Require the nexus to armed conflict, which excludes many gendered killings that happen outside the context of a war. They are focused on violations committed during an armed conflict and are therefore more restrictive in scope when it comes to prosecuting femicide.

5. Conclusion: Potential for War Crimes Prosecution

• War Crimes and Gendered Killings: War crimes remain a possible avenue for prosecuting gendered killings (including femicide) in armed conflict, particularly if a clear connection to the armed conflict can be established.

• Gender and Legal Considerations: The gendered nature of the killings is not inherently part of the legal definition of war crimes. As a result, while gender-based violence may be prosecuted, it may not always be framed as gendered violence unless prosecutors or courts choose to highlight these aspects.

• Nexus as a Limiting Factor: The nexus to armed conflict is a crucial limiting factor in the prosecution of femicide and gendered killings under ICL as war crimes. This requirement means that many cases of femicide that occur in peacetime or outside the context of armed conflict would not be eligible for prosecution as war crimes under ICL.

Key Takeaways:

• Nexus to Armed Conflict: Gendered killings (including femicide) may be classified as war crimes if a connection to an armed conflict is demonstrated.

• Types of War Crimes: War crimes related to gendered killings include willful killing of civilians, violence to life and person (including murder, mutilation, cruel treatment), and potentially rape.

• Limitations: Many gendered killings, especially in peacetime, do not meet the criteria for war crimes because they lack the necessary nexus to armed conflict.

• Gendered Nature of War Crimes: War crimes definitions do not inherently emphasize the gendered motivations behind violence, though gender aspects may be highlighted in prosecution.

• Contrast with Crimes Against Humanity: Crimes against humanity may offer a broader legal framework for prosecuting gendered violence, as they do not require a nexus to armed conflict and include gender persecution

2. Gendered Killings as crime against humanity

Overview:

This section delves into how femicide, or gendered killings, may be classified as crimes against humanity under international criminal law (ICL), particularly through the lens of the Rome Statute. It explains the doctrinal fit of femicide within the framework of crimes against humanity and examines the chapeau (preliminary) elements required to establish such crimes, as well as the specific crimes that may be relevant in cases of femicide.

A. Chapeau Elements of Crimes Against Humanity

Under Article 7 of the Rome Statute, crimes against humanity are defined as acts committed as part of a widespread or systematic attack against a civilian population, with knowledge of the attack. For femicide to be classified under crimes against humanity, the following chapeau elements must be met:

Key Requirements for Crimes Against Humanity:

• Widespread or Systematic Attack: The act must be part of a broader course of conduct that involves the commission of multiple acts against civilians.

  • Widespread: Refers to acts conducted on a large scale with a high number of victims.

  • Systematic: The violence is organized and shows a deliberate, regular pattern, not random or isolated acts.

  • The attack need not be a military attack, and mistreatment of civilians may qualify.

• Directed Against a Civilian Population: The attack or mistreatment must target civilians as a group.

  • Not random individuals: The attack must target a population, such as women in the case of femicide.

• State or Organizational Policy: The attack must be pursuant to or in furtherance of a state or organizational policy.

  • A deliberate failure to act by a state (such as not investigating or prosecuting femicides) could potentially fulfill this requirement.

Challenges in Meeting Chapeau Elements:

• Directed Against: Determining if the killings of women are targeting a population (i.e., women) and not just isolated incidents of violence.

• State or Organizational Policy: Establishing that the state or a group’s actions (or inactions) constitute a policy promoting femicide may be difficult. Mere failure to act may not meet this requirement unless it is shown that the inaction actively encouraged the violence.

B. Addressing the Gendered Nature of Femicide in International Law

One significant challenge is the lack of specific attention to gender in crimes against humanity. The law does not inherently highlight the gendered aspects of the crime in categories like murder, extermination, or torture, even though these can be applied to gendered killings. The gendered motive behind the act is not necessarily considered unless the prosecutor highlights it.

Prosecutor’s Strategy:

Prosecutors could draw attention to gender dynamics in:

• Contextualizing the crime: Showing that the killing is part of a pattern of gender-based violence, linking it to larger social or political motives.

• Gender Persecution: Emphasizing that femicide is not just about killing but also about persecution based on gender, as recognized in crimes against humanity under the Rome Statute.

C. Possible Crimes Against Humanity Related to Femicide

Femicide may fall under several categories of crimes against humanity, each of which could apply depending on the context and evidence:

(a) Murder

The killing of women could be charged as murder under crimes against humanity:

• Limitations: The crime of murder does not explicitly capture the gendered nature of the killing. However, if the murders are contextualized within a pattern of gendered violence (e.g., systemic femicide), it could be argued that gender is a significant factor.

(b) Extermination

Femicide could also be classified as extermination, which goes beyond murder by targeting groups of people on a large scale.

• Extermination Defined: The killings must be large-scale or aimed at eradicating a group.

• Gender Group: Gender could be considered a group under international law, and femicide could be seen as extermination of women as a gender-based group, especially if the killings are widespread and systematic.

(c) Persecution on Gender Grounds

Femicide may also qualify as persecution based on gender, which directly addresses the gendered nature of the violence.

• Gender-Based Persecution: Persecution occurs when a group of people is targeted based on an identifiable characteristic, such as gender.

• Link to Femicide: Femicide involves a targeted, systematic act against women as a group and could be seen as gender-based persecution under international law.

(d) Torture and Other Inhumane Acts

Femicide may involve acts that can also be considered torture or other inhumane acts, particularly if women experience prolonged suffering before death.

• Torture: Femicide may involve violence that leads to severe pain or suffering, which could qualify under crimes against humanity.

Conclusion: The Fit Between Femicide and Crimes Against Humanity

While not all femicides will satisfy the elements of crimes against humanity, the nature of gendered killings in certain contexts, especially where they are part of a widespread or systematic attack against women, means that femicide can be prosecuted under international law. Key elements such as the state policy and widespread or systematic nature of the killings are pivotal for establishing femicide as a crime against humanity.

Strategic Considerations for Prosecutors:

• Contextualizing the Killings: Linking femicide to patterns of gendered violence, state policies (including inaction), or discriminatory societal norms.

• Focusing on Persecution or Extermination: Using charges such as gender-based persecution or extermination to capture the gendered aspect of femicide.

Barriers to Prosecution:

• Proving the widespread or systematic nature of femicide in some contexts may be difficult.

• Establishing that the femicide was carried out under a state or organizational policy is often complex, especially if the violence is driven by non-state actors or informal groups.

Despite these challenges, femicide is a serious international crime and can be prosecuted under crimes against humanity when the requisite elements are proven.

3. Other crimes against humanity

A. Understanding Gendered Killings within International Criminal Law (ICL)

• Femicides and Crimes Against Humanity (CAH):

  • Gendered killings (femicides) may qualify as CAH under certain circumstances.

  • To be classified as CAH, the killings must be part of a widespread or systematic attack against civilians and satisfy the chapeau elements of Article 7(1) of the Rome Statute.

B. Crimes Against Humanity: Broader Categorization of Gendered Killings

• Core Relevant Crimes for Gendered Killings:

  • Murder

  • Extermination

  • Gender Persecution

  • Potential supplementary charges: torture, inhumane acts, sexual violence, or enforced disappearance.

• Focus on Contextualizing Gender:

  • ICL has faced criticism for overemphasizing sexual violence while sidelining other forms of gendered violence.

  • Highlighting femicides within CAH frameworks involves balancing the recognition of the killings themselves with gendered motivations and broader patterns of violence.

C. Expanded Scope of Crimes Beyond Murder

(a) Murder

• Key Points:

  • Captures the killing aspect of femicide.

  • Does not inherently explore gendered motivations or the broader gender-based violence context.

  • Gender can be highlighted through case framing or contextual evidence (e.g., widespread targeting of women or link to gender persecution).

(b) Extermination

• Key Points:

  • Targets killings on a large scale with large numbers of victims.

  • Expands on murder by focusing on group targeting, though not limited to genocide-protected groups.

  • Gender could constitute a group under extermination, as argued by commentators like Rodney Dixon and Christopher Hall.

  • Prosecution must prove at least one killing connected to large-scale extermination efforts.

  • Gender motivation (e.g., patriarchal norms or systemic impunity) could serve as evidence of intent or pattern.

D. Other Crimes Against Humanity: Broader Legal Pathways for Gendered Killings

(a) Torture

• Femicides as Torture:

  • Focuses on severe physical or mental suffering.

  • Particularly relevant when victims experience prolonged violence before death.

(b) Other Inhumane Acts

• Femicides as Inhumane Acts:

  • Charges can address egregious non-lethal gendered violence associated with femicides, e.g., mutilation or humiliation.

(c) Sexual Violence

• Linking Sexual Violence and Femicides:

  • Article 7(1)(g) recognizes rape and sexual violence as crimes against humanity.

  • Useful in cases where killings are accompanied by sexual violence.

  • Criticism: Subsumes gendered killings within sexual violence, potentially sidelining the killing aspect.

(d) Enforced Disappearance

• Femicides and Disappearances:

  • Highlights systemic state inaction in cases of missing women (e.g., Marcela Lagarde's advocacy for attention to both killings and disappearances).

  • May align with feminicide concepts where disappearances precede killings.

(e) Apartheid

• Femicides in Contexts of Social Oppression:

  • Could apply to killings in highly segregated or oppressive societies where gendered discrimination is institutionalized.

E. Challenges in Applying Specific Crimes to Femicides

• Sexual Violence Focus:

  • Feminist critique: Over-reliance on sexual violence charges risks conflating distinct crimes and marginalizing broader gendered violence.

  • Strategic use: Prosecutors must carefully frame cases to avoid diminishing femicide’s distinctiveness.

• Proving Contextual Elements:

  • Charges of torture, inhumane acts, and disappearance expand scope but may divert attention from the fatal nature of femicide (the “cide”).

F. Strategic Framing of Gendered Killings in ICL

• Using Gender Persecution Contexts:

  • Gender persecution (Article 7(1)(h)) highlights gendered motives and systematic oppression.

  • Draws connections between killings and structural discrimination.

• Situating Femicides in a Broader Continuum of Gendered Violence:

  • Femicides rarely occur in isolation but as part of a continuum of violence rooted in societal gender norms.

  • Prosecutors could leverage this broader context to establish patterns and prove CAH elements.

G. Conclusion

• Gendered killings fit within several CAH categories, including murder, extermination, and gender persecution.

• Key challenges:

  • Balancing focus between fatal violence and broader patterns of gendered oppression.

  • Navigating feminist critiques and expanding ICL’s lens beyond sexual violence.

• Prosecution Strategy:

  • Emphasize gendered motivations and systemic factors like state or organizational complicity in fostering environments of impunity.

  • Frame femicides as part of widespread or systematic attacks, ensuring legal arguments align with the broader goals of recognizing gender-based violence within international law.

4. Gender Persecution

(a) Actus Reus Requirements:

1. Severe Deprivation of Fundamental Rights:

   • Violations must contravene international law.

   • Discriminatory killings, such as femicides, inherently meet this criterion.

   • Gender-based violence is widely recognized as a violation of fundamental human rights under international human rights law.

2. Connection to Another ICC-Recognized Crime:

   • Gender persecution must link to an act enumerated in Article 7(1) of the Rome Statute or any crime within the ICC’s jurisdiction.

   • Femicides satisfy this condition because murder is explicitly listed as a crime against humanity under Article 7(1)(a).

3. Widespread or Systematic Attack Against a Civilian Population:

   • The act must be part of a larger pattern of violence targeting civilians.

   • Perpetrators must act with knowledge of this broader attack.

(b) Mens Rea Requirements:

• Persecutory Intent:

  • Perpetrators must intentionally deprive individuals of fundamental rights due to their membership in a targeted group.

  • Grounds for persecution include political, racial, national, ethnic, cultural, religious, or gender-based motivations as defined in Article 7(3).

  • The prosecutor must prove that the targeting was explicitly or implicitly based on gender.

A. Rome Statute’s Ambiguous Definition of Gender

Interpretation of Article 7(3):

• Gender as a Social Construct:

  • ICC prosecutors and scholars argue that the phrase “in the context of society” implies a social construct perspective of gender.

  • This interpretation accommodates:

    • Non-conforming gender roles

    • Sexual orientation (e.g., LGBTQ+ individuals)

    • Gender-based roles and expectations (e.g., societal views on masculinity or femininity).

Challenges with Narrow Interpretations:

• The statute’s wording—“male and female within the context of society”—has sparked debate over whether it includes crimes against:

  • LGBTQ+ individuals (e.g., persecution of trans women, lesbians, or gay men).

  • Broader violations of socially constructed gender norms.

Progressive Interpretation by the ICC Prosecutor:

• Prosecutor’s Gender Persecution Policy:

  • Advances a reading of gender as a social construct, emphasizing societal roles and norms.

  • Acknowledges persecution based on sexual orientation, gender identity, and gender expression.

B. Key Examples of Gender Persecution Cases

ICC’s Gender Persecution Cases:

1. Al Rahman Case (Darfur, Sudan):

   • Target group: Fur males perceived as rebels based on ethnicity and gendered roles (e.g., men as fighters).

   • Persecutory grounds: Combined ethnic and gendered perceptions.

2. Al Hassan Case:

   • Pre-Trial Chamber notes that persecution is gendered when individuals are treated differently due to societal norms about gender roles.

Broader Examples:

• ISIS Cases:

  • Ideology based on systematic discrimination against non-conforming gender roles, including torture and killings.

  • Persecution as a tool to enforce rigid gender constructs.

C. Fitting Femicides Within Gender Persecution Framework

(a) Severe Deprivation of Fundamental Rights:

• Femicides, as discriminatory killings targeting individuals because of their gender, constitute severe rights deprivations.

(b) Group or Collectivity Targeting:

• Victims of femicide often belong to specific groups:

  • Women of particular ethnic, cultural, or professional groups.

  • Trans women or non-conforming individuals in marginalized areas.

(c) Gender as a Persecutory Ground:

• Gender persecution directly addresses femicides by focusing on gender-based targeting.

• Distinction between the targeted group and the grounds for targeting can aid case framing.

D. Critiques and Challenges

Critiques of the Persecution Framework:

1. Emphasis on Discrimination Over Fatality:

   • Gender persecution highlights the discriminatory intent but may downplay the lethal aspect of femicide.

2. Ambiguity in Gender Definition:

   • The Rome Statute’s definition of gender could limit cases involving:

     • LGBTQ+ victims.

     • Broader violations of gender norms.

Feminist Concerns:

• Risk of subsuming femicides within general categories of gender violence.

• Need for frameworks that center the killings themselves (the “cide” in femicide).

E. Prosecutorial Strategies and Recommendations

(a) Framing Femicides as Gender Persecution:

• Use the gender persecution charge to link femicides to broader patterns of discrimination and gender-based oppression.

• Highlight systemic patterns:

  • Cultural norms of gender discrimination.

  • Institutional complicity in fostering environments of impunity.

(b) Advancing Progressive Interpretations:

• Push for interpretations of gender as a social construct.

• Include cases targeting:

  • LGBTQ+ individuals.

  • Non-conforming gender roles.

(c) Integrating Human Rights Norms:

• Ground arguments in international human rights law, which supports a broad, inclusive understanding of gender.

F. Conclusion

• Gender persecution offers a robust framework for prosecuting femicides under international law.

• The charge centers on discriminatory intent and allows for a nuanced exploration of gendered violence in societal contexts.

• Prosecutors must balance recognizing lethal violence with highlighting the structural and societal roots of gendered oppression.

Femicides as Gender Persecution

• Focus on Femicide: The OTP should prioritize femicide within its gender persecution framework.

• New Crime vs. Existing Framework:

  • While creating a new crime of femicide or feminicide has merit, prosecuting it under existing international crimes is more practical.

• Arguments for Using Existing Crimes:

  • Political Feasibility: Easier to implement within current legal structures.

  • Communicating Gravity: Leverages established international criminal categories to underscore severity.

  • Broader Gender Violence: Frames femicide as part of gender violence without reinforcing stereotypes of women as perpetual victims.

  • Inclusivity: Addresses broader gendered violence affecting all genders, not just women.

• Beyond Armed Conflict: Tackling femicide outside wartime contexts can clarify legal standards for crimes against humanity.

• Positive Complementarity: ICC involvement could encourage states to improve domestic responses to gendered violence.

A. The case for tackling femicide through ICL

1. Importance of Recognizing Femicide in ICL

• Human Rights Violation:

  • Gendered killings, such as femicide, represent grave human rights violations, warranting international attention even outside contexts of ethnicity, religion, or armed conflict.

  • The inclusion of gender persecution in the Rome Statute and recognition of violence against women as a human rights issue supports the case for femicide in ICL.

• Legitimizing Activist Efforts:

  • Labeling femicide as an international crime reinforces grassroots anti-femicide activism by legitimizing their efforts and highlighting the crime’s gravity.

  • Prominent scholars like Rita Segato argue for didactic recognition of femicide (or "femi-geno-cide") to establish its societal significance.

2. Practical Benefits of Addressing Femicide through ICL

• Enhanced Standards:

  • International criminal law pushes for higher investigative and evidentiary standards, strengthening domestic and global accountability.

• State Accountability:

  • ICC investigations place states on notice, applying pressure to address femicide and related gender-based violence.

  • ICC scrutiny differs from that of human rights bodies by incorporating the potential for criminal prosecutions of individuals, including state officials.

• Positive Complementarity:

  • The ICC can assist states in capacity-building, offering expertise in criminal investigations and prosecutions that may exceed the resources or experience of domestic systems.

3. Challenges in Pursuing Femicide via ICL

• State Reluctance and Risks of Non-Cooperation:

  • States may fear collaboration with the ICC due to risks of prosecution for their officials.

  • Prosecutions could lead to withdrawal threats, mirroring Turkey’s departure from the Istanbul Convention over perceived challenges to “family values.”

  • States may disengage from the ICC if gender violence prosecutions are perceived as politically or socially contentious.

• Balancing Political Feasibility:

  • Prosecutors must assess the local and international political dynamics to avoid undermining collaboration while pursuing justice.

4. The Role of the ICC in Addressing Femicide

• Complementing Human Rights Efforts:

  • The ICC’s criminal framework offers a more enforceable alternative to international human rights law.

  • Criminal prosecutions, especially of state officials, motivate stronger domestic action than admonitions from human rights bodies.

• Resource Advantages:

  • The ICC possesses greater resources and investigative expertise than many domestic or regional organizations, enabling it to support or complement their work effectively.

• Norm-Setting and Modeling:

  • By addressing femicide, the ICC integrates international human rights norms into criminal law and models their application for domestic systems.

5. Debating the Approach: New Crime vs. Existing Framework

• Arguments for a New Crime:

  • Creating a stand-alone crime like femicide, feminicide, or femi-geno-cide could draw unique attention to gendered killings as significant in their own right.

  • Helps establish societal understanding of the distinct nature of these crimes.

• Arguments for Using Existing Frameworks:

  • Legitimacy Through Established Crimes: Anchoring femicide within recognized categories (e.g., gender persecution) lends legitimacy and avoids duplicative legal efforts.

  • Avoids Isolation of Women’s Issues: Placing femicide within broader international crimes avoids reinforcing women’s portrayal as perpetual victims.

  • Broader Applicability: Existing frameworks like gender persecution can address diverse forms of gendered violence, ensuring inclusivity for broader gender issues.

6. Conclusion

• The ICC is uniquely positioned to strengthen global responses to femicide through its enforcement mechanisms and capacity-building expertise.

• Addressing femicide as gender persecution within the existing ICL framework offers a practical, inclusive, and politically feasible path forward, balancing legitimacy, enforcement, and feminist advocacy goals.Introduction

  • Thesis: Femicide and gendered killings can be addressed effectively through existing international crimes, particularly gender persecution, within the ICC framework. This avoids the political and practical challenges of creating a stand-alone crime category such as feminicide or feminogenocide.

  • Key Arguments:

    • Existing crime categories like gender persecution achieve similar objectives to a standalone crime of femicide.

    • Pragmatic and idealistic reasons for adopting this approach include political feasibility, operational efficiency, and the potential to foster broader understanding of gender violence.

  ---

  Pragmatic Arguments for Using Existing Categories

  1. Avoiding Rome Statute Amendments:

     • Amending the Statute is politically fraught and labor-intensive.

     • Many states may resist prosecuting their officials internationally for feminicide.

  2. Circumventing Sovereignty Concerns:

     • Domestic states might criminalize femicide but resist international scrutiny.

     • The Rome Statute negotiation history underscores states' preference for sovereignty over gender justice.

  3. Avoiding Redundant Definitions:

     • Prosecution through existing categories eliminates the need for a narrow subset of femicides to qualify as genocide-level crimes.

     • Avoids the risk of dismissing less overt, yet significant, femicides.

  4. Preventing Controversial Debates:

     • Introducing a femicide crime could rekindle debates over abortion rights, as seen in past negotiations.

  5. Expanding the Scope of ICL:

     • Tackling femicide as gender persecution addresses serious human rights violations outside traditional armed conflict.

     • Shifts perception of gender violence from private to public concern.

  ---

  Using Gender Persecution as a Legal Tool

  • Broader Discriminatory Context:

    • Gender persecution acknowledges the systemic discrimination underpinning femicide.

    • Prosecutors and Courts should use terms like femicide or feminicide when preferred by victims' groups.

  • Examples of Gender Persecution Covering Femicide:

    • Gendered "social cleansing" (e.g., killing sex workers or LGBTQI+ individuals).

    • Government or rebel group killings of women for non-compliance (e.g., refusing forced marriage).

    • Targeting women human rights defenders due to their advocacy.

    • Killing women for non-adherence to gender norms (e.g., dress codes, education access).

    • Systematic failure or cover-up of investigations into femicides.

  ---

  Benefits of Addressing Femicide Through Existing ICL Framework

  1. Encourages Gender-Conscious State Behavior:

     • Highlights gender violence beyond the male-on-female paradigm.

     • Promotes intersectionality and awareness of misogynist, homophobic, and transphobic violence.

  2. Progressive ICC Policy on Gender Persecution:

     • Focus on intersectionality (gender intertwined with race, ethnicity, etc.).

     • Disrupts normalization of institutionalized gender violence.

  3. Proof of Intent and Mens Rea:

     • ICC Prosecutor's guidance can influence domestic femicide and hate crime laws.

     • Example: Discriminatory intent evidenced by disproportionate targeting based on gender.

  4. Beyond the Gender Binary:

     • Avoids framing women as perpetual victims.

     • Addresses systemic violence affecting diverse gender identities.

  ---

  Potential Challenges

  1. Proof Requirements:

     • Femicides must meet the crimes against humanity chapeau requirements (e.g., attack on a civilian population).

     • Systematic state or organizational policies must be established.

  2. Political Pushback:

     • States might resist ICC decisions deemed too invasive or progressive.

     • Disagreements among ICC judges regarding the interpretation of "gender."

  3. Contextual Sensitivity:

     • The ICC Prosecutor must consult victims’ groups and local activists to avoid displacing domestic efforts.

     • Balance international oversight with local autonomy and initiatives.

  ---

  Strategic ICC Actions

  • Leveraging Early Cases:

    • Current cases involve both male and female victims, setting precedents for interpreting gender as a social construct.

    • Focus on progressive gender definitions (e.g., persecution based on failure to conform to gender norms).

  • Potential for Broader Impact:

    • ICC’s exploration of gender violence outside military contexts could clarify crimes against humanity elements.

    • Prosecution of systemic femicide may inspire domestic action and contribute to global understanding.

  ---

  Conclusion

  • Advocacy Opportunities:

    • Activists should leverage the ICC’s existing tools to combat femicide effectively.

    • The ICC can elevate the issue of gendered killings, encourage state accountability, and support civil society efforts.

  • Potential for ICL Development:

    • While not all femicides fit existing categories, selective prosecutions convey the international community's recognition of the gravity of femicide.

    • Gender persecution offers a robust legal framework that aligns with anti-femicide activism while fostering broader awareness of gendered violence.

B. Calls for New Crime of Femicides

1. Rita Segato’s Argument for a Stand-Alone Crime of Femi-Geno-Cide

• Core Idea:

  • A new crime, “femi-geno-cide,” akin to genocide, could bolster domestic anti-femicide efforts and shift societal perceptions of femicide from a private matter to a public crime worthy of state intervention.

• Challenges in Defining Femi-Geno-Cide:

  • Systematic and Generalizable Definition:

    • It must be framed as an attack not just on individual women but as an impersonal, systematic intent to exterminate a group (“the genus”).

    • The challenge lies in demonstrating genocidal intent to destroy women as a group, as required under international criminal law (ICL).

  • Analytical Path Forward:

    • Drawing on cases like Prosecutor v. Krystić (ICTY), where intent to kill a “part of a part” sufficed for genocidal intent, could inform the legal structure of femi-geno-cide.

    • However, proving intent to destroy a significant part of women as a group remains difficult, even in areas with rampant femicide.

• Scope of Criminalization:

  • Segato emphasizes the need to determine which forms of femicide warrant international criminalization:

    • Intimate Femicides: Gendered killings in domestic or personal contexts.

    • Feminicides: Gendered killings in contexts of state inaction or complicity.

    • Public, “war-like” scenes where gender violence assumes broader societal impact.

  • She argues for prioritizing femicides in public contexts for their potential to reshape societal understandings of gender violence as a public and political issue.

• Didactic Value:

  • Recognizing even subsets of femicide as tantamount to genocide could have educational value in raising awareness and catalyzing societal transformation.

2. Ana Carcedo’s Argument for Feminicide as a Crime of the State

• Core Idea:

  • Feminicide (distinct from femicide) reflects state responsibility for failing to investigate, prosecute, or punish gendered killings of women.

  • As the state itself is the author of the crime (via inaction or complicity), such cases should be referred to international courts to ensure impartial justice.

• Justification for Internationalization:

  • The inoperability of domestic judicial systems undermines justice when the state is both judge and party.

  • International courts are necessary to bypass conflicts of interest and address state complicity in feminicide.

• Alignment with ICC Complementarity:

  • The ICC’s complementarity principle aligns with the feminicide framework by intervening when states are “unwilling or unable” to genuinely prosecute:

    • Unjustified delays.

    • Lack of independence or impartiality in proceedings.

    • Failure to investigate or prosecute perpetrators meaningfully.

3. Challenges of Feminicide as an International Crime

• ICC Limitations:

  • The ICC requires individual criminal responsibility, whereas feminicide is often framed as a state crime.

  • International criminal courts cannot prosecute states, only individuals.

    • Example: Cases like Bosnia v. Serbia for genocide were brought before the International Court of Justice (ICJ), not the ICC.

• Potential Solutions:

  • Frame feminicide as a crime committed by state officials in their failure to investigate or prosecute, meeting the ICC’s individual accountability requirement.

4. Advantages of a Stand-Alone Crime of Femicide or Feminicide

• Focused Attention on Gendered Violence:

  • A specific crime draws attention to the gendered dynamics of violence, particularly in countries with deadly violence and widespread impunity.

  • Prevents “telescoping” gendered crimes into broader international crimes, which may dilute their distinct nature.

• Flexibility in Defining Femicide Internationally:

  • A new crime allows State Parties to craft a unique, tailored definition, avoiding the constraints of fitting femicide into:

    • Genocide: Requires proving intent to destroy a group.

    • Crimes Against Humanity (Gender Persecution): Requires widespread or systematic attacks and state policy.

    • War Crimes: Requires a nexus to armed conflict.

  • A stand-alone definition enables the criminalization of femicide on its own terms.

5. Broader Contexts for International Recognition of Femi-Geno-Cide

• New War-Like Contexts:

  • Segato highlights emerging contexts like organized crime that mimic war-like scenarios, making them appropriate for international attention.

  • Gender violence in these contexts reflects systemic, societal dimensions rather than isolated incidents.

• Personal Motive Not Required:

  • International crimes, including femi-geno-cide, need not rely on the perpetrator’s personal motives, as long as the requisite intent for the crime exists.

6. Critiques and Counterarguments

• Obstacles in Establishing Intent:

  • Proving intent to exterminate women as a group remains legally and practically challenging.

  • Widespread public understanding of femicide’s gravity is still limited, making societal buy-in for such prosecutions complex.

• Potential Overreach of International Criminal Law:

  • Some argue that feminicide or femi-geno-cide risks overstretching the domain of ICL by criminalizing behaviors that might be better addressed domestically or regionally.

• Risk of Dilution:

  • A specific focus on femicide risks isolating it from broader gender issues or overemphasizing certain forms of violence at the expense of others.

7. Conclusion

• Theoretical Benefits:

  • A stand-alone crime could serve as a powerful symbolic and practical tool to combat gender violence globally.

  • It would legitimize gendered violence as a public concern and elevate its importance in international law.

• Practical Considerations:

  • However, as the next section argues, pursuing femicide through existing frameworks, such as gender persecution, may achieve similar goals while avoiding many challenges inherent in creating a new crime.

C. A proposal for the ICC to Use existing ICL categories, particularly gender persecution, to address femicide

Introduction

• Thesis: Femicide and gendered killings can be addressed effectively through existing international crimes, particularly gender persecution, within the ICC framework. This avoids the political and practical challenges of creating a stand-alone crime category such as feminicide or feminogenocide.

• Key Arguments:

  • Existing crime categories like gender persecution achieve similar objectives to a standalone crime of femicide.

  • Pragmatic and idealistic reasons for adopting this approach include political feasibility, operational efficiency, and the potential to foster broader understanding of gender violence.

Pragmatic Arguments for Using Existing Categories

1. Avoiding Rome Statute Amendments:

   • Amending the Statute is politically fraught and labor-intensive.

   • Many states may resist prosecuting their officials internationally for feminicide.

2. Circumventing Sovereignty Concerns:

   • Domestic states might criminalize femicide but resist international scrutiny.

   • The Rome Statute negotiation history underscores states' preference for sovereignty over gender justice.

3. Avoiding Redundant Definitions:

   • Prosecution through existing categories eliminates the need for a narrow subset of femicides to qualify as genocide-level crimes.

   • Avoids the risk of dismissing less overt, yet significant, femicides.

4. Preventing Controversial Debates:

   • Introducing a femicide crime could rekindle debates over abortion rights, as seen in past negotiations.

5. Expanding the Scope of ICL:

   • Tackling femicide as gender persecution addresses serious human rights violations outside traditional armed conflict.

   • Shifts perception of gender violence from private to public concern.

Using Gender Persecution as a Legal Tool

• Broader Discriminatory Context:

  • Gender persecution acknowledges the systemic discrimination underpinning femicide.

  • Prosecutors and Courts should use terms like femicide or feminicide when preferred by victims' groups.

• Examples of Gender Persecution Covering Femicide:

  • Gendered "social cleansing" (e.g., killing sex workers or LGBTQI+ individuals).

  • Government or rebel group killings of women for non-compliance (e.g., refusing forced marriage).

  • Targeting women human rights defenders due to their advocacy.

  • Killing women for non-adherence to gender norms (e.g., dress codes, education access).

  • Systematic failure or cover-up of investigations into femicides.

Benefits of Addressing Femicide Through Existing ICL Framework

1. Encourages Gender-Conscious State Behavior:

   • Highlights gender violence beyond the male-on-female paradigm.

   • Promotes intersectionality and awareness of misogynist, homophobic, and transphobic violence.

2. Progressive ICC Policy on Gender Persecution:

   • Focus on intersectionality (gender intertwined with race, ethnicity, etc.).

   • Disrupts normalization of institutionalized gender violence.

3. Proof of Intent and Mens Rea:

   • ICC Prosecutor's guidance can influence domestic femicide and hate crime laws.

   • Example: Discriminatory intent evidenced by disproportionate targeting based on gender.

4. Beyond the Gender Binary:

   • Avoids framing women as perpetual victims.

   • Addresses systemic violence affecting diverse gender identities.

Potential Challenges

1. Proof Requirements:

   • Femicides must meet the crimes against humanity chapeau requirements (e.g., attack on a civilian population).

   • Systematic state or organizational policies must be established.

2. Political Pushback:

   • States might resist ICC decisions deemed too invasive or progressive.

   • Disagreements among ICC judges regarding the interpretation of "gender."

3. Contextual Sensitivity:

   • The ICC Prosecutor must consult victims’ groups and local activists to avoid displacing domestic efforts.

   • Balance international oversight with local autonomy and initiatives.

Strategic ICC Actions

• Leveraging Early Cases:

  • Current cases involve both male and female victims, setting precedents for interpreting gender as a social construct.

  • Focus on progressive gender definitions (e.g., persecution based on failure to conform to gender norms).

• Potential for Broader Impact:

  • ICC’s exploration of gender violence outside military contexts could clarify crimes against humanity elements.

  • Prosecution of systemic femicide may inspire domestic action and contribute to global understanding.

Conclusion

• Advocacy Opportunities:

  • Activists should leverage the ICC’s existing tools to combat femicide effectively.

  • The ICC can elevate the issue of gendered killings, encourage state accountability, and support civil society efforts.

• Potential for ICL Development:

  • While not all femicides fit existing categories, selective prosecutions convey the international community's recognition of the gravity of femicide.

  • Gender persecution offers a robust legal framework that aligns with anti-femicide activism while fostering broader awareness of gendered violence.

Conclusion

Key Points:

1. Femicide as a Gross Violation of Human Rights

   • Widely recognized as a violation of women’s human rights.

   • Criminalized in many countries, but also fits within the scope of international crimes in specific contexts.

   • Deserves attention from the International Criminal Court (ICC).

2. Optimal Approach: Existing International Crimes

   • Femicide is best addressed through existing international crime categories, notably gender persecution.

   • Leveraging these categories avoids the complexities and delays of creating new international crimes.

3. Impact of Recognizing Femicide as Gender Persecution

   • Raises Awareness: Highlights the severity and discriminatory nature of the crime.

   • Increases Pressure: Encourages states to strengthen domestic efforts to combat femicide.

   • Gendered Dynamics: Although not explicitly focused on women, it acknowledges and emphasizes the gendered nature of femicide.

4. Broadening Perspectives on Gendered Violence

   • Tackling femicide through gender persecution broadens the scope to include gender-based violence beyond the cisgender male-on-female paradigm.

   • Encourages states to consider diverse forms of gender violence.

5. ICC’s Role in Clarifying International Law

   • Provides an opportunity for the ICC to:

     • Clarify the concept of crimes against humanity outside traditional armed conflict.

     • Define the scope of gender persecution under the Rome Statute.

6. Significance of Gender Persecution as a Crime

   • Categorizes femicide within crimes that are universally offensive to humanity.

   • Positions the ICC as a platform for addressing gender-based discrimination and violence at a global level.