Since the International Criminal Court (ICC) was first mooted in the 1990s, gender-oriented scholars and activists have been interested, and involved. These actors successfully campaigned for the inclusion of sexual violence crimes in the ICC Statute, along with provisions aimed at protecting victims’ rights and securing a gender balance on the bench. In the Court’s first decade of operations, these same actors have been closely monitoring the implementation of the gender elements of the Statute. They lobbied former Prosecutor Luis Moreno-Ocampo to pursue sex crimes in the Court’s early cases, and have strongly supported his successor, Prosecutor Fatou Bensouda, in her stated goal of focusing on these crimes during her time in office.
While these gendered reflections on the ICC have been important and fruitful, there is further scope for a wider focus and greater nuance. It is troubling to observe gender justice scholars and activists using the term ‘gender’ interchangeably with ‘women’. Moreover, this gendered (female) subject is seen to occupy only a narrow range of roles. Most often, the gendered subject is the victim. Since the Yugoslavia and Rwanda tribunals first swung into action, gender scholars and activists have called for justice for the (usually female) survivors of sexual violence crimes, and spoken about the difficulties of protecting and empowering these survivors at trial.
Sometimes, the gendered (again, code for female) subject wears court robes. Bensouda’s election to the office of Prosecutor was accompanied, although not necessarily motivated by, conversation about symbolism of female prosecutors. Gender scholars and activists often point to Judge Pillay’s interventions in the Rwanda tribunal that lead to the first conviction of genocidal rape as evidence of the value of female judges. More recently, some have welcomed Judge Benito’s dissenting judgment in the ICC’s first case, in which she recognized the sexual elements the recruitment of child soldiers, as evidence of the same thing.
These are necessary and important developments in a field that historically either entirely ignored women’s experiences or stereotyped them very narrowly. But rarely, if ever, is attention paid to the gender of the defendant. The two of us have discussed whether this is because the defendant is seen as genderless, or because all ICC defendant thus far have been male. In the end, these explanations point to the same thing: that men are seen as genderless, while women are seen as gendered. Even in the feminist discourse on international criminal law, the male is the norm, the neutral, genderless individual, while the woman is the deviation, the gendered individual, the Other.
Against this background, the ICC’s recent decision to seek the arrest of Côte d’Ivoire’s former first lady Simone Ggagbo is groundbreaking and conceptually challenging. The arrest warrant describes Gbagbo as the suspected co-perpetrator of crimes against humanity, including rape and sexual violence, during the post-election violence in 2010 and 2011. Her husband Laurent Gbagbo, former President of Côte d’Ivoire, is also the subject of an ICC arrest warrant and may stand trial pending the outcome of current proceedings in The Hague.
Should Simone Gbagbo go to trial, she will be one of just four women to have been prosecuted in the international courts operating today although, as Diane Marie Amann has commented, numerous women stood trial in subsequent post-World War II proceedings. The Yugoslavia tribunal convicted Bosnian Serb politician Biljana Plavšić of persecution as a crime against humanity; the Rwanda tribunal convicted a former Rwandan government minister, Pauline Nyiramasuhuko, of genocide and crimes against humanity; and charges were brought against Khmer Rouge minister Ieng Thirith in the Cambodia tribunal, although the trial has been stayed as the defendant has been declared unfit.
It is precisely because it is so unusual for a woman to be charged with international crimes that when it does happen, it sparks questions about gender that we seldom think to ask when the accused is a man. The “normal” narrative, which positions masculinity, agency and violence on one side and femininity, passivity and victimization on the other, becomes suddenly visible. Once the narrative becomes visible, we can start to think critically about its implications in theory and in practice. Does it accurately reflect a universal balance of power? Or does it lock women into the role of the victim and preclude male survivors from receiving care and seeking redress?
The fact that Gbagbo is wanted in relation to sexual violence crimes also challenges gendered assumptions about culpability for sexual violence crimes. As is standard in ICC cases, Gbagbo is not alleged to have committed these crimes herself. Her position of power over those who (allegedly) committed these crimes is what makes her potentially liable under international criminal law. Thus regardless of whether the case proceeds to trial, the arrest warrant serves as a perhaps startling reminder that women may be the perpetrators of sexual violence, a notion that is largely unaccounted for in the gender justice discourse.
That said, the case against Simone Gbagbo could also serve to reinforce gender stereotypes. Even though the arrest warrant specifies Gbagbo’s alleged individual liability, her relationship as the wife of a powerful man could well be used to cast her as a faithful delegate rather than as an independent actor. Indeed, there seems already to be a struggle to define Gbagbo’s identity. The ICC press release defines her as “Mrs Gbagbo”, a title that has no equivalent for men, as men’s marital status has not historically been seen to subsume their identity. The warrant itself avoids this problem by referring to Gbagbo as “Ms Gbagbo,” however her identity as an individual is somewhat undermined by her description in this important legal document as the “alter ego” of her husband.
Whether the case against Simone Ghagbo complicates our understanding of the role of men and women in conflict situations, or reinforces existing gender norms, is yet to be seen. It certainly has the potential to do both. But all the actors involved at the Court, including the prosecutorial staff and defence counsel, judges and advocates, will need to tread carefully so as not to further entrench existing stereotypes which contribute to the perpetuation of conflict – particularly, sexual violence in conflict – in the first place.
Rosemary Grey and Louise Chappell
University of New South Wales