Authored By: Fizza Bashir
Kinnaird College For Women,Lahore
ABSTRACT:
The use of Gender Based Violence in conflicts has targeted individuals and communities by creating fear among them and tearing apart social ties.For a long time, International Courts has treated these acts as unavoidable by products of conflict rather than intentional military tactics. Rome Statute 1998 in it’s provisions has recognized rape and other sexual crimes as war crime. This Article examines that how legal thinking about GBV has developed from International tribunals for Rwanda and Yugoslavia to recent ICC cases such as Ongwen, Ntaganda and Bemba. It also considers the ICC’s Policy of 2023 on GBV , which adopts survivor-centered approach to directly address trauma. ICC has taken steps in treating GBV as an Intentional concern but still serious obstacles remain; which are the proof and evidence issues. This shows that true accountability will depend on sustained cooperation between the Courts, states and civil society.
INTRODUCTION:
GBV is among the most severe crimes committed in armed conflicts and still remains unpunished.Acts like rape, sexual slavery, forced pregnancy and force sterilisation are intentional weapons of war which are used to dominate populations ad to increase fear among them. Frome the “comfort women” of World War II to mass rapes in Rwanda, and the Democratic Republic of Congo, GBV has proven as very destructive weapon as much as conventional arms.
For many years, however , International law has overlooked these crimes when Nuremberg and Tokyo largely ignored sexual violence . At ICTR and ICTY rape was formally recognised as a crime against humanity and genocide. These developments led to the creation of ICC in 1998, where GBV was firmly written into the Rome Statute.
This essay analyses the courts treatment of gender based violence as a tool of warfare, emphasising the Rome Statute and pivotal cases including Ntaganda , Ongwen and Bemba, along with the significance of ICC 2023 Gender Based Crimes Policy. While much progress has been made, problem such as evidential hurdles, stigma and political resistance persist. The essay finds that ICC has enhanced accountability for gender-based crimes, but stronger implementation is still required to achieve meaningful justice.
HISTORICAL BACKGROUND:
GBV in armed conflict is neither new nor accidental. For centuries it has been treated as an inevitable part of war, which allowed perpetrators to escape while survivors were silenced and stigmatised. Although evidence of rape, forced prostitution, and sexual slavery emerged at the Nuremberg and Tokyo trials, these crimes were not charged on their own. At Tokyo, atrocities against “comfort women” were absorbed into vague counts like “inhumane treatment,” which showed a legal focus on crimes against states rather than those against individuals, especially women. A major shift came in the 1990s with the wars in Rwanda and the former Yugoslavia. In Bosnia,ethnic cleansing was done through rape and sexual slavery.The ICTY responded with landmark decisions: Furundžija (1998) where rape was recognized as torture, and Kunarac (2001) where sexual slavery was labelled as a crime against humanity.The Akayesu (1998) marked a turning point by finding that sexual violence could amount to genocide if used with intent to destroy a protected group.
LEGAL FRAMEWORK UNDER ROME STATUTE:
The Rome Statute of 1998, which established the International Criminal Court (ICC), was a landmark in the recognition of gender-based violence (GBV) as a crime of international concern. For the first time, GBV was enshrined in a permanent international instrument as behaviour that could be considered war crimes, crimes against humanity, or genocide, rather than as incidental misconduct.
Crimes against Humanity (Article 7):
The Rome Statute explicitly mentions rape, enforced prostitution, sexual slavery, forced pregnancy, enforced sterilisation and “any other form of sexual violence of comparable gravity” as crimes against humanity, when carried out as a component of a large-scale or coordinated attack on a civilian population, as crimes against humanity under Article 7(1)(g).Article 7(1)(h) further criminalises persecution on the basis of gender.These provisions highlight the Statute’s acknowledgement that intentional state or organisational policy may include sexual and gender-based offences.
War Crimes (Article 8):
Rape, forced prostitution, forced pregnancy, forced sterilisation, sexual slavery, and other similar forms of sexual violence are all specified by Article 8 when there is an armed conflict, whether it be international or not. This illustrates the recognition that GBV is frequently used as a military tactic to terrorise, eradicate, or control populations.
Genocide (Article 6):
Sexual violence may be considered genocide if it is committed with the intention of eradicating a national, ethnic, racial, or religious group, even though it is not specifically listed under Article 6. Sexual and reproductive violence has been interpreted by tribunals and the ICC to include acts like imposing measures to prevent births or causing serious bodily or mental harm. [1]
SIGNIFICANCE of 2023 ICC POLICY ON GENDER BASED CRIMES:
The ICC’s 2023 Policy on Gender-Based Crimes makes the Rome Statute’s promises about gender justice practical by giving clear, hands-on guidance for investigating and prosecuting GBV. Its value is in sharpening definitions and giving investigators and prosecutors a step-by-step approach that fixes previous gaps in how the Court handled these crimes.
First, the Policy widens key definitions. Where the Rome Statute treated “gender” narrowly, the Policy recognises gender as a social concept that includes sexual orientation, gender identity and expression. It also clarifies that GBV covers a broad range of harms including sexual and reproductive abuses that stem from socially assigned gender roles, closing loopholes that once let some acts be ignored.
Second, it requires gender-sensitive, intersectional analysis at every stage of a case. Investigators must look at factors such as age, ethnicity and gender identity so that harms like forced pregnancy, sterilisation, or denial of education are treated as central crimes rather than sidelined issues.
Third, the Policy expands who is protected: not only women and girls, but also men, boys, LGBTQI+ people, persons with disabilities and children. It recognises forms of harm that were often overlooked, such as sexualised torture of male detainees and reproductive control targeted at varied identities.
Fourth, the Policy embeds a trauma-informed, survivor-centred approach. That means limiting retraumatising interviews, prioritising consent and confidentiality, using wider range of evidence and providing psychological support .
Replacing the 2014 guidance, the Policy of 2023 is more intersectional, inclusive and contextual. It pushes back the myths and stereotypes that previously hindered GBV prosecutions. It shows ICC’s stronger commitment to addressing all forms of gendered harm, not only sexual violence. Overall, the policy is an important step toward strengthening the courts ability to deliver justice for GBV in conflict.
JURISPRUDENCE OF ICC:
The ICC and earlier international tribunals have been central to recognising gender-based violence (GBV) as an intentional weapon of war. Over the last thirty years courts have broadened legal definitions of GBV, yet they still struggle to secure convictions because of strong evidentiary and procedural hurdles.
A foundational decision was Prosecutor v. Akayesu (ICTR, 1998)[2], which for the first time found that sexual violence and rape could amount to genocide when committed with the intent to destroy a protected group. That ruling reframed GBV as a deliberate tactic of destruction and set important legal groundwork later reflected in the Rome Statute.
The ICC built on this in Prosecutor v. Ntaganda (2019)[3], where Bosco Ntaganda was convicted of war crimes and crimes against humanity, including rape and sexual slavery. The case was notable for recognising intra-group sexual violence used to control and punish, not just opportunistic assaults.
In Prosecutor v. Ongwen (2021)[4], the Court went further by treating forced marriage and reproductive violence, including forced pregnancy, as distinct crimes integral to the Lord’s Resistance Army’s campaign of terror. By contrast, Prosecutor v. Bemba[5] (convicted 2016; conviction overturned 2018) exposed continuing obstacles: the reversal underscored how hard it is to prove “effective control” and meet the high burden of proof, especially when survivors face trauma and stigma.
Together these cases show important legal progress, but they also make clear that recognition on paper must be matched by practical measures to overcome evidence gaps, protect survivors, and bring real justice points reinforced by the ICC’s 2023 Gender-Based Crimes Policy.
CHALLENGES IN PROSECUTING GENDER BASED VIOLENCE AT ICC:
Regardless of significant progress in the legal recognition of gender-based violence (GBV)’s use in conflicts, the ICC is still held back by the gap between law and justice. Survivors live with trauma and stigma, and fear of retaliation panic. This makes it predicaments in securing witness accounts or corroborative evidence in the active conflict zones. The 2018 reversal of Bemba’s conviction, despite the widespread reports of rape, underlines how lacking evidence and exculpatory investigation can prevent accountability, even with abundant documentation of the abuses.
Cultural bias and discrimination too often keeps victims silent, and weakens prosecutions which strengthens the myth that gender-based violence is incidental or very rare. When armed groups are only loosely organised, proving command responsibility becomes exceedingly problematic. The “effective control” test over perpetrators can be, in certain circumstances, almost unachievable. There is also the competing problem of political pressure and erratic state cooperation, that slows or blocks at some critical points, especially where the powerful do not wish scrutiny
There remains problem of bias in international justice. For a long time survivors of sexual and reproductive crimes were disbelieved and were pigeonholed into a variety of gendered stereotypes. The ICC’s 2023 Gender-Based Crimes Policy seeks to change this. Policy alone cannot erase deeply rooted biases that characterize problem of international justice
As it stands, the Court suffers from a significant lack of resources. Cases of gender-based violence involve survivor support, practised funding, training in trauma, evidence collection, and prolonged resource support. Any contemporary approach risks failing if the necessary resources and political determination are lacking. To Sum up, While international law recognizes gender-based violence as a crime of conscience, it is equally important that the justice system receives the necessary resources, fills the existing gaps in procedural cooperation, streamlines associated collaboration, and emphasizes investment in survivor-centered processes.[6]
FUTURE RECOMMENDATIONS:
The International Criminal Court (ICC) must do more than list gender-based violence (GBV) as a crime on paper if it wants to hold perpetrators accountable and truly help survivors. Justice has to be survivor-centred, practical, and sensitive to real-world conditions.
Start with survivors: the ICC’s 2023 Gender-Based Crimes Policy is a positive step, but every case needs to follow its principles in practice. That means offering psychological care, protecting survivors’ privacy, and designing courtroom procedures that avoid retraumatising people who have already suffered. Justice and survivor welfare should go hand in hand, not be treated as trade-offs.
The Court also needs more gender expertise across its teams. Crimes like forced pregnancy, forced marriage, and sexual slavery are complex and easy to misunderstand unless investigators, prosecutors and judges are well-trained in how these harms work and how they affect individuals and communities. Experienced, gender-literate professionals make the difference between recognising these crimes and overlooking them.
Cooperation from states is essential. Too often evidence is withheld and arrests are blocked for political reasons. When the ICC cannot act alone, regional bodies and international partners must apply pressure and provide support so that investigations can move forward and suspects can be brought to justice.
Finally, the ICC cannot handle every case. Strengthening national courts through funding, training and legal reform will bring justice closer to survivors. Community-led initiatives and survivor support networks should be supported, because meaningful accountability often comes from within affected communities. For fighting GBV to work, justice must move beyond symbol and be rooted in survivors’ needs, community engagement, and sustained political commitment.
CONCLUSION:
Gender-based violence has long been used as a tactic of control and terror. Today, the ICC recognises crimes like rape and forced pregnancy as serious international offences—a shift from the old pattern of ignoring these harms. The Court’s 2023 policy shows a clearer commitment to survivors, and landmark cases such as Ntaganda, Ongwen, and Bemba show real legal progress. Yet major obstacles remain: weak or missing evidence, social stigma that silences victims, and a lack of state cooperation often block accountability. The ICC is crucial, but lasting change also requires stronger national courts and continuous, genuine support for survivors so they can receive justice and rebuild their lives.
Reference(S):
[1] Rome Statute of the International Criminal Court, pmbl., art. 6, art. 7, art. 8, July 17, 1998, 2187 U.N.T.S. 3, 3 I.L.M. 993 (as amended May 2024).
[2] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, Int’l Crim. Trib. for Rwanda, Sept. 2, 1998.
[3] Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Judgment, Int’l Crim. Ct., July 8, 2019
[4] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Judgment, Int’l Crim. Ct., Feb. 4, 2021.
[5] Prosecutor v. Bemba, Case No. ICC-01/05-01/08 A, Appeal Judgment, Int’l Crim. Ct., June 8, 2018.
[6] International Criminal Court, Policy on Gender-Based Crimes, December 4, 2023, ICC‑CPI,
