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4. Femicide: Genocide by another name?
INTRODUCTION
As the ‘crime of crimes,’ the crime of genocide denotes the most severe
instances of collective human suffering, aimed at the extermination of different
groups.1 To fulfil the promise of never again, the international community has
pledged to cooperate in the Convention on the Prevention and Punishment
of the Crime of Genocide (the Genocide Convention).2 Article 2 Genocide
Convention defines the term genocide as ‘any act […] committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such.’ Such acts include killing, causing serious bodily and mental harm,
deliberately inflicting certain conditions of life, imposing measures to prevent
birth, or forcibly removing children.3 This definition is enshrined verbatim in
the International Criminal Court (ICC), the International Criminal Tribunal
for the former Yugoslavia (ICTY), and the International Criminal Tribunal
for Rwanda (ICTR) Statutes. The extermination of six million Jews by the
Nazi regime (1933–1945) in the Holocaust and around 800,000 Tutsi over the
course of three months (1994) in Rwanda, and the executions of 8,000 men and
boys in Srebrenica (1995) in Bosnia and Herzegovina have left tragic marks
on the conscience of mankind. While the international community qualifies the
persecution and extermination of human groups as genocide, the specific fate
of women and girls in similar contexts has received little attention.
Genocidal atrocities against female groups have been overlooked for too
long. They merit examination as potential crimes of genocide and may benefit
from the recognition as severe acts attached to the term. 300,000 Peruvian
Quechua women and girls were forcibly sterilized under unsafe conditions,
1 Claus Kress, ‘The Crime of Genocide Under International Law’ in Antonio
Cassese et al. (eds), International Criminal Law, Critical Concepts in Law (Routledge
2015) 124.
2 Convention on the Prevention and Punishment of the Crime of Genocide
(Genocide Convention) (adopted 9 December 1948, entered into force 12 January
1951) 78 UNTS 277.
3 Art. 2(a)(e) Genocide Convention.
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80 Conceptualizing femicide as a human rights violation
causing pain and physical ailments for the rest of their lives,4 and women
and girls are routinely subjected to torture and mutilation by being strangled,
raped, and/or skinned alive in Honduras.5 And yet, crimes against women are
characterized by impunity.
Considering these gloomy outlooks for women’s lives, some scholars and
politicians—such as Dworkin, Segato, and Hirsi Ali—contend that femicide
(or ‘gynocide’) is a form of genocide targeting women as women, based on
their gender alone.6 Other scholars, such as Mesutti and Mariño, are skepti-
cal about using the genocide framework in cases of femicide.7 In particular,
Mesutti argues that femicide does not fit the legal requirements of genocide
given that the female social group cannot constitute a group targeted for
destruction, and that women in femicide are attacked rather than destroyed by
virtue of their gender.8
Femicide is not defined in international criminal law (ICL), let alone recog-
nized as a sub-form or method of genocide. Could crimes against women on
account of their gender rise to the level of genocide? This chapter examines
whether femicide is separate from genocide and should be defined in its own
right, or whether it is a sub-form of genocide. This chapter shows that the
current genocide definition fails to fully cover mass atrocities committed
4 The Quipu Project, https:// interactive .quipu -project .com/ #/ en/ quipu/ intro. As
late as 2017, indigenous women in the Canadian Saskatoon region reported being
coerced or forced into sterilization. Yvonne Boyer and Judith Bartlett, ‘Tubal Ligation
in the Saskatoon Health Region: The Lived Experience of Aboriginal Women’ Sakotaan
Health Region (22 July 2017), www .s askatoonhe althregion .ca/ DocumentsInternal/
Tubal _Ligation _intheS askatoonHe althRegion _the _Lived _Experience _of _Aboriginal
_Women _BoyerandBartlett _July _22 _2017 .pdf. All online sources were accessed 30
October 2021.
5 Sonia Nazario, ‘Someone Is Always Trying to Kill You’ New York Times
(5 April 2019), www .nytimes .com/ interactive/ 2019/ 04/ 05/ opinion/ honduras -women
-murders .html ?smid = pl -share.
6 Andrea Dworkin, Woman Hating (Penguin Books 1974) 93. See also Segato,
who considers women as ‘genus,’ advancing the term ‘femigenocide’ to categorize
feminicide in international law. Rita Laura Segato, La Guerra Contra las Mujeres
(Cofás 2016) 149. See Warren’s gender-neutral approach. Mary Anne Warren,
Gendercide, The Implications of Sex Selection (Rowman & Allanheld Publishers 1985).
See also Alona Hagay-Frey, Sex and Gender Crimes in the New International Law:
Past, Present, and Future (Brill Nijhoff 2011) 131.
7 Ana Messuti, ‘La Dimension Jurídica Internacional del Feminicidio’ in Graciela
Atencio (ed), Feminicidio, el Asesinato de Mujeres por ser Mujeres (Catarata 2015)
48–49 and 56. Mariño considers that, constituting ‘half of humanity,’ women and
girls are too extensive of a group to form a protected group. Fernando Mariño, ‘Una
Reflexión sobre la posible Configuración del Crimen de Feminicidio’ in Fernando
Mariño et al. (eds), Feminicidio, El Fin de la Impunidad (Tirant lo Blanche 2012) 113.
8 Messuti (n 7) 56.
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81
Femicide: Genocide by another name?
against women and girls. The crime of genocide lacks specificity as it only
indirectly comprises sexual violence by way of interpretation. The crime of
genocide also limits its protection to ‘national, ethnic, religious, and racial
groups,’ classifications which do not cover gender-based attacks on women.
In this sense, the crime of genocide requires reform. Yet, through the expan-
sion of the four protected groups, attacks on female social groups would still
not be adequately addressed as the crime of genocide aims at the physical
extermination of groups. This chapter explains the nuance in the concept of
femicide, i.e., the social destruction of women, which serves to keep them in
their place, rather than the physical destruction of an identified group. It shows
that some elements of the crime of genocide may inform the human rights’
concept of femicide. I recognize the limitations to suggesting a change to the
genocide framework, considering the high threshold required and its political
connotation.9
DEFINING GENOCIDE IN INTERNATIONAL LAW
The crime of genocide concerns the survival of entire groups, and its history
suggests that it may be open to protecting human groups such as those con-
stituted by women and girls. Lemkin coined the term ‘genocide’—‘geno’
meaning race or tribe and ‘cide’ meaning killing—in 1944.10 Although its
semantics imply that the crime is only applicable to killings of racial and
national groups, Lemkin conceived of the crime of genocide in much broader
terms. Lemkin described Nazi Germany’s crimes as an attack against civiliza-
tions and a ‘war against peoples.’11 Although Lemkin used national groups as
a principal example—mentioning racial, religious, and ethnic groups as key
contributors to humanity—he was more interested in the groups’ correlation
and contribution to a ‘human cosmos’ than in defining the protected groups.
He viewed groups as socially constructed ‘in the minds of people’ and envi-
sioned broad protection from state-sponsored persecution for many groups.12
The transformation of a nation’s societal structures and subsequent imposition
of the oppressor’s structure was at stake in Lemkin’s definition. Accordingly,
he saw the annihilation of a group in disintegrating its social and political
9 Leena Grover, Interpreting Crimes in the Rome Statute of the International
Criminal Court (Cambridge University Press 2014) 274.
10 Raphael Lemkin, Axis Rule in Occupied Europe, Laws of Occupation, Analysis
of Government, Proposals for Redress (Rumford Press 1944) 79.
11 Ibid., 81.
12 Douglas Irvin-Erickson, ‘Genocide, the “Family of Mind” and the Romantic
Signature of Raphael Lemkin’ (2013) 15(3) Journal of Genocide Research 273–296 at
279.
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82 Conceptualizing femicide as a human rights violation
fabric and imposing the oppressor’s culture on the group. Therefore, while
extermination could be carried out through killings, it could also occur through
other means more present in femicide.13
The abhorrent Nazi atrocities and occupation set out in Lemkin’s Axis Rule
in Occupied Europe, resonate in current understandings of genocide.14 While
closely associated with the Holocaust, the crime of genocide is absent from
the International Military Tribunal Charter; World War II atrocities were
adjudicated as ‘crimes against humanity.’15 Lemkin lobbied for the recognition
of the crime of genocide until the Genocide Convention was adopted on 9
December 1948. Article 2 Genocide Convention defined the crime of genocide
as ‘any of the following acts committed with the intent to destroy, in whole or
in part, national, ethnic, racial or religious groups, as such,’16 including various
methods of genocide.17 Through these underlying acts, the requisite intent to
destroy and the identification of the four protected groups, the crime of gen-
ocide is also distinguishable from crimes against humanity. In contrast to the
scope of crimes against humanity, which has evolved, the scope of the crime of
genocide remains stagnant: the latter was replicated verbatim in international
criminal tribunals’ statutes.18 The crime of genocide has not grown to reflect
the harms of today or been adapted to current developments in international
law, counteracting Lemkin’s intention to ‘denote an old practice in its modern
development.’19
Since the 1990s, international tribunals have taken some steps towards rec-
ognizing rape and sexual violence as types of violence which can bring about
the destruction of protected groups.20 Through rape, entire communities can
fall apart, as women who have been raped may no longer wish to procreate or
emotionally contribute to their communities. However, most harm in femicide
entails continuous measures or an arduous life, female genital mutilation
13 Ibid. See also UNGA Res 96(1) (11 December 1946) UN Doc A/RES 96 (1)
[hereinafter UNGA Resolution on Genocide.
14 Lemkin (n 10).
15 Antonio Cassese et al. (eds), Cassese’s International Criminal Law, 3rd edition
(Oxford University Press 2013) 109.
16 Art. 2 Genocide Convention. See Art. 6 Statute of the International Criminal
Court (Rome Statute) (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 38544. See also Lars Berster, ‘Convention on the Prevention and Punishment
of the Crime of Genocide: A Commentary’ in Christian J. Tams, Lars Berster and
Björn Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of
Genocide: A Commentary (Hart Publishing 2014) 279–283.
17 Art. 6 Rome Statute; Art. 4(2) ICTY Statute; Art. 2(2) ICTR Statute.
18 Art. 2 ICTR Statute; Art. 4 ICTY Statute; Art. 6 Rome Statute.
19 Lemkin (n 10) 79. See also Cassese (n 15) 110.
20 Hagay-Frey (n 6) 128.
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83
Femicide: Genocide by another name?
(FGM), and forced marriage, inflicting injuries which may cause long-term
health complications and/or eventual death.21 Against this backdrop, interna-
tional tribunals continue to struggle to fit crimes affecting women as women
into the narrow genocide definition.
‘Traditional’ Methods of Genocide
The methods of genocide committed against, and intended to destroy, a pro-
tected group are not all equal.22 Being female is a significant factor which
influences the manner of ill-treatment a woman or girl suffers in a situation of
genocide, where the perpetrator attempts to destroy the group. Archetypally,
women and girls are attacked through rape, sexual enslavement, or other
slow-death measures.23 Perpetrators of genocide tend to eliminate civilian men
and boys by killing them. While killings are listed as the first measure, rape
and other harm are not even mentioned.
Killing
The act of ‘killing members of a group’ is seen as emblematic of the violence
committed during a genocide; it is no coincidence that this method features
first in the definition of genocide offered by the Genocide Convention.24 In
the early phase of genocide, perpetrators usually execute the men and boys of
the protected group.25 The Convention covers immediate killings of men and
boys, but falls short of encompassing slow-death measures against women
21 Susan Deller Ross, Women’s Human Rights: The International and Comparative
Law Casebook (University of Pennsylvania Press 2013) 455–501; James Burnham
Sedgwick, ‘Memory on Trial: Constructing and Contesting the “Rape of Nanking” at
the International Military Tribunal for the Far East 1946–1948’ (2009) 43(5) Modern
Asian Studies 1229–1254. Testimony of former ‘comfort woman’ Chong Ok Sun.
Omar Swartz, Transformative Communication Studies, Culture, Hierarchy and the
Human Condition (Troubadour Publishing 2008) 232–233; Hagay-Frey (n 6) 128.
22 Cassese (n 15) 110.
23 Elisa von Joeden-Forgey, ‘Gender and the Future of Genocide Studies and
Prevention’ in Amy E. Randall (ed), Genocide and Gender in the Twentieth Century
(Bloomsbury 2015) 299; Anne-Marie De Brouwer, Supranational Criminal Prosecution
of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia
2005) 48.
24 Michelle Jarvis and Elena Martin Salgado, ‘Future Challenges to Prosecuting
Sexual Violence under International Law: Insights from ICTY Practice’ in Anne-Marie
De Brouwer et al. (eds), Sexual Violence as an International Crime: Interdisciplinary
Approaches (Intersentia 2012) 118.
25 Adam Jones, Gendercide and Genocide (Vanderbilt University Press 2004) 3.
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84 Conceptualizing femicide as a human rights violation
and girls, where women and girls are kept alive for sexual abuse.26 As Von
Joeden-Forgey observes, ‘the subtle argument sometimes seems to be that
(civilian) men suffer the worst fate because they are so often targeted for
direct killing.’27 However, women and girls may be killed through slow-death
measures as time passes, sometimes years after the genocide.28 For example,
Hutu militia brutally raped women by introducing sharp objects, such as
broken glass, into their vaginas. Even if this treatment did not kill all of them,
it severely physically and mentally injured the survivors for the rest of their
lives.29 At other times, soldiers raped women to inflict them with HIV, an ulti-
mately lethal disease which women would transmit to their husbands and the
community at large.30 Of course, slow-death measures, such as the impalement
of the genitals of a young Tutsi girl who died of her injuries, can constitute
‘killing members of a group.’31 However, sexual violence which leaves women
alive may not be covered by ‘killing members of a group’ at the time of pros-
ecution. Since complications may happen later in life, it is thus important that
slow-death violence frequently targeting women and girls is covered by other
methods of genocide. Equally important, some women and girls’ resilience
and resistance contribute to their survival, an aspect which must be acknowl-
edged in methods of femicide.32
Causing serious bodily or mental harm
Even though the act of ‘causing serious bodily or mental harm’ is the paradig-
matic method used to adjudicate rape as genocide, on the face of it, it does not
include sexual violence. Before 1998, no international tribunal had envisioned
or interpreted sexual violence as a form of genocide. The many rapes of Jewish
women and girls in the Holocaust were largely ignored, possibly because Nazi
law prohibited sexual intercourse between those of Jewish origin and so-called
Arians. Testimonies by survivors suggest that sexual violence against and
26 Helen Fein, ‘Genocide and Gender: The Uses of Women and Group Destiny’
(1999) 1(1) Journal of Genocide Research 43–63 at 51.
27 Von Joeden-Forgey (n 23) 299.
28 Ibid., 303–304.
29 De Brouwer (n 23) 50.
30 International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Akayesu
(Judgment) ICTR-96-4-T (2 September 1998), para. 731; Prosecutor v. Krstic
(Judgment) ICTY-98-33 (2 August 2001), para. 513; UN Economic and Social Council,
Report on the Situation of Human Rights in Rwanda (29 January 1996) UN Doc E/
CN.4/1996/68, para. 20.
31 See Prosecutor v. Gacumbitsi (Judgment) ICTR-2001-64-T (17 June 2004),
paras 261 and 288.
32 Susan Harris Rimmer, Gender and Transitional Justice, The Women of East
Timor (Routledge 2010) 98.
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85
Femicide: Genocide by another name?
forced prostitution of female concentration camp internees was much more
common than commonly assumed.33
In Akayesu, the ICTR interpreted ‘causing serious bodily and mental harm’
to include rape as a genocidal act if perpetrated with the intent to destroy a pro-
tected group. While Akayesu did not rape the victims himself, he was a local
mayor with considerable influence over his community who facilitated and
encouraged the rape of Tutsi women and girls.34 The initial indictment included
charges of rape as a crime against humanity and a war crime, but no charges on
sexual violence as a means of genocide. Only when witnesses started testifying
about rape perpetrated by Hutu militias during the Rwandan genocide, did the
only female judge on the bench, Navanteheem Pillay, urge the Prosecutor to
amend the indictment to include rape in the genocide charges.35
The ICTR held that the repeated rapes of Tutsi women, often in public and
by several different perpetrators, constituted the prohibited genocidal act of
serious bodily and mental harm.36 One rape survivor witnessed her mother
begging one of the rapists to ‘kill her daughters rather than raping them in front
of her,’37 to which the perpetrator replied that ‘the principle was to make them
suffer.’38 The Trial Chamber concluded that the suffering inflicted on women
was ‘one of the worst ways of inflicting harm’ considering sexual violence
causes bodily and mental harm, noting that such harm went beyond individual
harm and targeted the destruction of the Tutsi group.39 Akayesu’s conviction
for rape as genocide was ground-breaking in recognizing harm to women and
girls as genocide.40
33 Rochelle Saidel, The Jewish Women of Ravensbrück Concentration Camp
(University of Wisconsin Press 2006) 213.
34 Akayesu (n 30) para. 693.
35 For discussions on Judge Pillay and other Judges’ roles, see Kelly Askin,
‘Prosecuting Wartime Rape and other Gender-Related Crimes under International
Law, Extraordinary Advances, Enduring Obstacles’ in Sari Kouvo and Zoe Pearson
(eds) Gender and International Law (Routledge 2014) 196; Hagay-Frey (n 6) 97; Alice
Edwards, Violence against Women under International Human Rights Law (Cambridge
University Press 2011) 105.
36 Akayesu (n 30) para. 731.
37 Ibid., paras 423 and 430.
38 Ibid.
39 Ibid., para. 731. See also Hilary Charlesworth and Christine Chinkin, The
Boundaries of International Law, a Feminist Analysis (Juris Publishing 2000) 318.
40 For other charges under ‘serious bodily and mental harm,’ see (rape of a girl by
the accused) Prosecutor v. Muhimana (Judgment) ICTR-95-1B (28 April 2005), para.
513; (rape of girls before killing them) Prosecutor v. Rutaganda (Appeals Judgment)
ICTR-96-3 (26 May 2003), paras 392 and 398.
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86 Conceptualizing femicide as a human rights violation
Subsequent ICTR and ICTY case law endorsed the inclusion of rape as
a form of genocide ‘causing serious bodily and mental harm.’41 For example,
in Prosecutor v. Krstic, the ICTY held that ‘inhuman treatment, torture, rape,
sexual abuse and deportation’ constitute ‘serious mental and bodily harm.’42
Moreover, the Tribunal found that serious bodily and mental harm ‘results
in a grave and long-term disadvantage to a person’s ability to lead a normal
and constructive life’43 and involves injuries that ‘go […] beyond temporary
unhappiness, embarrassment or humiliation.’44 The injury need not be ‘per-
manent and irremediable’ to amount to serious bodily and mental harm but it
‘must be assessed on a case by case basis and with due regard for the particular
circumstances.’45 In Prosecutor v. Gacumbitsi, the ICTR recognized that the
retaliatory rapes and sexual mutilation of eight women and girls, including one
pregnant woman who had previously refused to marry a Hutu man, caused
‘physical harm’ to the members of the Tutsi group and constituted the actus
reus of genocide.46 This method of serious bodily and mental harm has become
equated with rape instrumentalized for genocide.47
Despite this body of case law on sexual violence as genocidal acts, the
drafters of the Rome Statute replicated the ad hoc tribunals’ implicit language
of ‘causing serious bodily and mental harm,’ missing the opportunity to
include rape in the statutory language.48 Fortunately it is included at least in the
Elements of Crime (EoC), which state that ‘[serious bodily and mental harm]
may include, but is not necessarily restricted to, acts of torture, rape, sexual
violence or inhuman or degrading treatment.’49 This marginal recognition of
rape and sexual violence as forms of genocide in the Rome Statute neverthe-
less underestimates and obscures harm inflicted on women,50 enabling the
prosecution to exercise discretion when bringing rape charges.51
The statutory definition of genocide is clear: rape is only a method of geno-
cide when it is committed with the requisite intent to destroy a protected racial,
religious, ethnic, or national group. However, as feminist legal scholars have
41 E.g., Prosecutor v. Furundžija, IT-95-17/1 (10 December 1998), para. 172;
Prosecutor v. Musema (Appeals Judgment) ICTR-96-13 (16 November 2001), para.
156; Prosecutor v. Semanza, ICTR-97-20 (15 May 2003) paras 320–321.
42 Krstic (n 30) para. 513.
43 Ibid., paras 486 and 513. See also Akayesu (n 30) para. 731.
44 Krstic (n 30) para. 513.
45 Ibid.
46 Gacumbitsi (n 31) paras 215, 224 and 292–293.
47 Jarvis and Salgado (n 24) 118.
48 See Art. 6(b) Rome Statute.
49 Art. 6, ICC EoC, fn. 3.
50 See also Charlesworth and Chinkin (n 39) 321.
51 See Hagay-Frey (n 6) 95.
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87
Femicide: Genocide by another name?
argued, rape and sexual violence also attack women as women. MacKinnon
considers that women in genocide are raped both as members of an ethnic
group and based on their gender.52 The paradigmatic rapes during the Rwandan
genocide support MacKinnon’s view, as the targeted women were almost
exclusively of Tutsi ethnicity, while Hutu women were generally spared.53
A case in point: when a Hutu man found out that he had ‘mistakenly’ raped
a Hutu woman, believing her to be a Tutsi, he apologized to her.54 This suggests
that women were targeted because they belonged to the Tutsi ethnicity.55 In
addition to the destruction due to their ethnicity, certain instances of violence
demonstrate dominance over, contempt for and intent to terrorize women.56 In
one incident, ‘the accused, on a public road, ordered militia to undress the body
of a Tutsi woman who had just been shot dead, to fetch and sharpen a piece
of wood, which he then instructed them to insert into her genitalia. […] The
body of the woman, with the piece of wood protruding from it, was left on the
roadside for some three days thereafter.’57 In line with MacKinnon’s proposi-
tion, the ICTR thus exposed the contempt perpetrators held for, and their intent
to harm Tutsi women based on their gender as well as their Tutsi ‘ethnicity.’
Meanwhile, Copelon stresses that harm in genocide is mainly gendered.
She notes that genocidal rape (aimed at ethnic destruction) is mistakenly seen
as rating hierarchically higher than other typologies of rape, for example,
‘rape […] for domination, terror, booty, or revenge in Bosnia and [rape in and
outside armed conflict].’58 Thus, she considers that gendered aspects of rape
are at risk of being obfuscated by an overemphasis on ethnic rape in geno-
cide.59 Copelon emphasizes that ‘torture and rape in conflict situations have
too much in common with rape in the marital bedroom’ and that peacetime and
wartime rapes are therefore similar.60
52 Catharine MacKinnon, Are Women Human? And Other International Dialogues
(Harvard University Press 2007) 5–16 and 187.
53 Ibid.
54 Muhimana (n 40) paras 517–518.
55 Arsiné Grigoryan, ‘Severing the Next Generation: Sexual Violence in Genocide’
(2015) 3(2) Journal of Legal Issues 41–63; Akayesu (n 30) 732.
56 See MacKinnon (n 52) 5–16 and 187.
57 Prosecutor v. Niyitegeka (Judgment) ICTR-96-14-T (16 May 2003), para. 316.
58 Rhonda Copelon, ‘Surfacing Gender: Re-Engraving Crimes Against Women in
International Humanitarian Law’ (1994) 5(2) Hastings Women’s Law Journal 243–266
at 259.
59 Ibid., 246.
60 Rhonda Copelon, ‘Gender Crimes as War Crimes: Integrating Crimes against
Women into International Criminal Law’ (2000) 46 McGill Law Journal 217–240 at
239.
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88 Conceptualizing femicide as a human rights violation
The exposure of gendered harm to women is an objective of conceptualizing
femicide. While Copelon rightly considers that no hierarchy of severity should
be attributed on the basis of where the rape occurs, MacKinnon persuasively
shows that the persecution of women and girls is complexly influenced by
various factors, which can help us define the targeted group in femicide. I con-
sider that (1) gender is the predominant factor in femicide, with the caveat that
other factors, such as nationality, ethnicity, religion and race, influence the
violence experienced by women. For example, irrespective of their age and
socio-economic background, women and girls have been attacked in Ciudad
Juarez in Mexico. At the same time, immigration status, ethnicity, religion, and
other criteria have effect on the likelihood of women being attacked and the
kind of violence to which they are subjected.61 However, I also consider that
(2) in femicide, dominance over women is so pronounced that it forms part
of the group’s ideology, even where ethnicity and other factors play a crucial
role in how women and girls are attacked.62 Although Yazidi’s beliefs lie
at the heart of their persecution, the female Yazidi population is targeted in
distinctive ways: They are captured, inventoried, priced, sold, and sexually
enslaved at Islamic State in Iraq and Al-Sham (ISIS)’ slave markets.63 An ISIS
pamphlet accentuates ISIS’ ideology justifying the use of female Yazidi as
sexual slaves.64
Inflicting adverse life conditions
Another method by which the destruction of a protected group can be achieved,
is the steady extermination of a group through the imposition of adverse life
conditions.65 Through sexual violence and rape, forced marriage, enforced
abortion, and sexual slavery, perpetrators can inflict life conditions which
bring about a group’s physical destruction.66 This method, although unspecific
to women, could in principle capture the slow-death measures imposed on
women and girls, and their community. Having been raped, a girl may become
an outcast and deemed unfit for marriage, bringing shame to her family, which
61 See Rosa Fregoso and Cynthia Bejarano, ‘Introduction: A Cartography of
Femicide in the Americas’ in Rosa-Linda Fregoso and Cynthia Bejarano (eds),
Terrorizing Women, Feminicide in the Americas (Duke University Press 2010) 12.
62 See Messuti (n 7) 56.
63 Valeria Cetorelli and Sareta Ashraph, ‘Counting Mass Atrocity: A Demographic
Documentation of ISIS’s Attack on the Yazidi Village of Kocho’ LSE Blogs (5 July
2019), https:// blogs .lse .ac .uk/ mec/ 2019/ 07/ 05/ counting -mass -atrocity -a -demographic
-documentation -of -isiss -attack -on -the -yazidi -village -of -kocho/ .
64 See Mah-Rukh Ali, ‘ISIS and Propaganda: How ISIS Exploits Women’, Reuters
Institute Fellowship Paper (University of Oxford 2015) 19.
65 Akayesu (n 30) paras 505–506. See also Kress (n 1) 176.
66 Deller Ross (n 21) 407.
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89
Femicide: Genocide by another name?
may destroy her relationship with the larger community, leading to the group’s
gradual physical destruction.67 Physical injuries leading to infertility and ina-
bility to give birth along with the infection with diseases, such as HIV, concern
another facet of such slow-death measures.68 While this method of genocide
recognizes women’s plight, it remains dead letter because no court has applied
it. Had it been stronger worded, this method may have been conducive to the
recognition of acts of femicide.
Imposing measures to prevent birth
This method can be understood as attacks on a group’s members’ reproductive
function, which limits the group’s capacity to reproduce and sustain itself.69
Such examples include forced sterilization, forced birth control, forced preg-
nancy, forced abortion, or injury through rape.70 In the context of the holocaust,
women and girls were subjected to malnourishment and living conditions in
concentration camps, often causing their menstruations to stop, which had
long-term effects on their reproductive capacity in some instances.71 Survivors
from Ravensbrück concentration camp have testified to having been forced to
abort in the final stages of pregnancy.72 All pregnancies up to seven months
had to be terminated in the Terezin Ghetto, Adolf Eichmann, one of the
organizers of the holocaust, being held criminally responsible for his role in
imposing measures to prevent births by an Israeli court.73
Birth can also be prevented through psychological and physical means.
Rape can have a ‘chilling effect on the normative relations between a man and
a woman as the victims may be traumatized in such a way that they no longer
wish to procreate.’74 A physical way to prevent births is through the appropri-
ation of women and girl’s bodies. For example, Bosnian Muslim women were
raped until pregnant, which physically prevented them from giving birth to
their own ethnic group.75
67 Akayesu (n 30) para. 731; Krstic (n 30) para. 513.
68 Catharine MacKinnon, ‘Rape, Genocide and Women’s Human Rights’ (1994) 17
Harvard Women’s Law Journal 5–16 at 9; Akayesu (n 30) para. 508.
69 Fein (n 26) 43.
70 See Jonathan Short, ‘Sexual Violence as Genocide: The Developing Law of
the International Criminal Tribunals and the International Criminal Court’ (2003) 8
Michigan Journal of Race & Law 503–527 at 510. Akayesu (n 30) para. 508. See for
forced sterilization in a concentration camp, Saidel (n 33) 211.
71 Saidel (n 33) 210.
72 Ibid., 211.
73 Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of
Jerusalem) (1968) 36 ILR 5, para. 244.
74 Short (n 70) 509.
75 Akayesu (n 30) para. 507; Short (n 70) 510–514.
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90 Conceptualizing femicide as a human rights violation
Forcibly transferring children
The act of ‘forcibly transferring children’ to another group is a remnant and
sub-form of cultural genocide.76 Through the removal of children from the tar-
geted group and their transfer to another group, the children’s original culture
and language are susceptible to disappearance, while their physical existence
remains unaffected.77 Such a transfer of children effectively destroys the social
existence and cultural identity of a protected group.78 For example, the abduc-
tion and (sexual) enslavement of United States Native American children as
‘apprentices’ in American households, practiced until the 1880s, led to the
physical, mental, and economic destruction of many Native tribes.79
The psychological pressure to give up children may also be covered under
this provision. Footnote 5 of the ICC’s Elements of Crimes notes that ‘[t]he
term “forcibly” is not restricted to physical force, but may include threat of
force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power, against such person or persons
or another person, or by taking advantage of a coercive environment.’80 This
interpretation could imply the trafficking of girls as sex slaves. Finally, as de
Brouwer suggests, the forcible transfer of children is theoretically possible
through the rape of women who bear children belonging to the ethnic group
of the perpetrator,81 or the abduction of girls as child soldiers who are incorpo-
rated into the perpetrator’s group.82 This method signals that the ‘destruction’
in genocide is not always a bio-physical one, and sometimes resembles the
social subordination of groups in femicide.
Remarks
That sexual violence and rape amount to ‘serious bodily and mental harm,’ and
can constitute forms of genocide, is now well established.83 However, vague
statutory language may occasion the prosecution not to conduct a proper inves-
tigation or forgo a charge for rape crimes as genocidal methods. As Chinkin
pertinently indicates, ‘[ad hoc tribunals have] shown considerable sensitivity
to the situation of women, but they have been constrained by the language of
76 Cassese (n 15) 116–117.
77 Ibid., 117.
78 Ibid.
79 Lindsey Brendan, Murder State: California’s Native American Genocide
1846–1873 (University of Nebraska Press 2012) 193.
80 ICC EoC, fn. 5. See also Akayesu (n 30) para. 509; De Brouwer, Supranational
Criminal Prosecution (n 23) 59.
81 De Brouwer. ibid., 60.
82 Ibid.
83 Grigoryan (n 55) 63 and 50; Hagay-Frey (n 6) 131.
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91
Femicide: Genocide by another name?
their statutes.’84 Forced marriage and sexual slavery have not yet been charged
as forms of genocide; arguably present, these crimes could have been adjudi-
cated as methods of genocide akin to rape by the ICTR.85 De Brouwer point-
edly suggests amending the Rome Statute to list ‘rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity’ as genocidal methods.86 The absence
of these acts from international criminal tribunals’ statutes undermines the
perception of the criminal nature of crimes against women, as well as the moral
condemnation and deterrent effect attached to them.87 In their current form,
these methods of genocide are not adequate to reflect the experience of women
and girls in femicide.
PROTECTED GENDER GROUPS?
The Genocide Convention protects only ‘national, ethnical, racial or reli-
gious groups, as such;’ its text does not list gendered groups. The Genocide
Convention should be expanded to cover gendered groups, including
LGBT2Q+ groups, thereby responding to present-day reality and societal
contexts. I make an argument for doing so in the context of the crime of gen-
ocide, while cautioning that gendercide would only constitute another neutral
term which does not serve women’s interests. Three provisos make expansion
of the genocide definition a delicate concern. First, the scope of genocide has
remained unchanged from its inception and is therefore resistant to change.88
Second, known as ‘the crime of crimes,’ the crime of genocide is placed above
the level of crimes against humanity. Consequently, its group-destructive
violence must reach the highest threshold.89 The third limitation relates to the
conflation of the terms gender (referring to social constructs) and sex (referring
to biological differences) in Article 7(3) Rome Statute, which defines gender
as ‘the two sexes, male and female, within the context of society,’ framing
84 Charlesworth and Chinkin (n 39) 321.
85 See for discussions of forced marriage, Gacumbitsi (n 31) paras 224 and
292–293.
86 Daniela De Vito, Rape, Torture and Genocide, Some Theoretical Implications
(Nova Science Publishers 2011) 106–107; De Brouwer (n 23) 80.
87 See also De Brouwer, ‘Supranational Criminal Prosecution of Sexual Violence,’
in Jackie Jones et al. (eds.), Gender, Sexualities, and the Law (Routledge 2011)
204–205.
88 The crime of genocide codified customary international law, making States
reluctant to alter its conception. Grover (n 9) 274.
89 Ibid.
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92 Conceptualizing femicide as a human rights violation
gender as a biological issue, rather than a social construction.90 This ICL defi-
nition has been subject to criticism for arguably determining who belongs to
the protected gender group.91 The term gender should be broadly construed to
include persecution based on sexual orientation, gender identity, and similar
gendered groups for expansion to be effective.
Current Scope
To date, the treaty text expressly protects ‘national, ethnic, racial, and religious
groups’ from extermination, protection which ICL scholars consider to be
limited to these four groups.92 Objectively defined, a national group is com-
posed of individuals who ‘share a legal bond based on common citizenship’––
women and girls may in some societies be legally excluded from citizenship.93
The ‘racial’ group’s characterization ‘based on the hereditary physical traits’
is problematic; taken analogously, it would concern women and girls’ bio-
logical sex, an excessively restrictive notion.94 The identification of groups
as racial was the basis for Nazi Germany’s persecution of peoples unrelated
to the Germans—such as the Poles, Slovenes, and Serbs—95 and the extermi-
nation of peoples—such as the Jewish and Roma people—deemed racially
inferior to Aryans—such as the Germans, Dutch, Norwegians, Flemings, and
Luxembourgers.96 By contrast, an interpretation of ethnic groups as generally
90 Valerie Oosterveld, ‘The Definition of “Gender” in the Rome Statute of the
International Criminal Court: A Step Forward or Back for International Criminal
Justice?’ (2005) 18 Harvard Human Rights Journal 56–82 at 71.
91 See Valerie Oosterveld, ‘Gender-based Crimes Against Humanity’ in Leila
Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge
University Press 2011) 96.
92 Werle contends that the Genocide Convention’s history does not suggest that
other groups should be encompassed, since the crime was limited to the four stable
groups. Gerhard Werle and Florian Jessberger, Principles of International Criminal
Law (Oxford University Press 2014) 301–302; Douglas Guilfoyle, International
Criminal Law (Oxford University Press 2016) 274; Cassese (n 15) 120. See also Krstic
(n 30) paras 6–8; Prosecutor v. Bashir (Decision on the Prosecution’s Application
for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 (4
March 2009), paras 134–137.
93 Akayesu (n 30) para. 510, referring to Liechtenstein v. Guatemala (Nottebohm)
(Judgment) ICJ Reports 1955, para. 22.
94 See Akayesu (n 30) 514.
95 Lemkin (n 10) 81–82.
96 Arguably, the encouragement of Nazis to procreate with Dutch and Norwegian
women to expand the German race within States under German control constitutes rape
as genocide. Lemkin (n 10) 86–87.
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Femicide: Genocide by another name?
consisting of a collection of people who share the same culture and language,97
could serve as a model for understanding the groups targeted in femicide, as
‘ethnicity is by [its] very nature [a] social construct[].’98 This indicates that
social groups such as those characterized by their gender in femicide, could
be protected under ICL. Finally, a religious group shares a ‘denomination
or mode of worship [or] common beliefs,’ which cannot be comparable to
a gender group.99 These definitions are tools to objectively determine mem-
bership in minority groups.100 Obviously, protection is awarded to women and
girls solely insofar they belong to one of the four protected groups.
Moreover, membership in an objectively defined protected national, ethnic,
religious, or racial group is also determined by the perpetrators’ subjective
view. Only if perpetrators perceive persons as belonging to a protected group
and, on the basis of this belief, target individuals and members of said group,
they are responsible for the commission of acts of genocide. The subjec-
tive criterion covers genocidal acts based on discriminatory views against
a segment of the population, such as individuals with a common heritage, and
other national minorities which would more tenuously classify as a national,
ethnic, religious, or racial group.101 For example, perpetrators may perceive
an individual of Christian faith to have a particular trait, such as their Jewish
heritage, although it may not (or no longer) objectively exist. What constitutes
a group in some cases may depend on the perpetrators’ subjective perceptions
vis-à-vis the groups they intend to destroy.102 Transposing this reasoning to
protected female groups means that, although an individual could self-identify
as a member of a protected female group, the perpetrator must view the
individual as a woman for her to be stigmatized and persecuted based on her
membership to the protected group.103 The perpetrator’s subjective view must
match one of the four protected groups to fall under the restrictive protection of
the Genocide Convention.104 The four protected groups insufficiently consider
the perpetrators’ imaginative criminal minds, which may include subjective
misconceptions about a group which they intend to exterminate, beyond these
97 Akayesu (n 30) para. 513.
98 UN International Commission of Inquiry, Report of the International Commission
of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security
Council Resolution 1564 (25 January 2005), para. 499.
99 Ibid.; Werle and Jessberger (n 92) 802.
100 Krstic (n 30) para. 556.
101 See Gacumbitsi (n 31) para. 254; Krstic (n 30) paras 559–560; Hagay-Frey (n 6)
130.
102 Hagay-Frey, ibid.
103 Cf. Guilfoyle (n 92) 275.
104 Kress (n 1).
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94 Conceptualizing femicide as a human rights violation
groups’ objective classifications. With this in mind, I must examine to what
extent the genocide definition can be broadened.
Expanding Protection
Some precedents signal that expansion of the genocide definition to recognize
gender groups may be feasible.105 The 1951 Refugee Convention relating to
the Status of Refugees has been interpreted to allow asylum seekers to receive
refugee status based on claims relating to gender persecution.106 Even the Rome
Statute offers protection from persecution based on gender, albeit as a crime
against humanity.107 At the domestic level, the Uruguayan criminal code
expanded its anti-genocide legislation to include ‘a group with its own identity
based on reasons of gender, sexual orientation, cultural and/or social values,
age, and disability or health.’108 With these precedents in mind, I explore two
avenues to expand protection of the crime of genocide. This endeavor should
be understood as part of the efforts to make international crimes applicable to
femicide. Obviously, caution is warranted when reinterpreting the crime of
genocide, and the addressed stipulations to such an attempt must be kept in
mind.
Applying the Vienna Convention on the Law of Treaties (VCLT), which
governs the interpretation of treaties in international law, supplemented by
practical feminist legal reasoning, the definition of genocide could cover
groups which do not fall under the umbrella of national, ethnic, religious,
or racial groups.109 I use feminist practical legal reasoning to argue for the
inclusion of gendered groups in the genocide framework, based on a changed
105 Hagay-Frey (n 6) 128.
106 Art. 1(A)(2) Convention Relating to the Status of Refugees (adopted 28
July 1951, entered into force 22 April 1954); UNHCR, Guidelines on International
Protection: Gender-Related Persecution within the context of Art. 1A (2) of the 1951
Convention and/or its 1967 Protocol relating to the Status of Refugees Guidelines on
gender-based persecution (7 May 2002) UN Doc HCR/GIP/02/01 [hereinafter UNHCR
Guidelines].
107 Art. 7(3) Rome Statute.
108 Art. 16 Law No 18.026 (2006) de Cooperación con la Corte Penal Internacional
en Materia de Lucha contra el Genocidio, los Crimenes de Guerra y de Lesa Humanidad
[unofficial translation by the author].
109 Another qualification must be addressed: Akande argues that the general rules of
interpretation outlined in the VCTL are restricted with regard to international criminal
law treaties by principles of criminal law, such as in dubio pro reo, according to which
criminal conduct must be interpreted in favor of the accused. Dapo Akande, ‘Treaty
Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller and Dov
Jacobs’ EJIL: Talk! (25 August 2013), www .ejiltalk .org/ treaty -interpretation -the -vclt
-and -the -icc -statute -a -response -to -kevin -jon -heller -dov -jacobs/ .
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Femicide: Genocide by another name?
socio-cultural context.110 In doing so, I shed light on women’s present inter-
ests and take account of their historic subordination.111 With this method,
I attempt to detect and be attentive to injustices which would not otherwise be
revealed by considering factors like the history of a provision, and the legal
and social contexts in which a rule is implemented.112 Although the treaty text
enumerates national, ethnic, religious, and racial entities as protected groups,
the object and purpose of the Genocide Convention suggests that other groups
may be protected. Considering the preparatory work and the circumstances of
conclusion, the meaning of protected groups is at least unclear, if not absurd
and unreasonable. Given the social context in the drafting phase, the drafters
left out the issue of ‘gender.’ The protection of gendered groups under the
Genocide Convention in todays’ societal context appears justified.
As provided in Article 31 VCLT, treaties must be interpreted ‘in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose.’ The treaty text
expressly protects ‘national, ethnic, racial, and religious groups’ from extermi-
nation.113 However, the object and purpose of the Genocide Convention prin-
cipally supports the protection of gender groups. As the International Court of
Justice (ICJ)’s Advisory Opinion suggests in Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide, the object and
purpose is to protect the ‘very existence of certain human groups and […]
to confirm and endorse the most elementary principles of morality.’114 The
Preamble confirms that ‘genocide has inflicted great losses on humanity’ and
that international cooperation is required ‘to liberate mankind from such an
odious scourge.’115 Even though the emphasis is placed on nations, the object
and purpose are the protection of entities which characterize humankind.116
That the protection of humanity is limited to only four groups appears rather
absurd in terms of Article 32 VCLT. At the very least, considering the terms
of the treaty, the four protected groups and the aim of protection seem incon-
sistent with each other.
110 Katharine Bartlett, ‘Feminist Legal Methods’ (1990) 104(4) Harvard Law
Review 828–888 at 855.
111 Ibid., 861–862.
112 Ibid., 851–853.
113 Guilfoyle (n 92) 274; Cassese (n 15) 120; Werle and Jessberger (n 92) 301–302;
Krstic (n 30) paras 6–8.
114 Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide, Advisory Opinion, ICJ Reports 1951.
115 Preamble Genocide Convention.
116 Lemkin (n 10) 79.
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96 Conceptualizing femicide as a human rights violation
According to Article 32 VCLT:
[r]ecourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of Article 31, or to deter-
mine the meaning when the interpretation according to Article 31: (a) leaves the
meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd
or unreasonable.
An examination of the preparatory work reveals that an understanding of
gendered groups meriting protection was inexistent in the historical context.
The Nazi regime systematically persecuted homosexuals.117 Once liberated
from the concentration camps, their sexual orientation was still considered
a crime. The persecution based on gendered grounds went unaddressed by
the International Military Tribunal, and little concern was expressed for those
persecuted based on their sexual orientation.118 In this historical context, it is
unsurprising that drafters of the Genocide Convention in 1948 were silent on
questions of sex and gender, sexual orientation and gender identity.
However, the ICTR found that the drafters intended the list of protected
groups to include other ‘permanent and stable’ groups.119 The ICTR examined
whether the Tutsi group could be classified as a protected group since the Tutsi
are not ethnically distinct from the Hutu group. The Tutsi separation from
the Hutu is based on socially ascribed differences introduced and reinforced
by colonists who divided the two groups through the distribution of ethnicity
cards.120 As the Tutsi did not fit the legal umbrella of protected ‘religious,
racial, national, or ethnic’ groups, the ICTR pondered ‘whether it would be
impossible to punish the physical destruction of a group as such under the
Genocide Convention, if the said group, although stable and membership is
by birth, does not meet the definition of any one of the four groups expressly
protected by the Genocide Convention.’121 Considering the drafters intended to
exclude mobile political, cultural and economic unions, in which membership
could change easily,122 the ICTR found that ‘the Tutsi did indeed constitute
117 Alycia Feindel, ‘Reconciling Sexual Orientation: Creating a Definition of
Genocide that includes Sexual Orientation’ (2005) 13 Michigan State Journal of
International Law 197–225 at 197.
118 For further discussion, see ibid.
119 Werle and Jessberger (n 92) 293.
120 Angela Hefti and Laura Ausserladscheider Jonas, ‘From Hate Speech to
Incitement to Genocide: The Role of the Media in the Rwandan Genocide’ (2020) 38
Boston University International Law Journal 2–37 at 5.
121 Akayesu (n 30) paras 516 and 701–702.
122 Ibid., para. 511; Cassese (n 15) 119.
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97
Femicide: Genocide by another name?
a stable and permanent group and were identified as such by all.’123 Subsequent
ICTR and ICTY case law relied, even if not exclusively, on the permanency
requirement.124 A group of women and girls targeted in femicide has the inner
stability and cohesion ascribed to national, racial, or religious groups, although
the permanency requirement may need to be revisited as gender (like ethnicity)
is socially constructed and may change over time. Accordingly, women and
girls could constitute a social group, similar to the Tutsi social group.125 In
this vein, the Darfur Commission also recognized that social groups might be
protected from genocide.126
Apart from the examination of preparatory work, the ‘circumstances of
conclusion’127— i.e., the mind-set of the drafters—demonstrate why groups
based on gender should receive protection more than 60 years after the adop-
tion of the Genocide Convention.128 In 1948, the drafters of the Genocide
Convention were male, women not yet enfranchised at that time in many parts
of the world.129 The protection of groups based on gender had not yet occurred
in international law. In fact, women’s rights are still relatively new concepts
in international law: The Convention on the Elimination of Discrimination
Against Women was adopted in 1979, and the concepts of gender and recog-
nition of persecution based on gender (as a crime against humanity) were only
introduced in the Rome Statute in 1998.130 Some years after the adoption of the
Rome Statute, specialized regional human rights treaties entered into force: the
Maputo Protocol (2003), the Istanbul Convention (2011), and the Convention
of Belém do Pará (1994).131 This new landscape recognizing women’s rights
123 Akayesu (n 30) para. 702.
124 William Schabas, The International Criminal Court: A Commentary on the
Rome Statute, 2nd edition (Oxford University Press 2016) 129; Berster (n 16) 100;
Werle and Jessberger (n 92) 300.
125 See Akayesu (n 30) paras 516 and 701–702.
126 Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General, Pursuant to Security Council Resolution 1564 (25 January
2005), para. 499.
127 Art. 32 VCLT.
128 Ibid.
129 See Matthew Lippmann, ‘The Drafting of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide’ (1985) 3(1) Boston University International
Law Journal 1–65; See also William Schabas, ‘Introductory Note, Convention on the
Prevention and Punishment of the Crime of Genocide’ United Nations Audiovisual
Library of International Law (July 2008), https:// legal .un .org/ avl/ ha/ cppcg/ cppcg .html.
130 Art. 7(g) Rome Statute. See Hagay-Frey (n 6) 131.
131 Council of Europe’s Convention on Preventing and Combating Violence against
Women and Domestic Violence (Istanbul Convention) (adopted 7 April 2011, entered
into force 1 August 2014); Inter-American Convention on the Prevention, Punishment
and Eradication of Violence Against Women (Belém do Pará Convention) (adopted 9
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98 Conceptualizing femicide as a human rights violation
makes the inclusion of a gendered group practical and necessary in the contem-
porary context. To the extent that the intent to destroy required by the genocide
definition can extend to a women’s group, it should therefore be protected
from the crime of genocide.
Alternatively, the customary law scope of the crime of genocide is arguably
broader than the treaty-based definition. Along these lines, in Vasiliauskas v.
Lithuania, the ECtHR indicated that the scope of the customary international
law (CIL) definition of genocide is expansive.132 The United Nations General
Assembly (UNGA) Resolution 96 lists ‘racial, religious, political and other
groups’ as protected under the genocide convention. In this vein, social groups,
such as women and girls’ groups, could (arguably) be protected under the
genocide definition as some domestic criminal laws protect other groups from
genocide.133 In order to adequately protect women and girls, the scope of the
protected groups could also be reinterpreted based on this broader perception
under CIL.
Gendercide
Even assuming that a gender group is protected analogously to racial, ethnic,
religious or national groups, such ostensibly equal protection from gendercide
would imperfectly represent the widespread violence women suffer in femi-
cide.134 Warren, who conceived the term gendercide in relation to sex-selective
killings of female infants, considers it a neutral term because ‘[t]here is a need
for such a sex-neutral term, since sexually discriminatory killing is just as
wrong when the victims happen to be male.’135 While generally valid, this state-
ment conflicts with the way Warren uses the term to relate to female-specific
forms of killings which she acknowledges to be rooted in historical inequality
and a social system which men have ruled for centuries.136 This asymmetric
injustice affecting women and girls is what the term ‘femicide’ intends to
capture. The term gendercide is susceptible to advancing and maintaining
a male-controlled structure of society which disregards and undervalues the
June 1994, entered into force 3 May 1995); Additional Protocol to African Charter on
Human and Peoples’ Rights (Maputo Protocol) (adopted 27 June 1981, entered into
force 21 October 1986) (1982) 21 ILM 58.
132 ECtHR, Vasiliauskas v. Lithuania, App No 35343/05 (20 October 2015), paras
171–175.
133 UNGA Resolution on Genocide; Uruguay, Amendment to the Criminal Code No
18026 (2006), http:// www .impo .com .uy/ bases/ leyes/ 18026 -2006 %20.
134 Warren (n 6) 12–19 and 22.
135 Ibid., 22.
136 Ibid., 22–23.
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Femicide: Genocide by another name?
systemic violence which has affected women for centuries. This is evidenced
in Jones’ misuse of the supposedly neutral term gendercide to re-center on and
reflect men’s experiences during genocidal violence, e.g., mass executions of
men and boys in Srebrenica.137 Jones argues that, because they are men and
boys, male members of the populations are killed disproportionately, thereby
equating gendercide with male-selective killings.138 This conceals women’s
experience of rape and subsequent death in Srebrenica, removing them
from the term’s protection. Jones’ framing of gendercide is a way to refocus
on men’s experience in genocide, potentially excluding women and other
groups.139 However, the specific harm men suffer in genocide which needs
scholarly attention, is sexual violence perpetrated to humiliate men and target
their sense of masculinity rather than their killing, which is already recognized
under the crime of genocide.140
Moreover, both Warren and Jones see killings as the paradigmatic form of
gendercide. Warren is primarily concerned with the killings of female foetuses
and new-born babies, and girls.141 Rape and sexual violence, often committed
against women, are neglected. From a feminist legal perspective, harm to
women must be clearly labelled to include the distinct human rights violations
against women which have been neglected in the language of international
law.142 The prefix fem~ in femicide is precise in identifying the victims of this
type of gender-based violence as women and girls.143 The identification of the
specific harm in femicide enables States to better understand and respond to
such violence.144
137 Jones (n 25) 8–9.
138 Ibid.
139 Ibid., 25–27.
140 Christine Chinkin, ‘Key Issues in Times of Armed Conflict’ in Andrew Clapham
and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict
(Oxford University Press 2014) 696.
141 Warren (n 6) 24.
142 Jackie Jones, ‘The Importance of International Law and Institutions’ in Jackie
Jones and Rashida Manjoo (eds), The Legal Protection of Women from Violence
(Routledge 2018) 11; MacKinnon (n 52) 43; Messuti (n 7) 52.
143 Fregoso and Bejarano (n 61) 9.
144 See Jones (n 142) 11.
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100 Conceptualizing femicide as a human rights violation
A GROUP’S DESTRUCTION
Physical Destruction: Genocide
The physical destruction of an entire group must be intended (‘intent to
destroy’) by the perpetrator of the crime of genocide.145 The ICTR has inferred
intent to destroy from how a group is attacked—i.e., the words used to describe
the adverse group—e.g., the description of Tutsis as ‘cockroaches’ or ‘dirt.’146
Similarly, the means by which women and girls are attacked in genocide
reveals something about the objective in femicide. In Akayesu, the ICTR Trial
Chamber recognized that ‘acts of rape and sexual violence, […] reflected the
determination to make Tutsi women suffer […], the intent being to destroy the
Tutsi group while inflicting acute suffering on its members in the process.’147
Women were raped near mass graves where they would later be buried.
Peasants could ‘borrow’ captured women and rape them after promising to
kill them in return.148 As MacKinnon states regarding the conflict in the former
Yugoslavia, ‘first they rape them, then they kill them, and then sometimes rape
them again and cut off their breasts and tear out their wombs.’149 Therefore, the
rapes, with the intention to kill, included a misogynist aspect.150
The objective of genocide is ‘the destruction of essential foundations of the
life of [a] national group [],’ and the reduction of its number until the group is
annihilated.151 This destruction refers to the biological-physical extermination
and elimination of an entire group. This consequence must be intended by
the perpetrators but they need not be successful at destroying the group in its
entirety.152 It is sufficient that the perpetrator intends to partially destroy a pro-
tected group, whereby the destruction of a ‘substantial portion of the group’ is
required.153 A group is substantial enough when the destruction of a group has
significant consequences for humanity, such as those inspired by mass atroc-
ities perpetrated by the Nazi regime.154 The killings of 8,000 Bosnian Muslim
145 The required intent must relate to, on the one hand, the forms of genocide, and,
on the other hand, the consequences of genocide—i.e., the group’s destruction in whole
or in part. Cassese (n 15) 119 and 123–124.
146 See Gacumbitsi (n 31) para. 259.
147 Akayesu (n 30) para. 733.
148 Ibid., paras 498 and 733.
149 MacKinnon (n 52) 187.
150 See Kate Manne, Down Girl: The Logic of Misogyny (Oxford University Press
2017) 71. See Hagay-Frey (n 6) 135.
151 Lemkin (n 10) 79–80.
152 Ibid., 80; Berster (n 16) 80.
153 Krstic (n 30) para. 12. See Schabas (n 124) 144–148.
154 Berster (n 16) 100.
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101
Femicide: Genocide by another name?
men and boys by Bosnian Serb forces were sufficient to be considered a geno-
cide due to their impact on the strategically important location of Srebrenica.155
The perpetrators of genocide often attack women and girls in different ways
to achieve the physical destruction of a protected group. In Akayesu, the ICTR
Trial Chamber focused on the ethnic nature of rape and reasoned that rape
was an ethnic attack which aimed at destroying the Tutsi group since mostly
Tutsi women were raped. As such, the rapes of Tutsi women were ‘a step in
the process of destruction of the Tutsi group—destruction of the spirit, of the
will to live, and of life itself.’156 Gender-specific genocidal acts ‘specifically
target[ed] Tutsi women and specifically contribute[ed] to their destruction and
to the destruction of the Tutsi group as a whole.’157 Akayesu is often praised for
its recognition of ethnic rape as genocide, but it did not flesh out why women
were raped as part of the female social group. The ICTR barely addressed
women’s roles as ‘sexual objects’ despite some of the evidence to this effect:
‘Alexia, […] and her two nieces, were forced by the Interahamwe to undress
and ordered to run and do exercises “in order to display the thighs of Tutsi
women.” The Interahamwe who raped Alexia said, as he threw her on the
ground and got on top of her, “let us now see what the vagina of a Tutsi woman
tastes like.”’158 These experiences of women and girls reveal the cruelty and
unnecessary harm by which Tutsi women and girls were effectively degraded,
objectified, and terrorized. The ICTR failed to discuss harm inflicted on
women and girls in detail, likely because it viewed their ethnicity as the driving
factor behind it.
Social Destruction: Femicide
Contrary to the group’s physical destruction in genocide, the subordination of
women and girls in the patriarchal social order is the objective in femicide.159
The foot binding mutilation which is practiced in some countries, relegates
women and girls to the domestic and private sphere.160 FGM subordinates
women’s pleasure to that of men, serving to control their sexuality.161 Forced
155 Schabas (n 124) 128.
156 Akayesu (n 30) para. 731.
157 Ibid.
158 Ibid., para. 732.
159 See Messuti (n 7) 50–51; Mercedes Oliveira, ‘Violencia Feminicida: Violence
Against Women and Mexico’s Structural Crisis,’ in Rosa-Linda Fregoso and Cynthia
Bejarano (eds), Terrorizing Women, Feminicide in the Americas (Duke University
Press 2010) 51.
160 Dworkin (n 6) 95–148.
161 Deller Ross (n 21) 470.
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102 Conceptualizing femicide as a human rights violation
marriage of abducted schoolgirls in Nigeria not only deprived them of an
education, but it also made these girls socially and economically dependent on
their oppressors.162 These are serious acts of violence, yet they do not neces-
sarily reduce the number of women and girls. Rather, they relegate the female
social group to certain social spheres and degrade them.163 Of course, women
and girls are sometimes killed in femicide. However, these killings ensure the
continuance of the social order. For example, families may kill infants and girls
over dowry disputes and other costs in raising girls. Such killings are a sign of
the female social group’s inferior place in society.164 Destruction in femicide
can thus be understood in terms of women and girls’ social destruction.165 The
genocidal technique of ‘the transfer of children to another group’ could be seen
as such, as it destroys the children’s group’s culture and societal links.
Female social groups are not eliminated for two main reasons. First, men
(and mankind) still depend on women’s existence. As Dworkin argues,
‘[t]hat women have not been exterminated and will not be (at least until the
technology of creating life in the laboratory is perfected) can be attributed
to our presumed ability to bear children.’166 De Beauvoir further elaborates
that women and men form a reproductive unit, whereby destruction of either
one of the groups would be counterproductive to the continued existence
of humanity. For biological reasons, therefore, humanity is contingent on
women’s existence in order to thrive and to procreate.167 Second, since women
are scattered among different family units, they are unlikely to be all killed.168
A women’s group is hard to delineate as such a group would lack cohesion in
historic background––apart from their prevalent discrimination––religion, or
other common features––other than their sex/gender. Generally, women do not
form a minority, unlike other oppressed and persecuted groups such as African
Americans, Native Americans, and Jewish people.169
162 Of course, some nuances can be applied. Boko Haram does not allow women
and girls to farm land, as a result of which some women felt empowered, ‘only’ having
to perform work at home. Hilary Matfess, Women and the War on Boko Haram (Zed
Books 2017) 112–113.
163 Alex Alvarez, Genocidal Crimes (Routledge 2010) 26.
164 Warren (n 6) 24.
165 Martha Nussbaum, ‘Objectification’ (1995) 24(4) Philosophy and Public Affairs
249–291 at 257.
166 Dworkin (n 6) 93.
167 Simone De Beauvoir, The Second Sex (Vintage Books 2011) 8–9, 21 and 89.
168 Ibid., 8.
169 Ibid.
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Femicide: Genocide by another name?
CONCLUDING REMARKS
The current definition of genocide is inadequate to respond to femicide, since
the list of genocidal acts is limited with only national, ethnic, religious, and
racial groups being protected. Among the methods of addressing genocide, the
statutory language ‘serious bodily and mental harm’ covers sexual violence
and rape implicitly.170 As women and girls frequently suffer sexual slavery,
rape, and other slow-death measures, it is crucial that such acts are recognized
under the crime of genocide. The group dimension of genocide would serve to
assert that a female social group can be protected under femicide. By means of
feminist legal reasoning, the scope of the protected groups could be expanded,
even if this interpretation has its limits. The term gendercide reinforces men
and boys’ experiences, while inadequately covering women and girls’ groups
which would benefit from the more explicit notion of femicide.171 Finally, the
aspect of destruction in the crime of genocide is useful to conceptualize femi-
cide in human rights law. Contrary to the physical destruction envisioned in the
crime of genocide, in femicide, the destruction should be interpreted as social
destruction, i.e., as degradation, humiliation, or subordination. These attacks
against women and girls are committed not for purposes of exterminating
them, but rather to control and dominate the female social group. Overall, the
architecture of the crime of genocide, including the forms, aims, and its focus
on groups could be used to inspire a human rights concept of femicide.
170 Kimberly Carson, ‘Reconsidering the Theoretical Accuracy and Prosecutorial
Effectiveness of International Tribunals’ Ad Hoc Approaches to Conceptualizing
Crimes of Sexual Violence as War Crimes, Crimes Against Humanity, and Acts of
Genocide’ (2012) 39 Fordham Urban Law Journal 1249–1300 at 1293; De Brouwer (n
87) 204.
171 No aspect of this chapter should be construed to limit the inclusion of gender
groups to the protected groups in genocide.
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