From Myanmar to The Hague : a feminist perspective on the search for gender justice by Rohingya women before the International Criminal Court

Abstract

Sexual and gender-based violence during conflict remains a widespread issue, with women and girls being particularly vulnerable. Since its establishment, the International Criminal Court (ICC) has prioritized the prosecution of sexual violence through some successful groundbreaking judgments. However, it has also received harsh criticism due its failure to incorporate an intersectional perspective into its jurisprudence. While the Office of the Prosecutor has committed itself to incorporating intersectionality in its prosecutions in its 2014 Policy Paper, it has yet to deliver an intersectional analysis in one of its rulings. The recent authorization from the Pre-Trial Chamber to proceed with an investigation for the alleged crimes perpetrated against the Rohingya community in Myanmar could provide such an occasion. While the ethnic minority is suffering from gross human rights violations, rape is systematically being used against Rohingya women. In light of these considerations, this thesis seeks to analyze how an intersectional approach could assist the ICC in analyzing and addressing the sexual violence suffered by Rohingya women. To achieve this, an historical overview of the prosecution of sexual violence before International Criminal Tribunals was provided, together with the main criticisms regarding their track records. Secondly, the theory of intersectionality was presented and analyzed in the context of anti-discrimination law, international human rights law (hereinafter: IHRL) and international criminal law (hereinafter: ICL). Finally, the theory of intersectionality was applied to the case study of Rohingya women in light of the possible claims of genocide and crimes against humanity they could bring before the Court. On one hand, the analysis has demonstrated that an intersectional approach can indeed help the ICC put emphasis on the gravity of the violence suffered by the victims as well as the systematic and organized nature of such attacks. On the other hand, there is a risk that Rohingya women will be further stereotyped or that the violence suffered by those who do not fit within the model of victim will be left unpunished.