Some say the law / ought not to bend. // That it should be a neutral, / certain thing. // But there are reasons / judgement and interpretation / are bequeathed / to human / – humane – / hearts, and heads.

– Excerpt from The Hope of a Thousand Small Lights, Maxine Beneba Clarke

On January 23 2025, the International Criminal Court’s (ICC) chief prosecutor applied for arrest warrants for the Taliban’s supreme leader and Afghanistan’s chief justice, charging them with the persecution of women, a crime against humanity. It was a long overdue decision.

These arrest warrants, said Amnesty International, gave

hope, inside and outside the country to Afghan women, girls, as well as those persecuted on the basis of gender identity or expression.

And hope in justice is important.

The ICC is a Hague-based court with the power to prosecute war crimes, crimes against humanity and genocide. Today, it explicitly recognises sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and gender-based persecution as distinct crimes.

But the recognition of gender-based abuses as distinct crimes under international law is relatively recent. The ICC has been widely criticised for its slow and lengthy processes, with an abysmal rate of convictions.

Review: Feminist Judgments: Reimagining the International Criminal Court – edited by Kcasey McLoughlin, Rosemary Grey, Louise Chappell & Suzanne Varrall (Cambridge University Press)

In its 23-year history of operation, only 11 ICC cases have resulted in convictions. Just two of those, relating to crimes in Congo and Uganda, included successful convictions for sexual and gender-based crimes.

What would it take for more of these cases to result in successful prosecutions of gender-based crimes? What would be required to bring “gender-sensitive judging” into practice? And might it be possible to imagine a world where laws are written with a specific focus on benefiting women and people of diverse genders?

These are some of the questions the feminist judgment “movement” seeks to answer. In this movement, scholars and practitioners rewrite judgments in decided cases from a feminist perspective.

A new book, Feminist Judgments: Reimagining the International Criminal Court, brings together nearly 50 authors, of all genders, from the Global North and Global South. In this collection, edited by Australian legal scholars Kcasey McLoughlin, Rosemary Grey, Louise Chappell and Suzanne Varrall, academics, advocates, and legal practitioners “re-envision a range of judgements” delivered at the ICC.

Similar projects conducted around the world have rewritten feminist judgments from courts in the United Kingdom, Ireland, Scotland, New Zealand, Canada, United States, Australia and India. But this is the first book to examine decisions made by ICC judges; decisions that carry “far-reaching consequences”.

The ICC holds prosecutorial authority in over 120 countries. The court’s rulings also, as the editors write, serve “as persuasive precedents in other international, regional, and national criminal courts”.

Alternative judgments

Contributors address nine ICC situations in Afghanistan, Myanmar/Bangladesh, the Central African Republic, the Democratic Republic of Congo, Cote d'Ivoire, Mali, Sudan and Uganda. Because ICC cases are so large, each rewritten decision focuses on a single issue of law, fact or procedure addressed in the original decision.

For example, Suzanne Varrall and Sarah Williams rewrite the acquittal of former Congolese vice president and militia leader Jean Pierre Bemba Gombo by the ICC Appeals Chamber. Bemba’s was the ICC’s first case to include charges and a conviction for sexual violence. It was overturned on appeal in 2018.

The authors argue the court should factor in sexual and gender-based violence when interpreting and applying the doctrine of command responsibility, or a commander’s responsibility to prevent violations of international humanitarian law by their troops.

Most sexual and gender-based violence in conflict affects women and girls. But in applying a gender-sensitive approach, Varrall and Williams remind us, judges would also challenge traditional views of gender roles such as the idea that all men are combatants. Civilian men and boys can also be victims.

Currently, 50% of judges at the ICC are women but having women judges does not automatically mean they hold feminist perspectives, or possess a specific gender expertise. The ICC Prosecutor’s Office has published a comprehensive gender policy and appointed gender advisors as a part of a commitment to support gender justice and improve its track record in prosecuting gender-based crimes.

One of the major themes emerging from this collection is the need for judges to make decisions informed by the lived experiences of those affected by international crimes. Survivors’ experiences are not only to be heard, but listened to “with particular care”, as eminent international jurist Navi Pillay reminds us in her foreword.

Pillay, a former judge of the International Criminal Tribunal for Rwanda and the ICC, was the judge in the 1998 Akayesu case, the world’s first case confirming sexual violence can be an act of genocide.

The case brought against a former village mayor in Rwanda, Jean-Paul Akayesu, achieved some justice for an estimated 250,000-500,000 women and girls raped in the 1994 Rwandan genocide. While listening to the testimony of witness “JJ” in the case, Pillay became convinced that the traditional “body penetration” definition of rape was not appropriate in the context of mass rapes during war.

In such contexts, rape is never “just penetration” of the body itself. It becomes a calculated act of cruelty, a combination of humiliation, degradation, public nudity and the unbearable pain of having one’s children witness the abuse of their mother. Rape in the context of mass atrocity morphs into a destruction of the spirit and of the will to live, leaving a lifelong scar.

Feminist judgments can have an impact. A minority opinion, for instance, may one day become the prevailing orthodoxy. Feminist judgments are an exercise in consciousness-raising, primarily designed to educate and transform legal discourse.

This collection goes beyond traditional legal analysis by incorporating photography and poetry, including Beneba Clarke’s The Hope of a Thousand Small Lights. It recognises justice can have many different meanings; that it can be symbolic too, and still profoundly meaningful to victims.

Political constraints

Rewritten judgments in this collection offer clear guidance for ICC courts on how to advance gender-sensitive jurisprudence in cases of atrocity. But the ICC faces political constraints, including attacks on its authority from the Trump administration.

In November 2024, the court issued warrants of arrest for the now deceased Hamas leader, Mohammed Diab Ibrahim Al-Masri, allegedly responsible for the October 2023 attacks in Israel. These charges, withdrawn after his death, included sexual violence crimes committed in Israel on October 7.

The court also charged Israeli Prime Minister Benjamin Netanyahu, and former Defence Minister Yoav Gallant in relation to war crimes in Gaza, including starvation and targeting civilians, and crimes against humanity.

This month, the US State Department announced new sanctions on four ICC officials, including two judges and two prosecutors, claiming they were instrumental in efforts to prosecute Americans and Israelis. The US is not a member of the ICC. The court has denounced these sanctions as a “flagrant attack against the independence of an impartial judicial institution”.

If the ICC is perceived as lacking impartiality, this will limit its ability to address the gendered and intersectional dimensions of atrocity worldwide.

War and gender

War exacerbates previously existing gender inequalities. Around 110 instances of armed conflict are underway around the world; Africa and the Middle East are the most affected regions.

Many of these conflicts are intractable, dragging on for decades. With technology in warfare rapidly evolving, the growing application of AI and machine learning in weapons has gendered impacts. Attacks by explosive weapons in residential areas, for instance, disproportionately affect women and girls, since they often have primary responsibility for buying household goods or food at markets. Wars are also becoming less likely to be resolved politically.

The collective behind Feminist Judgments: Reimagining the International Criminal Court acknowledge that, even with its best efforts, the ICC can only achieve a limited and selective accountability. They encourage victims to pursue justice in other ways, not necessarily retributive. Perhaps those ways could be restorative or symbolic. Initiatives in arts, storytelling and memorialisation can bring some closure to survivors, while strengthening the social fabric of the nation.

With no meaningful recourse for women to Afghan courts and only limited access to courts of other states, the ICC remains the only viable judicial venue in which to prosecute the Taliban leaders for gender persecution.

However, the chances of seeing these leaders appear before the ICC are slim. They depend on arresting the defendants, who have publicly denounced the ICC warrants for their arrest. And the ICC has never conducted a trial in absentia. The court’s governing framework, known as the Rome Statute, states: “the accused shall be present during the trial”.

Almost 50% of individuals accused by the ICC are not brought to justice.

The court hopes charges confirmed in their absence could perhaps bring some redress to victims. Despite the absence of the accused, victims would still have an opportunity to finally speak out before a court – and the evidence would be examined, presented and documented for future reference.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Olivera Simic, Griffith University

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Olivera Simic does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.