This paper was ranked 1st out of the top 3 conference papers for International Conference on “Reinvigorating International Criminal Law by Innovation, Inclusivity, and Global Accountability” organised by Gujrat National Law University, Gandhinagar.
Introduction
Corrective rape is a unique and disturbing phenomenon in the world tableau of violence. Incidental and exceptional as it appears to be, it is actually a species of violence. Corrective rape is a sexual assault planned and conducted in an orderly and meaningful manner. The victims are chosen not for the opportunity and desire for the act but because they actually constitute a threat in terms of sexual preference and/or gender. The violence is meant for punishment and correction and ultimately for erasure.1 Thus, corrective rape is not only an infringement on the liberty of the body but an infringement on the integrity of the person. Somewhat surprisingly, despite the gravity, prevalence and discernible pattern of its occurrence, corrective rape is still unclassified in the defined framework of the international criminal law (ICL).2
Such omission is far from ignorance. Rather, it is a result of legal silence. The international legal order has traditionally operated on the basis of classification as recognition. That which fails recognition fails prosecution. That which fails prosecution remains on the margins. Corrective rape exists in this legal twilight zone, simultaneously visible and invisible. Voices exist, knowledge exists, documentation happens, but the legal ear remains loath.3
The silence is apparent in the face of the extensive documentation that is available. International and regional human rights bodies have documented the existence of corrective rape not only in South Africa, but in Kenya, Uganda, India, Brazil, Jamaica, and other settings characterised by heteronormativity and serious dislike of non-conforming constructs of sexual orientation.4 These accounts indicate systemic modalities of destructive behaviour, couched as correction, cure, or redemption of the raped individual.5 UN Special Rapporteurs, on a number of occasions, have identified sexuality-based violence as a systemic human rights issue, especially in the face of a failure by the State to provide protections against targeted attacks on the LGBTQ+ community.6 These happenings are far from shrouded in secrecy or lack of definition. These narratives are communicated, documented, and experienced within the parameters of the officially known. It is the acknowledgement of these happenings as a global crime that is missing.7
This paper will contend that corrective rape is already encompassed within the crime of crime against humanity under Article 7 of the Rome Statute. It is encompassed under rape within Article 7(1)(g) and as persecution for gender or other reasons that are universally considered to be impermissible under Article 7(1)(h).8 It is clear that the failure to prosecute these crimes at an international level is due to doctrinal hesitation, gender formalism, and institutional reluctance to acknowledge persecution for sexuality within ICL.9
ICL has increasingly understood sexual violence as an instrument of domination, war, and repression.10 Indeed, ever since the cases decided by ad hoc tribunals, and passing through normative evolution in the International Criminal Court (ICC), it has increasingly been understood that sexual violence constitutes a serious breach of international law when it is used as an instrument to terrorise, displace, and destroy civilians in general. However, when it comes to enforcing heterosexuality and gender, the law goes limp. The LGBTQ+ victims are rendered unintelligible11 as legal subjects, and their suffering becomes incidental to international justice.12
This research chronicles two major questions. First, there is the query as to why there has not been a categorisation for corrective rape under the rubric of fully developed ICL. Second, there is the question as to whether it is already permitted under the law as it presently stands. It is through this doctrinal analysis, the work of non-governmental organisations (NGOs), reporting under the aegis of the United Nations, and a survey of jurisprudence from around the global village that this article asserts the categorisation for corrective rape is not an expansion of ICL. It is an act of doctrinal fidelity and moral clarity, necessary for preserving the integrity of the Rome Statute itself.13
Conceptualising corrective rape as an international crime
Corrective rape needs to be understood not only as a variation of rape but as a form of harm that is distinct on the basis of its function that is ideological in nature.14 What makes corrective rape different from other forms of rape is not so much the physical act itself but rather how that act is interpreted.15 This indicates that rape is a form of corrective measure that is carried out as a form of punishment and an enforcement of pathways that define a certain form of submission of bodies that do not conform to certain pathways of sexuality.16
In this respect, corrective rape functions both at the level of the individual biological body and at the level of the collective moral order.17 The individual’s body becomes a place where the enactment of angst in regard to what constitutes gender, sexuality, and conformity occurs.18 The violence is not an aberration of desire but rather a goal-oriented restoration of what the perpetrators see as a dysfunction in the natural order.19 The action of violence itself is justified in the sense of correctness and goodness in the perpetrator’s intentions.20
Unlike other rapes that can occur out of opportunity, circumstance, or the desire for dominance in general, corrective rape is specifically identity driven.21 Victims are chosen for the simple reason that they are lesbian, bisexual, trans, gender non-conforming, or thought to be so.22 They are prejudged to be different, their bodies labelled as deviant, and corrective rape aims to wipe that deviance out by means of the rape that takes place.23
Such targeting gives corrective rape a communicative form.24 The violence is meant not only for the survivor but also for the larger community.25 Corrective rape serves as both a warning and a performance.26 It informs others that any form of deviation from gender and sexual norms is bound to be accompanied by physical suffering.27 Through suffering, the survivor is used as an instrument of social schooling.28 Therefore, corrective rape is structurally linked to persecution rather than crime.29
The logic of persecution relies upon the conversion of violence into instruction.30 This, corrective rape does not function primarily to do harm. It functions to discipline, to normalise, and to establish conformity. It is violence used for the furtherance of an ideology and therefore clearly falls well within the construct of crimes against humanity, which are both a function of scale and the furtherance of an intention.31
The feminist and queer legal scholarship tradition has historically contested the rubric of deviance or exceptions by which sexual violence has come to be understood. These bodies of scholarship have illustrated how rape can be a form of governance and control.32 In corrective rape cases, misogyny intersects with homophobia and transphobia and results in a violence that contains an ideally gendered quality.33 This prevents or erases identity through domination. It symbolically rewrites or reorders patriarchal, normative, or heteronormative structures through acts of violence that enforce conformity and censure deviance.34
Non-corrective rape similarly blurs lines between public and private violence because although it may be committed by those with whom a person connives or by those who are kin or from their own communities, socially legible acts are being committed because they are tolerated and even sanctioned within their communities.35
“Corrective rape” has been inadequately responded to by domestic criminal law in general. In some countries, LGBTQ+ identities are still illegal or viewed as immoral;36 this causes victims to feel hesitant or unable to report rape incidents.37 In countries where rape legislation exists, it lacks the capability to capture the discriminatory intent underlying “corrective rape”.
As a result, structural impunity follows.38 Offenders know that their actions will not be penalised and might just be tolerated by society.39 For that matter, impunity is linked to the ideological purpose of corrective rape as it is perpetuated through discriminatory structures.40
ICL, per se, is also thought of and known to be an answer to these scenarios of failure.41 The applicability of ICL appears when violence on a widespread or systematic scale exists, and states become unwilling or unable to provide justice.42 Corrective rape, by virtue of the definition of identity persecution due to sexuality, falls under this criterion. The application of the principle of corrective rape having international legal application pertains more to legal clarity.43
Case examples of corrective rape: Patterns, scale, failure of state protection
The empirical evidence points to a disturbing similarity between instances of corrective rape.44 Regardless of the region, culture, or developmental status of a country, a similarity45 persists between the structure of this violence. For all jurisdictions that could be defined and classified into the categories of developed, transitional, and developing States, corrective rape appears to follow a response structure towards challenges that undercut the dominant gender and sexuality order.46
In South Africa, the situation regarding corrective rape remains well-documented, despite the existence of a constitution and a progressive legal system that supports sexual orientation rights.47 Non-heterosexual and transgender women, especially those in poor townships, are subject to sexual violence that is correctly identified, or rather defined, as corrective rape. According to qualitative research, cases occur in patterns, not only isolated instances,48 for specific groups. The response to the victim’s reported incident might range from police indifference to hostility and ridicule.49
This can be seen in other regions of the Global South. In other countries such as Uganda and Kenya, there are reported cases of corrective rape in contexts where same-sex relations are criminalised and there is intense hostility in public discourse against such relations.50 For example, survivors of corrective rape describe violence associated with correcting sexual deviations or restoring morality.51 The criminal justice system in such contexts adds to violence experienced by survivors.52 Reporting rape in such contexts may lead to criminal prosecution.
The Indian setting is quite different yet intricately linked. Although consensual same-sex activities were made legal53 in 2018, deep-seated gender roles and familial and honour-related social institutions have led to severe levels of underreporting. Corrective rape is committed within the same social circle and is considered correction rather than an offence.54 Violations through silence, reconciliation stories, and coercion lead to the violence being invisible. The lack of public information on the violence does not signify its absence; it signifies the absence of recognition.55
Latin American cases also demonstrate these dynamics. News reports from Brazil, Colombia, Honduras, and Mexico exemplify sexual violence against lesbians and trans people that is articulated as moral cleansing or social correction.56 Such violence is regularly accompanied by larger trends against these kinds of persons that may include disappearances and murders. The repetition of language, methods, and impunity across regions points to systematic persecution.57
Corrective rape does not only happen in the global South. Some regions in Eastern Europe and Central Asia are characterised by authoritarian politics, a nationalism that encompasses a hatred for sexual minorities, and a culture in which LGBTQ people are subjected to sexual violence.58 Though there is a lesser amount of record, there are accounts from victims that show the violence as a form of punishment for non-conformity, and the police turning a blind eye.59
Even in countries that are normally classified as developed States, corrective rape has occurred, though sometimes under other names.60 In some areas of America, Canada, and Western Europe, LGBTQ+ victims have been subjected to rape that seeks to promote heteronormativity, especially against transgender persons and lesbians in more conservative or rural areas.61 Even in these situations, trials are often conducted for either rape or hate crimes rather than recognising its transformative purpose.62
In each of these different settings, a number of common salient factors can be identified. Corrective rape is committed against civilian populations.63 It is a repeated action as opposed to an isolated one.64 It is carried out in an environment where the perpetrators know they can get away with the crime.65 It is facilitated by the failure of the relevant State to investigate or prosecute the crime or even acknowledge its existence.66 Each of these factors satisfies the chapeau element of crimes against humanity.67 All these crimes are perpetuated on civilian populations. They are widespread or systematic in nature.68 They are perpetrated in a situation known to the perpetrators. All the crimes mentioned above are forms of actions that constitute war crimes.
Failures of States are integral to the process.69 Whether by criminalisation, indifference, or enforcement, States are the force behind those very circumstances which allow corrective rape to run its course. Failure of States70 changes what would otherwise amount to private crimes into collective persecution. The international character of corrective rape lies not in size alone but in the collective pattern of denial which enables its perpetration.71
“Corrective rape” thus does not represent an exception to cultural or geographical patterns.72 In fact, it is international in its portrayal as persecution on the grounds of identity. That ICL does not wish to assert universality in the face of what easily meets its own core criteria is puzzling, to say the least.73
Doctrinal compatibility of Article 7 of the Rome Statute
Corrective rape as rape under Article 7(1)(g)
Article 7(1)(g)74 of the statute defines rape as a crime against humanity when committed as part of a widespread or systematic attack directed against a civilian population. The text is intentionally cast in broad and functional terms to capture invasion of the body, force, and lack of authentic consent. The corresponding elements of crimes75 elaborate that the forces, threat of forces, coercion, abuse of power, or taking advantage of a coercive environment or circumstances suffice to constitute the crime. The definition was thus drafted with the express aim of steering clear of narrow or formalistic construction of sexual violence that had facilitated impunity in the past.76
Corrective rape fulfils all of these components both in form and substance. These acts include non-consensual sexual penetration perpetrated through physical violence, threat, intimidation, or exploitation of deeply coercive social settings.77 Survivors are often assaulted by multiple perpetrators, in settings where resistance is rendered impossible due to fear, stigma, or power imbalance. The purported goal of correction does nothing to minimise coercion; on the contrary, it increases it, since the violence is framed as merited, deserved, or morally required.78
International jurisprudence has done no less than State repeatedly that the motive behind rape is irrelevant to its constitution as crime, legally speaking.79 The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC also acknowledges that rape, committed for domination, intimidation, humiliation, punishment, or social control, squarely falls within the offence committed.80 In Prosecutor v. Kunarac81, the ICTY held firmly that it is the absence of consent and the presence of coercion that defines the act of rape, not subjective intention on the part of the perpetrator outside of the perpetration itself. Similarly, ICC jurisprudence treated rape as an objective violation of bodily autonomy irrespective of ideological motivation.82
Corrective rape thus requires no doctrinal innovation to be prosecutable under Article 7(1)(g); the legal instruments are already there. What has been absent is the will to consider identity targeted sexual violence legally relevant for international criminal proceedings.83 Much prosecutorial reluctance has reflected an implicit hierarchy of sexual violence, whereby some forms are regarded as paradigmatic international crimes, while others are left at the margin.84
This reluctance reflects a deeper discomfort with recognising sexuality itself as a site of persecution. Yet doctrinally there is no basis for such distinction. Rape committed to terrorise an ethnic group and rape committed to erase a sexual identity share the same legal structure. Both are exercises of power through sexual domination.85 Both constitute severe violations of fundamental rights. To exclude corrective rape from Article 7(1)(g) would not reflect legal restraint, but selective blindness.86
Corrective rape as persecution under Article 7(1)(h)
Article 7(1)(h)87 defines persecution as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of a group. This provision is intended to encompass acts that are discriminatory in nature and that are aimed at an individual because of who they are, not for their actions.88 Corrective rape falls squarely within this definition.
Firstly, there can be little doubt but that the harm caused is serious in the extreme. Survivors are deprived of bodily integrity, dignity, security, sexual autonomy, and indeed often societal acceptance.89 Such violence regularly results in bodily harm, mental trauma, exclusion, and insecurity.90 Such losses adversely impact the essence of international human rights.
Secondly, the deprivation is intentional. The corrective rape is not incidental violence but done with the express intent to punish or correct sexual orientation or gender identity.91 In most cases, this motive is clearly expressed by perpetrators, who frame the assault as a response to perceived deviance or moral failure.
Thirdly, the deprivation is identity-based: Survivors are targeted because they are lesbian, bisexual, transgender, gender non-conforming, or perceived to be so.92 The violence is not indiscriminate. Rather, it is discriminatory in design.
ICL has long recognised that persecution may be conducted through acts that are themselves crimes under other provisions of the statute.93 Sexual violence has been recognised as a means of persecution in cases involving ethnicity, religion, and nationality. Corrective rape reproduces this structure of harm, substituting sexual orientation and gender identity for other protected characteristics.94
To recognise corrective rape as persecution is not to broaden the law. It is to apply the law faithfully.95
Gender and other universally impermissible grounds
Article 7(3) sets up a binary definition of gender, which has long been subject to criticism from scholars.96 However, persecution under Article 7(1)(h) is broader than the requirement of gender. Persecution specifically includes other grounds that have been universally accepted as not allowable.97
International human rights instruments have consistently reaffirmed that discrimination related to sexual orientation and gender identity is not in line with the principles of fundamental human rights.98 The formulation of this norm has come into focus ever more sharply from the human rights treaty bodies and from regional human rights judges.99 These developments represent part of the normative context in which the Rome Statute has to be interpreted.100
The ICC Office of the Prosecutor has been aware of the need for dynamic interpretation consistent with human rights norms in evolution.101 Recognising corrective rape as persecution, therefore, requires interpretive courage rather than textual amendment. It requires the court to acknowledge that identity-based sexual violence is within the heartland of crimes against humanity.102
The gender trap: How formalism enables LGBTQ+ erasure in ICL
ICL has always struggled to name LGBTQ+ harm. Early tribunals were established within legal cultures that held rigid binary ideas of gender and heteronormative views about sexuality. Sexual violence was largely understood as a crime against women where males were the aggressors and females the victims. Violence at other gender-based minorities fell outside of its scope.103
This trend has survived into modern international criminal doctrine. Gender is assumed to be fixed, biologically decided and in line with sexuality. Sexual orientation and gender identity are further pushed to the periphery as concerns better suited to human rights law than criminal accountability.104 The result of such compartmentalisation has been a mode of doctrinal avoidance, wherein harms that fail to conform to conventional victimhood narratives are made invisible.105
Corrective rape reveals this gap in legality with particular clarity. It is violence which exists exactly because of identity. Such a harm cannot be understood in isolation from sexual orientation or gender identity.106 And still, ICL has been reluctant in engaging directly with these categories to ensure a politically favourable position and avoid allegations of normative overreach.107
This resistance gives way to the gender trap. In adhering to traditional notions of gender, ICL restricts its possibility of recognising newer, worse forms of persecution.108 The result is a system that flaunts universality while generating exclusion.109
The ICC has taken some steps towards addressing this gap through policy documents on gender and sexual violence. These instruments acknowledge the need to account for diverse experiences of harm and the ways in which gender has intersections with other forms of identity.110 Despite such efforts, policy documents lack the binding force of the law, In the absence of essential doctrinal engagement, they remain merely suggestive.111
Corrective rape thus represents a test case for the future of international criminal law. It challenges the jurisprudence to decide on whether it is prepared to adapt in the light of changing realities or whether it will continue to favour formal coherence over substantive justice.112 To refuse naming LGBTQ+ violence is anything but neutral, and this choice comes with far-reaching consequences.113
Survivors without justice: Evidentiary and procedural failures
There are evidentiary and procedural challenges that are particular to rape survivors that collectively contribute to the aggravation of trauma that the survivors may have incurred.114 Foremost among these is the problem of establishing motive. Even as corrective rape is characterised by its ideological imperative, establishing motive is considered speculative or incidental, requiring kinds of evidence that are inadequate to encode discriminatory motivations.115
This scepticism may be seen as an extension of the unwillingness to acknowledge identity violence in its various forms. Perpetrators often must be found to have made direct statements against the victims, which is an uncommon criterion for other persecutions.116 This sets the bar disproportionately high for victims who belong to the community.117
Another silencing mechanism is stigma. Victims are fearful of having their sexual orientation or gender identity revealed, suffering punishment at the hands of their assailants, being rejected by their families or communities, or being criminalised by residency State of origin laws.118 These are not theoretical fears. They have foundations. Consequently, victims choose silence over seeking justice.
Witness protection schemes in international criminal trials are usually inadequate to respond to these realities. Safeguarding measures are usually intended to protect witnesses against possible physical violence, but not against social erasure.119 Indeed, LGBTQ+ victims risking involvement in trials risk danger simply by taking part.120
However, ICL already has the necessary instruments that can address the aforementioned challenges. These include pattern evidence, context assessment, and inference of circumstances. These legal approaches have already been effectively applied to other incidents involving sexual violence and persecution.121 Indeed, intent can already be inferred from a series of acts, language of perpetrators, as well as their surroundings.122
The lack of usage of these instruments in corrective rape cases is not an indication of inability, but unwillingness. The survivors are not lacking evidence. They merely lack an audience to hear it.123
Prosecutorial pathways and legal reform without statute amendment
Corrective rape can actually be prosecuted under the existing provision in the Rome Statute without the need for amendment.124 The Prosecutor can charge rape as a crime against humanity under Article 7(1)(g) concurrent with characterising such acts as persecution under Article 7(1)(h).125 Both aspects capture the reality of the offense.126
Pattern evidence is integral to this method. Prosecutors can prove large-scale or systematic attack through NGO reports, survivor accounts, and country studies of sexual violence targeting the identity group.127 Contextual evidence may show that this violence is committed in atmospheres of State indifference, hostility, or cooperation.128
Identity-based targeting can be proven by survivor stories, perpetrator terms, and contextualisation.129 Perfection is not required under the law. Plausibility based on evidence and grounded in reasonable inference is required.130
The fear of opening the floodgates to endless crimes is unfounded. The recognition of corrective rape does not create other crimes. It does not diminish the severity of crimes against humanity.131 It simply gives a much-needed recognition to the existence of corrective rape, making it prosecutable.132
This reform demands prosecutorial courage and not legislative changes.133 All the necessary instruments are already available in the Rome Statute. Now all that is needed is the will to employ them.134
Conclusion: Recognition is not expansion
Corrective rape has long had a place within ICL but, never had the recognition that is necessary. This has negative effects. It sends a message to victims that their pain is marginal, and it sends a message to offenders that identity-based sexual violence is out of international criminal jurisdiction.
The recognition of corrective rape as a crime against humanity is not the expansion of ICL but rather the realisation of its promise. The Rome Statute was intended to reach out to the most serious crimes of international concern. The destruction of identity through violence falls within this category.
The integrity of global justice relies not on restraint to its own benefit but on the willingness of international law to recognise violence wherever it occurs. Corrective rape demands such recognition.
Disclaimer: The winning entries are selected by the organisers, and the SCC editorial team is not involved in the selection process.
*Gujarat National Law University, Gandhinagar. 1st out of the top 3 conference papers for International Conference on “Reinvigorating International Criminal Law by Innovation, Inclusivity, and Global Accountability.
1. Prosecutor v. Akayesu (judgment) ICTR-96-4-T (ICTR, 2-9-1998) paras 731—734.
2. Joanna Nicholson, “Corrective Rape in South Africa: A Continuing Plight Despite an Advanced Constitution” (2016) 20 International Journal of Human Rights 226.
3. Ratna Kapur, “Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” (2013) 14 Melbourne Journal of International Law 1.
4. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
5. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
6. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on Online Violence Against Women and Girls from a Human Rights Perspective, U.N. Doc A/HRC/38/47 (2018); Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, U.N. Doc A/HRC/38/43 (2018).
7. OHCHR, Living Free and Equal: What States are Doing to Tackle Violence and Discrimination against Lesbian, Gay, Bisexual, Transgender and Intersex People (UN 2016).
8. Rome Statute of the International criminal court, Art. 7(1)(g) and (h) (adopted 17-7-1998, entered into force 1-7-2002).
9. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
10. Prosecutor v. Kunarac (judgment) IT-96-23-T (ICTY, 22-2-2001) paras 438—440.
11. Dianne Otto, “Queering Gender [Identity] in International Law” (2015) 33 Nordic Journal of Human Rights 299.
12. International Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law: Practitioners’ Guide, No. 4 (ICJ 2009).
13. UN Office on Genocide Prevention and the Responsibility to Protect, Framework of Analysis for Crimes Against Humanity (UN 2014).
14. Catharine A. MacKinnon, Are Women Human? And Other International Dialogues, Ch. 9 (Harvard University Press, 2006).
15. Doris Buss, “Rethinking ‘Rape as a Weapon of War’ “ (2009) 17 Feminist Legal Studies 145.
16. Rhonda Copelon, “Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War”, (1994) 83 AJIL 1.
17. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990).
18. Katherine M. Franke, “Theorizing Yes: An Essay on Feminism, Law, and Desire” (2001) 101 Columbia Law Review 181.
19. United Nations General Assembly, In-Depth Study on All Forms of Violence Against Women, U.N. Doc A/61/122/Add.1 (2006).
20. United Nations General Assembly, In-Depth Study on All Forms of Violence Against Women, U.N. Doc A/61/122/Add.1 (2006).
21. Kelly Askin, “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status”, (1999) 93 AJIL 97.
22. United Nations, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/29/23 (2015).
23. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
24. Mark Drumbl, “Atrocity, Punishment, and International Law“ (Cambridge University Press, 2007).
25. Mark Drumbl, “Atrocity, Punishment, and International Law“ (Cambridge University Press, 2007).
26. Elizabeth Stanko, Intimate Intrusions (Routledge 1985).
27. UN Human Rights Council, U.N. Doc. A/HRC/RES/17/19 (2011).
28. Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, 1998).
29. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
30. Prosecutor v. Kunarac (judgment) IT-96-23-T (ICTY, 22-2-2001) paras 438—440.
31. Rome Statute of the International Criminal Court, 1998, Art. 7.
32. Nicola Lacey, “Unspeakable Subjects: Feminist Essays in Legal and Social Theory” (1998) 4 Social & Legal Studies 151.
33. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on Online Violence Against Women and Girls from a Human Rights Perspective, U.N. Doc A/HRC/38/47 (2018); Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, U.N. Doc A/HRC/38/43 (2018).
34. Katherine M. Franke, “Theorizing Yes: An Essay on Feminism, Law, and Desire” (2001) 101 Columbia Law Review 181.
35. Sylvia Walby, Theorizing Patriarchy (Blackwell, 1990).
36. UNDP, Being LGBT in Asia: China Country Report (2015).
37. International Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law: Practitioners’ Guide, No. 4 (ICJ 2009).
38. Open Society Foundations, Addressing Impunity for Sexual Violence (2012).
39. Open Society Foundations, Addressing Impunity for Sexual Violence (2012).
40. United Nations, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/29/23 (2015).
41. Antonio Cassese, Cassese’s International criminal law (3rd Edn., Oxford University Press, 2013).
42. International Criminal Court, The Office of the Prosecutor, “Policy Paper on Sexual and Gender-Based Crimes” (2014).
43. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
44. United Nations, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/29/23 (2015).
45. Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism (2008).
46. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
47. Constitution of the Republic of South Africa, 1996; Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
48. ActionAid, Hate Crimes: The Rise of ‘Corrective’ Rape in South Africa (2009).
49. ActionAid, Hate Crimes: The Rise of ‘Corrective’ Rape in South Africa (2009).
50. Amnesty International, Uganda: Rule by Law: Discriminatory legislation and legitimized abuses in Uganda (2014).
51. Human Rights Watch, The Issue Is Violence: Attacks on LGBT People on Kenya’s Coast (2015).
52. UN Special Rapporteur on Torture, U.N. Doc. A/HRC/31/57 (2016).
53. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1.
54. PUCL, “Human Rights Violations Against Sexual Minorities in India” (2007).
55. United Nations Development Programme, Legal Recognition of Gender Identity of Transgender People in India: Current Situation and Potential Options (2013).
56. Inter-American Commission on Human Rights, IACHR Publishes Thematic Report : “Violence against LGBTI Persons in the Americas” (2015).
57. Inter-American Commission on Human Rights, IACHR Publishes Thematic Report : “Violence against LGBTI Persons in the Americas” (2015).
58. Human Rights Watch, No Place for Children (2019).
59. ILGA-Europe, Annual Review (2022).
60. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on Online Violence Against Women and Girls from a Human Rights Perspective, U.N. Doc A/HRC/38/47 (2018); Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, U.N. Doc A/HRC/38/43 (2018).
61. Williams Institute, Violence Against LGBT People (2014).
62. US Department of Justice, Hate Crime Statistics (2019).
63. Rome Statute of the International Criminal Court, 1998, Art. 7(1).
64. Prosecutor v. Kunarac (judgment) IT-96-23-T (ICTY, 22-2-2001) paras 438—440.
65. Prosecutor v. Kunarac (judgment) IT-96-23-T (ICTY, 22-2-2001) paras 438—440.
66. Open Society Foundations, Addressing Impunity for Sexual Violence (2012).
67. Antonio Cassese, Cassese’s International criminal law (3rd Edn., Oxford University Press, 2013).
68. Rome Statute of the International Criminal Court, 1998, Art. 7(1).
69. UN General Assembly, Implementing the Responsibility to Protect, U.N. Doc. A/63/677 (2009).
70. United Nations, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/29/23 (2015).
71. Mark Drumbl, “Atrocity, Punishment, and International Law“ (Cambridge University Press, 2007).
72. UN Human Rights Council, U.N. Doc. A/HRC/RES/17/19 (2011).
73. Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences on Online Violence Against Women and Girls from a Human Rights Perspective, U.N. Doc A/HRC/38/47 (2018); Report of the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, U.N. Doc A/HRC/38/43 (2018).
74. Rome Statute of the International Criminal Court, 1998, Art. 7(1)(g).
75. International Criminal Court, Elements of Crimes, 2011, Art. 7(1)(g).
76. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
77. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
78. Catharine A. MacKinnon, Are Women Human? And Other International Dialogues, Ch. 9 (Harvard University Press, 2006).
79. Antonio Cassese, Cassese’s International criminal law (3rd Edn., Oxford University Press, 2013)
80. Prosecutor v. Akayesu (judgment) ICTR-96-4-T (ICTR, 2-9-1998) paras 731—734.
81. Prosecutor v. Kunarac (judgment) IT-96-23-T (ICTY, 22-2-2001) paras 438—440.
82. Prosecutor v. Bemba, (judgment) ICC-01/05-01/08 (2016).
83. Dianne Otto, “Queering Gender [Identity] in International Law” (2015) 33 Nordic Journal of Human Rights 299.
84. UN OHCHR, Born Free and Equal (2012).
85. David Luban, ”A Theory of Crimes Against Humanity” (2004) 29 YJIL 85.
86. Mark Drumbl, “Atrocity, Punishment, and International Law“ (Cambridge University Press, 2007).
87. Rome Statute of the International Criminal Court, 1998, Art. 7(1)(h).
88. William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2016).
89. UN Special Rapporteur on Torture, U.N. Doc. A/HRC/31/57 (2016).
90. UN Special Rapporteur on Torture, U.N. Doc. A/HRC/31/57 (2016).
91. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
92. ILGA World, State-Sponsored Homophobia (2020).
93. Prosecutor v. Krnojelac, (judgment) IT-97-25 (ICTY, 2002).
94. Prosecutor v. Ntaganda, (judgment) ICC-01/04-02/06 (2019).
95. William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2016).
96. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990).
97. Rome Statute of the International Criminal Court, 1998, Art. 7(1)(h).
98. UN Human Rights Council, U.N. Doc. A/HRC/RES/17/19 (2011).
99. Toonen v. Australia, (1994) UNHRC Comm No 488/1992.
100. Vienna Convention on the Law of Treaties, 1969, Art. 31(3)(c).
101. International Criminal Court, The Office of the Prosecutor, “Policy Paper on Sexual and Gender-Based Crimes” (2014).
102. David Luban, ”A Theory of Crimes Against Humanity” (2004) 29 YJIL 85.
103. Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis, With a New Introduction, Ch. 3 (Manchester University Press, 2000).
104. Dianne Otto, “Queering Gender [Identity] in International Law” (2015) 33 Nordic Journal of Human Rights 299.
105. Janet Halley, “Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law” (2008) 87 Nordic Journal of International Law 47.
106. Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (HRW 2011).
107. Karen Engle, ”Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina”, (2005) 99 American Journal of International Law 778.
108. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990).
109. Ratna Kapur, “Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” (2013) 14 Melbourne Journal of International Law 1.
110. International Criminal Court, The Office of the Prosecutor, “Policy Paper on Sexual and Gender-Based Crimes” (2014).
111. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
112. David Luban, ”A Theory of Crimes Against Humanity” (2004) 29 YJIL 85.
113. UN Special Rapporteur on Torture, U.N. Doc. A/HRC/31/57 (2016).
114. International Criminal Court, The Office of the Prosecutor, “Policy Paper on Sexual and Gender-Based Crimes” (2014).
115. Kelly Askin, “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status”, (1999) 93 AJIL 97.
116. Prosecutor v. Kupreškić, (judgment) ICTY-95-16-T (14 January 2000) para 636.
117. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49.
118. UN Special Rapporteur on Torture, U.N. Doc. A/HRC/31/57 (2016).
119. Christine Chinkin, ”Gender-Related Violence and International Criminal Law” (2010) 18 Feminist Legal Studies 251.
120. International Bar Association, Witness Protection in International Criminal Proceedings (2016).
121. Prosecutor v. Akayesu (judgment) ICTR-96-4-T (ICTR, 2-9-1998) paras 523—524.
122. Prosecutor v. Bemba, (judgment) ICC-01/05-01/08 (2016) paras 164—166.
123. Ratna Kapur, “Gender, Sovereignty and the Rise of a Sexual Security Regime in International Law and Postcolonial India” (2013) 14 Melbourne Journal of International Law 1.
124. Rome Statute of the International Criminal Court, 1998, Art. 7.
125. Prosecutor v. Katanga, (judgment) ICC-01/04-01/07 (7-3-2014) para 1101.
126. Prosecutor v. Kupreškić, (judgment) ICTY-95-16-T (14 January 2000) paras 621—636.
127. United Nations, Discrimination and Violence Against Individuals Based on their Sexual Orientation and Gender Identity, U.N. Doc. A/HRC/29/23 (2015).
128. Prosecutor v. Bemba, (judgment) ICC-01/05-01/08 (2016) paras 164—166.
129. Prosecutor v. Akayesu (judgment) ICTR-96-4-T (ICTR, 2-9-1998) paras 523—524.
130. ICC Rules of Procedure and Evidence, 2013, R. 63; see also, Prosecutor v. Ntaganda, (judgment) ICC-01/04-02/06 (30 March 2021) para 700.
131. Valerie Oosterveld, “Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution” (2007) 17 Duke Journal of Comparative and International Law 49..
132. Dianne Otto, “Queering Gender [Identity] in International Law” (2015) 33 Nordic Journal of Human Rights 299..
133. International Criminal Court, The Office of the Prosecutor, “Policy Paper on Sexual and Gender-Based Crimes” (2014).
134. Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy, Ch. 6 (Oxford University Press, 2016).
