The crime against humanity of gender-based persecution was first codified in the 1998 Rome Statute of the International Criminal Court. (1) The recognition of this specific form of persecution has been hailed as a significant advance in the field of international criminal law. (2) The crime against humanity of racially-, politically-, or religiously-based persecution has been explored by international tribunals and academic commentators, but the newly identified gender-based persecution has not been analyzed in the same depth. While cases and commentary on the more established grounds can and will assist the International Criminal Court (ICC) in examining gender-based persecution, especially with respect to the intersection of gender with race, political opinion, and religion, the ICC should also look outside of international criminal law for guidance.
International refugee law has acknowledged gender-related (3) forms of persecution since 1985. (4) This influenced the drafters of the Rome Statute to include gender within the list of persecutory grounds in the crimes against humanity provision. (5) Thus, there is a close link between the development of international refugee law and international criminal law with respect to gendered aspects of persecution. This link is helpful because international and domestic refugee law (6) has explored certain elements of gender-related persecution that are, at present, unexplored in international criminal law. Therefore, when the ICC's judges are determining the content of the elements of the crime against humanity of gender-based persecution, they should examine principles or rules found within refugee law. (7) This is not to argue that a definition of gender-related persecution found within international refugee law should be directly transferred to the crime against humanity of gender-based persecution. The Kupregkic decision of International Criminal Tribunal for the Former Yugoslavia (ICTY) strongly cautions against such a direct transfer. (8) Rather, the ICC should evaluate how refugee law approaches to gender-related persecution can shed considerable light on international criminal law's relatively undeveloped understanding of gender-based persecution. Even if the ICC decides that certain aspects of refugee law relating to gender-related persecution do not rise to the level of "principles and rules of international law" or general principles of domestic law, they may still help guide the ICC toward a full understanding of gender-based persecution. As A. Widney Brown and Laura Grenfell have commented, "[w]hile it makes sense that refugee law and human rights law cannot be used to define persecution, such law can surely be used to aid interpretation where there is an absence of international criminal law jurisprudence...." (9)
The ICC must be careful when it seeks to determine general principles of law on gender-related persecution from domestic jurisprudence. Feminist academic analysis has identified certain serious misinterpretations of the international refugee law on gender-related persecution by domestic judges and administrators. (10) In certain jurisdictions, governments have taken steps to prevent these misinterpretations through the introduction of laws or guidelines. (11) In many cases, the decisions taken after the implementation of these steps have considerably improved the domestic level of analysis and understanding of gender-related persecution. (12) Even in these jurisdictions, however, there are decisions that appear not to conform to the laws or guidelines. (13) There is a rich feminist academic literature within refugee law that has analyzed how many domestic refugee decision-makers have failed to understand the meaning of "gender"; the link between gender, discrimination, and persecution; and how acts that may appear to some decision-makers to be "private," and therefore not persecutory acts, are actually acts of gender-related persecution. …